PRACTICAL TIPS AND EXERCISES FOR THE BAR EXAM

Atty. John R. Jacome

September 10, 2022

ACADS SCRIBES TEAM: HANNAH MORALES |MARIA CHRISTINA ARCE | QUIMBERLYN RANCHEZ | EMMANUELLE GRACE VILLAS
CHECKED BY: ADRIAN MACASAQUIT (Deputy for Academics) | HANNAH KEZIAH MORALES (Chairperson for Academics)

PRACTICAL TIPS FOR THE BAR EXAM

A. Introduction
HOW TO REVIEW FOR THE BAR?
● The first weapon a barrister should have is confidence - be confident.
Do not ever doubt yourself. A bar examinee should be the most confident person.
Because If you don’t believe in yourself, who will? It is only a matter of execution of
what you already knew to become a lawyer.
IMPORTANCE OF SUBSTANTIVE LAW IN PRACTICAL EXERCISES
● Now the first thing I would like to emphasize here, even if I am talking about
practical tips, it is inevitable that I would have to cover substantive laws.
○ If you notice the latter part of the syllabus where Practical Exercise is located, it is
the latter part because it presupposes that you know the topics.
○ In the syllabus Civil law, it entails substantive laws in civil laws. The same with
criminal law, it means you have somehow familiarized criminal law. In the criminal
law syllabus, it mentions practical exercises.
■ In fact you will be able to perform these different exercises if you know
substantive and procedural law.
● There is no such thing as redundancy in bar review.
○ The more you repeat the topic the more you understand it. You notice the
interrelation of these different laws.
○ At this stage of your studies, all laws are actually interrelated. It should not be
studied anymore section by section, rule by rule.
● I would like to focus more on the fundamentals.
○ I will give you the tips of the different parts of a pleading, motion, conveyance in
document, contract, that need to be mastered. So whatever kind of contract is
asked, you will be able to answer.
HOW TO ANSWER QUESTIONS DURING THE BAR EXAM?
○ First and foremost, do not leave any item unanswered.
■ It is a crime for a bar taker to leave an items unanswered because they won’t
get any point, not even partial points. As long as you master these fundamental
parts, you will get some points. One point is the difference between 74 and 75.
Every number counts in the bar exam.
● IMPORTANT REMINDERS:
○ Do not leave any number unanswered
■ By mastering these different parts, then you’ll be able to answer the bar
exams
○ Master the basics
■ What is substantive law and procedural law? Do not ever forget these
general ideas in substantive and procedural law. Requisites and
elements are important.
○ Time is the enemy in the bar exams.
○ The Bar exam is a matter of strategy
○ Be a boy scout. Be prepared for anything
○ You should not take it piece-meal or sporadic, at least know all; the percentage
of passing the bar exam is the percentage of what you know in the syllabus.
○ Treat all the topics in the bar as important because you do not know the
inclination of the examiner.
[I have had the opportunity to talk with previous bar examiners. If you know the
requisites by writing the keywords, you're good. Of course it is also a matter of style,
in your essay type question. language, logic, law. Then, chances are, you’ll get a
perfect score or higher grade]
B. General Tips

a. For the contents of the conveyancing forms, affidavits, pleadings and motions,
MASTER the following:
1. Definition and elements, or requisites of civil and commercial transactions;
● If the requisites would only fall on 2 or 3, list it down.
○ Time is your enemy. Allocation of time is important.
● If the requisites are too long, it is not necessary to write all of the requisites
especially if only one is targeted.
○ A question is being asked because a certain law or requisite is being
violated
● As to criminal law, you are being asked to draft criminal information, you must
know the requisites of criminal information. At the same time you must know
the elements of the crime (eg. rape, where it was committed, if there are
qualifying circumstansces.)
● As to civil transactions, E.g. pacto de retro sale, elements of lease, sublease,
lease with right of first refusal, partnership, loan, contract of deposit,
compromise agreement, pledge, chattel mortgage, draft a prenuptial
agreement. [These things can be answered if you know the substantive law]
● As to commercial transactions, you must be able to make a simple memo of
agreement, bill of lading, negotiable instruments,etc.

2. For pleadings - Master different causes of actions (ordinary and special civil action,
criminal and special proceedings), provisional remedies and their elements or
requisites;
● Example, elements of sum of money to draft a complaint on it.
● You should not be limited in the practical exercises.
○ For example, in complaint for forcible entry, master all kinds of
complaints for forcible entry.

○ In the Caguioa syllabus, it says contract - master all kinds of contracts

 ● These are original petitions, not petition for appeal: accion publiciana,
reivindicatoria, interpleader, petition for certiorari, petition for prohibition,
petition for mandamus, quo warranto, expropriation, unlawful detainer.
● Petition for review vis-a-vis petition for review on certiorari: as to its form and
substance if you are asked to draft

NOTE: There is no substitute but mastering the substantive law so that you will be
able to draft the document, complaint, or petition.
● Master what is Mala in se vis-a-vis mala prohibita: the elements of the crimes
under these crimes. The same for provisional remedies Under the rules, 57-60,
may file these provisional remedies.
● It may not be just a simple complaint but you must be able to draft with
prayer.
● Do not forget to allege the bond and the affidavit of merit. Almost similar to
the issuance of a temporary restraining order.
● These (above mentioned) are all provisional remedies that are asked to draft in
your complaint. The same with replevin, but remember double the bond. [In
injunction you have to allege irreparable injury.]
● Pending the case, you can already ask for support pendente lite. You can ask
for support while the case is going on, normally from the father.
● Know not only elements in civil law but also in procedural law especially if you
are tasked/asked to draft.
○ Example: injunction, replevin, temporary restraining order, support
pendente lite

3. Different motions and their requisites (grounds, legal bases and reliefs sought).
● Example: motion for bill of particulars, judgment, etc.

Example: A complaint sufficiently alleges a cause of action for unlawful detainer if it alleges
the following:
REQUISITES:
1. Initially, possession of the property by the defendant was by contract with or
by tolerance of the plaintiff;
● [For example you choose the first one, you should be able to allege
that. You start with a caption, title, complaint for an unlawful detainer,
who is the plaintiff, defendant, then you start alleging.]
2. Eventually, such possession became illegal upon notice by plaintiff to defendant
of the termination of the latter’s right of possession;
3. Thereafter, the defendant remained in possession of the property and deprived
the plaintiff of the enjoyment thereof; and
● [Do not forget, it is very important for an unlawful detainer case, you
should demand.]
4. Within one year from the last demand of the defendant to vacate the property,
the plaintiff instituted the complaint for ejectment. (Cabrera case)
● [Bear in mind that you should allege the facts, dates and the evidentiary
facts.in a complaint, it is not only needed to allege the ultimate facts
but also the evidentiary facts.]
● E.g. katarungang pambarangay :You should know the elements and
requisites, and also caption, title, relief sought, verification,
certification of forum shopping. *be mindful of the prescription of
actions.
b. MASTER the SPECIFIC PARTS of conveyancing, affidavits, pleadings and motions.

c. Draft a brief, concise, coherent and complete document. Remember the FIVE S
(Structure, Substance, Style, Specificity, and Simplicity).
● [90-second rule: If you are going to bore your reader within 20 seconds, it's a problem.
In legal writing, you must be able to write what you say to the audience within 90
secs. Kapag nabore yung reader, you're done.]

d. Budget your time (5-15 minutes only per document)

 ● [The tendency of bar examinees would be to write long comprehensive complaints,
contracts,affidavits and so on. It will eat your time, unless it's 50 points, then
maximize your time.if the question is drafting, look into the points allotted]
● [make sure you complete the document.]

e. Avoid Legal Jargons (Observe the Plain English Rule)

● [That's the tendency of lawyers, and even law students, to impress the client. Let's
avoid it, we call it legalese]

f. Use connective and Transitional Words (for coherence).

g. AVOID LEGALESE: REDUNDANT LEGAL PHRASES

● Peace and quiet
● True and correct
● Force and effect
● Free and clear
● Full and complete
● Undertake and agree
● Good and sufficient
● Alter and change
● Confessed and acknowledged
● Convey, transfer, and set over
● Made and entered into
● Give, devise, and bequeath
● Heretofore and hereinafter

h. OMIT UNNECESSARY WORDS:

● Needless to say
● It goes without saying
● Under the circumstances
● More or less

i. LIMIT THE USE:

 ● In the case at bar
● and/or
● obviously/clearly
● Whether or not ["Whether" is probably just enough. Or you can just ask the questions,
"is", "are". Not totally eliminate them but limit the use. Variety is the key.]

j. USE CONNECTIVES

C. Parts of Conveyancing, Affidavits

[As mentioned in the Caguioa syllabus, whatever kinds of complaints or contracts, there are
parts that are always there that says etc., There is no substitute in completing the exam. You
don't earn a point in not answering a question.

Nota Bene: Do not enter the bar exam room without knowing these basic parts of affidavits,
conveyancing, pleadings, and motion.

Practical Exercises (Civil Law)

a. Demand and authorization letters [Ito madali lang ito. It means demand for sum of
money or ejectment or SPA. So di masyadong complicated]
b. Simple contracts
c. Complaint [what kind of complaint?] petition vis-a-vis complaint
Practical Exercises (Criminal Law)
○ Drafting of complaint, information, affidavits of distance, etc. *know other
forms necessary [the very dangerous word "etc" in other words, all possible
criminal forms. Dapat tinanggal na lang yung "etc" but should mean ready for
other criminal forms.]
PARTS:
I. CAPTION

The following are representative samples of Caption files in courts:

CAPTIONS: Supreme Court, Court of Appeals

REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA

CAPTIONS: REGIONAL TRIAL COURTS

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Manila, Branch 1 [Don't forget to mention RTC and the name of the branch]

REPUBLIC OF THE PHILIPPINES

FIRST JUDICIAL REGION
REGIONAL TRIAL COURT
Bangued, Abra (Branch 1) [example not in Manila]

CAPTIONS: MeTC, MTCC, MTC, MCTC

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
METROPOLITAN TRIAL COURT OF METRO MANILA
Manila, Branch 1
REPUBLIC OF THE PHILIPPINES

MUNICIPAL TRIAL COURT IN CITIES

Sta. Rosa City….

REPUBLIC OF THE PHILIPPINES

FIRST JUDICIAL REGION
MUNICIPAL TRIAL COURT
LINGAYEN, PANGASINAN

II. CASE TITLE

JUAN DELACRUZ,
Plaintiff,

Civil Case No. _________

For: Sum of Money
-versus-
PEDRO SANTOS, Defendant.
X—-------------------------------x
Criminal case
parties : complainant - respondent [ S you know there is prelim investigation in Criminal
cases. Ang tawag sa mga parties dyan complainant v respondent.
Pag nasa korte na, People of the Philippines, plaintiff v Pedro Santos accused.]
 ● NOTE: Parties: petitioner - respondent; in Labor case: complainant - respondent [If
you are the one appealing, appellant; the one responding; appellee. But I don’t think
it will be asked, wala namang appeal na itatanong.]

III. JURAT (AFFIDAVITS)

JURAT
SUBSCRIBED AND SWORN to before me, in the City of ____, this __th day of ____, 2022,
affiant personally appearing to me with his competent evidence of identity in the form of
(Government-issued) I.D. No. __ issued at ___ on ____, 2021.

Doc. No. ___; ATTY. PEDRO DE LA CRUZ

Page No.___; NOTARY PUBLIC FOR PASIG CITY
101 Big Tower, Ortigas, Pasig City
My Commission expires Dec. 31, 2022
Book No. ___; IBP No. _____, 1/3/2022, Pasig City
Series of 2022 P.T.R. No. ___, 2/3/2022, Pasig City
MCLE Compliance No. __________
Roll of Attorneys No. 12345
 ● Remember the difference between jurat and acknowledgement. If you are swearing
under the law. And that there is no substitute also by memorizing what is in the jurat.
● Don't forget the date, city where the notary is notarizing and for the id, make sure you
do not anymore put cedula.
○ [Di na pwede resident certificate.With the new notarial rules, competent
evidence of identity, it is a government-issued id, chances are there is your
picture verification of your name,in other words National I.D.]
● Don't forget the PTR, Professional tax receipt number. MCLE, Roll of attorneys number,
the one that you secure from the SC. [Do not forget these. I-assume lang naman yan,
chances are the examiner would look into that.]

● Don’t forget that all affidavits have jurat. [If the examiner asked you to draft anything
and there is no exclusion, pag yan affidavit, palaging may jurat yan. Unless the
examiner says "exclude jurat", so whatever is not excluded is included]

IV. ACKNOWLEDGMENT (CONVEYANCING)

● The transfer from one person to another: lessor-lessee, obligor-obligee. If you’re being
asked to draft conveyancing forms, then you should know how to draft an
acknowledgement.
V. VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING (PLEADINGS)
● General rule, especially initiatory pleading, should be verified, especially complaint,
position papers. And to be sure that there is no forum shopping so as not to be accused
of litis pendentia or res judicata.

● Examinees commonly make the mistake of excluding the 4th part. "The complaint is
not filed to harass…" Please include this.

● Also make sure to include the last part. Yung dalawang bago ay yung last 2 sentences.
[Under the 2019 Amendment on Civil Procedure ROC. Memorize this.]
VI. JURAT

I certify that:
a. I have not commenced any other action or proceeding involving the same issues in the
Supreme Court, the Court of Appeals, or different Divisions Thereof, or any tribunal or
agency.
b. No such action or proceeding is pending in the Supreme Court, the Court of Appeals,
or different Divisions thereof, or any other tribunal or agency.
c. If I should learn that a similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or different Divisions thereof, or any other
tribunal or agency, I hereby undertake to notify..

● [Take note of this because normally hindi naman tinatanong sa recitation. Unless legal
forms. Because it's not usually asked in recitation, just memorization, no choice.]

VII. EXPLANATION (PLEADINGS, MOTIONS)

● This is usually done in pleadings and motions, not in contracts.

EXPLANATION

This certifies that personal service was not resorted to for the reason that due to time,
distance and manpower constraints, the same is practicable

Name of Counsel
VIII. NOTICE OF HEARING (LITIGIOUS MOTIONS)

● This is for litigious motion like motion to dismiss For non-litigious, no need for notice
of hearing.

D. WRITING A DEMAND LETTER

● Cause of action: the defendant promised to pay a certain amount of money.
○ Is the defendant already in the default? NO.
● For there to be an action for sum of money, there must be an extrajudicial demand

● What is a demand letter?

○ Demand letters can be:

1. Formal letters written by an attorney on behalf of a client demanding payment

or some other action from another party;
● Chances are you will be asked by the examiner, suppose you were a
lawyer and the other party is not yet paying, what is your next
recourse? Draft a demand letter.
● There is some other action like unlawful detainer where demand is
needed within 1 year.
● Take note, pag ang pina-draft demand letter for unlawful detainer,
make sure not to commit the mistake of just saying “kindly pay or
vacate”. If you just use the word OR, it is wrong. If you want to file an
 ejectment letter, “kindly pay or vacate” is giving the person an option
and therefore it is an action for a sum of money.
● What you need to allege in your complaint is “pay AND vacate”.

2. Less formal and written by one individual to another demanding payment.

● Purpose of a demand letter?

○ Demand letter is an attempt to avoid litigation and expedite a resolution.
○ It is likewise a condition precedent to most cases (civil, criminal, etc.) before a
certain action may be validly filed. ​In criminal cases, a classic example is BP
22, similar to a demand letter. In case of violation of BP 22, notice of dishonor
is very important. [Di pwedeng iassume na di tinanong sa civil, di rin itanong sa
criminal”]

● What is the format in writing a demand letter?

○ There is no single format for drafting a demand letter. But in general a demand
letter includes:
a. What payment or action is demanded;
- It’s important to draft the demand letter with as little emotion
as possible. As they say, stick to the facts.
- The first part of the letter will be a review of the facts that led
to the writing of the latter.
- The facts are important because this is the basis of your
demand. [Getting the facts straight now is also good preparation
should the matter end up in court.]
b. Why the payment or action is being demanded (Obligation);
- Secondly, you will need to discuss why the person owes you
money. Did you do a job for him/her and they never paid you?
Did he/she borrow money and refused to pay you back? Did they
destroy your property and refuse to pay you? This section should
be clear and concise.
c. What are the consequences for non-payment; and
 - Here, you want to be polite and respectful. The demand letter is
by nature a threatening document - so there’s no need to
express any extra hostility.
- Perhaps, instead of threatening to take them to court, you could
suggest meeting to discuss options or perhaps enter mediation.
Remember that an angry letter may bring about an angry
response and further delay the resolution.
- If the goal is to put the matter to rest as quickly as possible,
writing a nasty demand letter is not the right approach.
d. A time limit to comply with the demand letter.
- Finally, the last component of the demand letter should be a
time limit. Give him/her a reasonable time frame to pay the
debt or agree to a payment schedule. Make it very clear that
he/she must respond to the letter within a set time period. If

you leave it ambiguous, you are setting yourself up for further

delays.

○ [Ma-cover nyo to, perfect nyo yung demand letter]

E. Authorization Letter

September 10, 2022

DR. RICO GATMAITAN
Registrar Office
San Beda University
Mendiola, Manila
Subject: Authority letter to collect documents

Dear Dr. Gatmaitan,

I am writing the letter to provide authorization to work as a representative on my behalf and

collect (types of the document) from (name of the source). You will find a copy of (name’s
identification attached with the letter.

You can use the document for identification of (he/she) after arriving at the office to collect
the documents. The notice will remain valid until the next written notice.

Thank you in advance for your cooperation

Sincerely
(You name)
(Signature)
(Date)

[Authorization I'd like you to master is an SPA.]

● SPECIAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS:

That I, DIVINA S. BARRERA, of legal age, Filipino citizen, and a resident of Blk. 2 Lot 9
& 10 Sagana Homes, Culiat, Quezon City, by these presents do hereby NAME, CONSTITUTE and
APPOINT MIGUEL FONTILLA JR., likewise of legal age, with same residence address, to be my
true and lawful attorney-in-fact for me and in my name, place
and stead, and for my own use and benefit, to do or perform all or any of the following acts
and thing, to wit:

1. To transact and follow-up my application for a renewal of my lost Professional License

card with the Professional Regulation Commission and claim the same upon its
scheduled release;
2. To receive and acknowledge receipts; sign and execute necessary papers and
documents in relation thereto and generally to do or perform any act or deed
necessary or that may be required in furtherance of this authority;

HEREBY GIVING AND GRANTING unto my said attorney-in-fact full powers and authority
to do and perform all and every act and thing requisite or necessary to carry into effect the
foregoing authority, as fully to all intents and purposes I might or could lawfully do of
personally present, with full power of substitution and revocation, and hereby ratifying and
confirming all that my said attorney-in-fact or his substitute shall lawfully do or cause to be
done by virtue hereof.

● NOTE: Without a SPA, the contract is void. Example, if you're going to sell property,
the requirement is SPA to the agent. What is the status of the sale of a real estate
without SPA? It is void. So if you want to sell a real property and only as an agent,
make sure you have an SPA. The one who should be looking for that is the buyer to
ensure the sale is valid [Memorize this. No choice. Or atleast remember the
keywords.]

IN WITNESS WHEREOF, we have hereunto affixed our signature this 30th day of June 2006 at
Quezon City, Philippines.

DIVINA S. BARRERA
Principal
APPOINTMENT ACCEPTED

MIGUEL FONTANILLA JR.

Attorney-in-fact

Signed in the presence of:

______________________ __________________________

REPUBLIC OF THE PHILIPPINES )

QUEZON CITY, METRO MANILA ) S.S.

BEFORE ME, a Notary Public for and in Quezon City, Philippines, this 30th day of June,
2006 personally appeared the Principal DIVINA S. BARRERA with her Res. Cert. No. ________
issued on _______ at __________, known to me to be the same person who executed the
foregoing Special Power of Attorney and she acknowledged to me that the same is her own
free voluntary act and free will.

WITNESS MY HAND AND NOTARIAL SEAL at the place and date first above written.

Doc. No. ________;

Page No.________; NOTARY PUBLIC
Book No.________;
Series of 2006

F. Conveyances

● Definition of conveyancing
○ Relates to the preparation of documents for the transferring of property
○ Note: if the deed/ contract is unilateral (i.e., when the vendee assumes no
obligation), there is no need for the vendee to sign the contract.
○ Deed not the acknowledgment; however, if vendee is obliged… [draft onerous
transfer/ deed of sale].
 ● Sample Bar Question 2017 (Conveyancing)

“Believing that an onerous transfer would result in lesser taxes than a gratuitous transfer,
Nenita Villo, a widow, decided to sell her lone asset worth Php 3,000,000.00 to her daughters,
Andrea, Carina and Carissa, all of legal age, gainfully employed and still unmarried. The asset
consisted of the house and the lot registered underTransfer Certificate of Title No. 67890 of
the Register of Deeds of Paranaque Cityand situated at No. 3156 Bayswater Street, Metro Ville
Subdivision, Paranaque Citywhere Nenita and her

daughters presently resided.Nenita required her daughters to make a down payment of Php
1,000,000.00, and the balance to be paid once the title to the property was transferred to her
daughter’s names. All the taxes, fees, and costs related to the sale would be for the account
of Nenita, while those related to the transfer of title would be paid by Andrea, Carinaand
Carissa.Draft the contract to be executed by Nenita and her daughters in connection with the
transfer of the house and lot. Omit details other than those stated in the question.”

● TIP: MASTER the definition and elements or requisites of civil and commercial
transactions such as:

SALE (2017, 2019) ASSIGNMENT & TRANSFER OF RIGHT

LEASE with RIGHT OF FIRST REFUSAL LOAN with PROMISSORY NOTE (2018)
DACION EN PAGO (2018) MOA with ARBITRATION CLAUSE (2007)
REAL ESTATE MORTGAGE SPECIAL POWER OF ATTORNEY (2009)
CHATTEL MORTGAGE PACTO DE RETRO SALE
DONATION (2008) EASEMENT OF RIGHT OF WAY

● Parts of Conveyancing
1. Title
2. Parties [allege the personal circumstances]
3. BODY (STIPULATIONS)
4. SIGNATURES
5. ACKNOWLEDGMENT
G. Affidavits
● Affidavit is a sworn statement in writing made especially under oath or on affirmation
before an authorized officer or notary public. [it’s very important to ask for an I.D.]

● SAMPLE BAR QUESTIONS 2006, 2007

1. Prepare an Affidavit of Merit to be attached to a Petition for Relief. (2007)

[alleging the fact]
2. Draft an Affidavit of Desistance in a criminal case for acts of lasciviousness.
(Exclude the jurat) (2007) [whatever is not excluded is deemed included]
3. Draft an affidavit of Self-Adjudication of the estate of a deceased person.
(Exclude the jurat) (2007)
4. Affidavit of Loss (2017)
5. Judicial Affidavit (2018)
6. Affidavit of Merit to a Petition for Relief (2007)
7. Affidavit of Desistance (2006)

● Parts of Affidavits
1. Caption
2. Title
3. Body Signature
4. Jurat

● E.g. Affidavit of Self-adjudication

H. Parts of Pleadings, Motions

● Pleadings are the written statements of the respective claims and defenses of the
parties submitted to the court for appropriate judgment.[study at least all complaints,
e.g. initiatory pleadings]
● SAMPLE BAR QUESTIONS 2010 (PLEADINGS)
a. Draft the accusatory portion of an Information for RAPE of a 13-year old child
committed by her maternal uncle in broad daylight at the back of a church. (5%)
b. Draft a Petition for the Issuance of a Writ of Habeas Data. (5%)
c. Draft a Petition for Bail.(5%)

● SAMPLE BAR QUESTIONS 2008 (PLEADINGS)

“Ian Alba owns a house and lot at No. 9 West Aguila, Green Cross Subdivision,
Quezon City, which he leased to Jun Miranda for a term of two year starting May 1,
2006, at a monthly rental of P50,000. Jun defaulted in the payments of his rentals for
six (6) months, from January 1, 2007 to June 30, 2007.
a. Prepare a demand letter as lawyer of Ian Alba addressed to Jun Miranda
preparatory to filing an ejectment case (3%)
b. Assume Jun Miranda did not heed you demand letter. Draft a complaint for
ejectment.
● Parts of Pleadings
1. Caption
2. Title
3. Parties
4. Body (Allegations) [proper numbering]
5. Prayer (reliefs sought)
6. Signature of Counsel [unsigned pleading is a mere paper]
7. Copy furnished
- There are civil cases that need the intervention of the Solicitor General or… -
copy furnished them.
- in criminal cases, don't forget to copy furnish the public prosecutor. [Reason:
all criminal cases are represented by the People]
- In case of petition of certiorari, in labor case, the private party would still be
the one to file a comment (?)… the NLRC would still be copy furnished
8. Explanation
9. Verification and Certification of Forum Shopping e.g. with [affidavit of merit]
10. Jurat
 ● example of a complaint of accion reivindicatoria
● the new rules of civil procedure and revised evidence rule, ultimate AND evidentiary
facts must be alleged; must include the documentary exhibits in an enumerated form.
● use of Annex and Exhibits: defendants - numbers, plaintiffs - letters.
● Aside from the allegations, list down the exhibits and names of witnesses.

I. Answer
1. Caption
2. Title
3. Body
[general and specific denials]
[rule 16 is removed; allege them as affirmative defenses]
[counterclaim; compulsory counterclaim etc]
● otherwise, if you are already alleging a claim that is not compulsory counterclaim,
then you will/have to file permissive counterclaim.
J. Letters Rogatory

LETTERS ROGATORY
SAMPLE REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
NAME OF COURT IN SENDING STATE REQUESTING JUDICIAL ASSISTANCE

NAME OF PLAINTIFF

DOCKET NUMBER
V.
NAME OF DEFENDANT

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE (LETTER ROGATORY)

(NAME OF THE REQUESTING COURT) PRESENTS ITS COMPLIMENTS TO THE APPROPRIATE
JUDICIAL AUTHORITY OF (NAME…)

_ _ _ _ _
DRAFTING JUDICIAL AFFIDAVIT AND TRIAL MEMORANDUM
[position paper, memoranda, summation - form: like case digest (facts, issue, held)]

JUDICIAL AFFIDAVIT
(N.B. TSN, Cross, Re-direct, Re-cross Examination)

Requisites
1. Identity of the witness and personal circumstances;
2. Identity of the counsel conducting the examination and office address;
3. Place of testimony;
4.Offer of testimony;
5. Direct testimony; and
6. Attestation by lawyer who conducted the direct examination.

B. Key words
1. Question and Answer
Do you know [insert: Plaintiff/Defendant]
What proof do you have, if any? I have with me the [insert:description of documentary
evidence].
[leading question not allowed. You have to probably use the 5 W’s and How]
● What proof do you have, if any? I have with me the [insert: description of
documentary evidence]
[the usage of question ‘is’ or ‘are’ may probably be considered as a leading question
unless you can lay the foundation]

N.B.
1. As a general rule, it is best to state you questions with the 5Ws and 1H
2. If you are unsure if there is a predicate to your question. Start by stating the predicate
first, then as your question.
JUDICIAL AFFIDAVIT
● Marking of Exhibits
○ Q. I am showing you the [insert: description of documentary evidence] that you
handed to me, is this the same as the [insert: description of documentary
evidence]? [an evidence that is not identified and authenticated during trial is
inadmissible]
○ Yes, that is the same [insert: description of documentary evidence].

● EXAMPLE:
○ Q: You mentioned that you made demands. What proof do you have if any that
you made a demand against her?
○ A: I have with me the Demand Letter dated June 15, 2021 that I gave her and
she received (Witness hands over a document to counsel)

Q. There is a signature on top of the name [ insert: NAME OF SIGNATORY], whose signature is
this?
A. That is the signature of [ insert: Name of Signatory] since I am familiar with her after
having seen her signing other documents.
[Marking]
Counsel: May we request that -
a. The [insert: description of documentary evidence], referred to and pointed by the
witness be marked as [insert: Exhibit number]; and
[e.g. a-z, aa-zz, 1,2,3…]
b. The [insert: description of the part of the document subject of a sub-marking] on the
document, referred to and pointed by the Witness, is marked as {insert…

JUDICIAL AFFIDAVIT
Reminders
1. A judicial affidavit takes the place of direct examination. Hence, all the rules
relevant to direct examination should be observed in the question and answer,
particular those which may be the subject of an objection - e.g. leading
question
[when to object leading question, after the presentation of evidence]
[make timely objections]
2. Marking of evidentiary documents should also be included in the judicial
affidavit.

MEMORANDUM
(N.B. Position papers, Appeal Brief, Petitions)
ORGANIZATIONAL FRAMEWORK
F acts
I ssue
L aw
A rgument
C onclusion
[submitted after the trial on merits; discretion of the court (written trial memorandum) (U.S.
counterpart is Summation)]
E.g. car
Contents of Formal Memos
1. Statement of Facts - must include all material facts, both favorable and unfavorable,
stated in objective language.
2. Statement of questions or issues- a brief and objective statement of the issue to be
addressed in the memo.
3. Discussion - designated in terms of each separate issue by a descriptive heading, the
discussion should summarize the law, facts, and various arguments related to the issue

THINK OF A CAR!

● FACTS
(THE BODY OF THE CAR)
1. PLOT
2. PLAYERS
3. DISAGREEMENTS
4. DOCUMENTS
5. STATEMENTS
6. PROPERTY
7. RIGHTS DUTIES

● ISSUE
(THE KEY)

SPOT THE CONTROVERSY:

“WHAT ARE THE POINTS OF CONFLICT AND DISAGREEMENTS BETWEEN THE PARTIES?”

ANALYZE THE PARTIES, RELATIONSHIPS, TRANSACTIONS, PROPERTIES, ACTION,

STATEMENTS, DOCUMENTS, & LOCATION.

[What is the issue? As an examiner it is important to Spot the issue.]

● LAW
(THE ACCELERATOR)

STATE THE APPLICABLE RULES:

“WHAT LAWS ARE GERMANE TO THE CASE?”

SEARCH FOR APPLICABLE LAW, LATEST & LANDMARK CASES, CAUSES OF ACTION,
GENERAL DOCTRINES OF EQUITY AND LEGAL PRINCIPLES.
● [DO NOT LEAVE AN UNANSWERED QUESTION]
● You will not be given a 0 point if you cited or provided the law.

● ARGUMENT
(THE ENGINE)
APPLY THE FACTS TO THE ELEMENTS OF THE LAW:
“WHAT FACTS CAN BE USED BY THE PARTIES TO ASSERT THEIR POSITION
BASED ON THE REQUIREMENTS OF THE LAW?”

FRAME YOUR ARGUMENTS, CAUSES OF ACTION, DEFENSES, AND

POSITIONS BASED ON THE FACTS AND EVIDENCE

● CONCLUSION
(THE FINISH LINE)

MAKE A SUMMARY OF THE REASONS WHY FAIRNESS WILL BE REACHED IN THE COURT
RULES IN YOUR FAVOR.

EMPHASIZE WHAT YOU WANT FROM THE COURT. DISCUSS WHY THE COURT MUST RULE
IN YOUR FAVOR.
 [position paper, trial memorandum…FILAC]

● MOTIONS
○ A motion is an application to the court made by the counsel, requesting that
the court make a decision on a certain issue before the trial begins.

SAMPLE BAR QUESTION (2009)

Given the same facts in No. IX above, assume that summons had been served on
Jamero, but no responsive pleading was filed within the reglementary period. Prepare a
motion to declare Jamero in default (4%)

SAMPLE BAR QUESTIONS (2017)

“Kyle Angelo was served with summons and a copy of the complaint of Ciara Jane for
collection of the amount of ₱1,000,000.00 as evidenced by a promissory note signed by Kyle
Angelo. She alleged that the debt was overdue; and that Kyle Angelo refused to pay despite
repeated demands.

Kyle Angelo engaged the services of Atty. Carlos Sa bit, who decided to file a motion to
dismiss on the ground of lack of cause of action and prescription. Atty. Carlos Sabit drafted
the motion and sent the draft to Kyle Angelo for his perusal. Kyle Angelo, being himself a law
graduate, quickly noticed that the draft did not contain a notice of hearing.

Draft the notice of hearing that Atty. Carlos Sabit should include in the motion to dismiss”
Motions that are frequently asked in the Bar

Parts of motions
● Caption
● Title
● Grounds
● Arguments
● Reliefs sought
● Signature of counsel
● Notice of hearing
● Copy Furnished
● Explanation
 Sample of Motion

CRIMINAL PROCEEDINGS

ESSENTIAL PARTS OF AN INFORMATION

● Caption
● Heading
● Opening sentence
● Body alleging acts or omissions constituting a crime
● Contrary to law
● Certification of preliminary investigation
● Jurat
● List of witnesses
● Bail recommended

[there is now an accused to be held in trial]

[meaning of an information]
[e.g. information; memorize the format of information]
[as to the elements of a crime, this is where you will allege it]
[after alleging the facts including the aggravating circumstance etc]
 Sample of Information

Criminal complaint vis-a-vis information

ESSENTIAL PARTS OF A COMPLAINT

1. Caption
2. Heading
3. Opening sentence
4. Body alleging facts or omissions constituting a crime
5. Contrary to law
6. Oath of complainant with his/her signature
7. Certification of prosecutor
8. Jurat
[allege the 5W’s and 1H’s]
[e.g. format of criminal complaint]
[Complaint affidavit is different from criminal complaint]
[e.g. affidavit of desistance]
[there is an instance where affidavit of desistance is submitted to court]
[if there is an affidavit that is being submitted, it is not the reason why a case is
dismissed but by failure to prosecute and if there is no evidence or witness because of
unavailability to prove beyond reasonable doubt.]
 Sample BP 22 Complaint

Sample Affidavit of Desistance

-end-
 LABOR LAW I
Atty. Paulino Ungos III
September 12, 2022

ACADS SCRIBES NOTES TEAM: MIGUEL JULIO RAFAEL SORIANO | KARLA ISABELLA CERA | ANNIE JECINO | MARIA
CHRISTINA ARCE | GABRIEL PALLASIGUE
CHECKED BY: ADRIAN MACASAQUIT (Deputy for Academics) | HANNAH KEZIAH MORALES (Chairperson for Academics)

LABOR STANDARDS

A. Construction and Application of the Labor Code (Art 4)

a. Interpretation of the Labor Code and Implementing Rules
i. Art. 4. Construction in Favor of Labor. – All doubts in the implementation and
interpretation of the provisions of this Code, including its implementing rules
and regulations shall be resolved in favor of labor.
ii. Doubts contemplated in Article 4 is not limited to doubts in interpretation of
the Code and its implementing rules, it also extends to doubts to evidence
presented by the employer and employee.
iii. PENAFLOR v OUTDOOR CLOTHING, 610 SCRA 497
1. FACTS: The evidence presented by the company here to prove the
validity of the dismissal of the employee was doubtful. The NLRC ruled
that the doubt cannot be resolved in the favor of the employee because
the doubt pertains to the evidence presented and not on the
implementation and interpretation of the Labor Code and its
implementing rules.
2. ISSUE: Was the NLRC correct?
3. RULING: The SC ruled that NLRC was not correct. Although Art. 4 of the
Labor Code provides that all doubts in the implementation and
interpretation of the provision of this Code including its implementing
rules and regulations shall be resolved in favor of labor, this principle
covers doubts in the evidence presented by the employer and the
employee.
iv. If the evidence is incredible, it cannot always be resolved in favor of labor. The
benefit of the doubt cannot be resolved in favor of an employee who submits
dubious medical certificates to justify his absences without leave.
1. Dubious Medical Certificate
a. Japos vs Farmcoop, 814 Phil 758
i. FACTS: The employee absented himself without leave for
several days. When he reported back to work, he
submitted a medical certificate which merely certifies
that he was diagnosed and treated for respiratory tract
infection. The employer did not honor the medical
certificate because of its dubious character considering
that it did not indicate the period in which the employee
was diagnosed or had undergone treatment.
ii. ISSUE: Was the employer correct in not honoring the
medical certificate?
iii. RULING: The SC ruled that the employer was correct. The
medical certificate cannot be given credence because it
does not constitute reliable proof of the employee’s claim
of illness. All that can be gathered from the medical
certificate is that the employee was treated for the
respiratory tract infection. The certificate did not
indicate the period for which the employee got sick, the
day he consulted with and was diagnosed by the doctor,
when and how he underwent treatment, and for how
long. Without these relevant pieces of information, it
cannot be reliably concluded that indeed the employee
got sick on the dates when he was absent. The document
is open to interpretation in every manner.
2. Daily time records with identical entries are not credible. Hence, the
doubts cannot be resolved in favor of labor because it is improbable and
contrary to human experience. It is impossible for an employee to arrive
at the workplace and leave exactly at the same time day in and day out.
b. Application of the Labor Code (Art 6.)
i. ART. 6. Applicability. All rights and benefits granted to workers under this Code
shall, except as may otherwise be provided herein, apply alike to all workers,
whether agricultural or non-agricultural.
ii. The workers referred to in Article 6 of the Labor Code refers to employees or
workers in the private sector.
iii. Does it mean that all rights and benefits under the Labor Code can be enjoyed
by all employees in the private sector?
1. ANSWER: Not all rights and benefits prescribed by the Labor Code can
be enjoyed by all employees in the private sector. Some rights and
benefits are not available to certain types of employees in the private
sector.
iv. Non-applicability
1. The right to form, join or assist in organizing a labor union is not
available to:
a. Managerial employees
b. Confidential employees who have access to labor relation
matters; and
c. Employees who are also members of cooperatives.
2. The statutory monetary benefits prescribed by Title I Book III of the LC
specifically night shift differential, overtime pay, premium pay for
working on a rest day or special non-working holidays, regular holiday
pay, SIL,and service charges are not available to:
a. Managerial employees;
b. Officers and members of managerial staff
c. Field personnel
d. Members of the family of the employer who are dependent upon
him for support.
e. Domestic workers
f. Persons in the personal service of another
g. Workers are paid by results.
3. Holiday pay and SIL not available to:
a. Employees of retail and service establishments regularly
employing less than 10 workers;
4. Retirement benefits not available to:
a. Employees in retail, service and agricultural establishments
employing not more than 10 employees or workers;
5. Does the Labor Code apply to Government Employees?
a. No, except provisions on the employees’ compensation?
6. Does the Labor Code apply to GOCCs? The applicability will depend on
the manner of their creation.
a. .If organized under the Corporation Law – Covered by LC
b. If created by law or special charter - Not covered by the LC
except on the provisions on the employees’ compensation
7. Considering the GOCC’s organized under the Corporation Law are
covered by the LC, does it mean that employees thereof are entitled to
enjoy all rights and benefits granted by the LC?
a. No. Even though GOCC’s organized under the Corporation Law
are covered by the LC, employees thereof cannot enjoy all rights
and benefits granted by the LC, specifically, employees of GOCCs
organized under the Corporation Law can no longer seek better
terms and conditions of employment through collective
bargaining.( in short, they cannot form a labor organization or
union). The reason is the GOCC Governance Act of 2011 has
provided a compensation and position classification system
which applies to all GOCCs whether chartered or non-chartered.
8. GSIS Family Bank Employees Union vs Villanueva, G.R. No. 210773,
January 23, 2019
a. FACTS:Royal Savings Bank later changed to GSIS Family Bank was
organized under the Corporation Law, later it became a GOCC
because the GSIS became a controlling stockholder. GOCC
Governance Act of 2011 was signed into law which established
the national position, classification and compensation plan of
b. GOCCs whether chartered or non-chartered. At that time, the
CBA between the GSIS Family Bank and the Union was about to
be renegotiated.
 c. ISSUE: Can GSIS Family Bank, a non-chartered
government-owned or controlled corporation proceed to
negotiate collective bargaining agreement with the union?
d. RULING: The SC ruled that with the enactment of GOCC
Governance Act of 2011, the GSIS Family Bank can no longer
enter into collective bargaining agreement with the union.
Non-chartered government-owned or controlled corporations are
now barred from negotiating economic terms with their
employees. This is because the GOCC Governance Act of 2011
has provided the Compensation and Position Classification
System, which applies to all government-owned or controlled
corporations, chartered or non-chartered
9. PNCC vs NLRC, G.R. No. 248401, June 23, 2021
a. FACTS: PNCC, formerly CDCP, was created under the Corporation
Law. As such, it used to give its employee a mid-year bonus.
Later, it became a GOCC because the government financing
institutions became the majority stockholders. On June 6, 2011,
the GOCC Governance Act of 2011 was signed into law, thus
PNCC stopped giving the midyear bonus. The NLRC ruled that the
discontinuance of midyear bonus was not proper considering that
PNCC having been created under the Corporation Law remains to
be a private corporation even though the government is its
majority stockholders. As such, it is covered by the Labor Code
and not the Civil Service Law and therefore the stoppage of the
midyear bonus is not proper.
b. ISSUES
i. Is PNCC a private corporation or a government owned and
controlled corporation (GOCC)?
ii. Are PNCC employees covered by the provisions of the
Labor Code or by the Civil Service Law?
iii. Is PNCC governed by the GOCC Governance Act of 2011?
c. RULING:
i. The SC ruled that PNCC is non-chartered GOCC. Since
PNCC was organized under the Corporation Law, it is
 governed by the Labor Code not by the Civil Service Law.
Although governed by the Labor Code, PNCC is not
exempt from the coverage of GOCC Governance Act of
2011 because Section 9 of the same law ordains that no
GOCC shall be exempt from the coverage of the
Compensation and Position Classification System.
Therefore, |PNCC did not violate the non-diminution rule
when it desisted from granting mid-year bonus to its
employees||| GSIS became a GOCC
ii. Note that what has been withheld from GOCCs organized
under the Corporation Law is the right to seek better
terms and conditions of employment through collective
bargaining which include the right to strike and form
labor organizations.
v. Other rights and benefits under the Labor Code continue to be applicable:
1. Retirement pay
2. Separation pay
3. Reinstatement with back wages for those illegally dismissed
vi. Lumanta vs NLRC, 170 SCRA 79
1. FACTS: Food Terminal, Inc (FTI), a government-owned corporation
organized under the Corporation Law, adopted a retrenchment program
due to financial difficulties. Several employees were terminated . For
failure of FTI to pay the retrenched employees their separation pay, the
affected employees filed with the Arbitration Branch of the National
Labor Relation Commission(NLRC) a complaint for unpaid separation pay.
FTI moved to dismiss the complaint on the ground of lack of
jurisdiction. FTI argued that being a government-owned corporation, its
employees are governed by the Civil Service Law not by the Labor Code,
and therefore, claims arising from employment fall within the
jurisdiction of the Civil Service Commission and not with the NLRC.
2. ISSUE: Does the NLRC have jurisdiction over the matter?
3. RULING: The NLRC has jurisdiction because FTI is a government-owned
corporation organized under the Corporation Law.
vii. Paloma vs PAL.,558 SCRA 94
1. FACTS: PAL is a corporation organized under the Corporation Law. Later,
it became government-controlled because the GSIS became the
controlling stockholder. After 35 years of continuous service with PAL,
Paloma retired from service. PAL paid Paloma his retirement pay and
other benefits in accordance with company policy. Subsequently, Paloma
filed before the Arbitration Branch of the National Labor Relation
Commission (NLRC) a complaint for commutation of accrued sick leaves
totaling 392 days pursuant to Executive Order 1077 which allows retiring
government employees to commute, without limit, all accrued vacation
and sick leave credits.
2. ISSUE: Is Paloma entitled to the benefits under Executive Order 1077?
3. RULING: Paloma is not entitled to the benefits under Executive Order
1077. Notwithstanding that PAL, during the period material, was a
government-controlled corporation, in the sense that GSIS owned a
controlling interest over its stocks. Executive Order 1077 is not
applicable because PAL never subjected to the Civil Service Law. Its
personnel were never considered government employees. Given these
considerations, Paloma cannot be accorded with benefits of Executive
Order 1077. Paloma’s entitlement to sick leave benefits is governed,not
by Executive Order 1077, but PAL’s company policy on the matter.
B. Employer Employee Relationship.
a. Tests
i. Economic Reality Test
1. When a worker possesses some attributes of an employee and others of
an independent contractor which make him fall within an intermediate
area, he may be classified under the category of an employee when the
economic facts of the relation make it more nearly one of employment
than one of independent business enterprise with respect to the ends
sought to be accomplished.
2. Sunripe Coconut Products vs CIR, 83 Phil. 518
a. FACTS: Sunripe Coconut Products has “parers” and “shellers” of
coconuts, working under the “pakyaw” system. These “parers”
and “shellers” work under some degree of control and
supervision of the company. For the most part, they depend on
their work at sunripe Coconut Products for their livelihood. They
perform their work at the premises of the company. Sunripe
Coconut Products contends that the relationship of
employer-employee does not exist between it and the “parers”
and “shellers” allegedly because they are independent
contractors.
b. ISSUE: Does the relationship of employer-employee exist
between Sunripe Coconut Products and the “parers” and
“shellers” of coconuts?
c. RULING: The relationship of employer-employee exists between
Sunripe Coconut Products and the “parers” and “shellers” of
coconuts because the economic facts showing employee status
outweigh those indicative of independent contractor. When a
worker possesses some attributes of an employee and others of
an independent contractor, which make him fall within an
intermediate area, he may be classified under the category of an
employee when the economic facts of the relation make it more
nearly one of employment than one of independent business
enterprise with respect to the ends sought to be accomplished.
ii. The Control Test
1. The relationship of employer-employee will be deemed to exist when
the person for whom the services are performed reserves the rights to
control not only the end to be achieved but also the means to be used in
reaching such end.
2. Great Pacific Life vs Judico 259 Phil. 939
a. FACTS: Grepalife engaged Judico as a debit agent whose task
was to sell industrial life plans and collect premiums from policy
holders. Judico was given a definite work assignment and was
paid a certain percentage of his total collection. He was assigned
a definite place and office to work on when he is not in the
field. In addition to, collection job, he was obliged to make
weekly regular report for which an anemic performance would
mean dismissal
b. ISSUE: Does Er-Ee relationship exist between Grepa Life and
Judico?
c. RULING: The SC held that Er-Ee relationship exists between
Grepa Life and Judico because the element of control is present.
Judico was given a definite work assignment. He was assigned a
definite place and office to work on when he is not in the field.
He was required to make a regular report to the company for
which a lackluster performance would mean dismissal. Grepa
Life, therefore, controls the means and the end to be achieved
3. Insular Life vs NLRC (259 Phil 65)
a. FACTS:Insular Life and Basiao entered into an Agency
Manager’s Contract whereby Basiao agreed to sell or solicit
insurance policies. To implement his end of it, Basiao organized
an office which he named M. Basiao and Associates. Basiao was
compensated in the form of commission based on the results
obtained. The time, place and means of soliciting insurance
policy were left to his own judgment.He was not bound to
observe any work schedule. Neither was he required to report to
any station. Although, he was obliged to observe and conform to
all company rules and regulations.
 b. ISSUE: Does Er-ee relationship exist between Basiao and Insular
Life?
c. RULING:The SC held that Er-ee relationship does not exist
between Basiao and Insular Life because Insular Life did not
wield the power of control over him. Basiao was the master of
his own time and selling methods. The time, place and means of
selling insurance policies were left to his own judgment.He was
compensated based on the results obtained. He was not bound to
observe any schedule of working hours or report to any particular
station.The mere fact that Basiao was obliged to observe and
conform to all company rules and regulations does not by itself
establish an employment relation. It is normal for the insurance
company to set its rules for the guidance of its commission
agents.

iii. The Control vis a vis the Economic Reality

1. In certain situations, the Control Test is not sufficient to give a
complete picture of the relationship between the parties owing to the
complexity of such a relationship where several positions have been
held by the worker. There are instances when aside from the power to
control, the economic reality of the employment relation will have to
be considered to determine the true classification of an individual
whether as an employee, independent contractor, corporate officer or
some other capacity. Under the circumstances, both the control test
and the economic reality test should be applied, especially when there
is no written agreement or terms of reference to base the relationship
on.
a. Francisco vs NLRC
i. FACTS:Francisco was hired by Kasei Corporation during its
incorporation stage. Initially, she was designated as
Liaison Officer to the City of Makati to secure business
permits, construction permits and other licenses for the
initial operation of the company.She was also designated
as Accountant and Corporate Secretary. Although
 designated as Corporate Secretary, she was neither
entrusted with the documents nor she was required to
attend any board meeting. Thereafter, Francisco was
designated as Acting Manager, a position which she held
for 5 years. Later, Kasei Corporation terminated her
services prompting her to file a complaint for illegal
dismissal. Kasei averred that she is not an employee of
Kasei Corporation because she performed her work at her
own discretion as the company never interfered with her
work.
ii. ISSUE: Did ER-EE relationship exist between Francisco and
Kasei Corporation?
iii. RULING: The SC ruled tha ER-EE Relationship existed
between Francisco and Kasei Corporation because she
was under the control and supervision of Kasei
Corporation She reported for work regularly in various
capacity and served in various capacities as Accountant,
Liaison Officer, Technical Consultant, Acting Manager and
Corporate Secretary. In addition to the right of control,
the Economic reality points to the fact that Francisco is
an employee of Kasei Corporation because she was
economically dependent on Kasei Corporation as during
her entire service, she received salaries, 13th month pay,
bonuses and allowances.

iv. Elements of ER-EE

1. Selection and Engagement
a. This is indicated by the act of hiring a person as an employee
with an understanding between the parties that one is to render
personal service to or for the benefit of the other, and a
recognition by them of the right of one to order and control the
other in the performance of the work and to direct the manner
and method of performance.
2. Payment of Wages
a. This is indicated when the person hired is paid in consideration
of labor performed and not in relation with the result or finished
work
3. Power of Dismissal
a. This is indicated when the person hired is subjected to the rules
of discipline of the employer.
4. Power to Control Employees’ Conduct
a. This is indicated when the hiring parties manage the employee
on both the result of the work to be done and the means by
which the work is to be accomplished.
b. Paragele vs GMA Network Inc. G.R. 235315. July 13, 2020
i. FACTS: Thirty-one (31) cameramen and assistant
cameramen were hired by GMA Network. Their length of
service ranged from (2) years to 13 years. They were paid
a salary ranging from P750-P1,500 per taping. They filed
a complaint for illegal dismissal with prayer for
regularization. The cameramen maintained that they are
employees of GMA because (1) GMA hired them as camera
operators; (2) GMA compensated them for their service;
(3) GMA exercised its power dismissal; and (4) GMA had
control over the means and methods of their work
because their work schedules were provided by GMA and
that they were required to stay in their work sites before
and after every taping GMA likewise provided the
equipment they used for tapings such as cameras,
lighting, and audio equipment. Moreover, GMA assigned
supervisors to monitor their work and ensure their
compliance with company standards, and that they were
obliged to follow company rules and regulations. On the
other hand, GMA denied the existence of an
employer-employee relationship. It insisted that these
cameramen were independent contractors because they
were engaged asmere” pinch-hitters or relievers” whose
 services engaged only when there was a need for
substitute or additional workforce.
ii. ISSUE: Are the cameramen independent contractors?
iii. RULING: The cameramen are not independent contractors
because GMA exercised control over the means and
methods of the cameraman's work. They were subject to
GMA’s control and supervision. Their recordings and
shoots were never left to their own discretion and craft.
They were required to follow the work schedules which
GMA provided to them. They were not allowed to leave
the work site during tapings, which often lasted for days.
They were also required to follow company rules like any
other employee. GMA provided the equipment they used
during tapings. GMA also assigned supervisors to monitor
their performance and guarantee their compliance with
company protocols and standards.||| Moreover, there is
no showing at all that they were hired because of their
unique skills, talent and celebrity status not possessed by
ordinary employees."They were paid a meager salary
ranging from P750.00 to P1,500.00 per taping. The sheer
modesty of the remuneration rendered to petitioners
undermines the assertion that there was something
particularly unique about their status, talents, or skills.
c. Sonza vs ABS-CBN
i. FACTS: ABS-CBN engaged Sonza’s services as a talent to
co-host its radio and television program. Their agreement
stipulates that Sonza will render services exclusively for
ABS-CBN for a talent fee. Sonza did not have to render 8
hr of work per day. The agreement requires Sonza to
attend only tapings and rehearsals of the show as well as
pre-production and postproduction staff meetings.
ABS-CBN only needed Sonza’s skill and talent. ABS-CBN
did not instruct SONZA how to perform his job. ABS-CBN
could not dictate the contents of SONZA's script. SONZA
had a free hand on what to say or discuss in his shows
provided he did not attack ABS-CBN or its interests.
 ABS-CBN's sole concern was the quality of the shows and
their standing in the ratings.||| ABS-CBN merely reserved
the right to modify the program format and airtime
schedule "for more effective programming.” ABS-CBN
could not terminate or discipline SONZA even if the
means and methods of performance of his work — how he
delivered his lines and appeared on television — did not
meet ABS-CBN's approval. The Agreement further
stipulates that SONZA shall abide by the "Television and
Radio Code of the Kapisanan ng mga Broadcaster sa
Pilipinas (KBP).”
ii. ISSUE: Was there an ER-EE relationship between Sonza
and ABS-CBN?
iii. RULING:The SC ruled that no ER-EE relationship existed
between Sonza and ABS-CBN. ABS-CBN was not involved in
the actual performance that produced the finished
product of SONZA's work. Thereby indicating that
ABS-CBN did not exercise control over the means and
methods of performance of SONZA's work. Even though
ABS-CBN provided SONZA with the place of work and the
necessary equipment, SONZA was still an independent
contractor since ABS-CBN did not supervise and control
his work. ABS-CBN's sole concern was for SONZA to display
his talent during the airing of the programs. The mere
fact that Sonza was obliged to abide by the "Television
and Radio Code of the Kapisanan ng mga Broadcaster sa
Pilipinas (KBP) does not indicate control because the
television and radio code are mere guidelines towards the
achievement of the mutually desired result that comply
with standards of the industry
d. Subjecting the Hired Party to Certain Rules Does Not Necessarily
Indicate Control.
i. Rules which serve as guidelines to achieve a mutually
desired result are not indicative of the power to control.
As long as they do not interfere with the means and
methods of accomplishing the assigned task, the rules
 imposed by the hiring party on the hired party, do not
amount to the labor law concept of control that is
indicative of ER-EE relationship.
ii. For instance, the mere fact that the newspaper company
approves or rejects the article written by a columnist is
not the control contemplated in the Control Test. It is but
logical that the one who commissions another to do a
piece of work should have the right to accept or reject
the product.
iii. The mere fact that a newspaper publisher requires a
newspaper carrier to follow a fixed route and time in
delivering the newspaper is not indicative of control.The
reason is the requirements are all designed to secure the
accomplishment of the result---the distribution of
publisher’s newspapers. If there is a certain degree of
control, it is only on the result of the work,and not in the
means or manner of doing the work.
e. A Labor Organization Can be an Employer.
i. This is if it hires an employee to work for it as define in
Article 219(e) of the Labor Code term employer includes
labor organization that acts as an employer
ii. BAUTISTA v. INCIONG 158 SCRA 665
1. FACTS:Bautista was hired by the Associated Labor
Union (ALU) as Union Organizer. He was given a
monthly salary. He was enrolled with the SSS with
ALU as his employer. Thereafter, ALU terminated
the services of Bautista. Hence, Bautista filed a
complaint for illegal dismissal, ALU moved for the
dismissal of the complaint on the ground of lack of
employer-employee relationship.
2. ISSUE: Does the relationship of
employer-employee exist between Bautista and
ALU?
3. RULING: The relationship of employer-employee
existed between Bautista and ALU. The mere fact
that ALU is a labor union does not mean that it
 cannot be considered an employer of the persons
who work for it. The relationship of
employer-employee between Bautista and ALU
could be gleaned from the fact Bautista was
selected and hired by ALU. He was paid wages by
ALU. ALU has the power to dismiss him as indeed
it dismissed Bautista, and definitely, ALU tightly
controlled the work of Bautista as one of its
organizers.
v. An Unregistered Association Can be Considered as an Employer. An unregistered
association may be an employer, the law does not require an employer to be
registered before he may come within the purview of the Labor Code.
1. OFGA v. NLRC 299 SCRA 364
a. FACTS: Orlando Farm Growers Association (OFGA) is an
association of landowners engaged in the production of export
quality bananas. OFGA hired several persons to work as packers
and harvesters in their plantation. Thereafter, these persons
were dismissed by OFGA, for which reason, they filed a
complaint for illegal dismissal against OFGA. OFGA contended
that the relationship of employer-employee does not exist
between it and the complaining workers, considering that it is an
unregistered association, hence, it does not exist in law and
OFGA be considered as an employer under the circumstances
Supreme Court rule notwithstanding the fact that OFGA is
unregistered it can be considered as an employer.
b. The contention of OFGA is misleading. Article 219(e) of the
Labor Code, as amended, defines “employer” as any person
acting in the interest of an employer, directly or indirectly. The
said provision does not require an employer to be registered
before he may come within the purview of the Labor Code. To
hold otherwise would bring about a situation whereby employees
are denied, not only redress of their grievances, but more
importantly, the protection and benefits accorded to them by
law if their employer happens to be an unregistered association
b. Statutory Classification of Employees
i. Classifications
1. Managerial employees.
a. They are those vested with powers or prerogatives to lay down
and execute management policies and/or to hire, transfer,
suspend, lay off, recall, discharge, assign or discipline
employees. Managerial status is determined not by the title of
the position but by the nature of the employees functions.
2. Supervisory employees –
a. They are those who are vested with the power to effectively
recommend managerial actions such as laying down of
management policies, hiring, transfer, suspension, lay off, recall,
discharge or discipline employees. Supervisory status is
determined by the nature of an employee's function and not by
the title of the position. The point to consider is whether the
employee has the power to effectively recommend managerial
actions, effective recommendation requires the use of
independent judgment as distinguished from routinary or clerical
duties.
3. Rank-and-file employees-
a. Those who are neither Managerial nor Supervisory.
ii. Significance of the classification.
1. Classification is significant for purposes of determining eligibility to
form, join or assist in the formation of a Labor Organization and the
degree of their culpability in disciplinary cases. As to eligibility to
organize or join a labor organization, managerial employees are not
eligible to form, join or assist in the formation of any labor
organization. Supervisory employees can form, join or assist in the
formation of their own labor organization but they are not eligible to
join the rank-and-file union.
2. The degree of culpability in disciplinary cases:
a. Managerial employees and supervisory employees are subject to
a stricter norm of discipline than rank-and-file employees.
Unlike rank-and-file employees, managerial and supervisory
 employees may be dismissed by the mere existence of a basis for
believing that such employee has breached the trust of his
employer. In the case of rank-and-file employees, proof of
involvement in the question asked is required. Mere
uncorroborated assertions and accusation by the employer will
not suffice.
c. Categories of Employment
i. Regular Employment
1. a job where the activities performed by the employee are necessary or
desirable in the usual business or trade of the employer. As to whether
an employment is regular or not is determined neither by the
employment contract nor by the nomenclature given to it by the
employer but by the nature of the job. If the job is usually necessary or
desirable to the main business of the employer then the employment is,
as a rule, regular. For instance, a cameraman is a job that is usually
necessary or desirable to the business of a television station, a teller is
a job that is usually necessary or desirable in the business of a bank.
Repeated and continuously hiring is an indication that the activity is
usually necessary or desirable in the usual business or trade of the
employer. Similarly, continuing need for the services of an employee is
an indication of the necessity and indispensability of the service in the
trade or business of that employer.
2. PUREFOODS CORPORATION v. NLRC 283 SCRA 133-
a. FACTS:Purefoods is a corporation engaged in the export of
canned tuna fish. It has a tuna cannery plant which is manned
mainly by employees with a 5 month employment contract. They
performed various tasks of receiving, skinning, loining, packing
and casing-up of tuna fish. Upon expiration of the 5 month
contract, said employees were terminated and replaced by
another set of employees also on a 5 month contract. Affected
employees questioned the validity of their termination. They
argued that they cannot be dismissed without just cause because
they held regular employment.
b. ISSUE: Did the terminated employees hold regular employment?
c. RULING: The SC ruled that the terminated employees held
regular employment. Because the activities that they perform
such as receiving, skinning, loining, packing and casing-up tuna
fish are usually necessary or desirable in the business or trade of
Purefoods. The fact that Purefoods repeatedly and continuously
hired workers to do the same kind of work as that performed by
those whose contracts had expired indicates that the job of said
employees was necessary and indispensable to the trade or
business of Purefoods. Considering that the affected employees
held regular employment, they cannot be dismissed without just
cause.
ii. Project Employment is a job where the employee was engaged for a specific
undertaking, the completion or termination of which has been determined at
the time of the engagement.
1. Project employment presupposes the following factors:
a. Specific undertaking
b. Predetermined date of completion-That is determined at the
time of hiring
2. Specific project or undertaking contemplates two distinguishable types
of activities:
a. A project that is within the regular or usual business of the ER,
but which is distinct, separate and identifiable from the other
undertakings of the company. Ex: a construction company with
several construction projects such as a hotel in Makati, a bridge
in Legaspi City, a condominium in Cebu. Employees hired to carry
out one of these separate projects are project employees and
their services may be locally terminated upon the completion of
the project.
b. A project that is not within the regular business of the ER,
hence, separate, distinct and identifiable from the ordinary or
regular business operations of the ER.
i. Ex. A telecommunication company which directly hires
employees to construct an additional building. The
workers hired to construct the buildings are project
employees.Therefore, their employment will end upon
the completion of the project. Construction of the
building is not within the regular or usual business of the
telecommunications company.
3. The mere fact that an employee has worked on a specific project for
more than one year does not negate his status as project employee. As
long as the engagement was for a specific undertaking with a
predetermined date of completion, the employment (job) remains to be
project-based regardless of the number of years that it would take to
finish the undertaking and regardless of the number of projects in which
the employee has worked on.
4. RADA vs NLRC, G.R. No. 96078, January 9, 1992
a. FACTS: Rada was hired by PHILNOR as driver during the
construction of the North Luzon Expressway Extension for a term
of "about 24 months." Considering that the expressway was not
finished on time, the construction was extended. It took four
years to complete the project. When the project was finished,
the employment of Rada was terminated. Rada then filed a
complaint for illegal dismissal. He argued that his employment
cannot be terminated because he has become a regular
employee considering that he has already worked for four years.
On the other hand, PHILNOR asserted that Rada was a project
employee whose tenure of employment is co-terminus with the
duration of the project.
b. ISSUE: Is Rada a project employee?
c. RULING: Rada was a project employee. He was employed for a
specific project; i.e., the North Luzon Expressway Extension.
The mere fact that he has worked for four years does not mean
that his employment was regular. Considering that Rada was
specifically employed to work during the construction of the
North Luzon Expressway extension, his employment terminated
upon completion of the project.
5. Duration of project employment is coterminous with the work to which
the employee was assigned. Once the project or any phase thereof for
which the employee was engaged is completed, the employment
terminates as there would be no further need for his service.
6. Can project-based employees attain regular status?
a. If the workers belong to a "work pool" from which the Company
draws workers for assignment to its various projects, they can
acquire regular status (as project employees) if the same
employer continuously (not intermittently) rehires them for the
same task in different projects. The job remains to be
project-based (considering that their engagement is for a
specific undertaking), but the status as (project) employee is
regular. The significance of being "regular" is that they cannot be
dismissed without just cause.
b. TOMAS LAO CONSTRUCTION v. NLRC 344 Phil. 268
i. FACTS:Tomas Lao Construction is a company engaged in
the construction of public roads and bridges.||| It
employs workers in various capacities. After serving for
several years, the shortest was seven years and the
longest was 19 years, the workers were made to sign
antedated contract which expressly describe them as
project employees whose employment were for a definite
period. Workers refused to sign, contending that the
scheme was to downgrade their status from regular
employees to mere project employees. For refusing to
sign the employment contracts, the workers were
dismissed. NLRC ruled that the complaining workers are
regular employees. They could not be dismissed without
valid cause.
ii. Did the complaining employees hold regular employment?
 iii. RULING: SC ruled that the complaining employees held
regular employment as project employees. Repeatedly
hiring and continuing need for their services over a long
span of time, the shortest was of 7 years, have conferred
upon them regular status as project employees. The
workpool may exist although the workers in the pool do
not receive salaries and are free to seek other
employment during temporary breaks in the business
provided that the worker shall be available when called
to report for a project. Continuous rehiring of the same
set of employees within the framework of the company is
strongly indicative that the complaining employees were
integral part of the work pool on which Tomas Lao
Construction through its workers for its various projects.
7. Suppose the employer (after the completion of a project) was not able
to get a new project, what happens to these regular project employees?
a. ANSWER: They will be laid off while waiting for a new project.
The laid off should not exceed 6 months.During the period of
lay-off the employees are not entitled to their wages under the
no work no pay principle.After the lapse of 6 months without any
new project, their employment will automatically terminate and
they will be entitled to separation pay.
iii. Seasonal Employment
1. Is a job where the employee was engaged to work during a particular
time of the year.
2. Duration
a. Employment of seasonal employees is coterminous with the
season.
3. Can seasonal employees attain regular status? If the same employees
are repeatedly engaged by the same employer for every season, they
become regular seasonal employees, in which case, they cannot be
 dismissed without just cause. During off-season, the employment of
these regular seasonal employees is not severed but merely suspended.
iv. Casual Employment
1. Is a job where the employee was engaged to perform activities which
are not usually necessary or desirable in the usual business or trade of
the employer. For instance, a gardener hired by a bank to maintain the
surrounding landscape is a casual employee of the bank.
2. Can an employee who holds a casual job attain regular status?
a. An employee who holds a casual job can attain regular status as
a casual employee if he has rendered at least 1 year of service
whether such service is continuous or broken. The regular status
attaches on the day immediately after the end of first year of
service. The significance of this is that the casual employee
cannot be dismissed without valid cause while the activity for
which he was employed exists.
v. Fixed Term Employment-
1. Is a job where the parties have agreed or assigned a specific date of
termination.
2. Validity
a. Term of employment will be accorded validity only when the
contract was knowingly and voluntarily agreed upon by the
parties without any force, duress, or improper pressure upon the
employee or when it satisfactorily appears that the ER-EE dealt
with each other on equal terms with no moral dominance or
whatever being exercise by the former on the latter and when
the contract does not circumvent the right to security of tenure.
b. Brent School v. Zamora, 181 SCRA 702
i. FACTS: Brent School engaged an Athletic Director under a
five-year contract. Three (3) months before the
expiration of the five-year stipulated period, Brent School
advised the Athletic Director that his employment will be
terminated on the expiration date of the employment
contract. The Athletic Director protested. He argued that
although his contract did stipulate a five-year term, he
could not be dismissed because his employment was
regular, considering that his job was necessary and
desirable in the usual business of the school and that he
has already served for five (5) years.
ii. ISSUE: Is the Athletic Director correct?
iii. RULING: The Athletic Director is not correct. The
five-year employment contract is valid. The Labor Code
does not prohibit fixed-term employment for activities
which are usually necessary or desirable in the usual
business or trade of the employer. Considering that there
is an employment contract validly entered into between
the Athletic Director and Brent School without any
indication that it was intended to defeat his right to
security of tenure, the employment of the Athletic
Director was validly terminated. The expiration of the
employment contract automatically terminated his
employment without the necessity of notice.
iv. Beta Electric Corporation v. NLRC, 182 SCRA 384
1. FACTS: The employee was hired as clerk typist for
a period of one (1) month. Her employment
contract was extended for another month. Upon
expiration of the one-month extension, the
employment contract extended for another
month. Thereafter, the contract was again
extended for another month. Upon expiration of
the one-month extension, the employment
contract was extended for another month.
Subsequently, the contract was again extended for
another month, and upon expiration of the
extension (which is actually the 6th month of
service), the Company terminated the services of
the clerk typist. On the same day the clerk typist
filed a complaint for illegal dismissal. The
Company argued that the clerk typist was merely
hired on a temporary basis for the purpose of
meeting the seasonal or peak demands of the
business, hence, she may be terminated after the
accomplishment of her task.
2. ISSUE: Can the month-to month contract between
the Company and the employee be accorded
validity?
3. RULING: The month-to-month contract between
the Company and the clerk-typist cannot be
accorded validity. Because it was obviously
designed to defeat the employee’s right to
security of tenure. In fixed term employment, the
tenure is the period agreed upon by the parties,
upon expiration of the agreed period, the
employment automatically terminates without the
necessity of notice.
vi. Probationary Employment-
1. Is a job where the employee is made to undergo a trial period to enable
the employer to determine the employee’s fitness for regular
employment based on reasonable standards made known to at the time
of engagement.
2. Basic requirements for hiring probationary employees.
a. Written contract of probationary employment
b. Notice of standards for regularization
i. Notification of standards is not necessary when the
matter pertains to the basic knowledge and common
sense.For instance, punctuality is a standard imposed on
every employee even if the employee was not apprised to
be punctual, common sense dictates he must abide by the
work hours imposed by the employer.
3. Duration
a. Article 296 of the LC fixes the probationary employment of
ordinary employees at 6 months. Six month period is reckoned
from the date of appointment up to the same calendar date of
the 6 month following.
b. ALCIRA v. NLRC G.R. No. 149859, June 9, 2004
i. FACTS: 2004-The employee was hired as probationary
employee on May 20, 1996 for a period of six (6) months.
He was dismissed on November 20, 1996 for failure to
qualify for regular employment. The employee argued
that he has already attained the status of a regular
employee when he was dismissed because, having started
work on May 20, 1996, the six-month probationary period
ended on November 16, 1996, applying Article 13 of the
Civil Code which provides that one month is composed of
thirty days, hence, six months total 180 days.
ii. ISSUE: Is the contention of the employee correct?
 iii. RULING: The contention of the employee was not correct.
The six-month contract. The 6-month probationary period
is reckoned from the date of appointment up to the
same calendar date of the 6th month following. The
number of days in each particular month was irrelevant,
hence, the employee was still a probationary employee
when he was terminated on November 20. Even though
the labor code fixes the probationary period of
employment at 6 months, the employer can establish a
company policy fixing a longer probationary period or the
parties can agree on a longer period. However, to prevent
abuse, there should be a valid justification for imposing a
longer probationary period. Just as the job requires a
certain qualification, skills, experience or training or
when the nature of work requires a longer probationary
period.
c. BUISER v. LEOGARDO 131 SCRA 151
i. FACTS: General Telephone Directory Co. is a corporation
engaged in the business of publication and circulation of
the directory of the PLDT. Buiser was hired by General
Telephone Directory Co. as Sales Representative on
probationary basis for a period of eighteen (18) months.
The 18-month probationary period was set because the
nature of the job is such that General Telephone
Directory Co. would be able to determine her true
character and selling capabilities only after the
publication of the directory. It takes about eighteen (18)
months before the work of a sales representative can be
fully evaluated, considering that the advertisements
solicited for a particular year are published in the
directory only the following year. Buiser maintained that
her 18-month probationary employment is not valid,
considering that the Labor Code fixes the probationary
employment at six (6) months.
 ii. ISSUE: Is the 18-month probationary employment of
Buiser valid?
iii. RULING: The SC held that it was valid. While the LC sets
the probationary period of employment at 6 months, the
parties to an employment contract may validly agree on a
longer period, such as when the same is established by
company policy, collective bargaining agreement or when
the same is required by the nature of work to be
performed by the employee. In the present case, it has
been shown that the General Telephone Directory Co.
needs at least 18 months to determine the character and
selling capabilities of a sales representative.
4. Extension
a. Probationary employment can be extended to give the employee
a chance to improve. However, the extension should be done on
or before the expiration of the probationary period otherwise
the employee will automatically become a regular employee by
operation of law.
b. Mariwasa Manufacturing, Inc. v. Leogrado (169 SCRA 465)
i. FACTS: The employee was engaged as a probationary
employee for a period of six (6) months. Prior to the
expiration of the 6-month period, Mariwasa informed the
employee that his work was unsatisfactory and had failed
to meet the required standards. Instead of dispensing
with his service then and there, Mariwasa extended his
probation period for another three (3) months in order to
give him a chance to prove his worth. The employee
agreed to the extension. Unfortunately, his performance
did not improve. Thus, Mariwasa terminated his
employment at the end of the extended period.
ii. ISSUE: Was the extension of the 6-month probationary
period valid?
 iii. RULING: The extension of the 6-month probationary
employment was valid. The extension of the probation
was an act of liberality on the part of Mariwasa in order
to afford him a chance to make good after having initially
failed to prove his worth as an employee. Such an act
cannot now unjustly be turned against Mariwasa's account
to compel it to keep on its payroll one who could not
perform according to its work standards. The law, surely,
was never meant to produce such an inequitable result.
By voluntarily agreeing to an extension of the
probationary period, the employee in effect waived any
benefit attaching to the completion of the said period if
he still failed to make the grade during the period of
extension. There is nothing in the law which by any fair
interpretation prohibits such a waiver.
5. Termination
a. For any valid or authorized causes prescribed by the Labor Code;
or
b. For failure to qualify as a regular employee in accordance with
reasonable standards made known by the employer at the time
of his engagement.
c. Exhaustion of Period
i. It is not necessary that the entire probationary period
should be exhausted before effecting the dismissal. If the
probationary employee fails to meet the standards for
regularization, he can be dismissed at any time prior to
the expiry of the probationary period.
ii. Meralco v. NLRC, 178 SCRA 198
1. FACTS: The employee was hired on probationary
status for five (5) months. In the course of his
employment, he demonstrated a performance that
was not satisfactory. Because of this,
 MERALCO dismissed the employee on the 4th
month of his probationary employment.
2. ISSUE: Is the dismissal valid?
3. HELD: The dismissal is valid. The mere fact that
the dismissal was effected one (1) month before
the expiration of his probationary employment
does not invalidate the dismissal. The provision of
Article 296 of the Labor Code that "probationary
employment shall not exceed six (6) months"
means that the probationary employee may be
dismissed for cause anytime before the expiration
of six (6) months after hiring.
d. Valid termination before stipulated period
i. If the probationary employment is terminated before the
stipulated period, the employee is not entitled to salaries
of the unexpired term.
ii. INTL CATHOLIC MIGRATION COMMISSION v. NLRC, 169 SCRA
606
1. FACTS:The employee was hired on probationary
status for 6 months. Three months later, The
employment was terminated for failure to meet
the prescribed standard for regularization.
Thereafter, the employee filed a complaint for
illegal dismissal. The validity of the dismissal was
upheld but the Labor Arbiter ordered the
employer to pay the salaries for the unexpired
portion of the probationary employment contract
on the ground that the 6 month probationary
employment is for a definite period.
2. ISSUE: Is the employee entitled to salaries for the
unexpired portion of her probationary
employment?
3. RULING:The SC ruled that the employee was not
entitled to salaries for the unexpired portion of
 the probationary employment. A probationary
employee may be dismissed for cause anytime
before the expiration of the 6 months after hiring.
6. Probationary Employment of Teachers (and academic non-teaching
personnels)
a. Term of probationary period
i. For elementary and secondary level — three (3)
consecutive school years;
ii. For tertiary and graduate level — six (6) consecutive
semesters; and
iii. For territory level on trimester basis — nine (9)
consecutive trimesters.
b. Teaching or academic staff are those engaged in actual teaching
or research assignments either on full time or part-time basis.
c. Academic Non-teaching personnels are those who perform
academic functions directly supportive of teaching such as
registrars, librarians, guidance councilors, researchers, research
assistants, research aides and similar staff.
C. Recruitment and Placement
a. Recruitment Activities
i. Includes
1. Canvassing-going to places looking for worker
2. Enlisting-convincing and offering work
3. Contracting-entering into a work agreement
4. Transporting-carrying people for employment purposes
5. Utilizing- making practical or profitable use of workers
6. Hiring-engaging a person for employment
7. Referring-forwarding a person to a selected placement office
8. contracting services-preparation of employment contracts
9. promising or advertising-publicizing or offering an employment
ii. The Essential Element of Recruitment and Placement
1. Offer or promise of employment. Without offer or promise of
employment, there is no recruitment activity, and therefore, there can
be no illegal recruitment.
a. Darvin v. CA, 292 SCRA 534
i. FACTS: Darvin convinced Toledo that by giving her
P150,000.00 she can immediately leave for the United
States without any appearance before the U.S. Embassy.
Thus, Toledo gave Darvin the amount of P150,000.00 and
Darvin issued a receipt stating that the amount was for
U.S. Visa and Air Fare. Thereafter, Toledo failed to hear
from Darvin, prompting her to file a complaint for illegal
recruitment against Darvin.
ii. ISSUE: Can Darvin be held liable for illegal recruitment?
iii. RULING: Darvin cannot be held liable for illegal
recruitment. He did not offer a job to Toledo. Darvin
merely assisted Toledo in getting a US Visa. The sum of
150,000 was given as payment for US visa and airfare,
procuring a passport, airline ticket and visa for another
individual without more can hardly qualify as recruitment
activities. Hence, Darvin cannot be held guilty of illegal
recruitment.
2. Material Consideration
a. Money is not an essential element of recruitment and placement.
Under the legal definition, Recruitment and placement can take
place even if the recruitment was done for free.
b. People v. Jamilosa, 541 Phil 326
i. FACTS: Jamilosa was charged with large-scale
recruitment. He argued that he cannot be held liable for
illegal recruitment because he did not ask for any
material consideration from the complainants. He further
pointed out that the three (3) complainants did
 not present even one receipt to prove payment of any
fee.
ii. ISSUE: Can Jamilosa be held liable for illegal recruitment?
iii. RULING: Jamilosa can be held liable for illegal
recruitment. The absence of receipt or document showing
that Jamilosa received money does not negate the
commission of a recruitment activity. Illegal recruitment
can exist even in the absence of money or other valuables
given to the recruiter. From the language of Article 13(b)
of the Labor Code, the act of recruitment may be for
profit or not.
3. Number of Persons Recruited
a. Not an essential element of recruitment. A person will be
considered to have engaged with recruitment and placement
even if he dealt with only 1 person.
b. People v. Panis, 142 SCRA 664
4. Referral is a recruitment activity. A person who referred an applicant
for an employment to an unlicensed recruitment agent can be held
liable for illegal recruitment.
5. People v. Goce, 317 Phil 897
iii. Who can engage in recruitment and placement of workers?
1. Generally, only public employment offices
2. Exceptionally, private sectors can be given the privilege to engaged in
recruitment and placement of workers
a. Limited to
i. Private employment agency
ii. Private recruitment entity
iii. Manning agency
1. Basic Requirement to Operate a Recruitment or
Manning Agency
a. Recruitment and placement of workers is a
regulated activity. It is a mere privilege,
hence, Recruitment or Manning Agency
must first obtain a License to Recruit
 from DOLE for recruitment agencies for
local employment or Department of
Migrant Workers for recruitment agencies
for overseas employment.
b. License will be issued if applicant:
i. Has complied with:
ii. Citizenship (Filipino citizen or
partnership)
iii. Ownership (75% owned and
controlled by Filipinos)
iv. control (corporation authorized and
voting capital stock of which is 75%
owned and controlled by Filipinos)
v. net worth (1M-recruitment agencies
for local employment, 5M-for
recruitment or manning agency for
overseas employment)
vi. capitalization, and
vii. office space requirements.
(minimum floor area: 40 sq.m. –
recruitment agencies for local
employment; 100 sq.m- for
recruitment or manning agency for
overseas employment)
iv. Who are disqualified
1. In general
a. Persons found with probable cause or convincted of illegal
recruitment, trafficking in persons, violation of anti-child labor
law, or crimes involving moral turpitude; and
b. Recruitment agencies whose licenses have been previously
canceled or revoked.
2. Local Employment
a. Cooperatives, even if registered with the Cooperative Act of the
Philippines; and
b. Law enforcers and employees of the Department of Labor and
Employment.
3. Overseas Employment
a. Travel agencies, including their officers., directors, or partners
b. Airline company sales agents
c. Persons, partners, directors of an insurance company who
propose or provide compulsory insurance coverage for OFWs
d. Those with derogatory record;
e. Employees of government agencies directly involved in the
implementation of The Migrant Workers Act including their
relatives within the 4th degree of consanguinity or affinity
f. Applicants, incorporators, or directors in at least 5 licensed
manning agencies
v. Limitation on the Use of LIcense
1. The license cannot be used. Directly or indirectly, by any person other
than the one in whose favor it was issued
a. Note: the license automatically ceases to be effective if the sole
proprietor dies or if the partnership is dissolved by death or
withdrawal of a partner.
2. The license cannot be used in any place other than that specified in the
license or authority.
 a. Note: Exceptionally, recruitment or manning agencies for
overseas employment may use their license to recruit outside of
the place specified therein when the recruitment is done:
(a) under the Public Employment Service Office Act of 1999; or
(b) pursuant to a special recruitment authority from the POEA.
3. The license cannot be transferred, conveyed or assigned to any person
or entity
a. Note: Change in ownership of the recruitment agency
automatically revokes the license. In case of death of a sole
proprietor, the heirs cannot inherit the license. If the
recruitment agency is sold, the sale cannot include the license.
vi. Suspension or cancellation of license
1. Commision of prohibited activities in:
a. Art. 34 of the Labor Code
b. Section 6 of the Migrant Workers Act of 1995
vii. Complaints
1. DOLE- Local Employment
2. Department of Migrant Workers- Overseas Employment
viii. Remedy from orders of suspension or cancellation of licenses
1. Local Employment- appeal to the Secretary of Labor and Employment
within ten (10) days from receipt
2. Overseas Employment- appeal to the Secretary of Migrant Workers
ix. Recruitment Agencies — solidarily liable
1. For all claims and liabilities which may arise from implementation of
the employment contract.
2. Does not apply: Theory of Imputed Knowledge
a. Knowledge of the agent can be imputed to principal, but
knowledge by principal cannot necessarily be imputed to the
agent (Sunace International v. NLRC)
x. Requirement of Posting a Bond or Escrow Deposit
1. Guarantees only employment related claims
xi. Jurisdiction
1. Regional Adjudication Service of the Department of Migrant Workers
a. Exclusive and original jurisdiction
 i. Administrative Aspectof recruitment violations and
disciplinary actions
ii. Excluding Money Claims
b. Appealable to the Office of the Secretary of the Department of
Migrant Workers
c. Department of Migrant Workers to Close a Recruitment Agency
i. In case of illegal recruitment for overseas employment
xii. Lifting of Closure Order
1. A recruitment agency which has been ordered closed may file a verified
Motion to Lift Closure Order with the Licensing and Regulation Office or
the DOLE Regional Director within 10 calendar days from the date of
implementation thereof.
2. The Closure Order will be lifted if it is proven that the recruitment
agency is not involved in illegal recruitment activities, whether directly
or indirectly.
xiii. Motion to Reopen Establishment
1. Filed by those whose operations/activities are distinct front he
recruitment activities of the entity subject of the closure order
xiv. Types of Illegal Recruitment
1. Recruitment carried out by a person who is not a holder of a license or
authority
2. Recruitment carried out by a person (licensed or not) who commits
prohibited practices in Article 34 of the Labor Code or Section 6 of the
Migrant Workers Act of 1995
a. Elements
i. Offender has engaged in recruitment activities
ii. Committed prohibited practices under Article 34 of the
Labor Code or Section 6 of Migrant Workers Act.
b. Examples
i. Charging excessive fees
ii. Furnishing or publishing any false notice or information
iii. Inducing a person to quit his employment
iv. Substituting employment contracts
 v. Failure to deploy worker
vi. Allowing foreigner to manage recruitment agency
xv. Large Scale Illegal Recruitment
1. Exists when three or more persons, individually or as a group, are
victimized by an illegal recruiter
xvi. Syndicated Illegal Recruitment
1. Exists when a group of three or more persons acting in conspiracy,
carries out the illegal recruitment activity.
xvii. Illegal Recruitment
1. Considered as an economic sabotage, when committed:
a. By a syndicate, or
b. In large scare
xviii. Illegal Recruitment and Estafa
1. Separate and distinct from estafa
xix. Prescriptive Period of Criminal Action for Illegal Recruitment
1. Under Article 38 of the Labor Code: 3 years (Art. 305 of the LC)
2. Under the Migrant Workers Act
a. Simple Illegal Recruitment- 5 years
b. Illegal recruitment involving economic sabotage- 20 years
xx. Reckoning Period of the Prescriptive Period
1. From the day of the commission of the violation, if such commission is
known; or
2. From discovery of the violation, if the commission of the violation was
not known at the time
b. Overseas Filipino Workers
i. Hiring of Filipino Workers for Overseas Employment
1. Ban on direct hiring (Article 18, LC)
a. Ban not applicable if hired by:
i. Members of the diplomatic corp;
ii. International organization;
iii. Heads of state;
iv. Government officials with the rank of at least deputy
minister;
 v. Government officials with lesser rank, if endorsed by the
Philippine Overseas Labor Office (POLO), or Head of
Mission in the absence of the POLO;
vi. Employers of professionals and skilled workers with duly
executed/authenticated contracts containing terms and
conditions over and above the standards set by the
Department of Migrant Workers;
vii. Relatives who are permanent residents of the host
country.
ii. The minimum Age of OFWs
1. Domestic — 23 yrs old
2. OFWs — 18 yrs old
iii. Sanctions for Recruiting Underage OFWs
1. Automatic revocation of license;
2. Fine;
3. Refund of fees
iv. Deployment of Land-Based OFWS
1. Only in countries which:
a. Have laws that protect the rights of migrant workers.
b. Has an agreement with the Philippine government regarding
protection of OFWs;
c. Is a signatory to or ratifier of multilateral conventions,
declarations, or resolutions relating to the protection of migrant
workers.
v. Deployment of Sea-Based OFWs
1. To compliant employers
2. By compliant Filipino companies with international operations
vi. Period to Deploy OFWS
1. Within 60 days from Overseas Employment Certificate issuance
2. If the employment or manning agency fails to deploy the worker, it
should report the matter to the Department of Migrant Worker within 15
days from the expiry of the OEC stating the reasons therefore, and
apply for the cancellation of documents.
vii. Placement Fees
1. Only recruitment agencies for land-based OFWS can charge placement
fee
equivalent to one-month basic salary
2. No placement fees for:
a. Seafarers
b. Domestic workers
c. Workers who are deployed on overseas projects
d. Companies registered with the Philippine Overseas Contractors
Board
e. Workers deployed to countries which do not allow the collection
of placement fee
viii. SSS Coverage
1. Compulsorily covered
a. Provided that they are not over 60 years of age.
b. Manning agencies being the agents of their principals are
considered employers of the sea-based OFWs
c. Land-based OFWs are considered self-employed
ix. Free Insurance Coverage
1. Death, disability, repatriation cost, etc.
2. War risk insurance
x. The Third-Doctor Conflict Resolution procedure
1. Antecedents
a. Medical repatriation
- If a seafarer is repatriated because of work-connected injury or
illness, he must submit himself to post-employment medical
examination by a company-designated physician within three
working days upon his return, unless he is physically
incapacitated to do so, in which case, a written notice to the
manning agency within the same period is deemed as
compliance.
b. Post-employment medical examination
- He must report regularly to the company-designated physician
on the dates prescribed by the company-designated physician
 and agreed to by the seafarer.Failure to do so will result in
forfeiture This right to claim the applicable benefits.
c. Declaration of fitness to work/degree of disability
- The company-designated physician has 120 days within which to
declare whether the seaman is fit to work or to declare the
degree of his permanent disability. If no declaration is made
within the 120-day period, the seafarer's disability shall be
considered as total and permanent.
- If medical treatment is still required after 120 days, the period
to declare fitness to work or to determine the degree of the
permanent disability, may be extended for another period not
exceeding 120 days. Within this extension period, the company
designated physician may
i. Declare that the seafarer is fit to work, in which case,
the seafarer will no longer be entitled to sickness
allowance, or
ii. Declare the degree of permanent disability, in which
case, the seafarer shall be entitled to receive disability
benefits depending on the degree of his permanent
disability.
2. The Conflict
3. Resolution of the Conflict
a. Second opinion from a physician of his choosing
i. If the seafarer does not agree with the findings of the
company designated physician, he may request for a
second opinion from a physician of his choice. If the
assessment of the seafarer's personal doctor conflicts
with that of the company designated physician, the
employer and the seafarer shall jointly engage a third
doctor. The third doctor's decision shall be final and
binding on both parties.
b. Third Doctor
i. Employer and the seafarer shall jointly engage a third
doctor.
If the seafarer does not agree to engage a third doctor, the fit to
work certification of the company designated physician shall be
deemed affirmed.
ii. Abella v. Abosta Shipmanagement Corp, G.R. No. 249358
1. RULING:
a. A final, conclusive, and definite medical
assessment must clearly state whether the
seafarer is fit to work or the exact
disability rating, or whether such illness is
work-related, and without any further
condition or treatment. It should no longer
require any further action on the part of
the company-designated physician and it is
issued by the company-designated
physician after he or she has exhausted all
possible treatment options within the
periods allowed by law.
b. In this regard, the company-designated
physician is mandated to issue a medical
certificate, which should be personally
received by the seafarer, or, if not
practicable, sent to him/her by any other
means sanctioned by present rules. For
indeed, proper notice is one of the
cornerstones of due process, and the
seafarer must be accorded the same
especially so in cases where his/her
well-being is at stake.
c. A company-designated physician who fails
to "give" an assessment as herein
interpreted and defined fails to abide by
due process, and consequently, fails to
abide by the foregoing guidelines.
 d. Hence, Abella cannot be expected to make
an informed decision on whether he agrees
with the medical assessment of the
company-designated physician or not on
the basis of a mere verbal declaration of
his purported disability. Insofar as he is
concerned, there is no final medical
assessment issued by the
company-designated physician to contest.
As such, he need not seek the opinion of an
independent physician, more so refer the
matter to a third doctor. Without proper
notice of the November 22, 2016 Medical
Assessment to Abella, he is already
deemed totally and permanently disabled
by operation of law, and therefore entitled
to the corresponding disability benefits
under the POEA-SEC. The medical
assessment of Dr. Garcia as well as the
absence of a medical assessment from a
third doctor become immaterial.
iii. United Philippine Lines, Inc. v. Ramos, GR No. 225171,
Mar. 18, 2021
1. RULING: Failure to follow conflict resolution
procedure taken against seafarer if he was
notified of the company-designation physician’s
assessment. Leobert was not issued an assessment
within the 120 or 240 day period from the date he
reported to the company-designated physician.
i. Pacific Ocean Manning, Inc. vs Castillo, GR No. 230527,
June 14, 2021
 1. Third doctor's medical report must be viewed and
upheld in its entirety. Said medical report does
not indicate that Feliciano was suffering from
total permanent disability.
2. "Unfit to work as a seaman" should be understood
in the context of the third doctor having also
given a Grade 7 rating.
3. Continued treatment did not automatically negate
the finality of the company designated physician's
diagnosis. Some conditions require further
treatment.
4. Non-deployment within 240 days did not render
his disability total and permanent.
5. Failure to furnish a copy of the company
designated physician's medical report was not
raised before labor tribunals.
6. Final and binding medical report of the third
doctor upheld
xi. Repatriation of OFWs
1. Primary responsibility of the recruitment agency (all costs)
2. If the determination of the cause was due to the worker’s fault, the
principal or agency may recover the costs of repatriation from the
worker
xii. Repatriation in Case of Emergencies
1. OWWA shall undertake the repatriation subject to reimbursement of the
agency/principal.
xiii. Repatriation of Underage OFWs
xiv. The Country-Team Approach
1. Mode by which the Philippine embassies or their respective personnel
operate to ensure the protection of OFWs
xv. Remedy for Aggrieved OFWs
1. OFWs can filed a complaint for illegal dismissal or money claims before
the Regional Arbitration Branch of the National Labor Relations
Commission
 xvi. Reliefs for OFWs Illegally Dismissed
1. Payment of the basic salary for the unexpired portion of the
employment contract; and
2. Reimbursement of placement fee and the deduction made, with 12%
interest per annum
xvii. Liability of Recruitment Agencies
1. Solidary liability with their principals for all claims and liabilities which
may arise in the implementation of the employment contract
2. Except: Theory of Imputed Knowledge
xviii. Liability of Directors/Partners of Corporation/Partnership
1. Solidary liable with the corporation or partnership for claims and
liabilities which may arise from the implementation of the employment
contract
c. Non Resident ALiens
i. Requirements for Employment of Non-Resident Alien
1. AEP
2. Work visa
3. Special Temporary Permit
4. Authority to Employ Alien from the DOJ/DENR
ii. Who are required to get AEP
1. Gainful employment only
a. Presupposes the existence of the ER-EE relationship
iii. When will the AEP be issued
1. If there is no competent, able, and willing Filipino (or permanent
resident alien) at the time of application to perform the services for
which are required
iv. Who are not required to get an AEP? (Exempted)
1. Dependent spouse of any member of the diplomatic corps, if there is an
existing reciprocity agreement and/or an exchange of notes between
the Philippine Government and their respective countries of origin;
2. Accredited officials and personnel of international organizations of
which the Philippine Government has entered into an agreement with,
including their dependent spouse;
 3. Foreign nationals who are officers and staff of the Embassy of their
country, or of peacekeeping or international organizations accredited,
endorsed, or certified by the appropriate government agencies, and will
not engage in any gainful employment in the Philippines;
4. Foreign nationals who come to the Philippines to teach, present, or
conduct research studies in universities and colleges as visiting,
exchange or adjunct professors under formal agreements between the
universities or colleges; or between the Philippine government and
foreign government, subject to the rules of reciprocity;
5. Permanent resident foreign nationals" and probationary or temporary
resident visa holders;
6. Refugees and Stateless Persons recognized by the Department of Justice
and pursuant to Article 17 of the 1951 and 1954 UN Conventions Relating
to Status of Refugees and Stateless Persons, respectively; and
7. All foreign nationals are granted exemptions by law.
v. Who are excluded (not covered) from the AEP Requirement?
1. Foreign nationals
a. With no ER-EE relationship with a Philippine-based entity
b. Who provide or supply services in the Philippines, but their
employers are located abroad
vi. Sanctions for Working Without or With Expired AEP
1. Disqualification from applying for employment permit
2. Fine and/or imprisonment
3. Deportation
4. Not entitled to protection under our labor laws
(WPP Marketing Communications v. Galera, 630 Phil 410)
vii. Sanctions for Employers who Employ aliens without an AEP
1. Disqualifications from applying for employment permit
2. Fine
viii. Sanction for filing fraudulent application for AEP
1. Bar from filing application
ix. Sanction for working with fraudulent AEP
1. Indefinite disqualifications
2. Fine
 x. Grounds for Revocation of AEP
1. Misrepresentation
2. Objection
3. Conviction
4. Information
5. Grave Misconduct, or ill-treatment
6. Violation of law
7. Failure to claim the employment permit card
xi. Effect of Revocation of AEP
1. Disqualification from re-applying for a permit (10,5 years)
xii. Remedies From Revocation of AEP
1. Motion for reconsideration
2. Appeal
3. Orders revoking the AEP, barring a foreign nation from applying for AEP
are immediately executory pending appeal
xiii. Change of Job or Employer
1. Prior approval by the Secretary of Labor and Employment if foreign
national will:
a. Transfer to another job, or
b. Change his employer
xiv. Sanctions for Transferring to Another Job or Employer Without Approval
1. Fine and/or imprisonment
2. Deportation
xv. Transfer of Company to Another Location
1. AEP not affected
xvi. Transfer of Foreign National to Related COmpanies in Another Region
1. AEP not affected but notify the DOLE Regional Office
d. Apprentices
i. Definition- a person undergoing training for an approved apprenticeable
occupation assured by an apprenticeship agreement
ii. Minimum Age of Apprenticeship
1. At least 14 yrs old
iii. Jobs Where Apprentices Can Be Hired
 1. Apprenticeable occupations- a job officially endorsed by a tripartite
body and approved for apprenticeship by TESDA
iv. The Basic Requirements for Hiring Apprentices
1. TESDA- Approved apprenticeship program
2. Apprenticeship agreement
(Nitto Enterprises v NLRC, 318 Phil. 780)
Without an approved apprenticeship program by TESDA, despite having an
apprenticeship agreement, the employee shall not be considered an apprentice
but an employee
v. Who can establish an apprenticeship program?
1. Employers in the highly technical industries
a. Trade, business, enterprise, industry, or other activity which
utilizes the application of advanced technology
vi. Can an employer be obliged to establish an apprenticeship program
1. No legal obligation (Art. 70, LC)
2. Exceptions
a. Critical shortage of trained manpower and national security, or
economic development so demands, or
b. Foreign technicians are utilized by private companies in
apprenticeable trades
vii. Minimum Wage of Apprentices
1. 75% of Minimum Wage
2. Exception
a. Those complying with:
i. Academic requirements for graduation; or
ii. Government requirements for board examinations
viii. Duration: not more than 6 months
e. Learners
i. Definition- are persons hired as trainees in semi-skilled or non-apprenticeable
occupations which can be learned through practical training on-the-job in a
relatively short period not exceeding three months.
ii. When can an employer employ learners?
1. Semi-skilled or non apprenticeable jobs that can be practically learned
within a period of not more than 3 months
 2. No available experienced workers
3. Necessary to prevent curtailment of employment opportunities
4. No unfair competition on labor, costs, or impair or lower working
standards
iii. Age requirement: 15 years old
iv. Basic Requirements for Employment of Learners
1. Learnership Program
2. Learnership Contract
v. Minimum Compensation for Learners
1. 75% of statutory minimum wage
vi. Duration of Learnership
1. 3 months
2. If completed, the learner must be absorbed in regular working force

vii. Violation of Learnership Law

1. Criminal offense punishable under Article 303 of the LC
viii. Distinction Between Learners and Apprentice
1. Minimum age requirement
a. Learner- 15
b. Apprentice- 14
2. Nature of Occupation
a. Learner- hired for non-apprenticeable occupation
b. Apprentice- hired for apprenticeable occupations
3. Nature of training;
a. Learner- does not undergo theoretical instructions
b. Apprentice- undergo theoretical instructions
4. Duration of training:
a. Learner- 3 months
b. Apprentice- 6 months
5. Nature of Industry
a. Learners- can be hired even if the employer is not a highly
technical industry
b. Apprentice- can be hired even if the employer is not a highly
technical industry
 6. When to hire:
a. Learners- can be hired only when there are no available
experienced workers
b. Apprentices- can be hired even if there are available
experienced workers
7. Continuity of employment
a. Learners- become regular employees upon the expiration of the
learnership
b. Apprentices- employment terminates upon expiration of the
apprenticeship
8. Criminal Liability
a. Violation of the learnership law- criminal offense
b. Violation of the apprenticeship law- not a criminal offense
f. Persons With Disability
i. Definition- are those suffering from restriction to perform an activity because
of mental, physical, or sensory impairment
ii. Basic Policy in Hiring PWDs
1. Non-discrimination of PWDs (Sec. 32 of the Magna Carta of Persons with
Disability)
2.
iii. PWDs as apprentices or learners
1. Can be hired as apprentices or learners (Sec. 7 of the Magna Carta of
Persons with Disability)
iv. Incentive for Employers of PWDs
1. Additional deduction from their gross income equivalent to 25% of the
total amount paid as salaries and wages to persons with disability.
2. Conditions for grant:
a. The employer must get a certification from the DOLE that he
employs persons with disability
b. The disabled employee must be accredited by the DOLE and
Department of Health as to his disability, skills, and
qualifications.
g. Child Workers
i. Definition - A person below 18 years old, and those 18 years and above but
unable to fully take care or protect themselves from abuse, neglect,cruelty,
exploitation or discrimination because of a physical or mental condition.
ii. Minimum age for Local Employment
1. 15 yrs old
iii. When can children below 15 be employed?
1. When a child below 15 years old can be employed only under the
following conditions:
a. Only members of his family are employed
b. The job does not impair the child’s normal development or
endanger his life, safety, health, and morals; and
c. The child is provided with prescribed primary or secondary
education
2. When the employment of the child is essential in public entertainment
or information, subject to:
a. There must be an employment contract duly approved by DOLE
b. The employer must ensure the protection and safety, among
others
iv. Child Work Permit
1. An employer must first obtain a work permit from DOLE for a child
below 15 yrs old
2. Validity- 1 year
3. Grounds for Cancellation of Child Work Permit
a. Fraud or misrepresentation in the application for work permit
b. Violation of the terms and conditions of the child’s employment
contract
c. Failure to institute measures to ensure the protection, safety,
health, morals, and normal development of the child
d. Failure to formulate and implement programs for the education,
training and skills acquisition of the child; or
e. Depriving the child of access to formal, non-formal or alternative
learning systems of education.
v. Prescribed Working Hours for Children
 1. Below 15 yrs old
a. Not more than four (4) hours/day; and
b. Not more than 20 hours/week
c. No work between 8pm to 6am
2. 15-18 yrs old
a. Not more than eight (8) hours/day
b. Not more than 40 hours/week
c. No work between 10pm to 6am
h. Jobs Where Children Cannot Be Employed
i. As model in advertisements which promote alcoholic beverages, tobacco,
gambling, violence, or pornography
ii. As seafarers, whether in domestic or international voyage;
iii. In jobs which involve:
1. Use of power-driven tools or handling of explosives
2. Illegal or illicit activities such as slavery or acts similar to slavery,
prostitution, pornographic performances, or production of pornography
iv. In jobs which expose the child to:
1. Physical, emotional or sexual abuse, or highly psychological stressful
conditions;
2. Biological agents such as bacteria, fungi, viruses, ionizing, radiation,
fire, etc,; or
3. Physical danger, such as dangerous feats of balancing:
v. In jobs which are performed:
1. Underground
2. Underwater
3. At dangerous heights; or
4. Under particularly difficult condition,
i. Women Workers
i. Leave Benefits for Women Employees
1. Gynecological Leave (Max 2 months) for those who undergo surgery
because of gynecological disorders
2. Leave for Battered Woman (10 days)
 3. Maternity Leave- 105 days (or 120 days if solo parent) in case of
childbirth or 60 days in case of miscarriage or emergency termination of
pregnancy
ii. Prohibited Acts Against Women Employees
1. Discrimination against Women-Workers
a. Paying lesser compensation or fringe benefits to a woman
employee as against a male employee for work of equal value
b. Favoring a male employee over a woman employee with respect
to promotion, training opportunities, study and schol;arship
grants solely on account of their sexes
c. Discriminating against a woman employee simply because she got
married
2. Prohibition in requiring
a. Non-marriage as a condition for employment
b. Resignation upon marriage
3. Pregnancy
a. Employers are forbidden from dismissing a woman-employee:
i. Because of pregnancy
ii. While on leave due to her pregnancy
iii. Upon returning to her work for fear that she may again be
pregnant
j. Night Workers
i. Definition- are employees whose job requires performance of work at night for
a period not less than seven consecutive hours, including the interval from
midnight to 5am
ii. Transportation Facilities for Night Workers
1. Public transportation
2. If not available, company shall provide transportation or sleeping or
resting quarters
iii. Right to Request Free Health Assessment
1. Before taking up an assignment as a night worker;
2. At regular intervals during such an assignment; and
3. If they experience health problems because of night work
iv. Pregnant Women and Working Mothers
 1. May be allowed only upon certification of fitness
v. Alternatives for Pregnant Night Workers
1. Transfer to day work, if possible; or
2. Extend the maternity leave
vi. If Alternatives Are not Feasible
1. Allow the worker to take a leave of absence, if the health reason is
temporary in character
2. Terminate the employment with separation pay
vii. Domestic Workers
1. Definition- a person engaged to work for a household within an
employment relationship
a. Must be hired specifically to perform household work
(APEX MINING CO vs NLRC 196 SCRA 251)
viii. Not Considered Domestic Worker
1. Children or relatives of the domestic worker who live under the
employer’s roff and share the same accommodations provided for the
domestic worker, if they were not engaged as such and are not required
to perform any substantial household work
2. Persons who perform domestic work occasionally, and not on an
occupational basis
3. Children under foster family arrangement who are provided access to
education and given in allowance incidental to education
4. Family drivers
5. Workers of service providers like janitorial agencies
ix. Minimum Age for Employment of Domestic Workers
1. 15 yrs old
x. Hiring of Domestic Workers
1. Directly or through private employment agencies
xi. Domestic Workers should be Registered
1. In the barangay where the employer’s residence is located
xii. Employment Contract
1. Prior to the commencement of the service
2. Must be in the language understood by the domestic worker
xiii. Work Conditions
 1. Minimum wage- to be fixed by the Regional Tripartite Wages and
Productivity Board
2. 13th month pay
3. Corresponding wage- assignment to non-household work
4. Additional Compensation- for temporary service to another household in
an amount not less than the existing minimum wage rate
5. Free board and lodging- atleast 3 adequate meals a day, and humane
sleeping arrangements
6. Daily rest period- 24 hours consecutive per week
7. Weekly rest period- 24 consecutive hours per week
8. Service incentive leave- five(5) days a year, not convertible to cash if
unused
9. Medical Attendance- in case of illness or injuries sustained during
service
10. SSS, PhiHealth, and PAG-IBIG Fund Coverage
xiv. Privileges of Domestic Workers
1. Right to Humane Treatment
2. Right to Education and Training
3. Right to Privacy
4. Right to Access to Outside Communication

xv. Obligations of Domestic Workers

1. To render satisfactory service all times
2. To observe the terms and conditions of the employment contract
3. To refrain from publicly disclosing any communication or information
pertaining to the employer or any member of the household, during and
after employment
xvi. Prohibited Activities
1. Prohibition against deposits for loss or damage
2. Prohibition against debt bondage
3. Prohibition against interference in the disposal of wages
4. Prohibition against withholding of wages
xvii. When can employment of domestic workers be terminated?
1. If there is a just-cause- any time
 2. If there is no just cause- at the end of the stipulated period
3. If no stipulated period- by giving five days’ advance notice
xviii. Just Causes for Dismissal
1. Misconduct or willful disobedience to lawful order
2. Gross or habitual neglect or inefficiency
3. Fraud or willful breach of the trust
4. Commission of a crime or offense by the domestic worker against the
person of the employer or any immediate members of the employer’s
family
5. Disease prejudicial to the health of the domestic worker or members of
the household
6. Violation by the domestic worker of the employment contract
7. Other causes analogous to the foregoing
xix. Effect of Dismissal Without Just Cause
1. Employer is liable for indemnity equivalent to 15 days’ wage
xx. Grounds for Quitting Employment
1. Verbal or emotional abuse by the employer or any member of the
household
2. Inhuman treatment by the employer or any member of the household
3. Commission of a crime against the domestic worker by the employer or
any member of the household
4. Disease prejudicial to the health of the domestic worker, or members of
the household
5. Violation by the employer of the employment contract
6. Other causes analogous the following
xxi. Effect of Quitting Employment Without Just Cause
1. Domestic worker will forfeit unpaid wages to the extent of 15 days
2. If the quitting was done within 6 months from hiring, the domestic
worker will be liable for the deployment expenses
xxii. Law Governing Family Drivers
1. With the enactment of the Domestic Workers Act which expressly
repealed the provisions of the LC on employment of househelpers,
family drivers are no longer considered as domestic workers.
 k. Home Workers
i. Definition- are employees who perform industrial work in their respective
homes on behalf of persons who deliver to them the goods to be processed or
fabricated into a finished product
ii. Industrial Homework
1. Is a system of production under which work for an employer or
contractor is carried out by the worker at his home
iii. When Homework is Not Allowed?
1. Manufacture or processing of:
a. Explosives, fireworks, and similar articles
b. Drugs and poisons, and
c. Other articles, the processing of which requires exposure to
toxic substances
iv. Who is Considered as the Employer (or his agent) of the Homeworker?
1. Delivers or causes the delivery of materials for processing in a home in
accordance with his directions, and thereafter gets the finished
product; or
2. Sells the goods or materials for processing in a home and then rebusy
the finished product.
v. Distinction Between Domestic Worker and Homeworker
1. 1st Difference
a. Domestic Workers- perform household work
b. Homeworkers - perform industrial work
2. 2nd Difference
a. Domestic Workers- work for a family
b. Homeworkers - work for a business enterprise
3. 3rd Difference
a. Domestic Workers-governed by the Domestic Workers Act
b. Homeworkers- governed by the Labor Code
D. Statutory Standard or Benefits
a. Standards Prescribed by Title I, Book III of the Labor Code
i. Hours of work
ii. Overtime pay
iii. Meal period
 iv. Night shift differential
v. Rest Day
vi. Premium pay
vii. Holiday pay
viii. Service incentive leave
ix. Service charges
b. Who are entitled
i. General Rule: All employees in all establishments, whether for profit or not
ii. Exceptions:
1. Government Employees
2. Managerial employees;
3. Officers and members of the managerial staff;
4. Field personnel;
5. Members of the family of the employer who are dependent on him for
support;
6. Domestic helpers (except weekly rest day and service incentive leave);'
7. Persons in the personal service of another; and
8. Workers who are paid by results.
c. Government Employees
i. Government employees refer to those employed by:
1. The national or local government; and
2. Government-owned or controlled corporations (GOCCs) with special
charters.
ii. They do not include those employed in government-owned controlled
corporations organized under the Corporation Law3
iii. Reason for Exemption: They are covered by a different set of laws, particularly
the Civil Service Law and the Administrative Code' and by their respective
charters, in the case of GOCCs.
d. Managerial Employees
i. For purposes of Book Three of the Labor Code, managerial employees are those
who:
1. Primarily manage the establishment or a department or subdivision
thereof;
 2. Customarily and regularly direct the work of two or more employees;
and
3. Have authority to hire or fire other employees of lower rank or their
suggestions and recommendations as to hiring, firing, promotion and
other personnel movements are given weight.
ii. Reason for Exemption: It is not feasible to provide them with a maximum hour
of work considering that they are engaged because of their knowledge which
requires the exercise of discretion and independent judgment
e. Officers or members of the Managerial Staff
i. They are those who
1. Primarily perform work directly related to management policies or
execute under general supervision, specialized or technical work or
special assignments;
2. Customarily and regularly exercise discretion and independent
judgment;
3. Regularly and directly assist a managerial employee; and
4. Do not devote more than 20% of their hours worked in a workweek to
activities which are not directly and closely related to the performance
of the work described above."
ii. Reason for Exemption: It is not feasible to provide them a maximum hour of
work because they perform work related to management policies or general
business operations along specialized or technical lines.
f. Field Personnel
i. Field personnel are non-agricultural employees:
1. Who regularly perform their duties away from the principal place of
business (or branch office); and
2. Whose actual hours of work cannot be determined with reasonable
certainty.
ii. Reason for Exemption: These kinds of employees work away from the
employer’s place of business and therefore, not subject to the personal
supervision of the employer, hence, the employer has no way of knowing the
number of hours they work in a day.
g. Family Members
i. To be exempted the family member must be dependent upon his employer for
support.
ii. Family members refer to husband and wife, parents and children, other
ascendants and descendants, brothers and sisters, whether full or half-blood.
Cousins, parents-in-law or children in-law are not considered as family
members because they do not pertain to the same family.
iii. Reason for Exemption: The reason for the exemption of family members is that
the employer already takes care of the sustenance, dwelling, clothing. medical
attendance or education of that member of the family.
h. Domestic helpers
i. Domestic helper refers to a person who renders service in and about the
employer's home in an activity which is usually necessary or desirable for the
maintenance and enjoyment of the employer and ministers exclusively to the
personal comfort and enjoyment of the employer's family. Examples are:
general househelp, cooks, gardeners, nursemaid, or laundry person.
ii. The exemption granted to domestic helpers under Article 82 of the Labor Code
has been modified by the Domestic Workers Act in the sense that domestic
workers are now entitled to service incentive leave (not convertible to cash)
and to a weekly rest day (although they are not entitled to premium pay if they
work on their rest day).
iii. Reason for Exemption: Because of the nature of work plus the fact that
domestic helpers are not employed in a business undertaking.
i. Persons in the personal service of another
i. Persons in the personal service of another are those who minister to the
personal comfort, convenience or safety of the employer as well as the
members of the employer's household. Examples are: personal bodyguards,
private nurses, and family drivers.
ii. Reason for Exemption: The reason for the exemption of persons in the personal
service of another is because the nature of their work and their peculiar
relationship with their employer necessitates that they be freed from certain
legal restrictions applicable to employers engaged in a business undertaking.
j. Workers who are paid by results
i. Are those who are compensated based on their output regardless of the time
spent in doing their work. Example: piece-rate worker.
ii. Reason for Exemption: Because their compensation is not dependent upon the
time spent in doing the work but on their output.
k. Hours of Work
i. The prescribed hours of work under normal conditions is eight hours a day.
Eight hours of work a day is the maximum.
ii. The term "day" refers to the 24-hour period reckoned from the time the
employee regularly starts work.
iii. The Eight-Hour-Work May Be Staggered. It need not be continuous. It may be
staggered as long as the eight hours of work fall within the 24-hour period.
iv. Work in excess of eight hours within the 24-hour period is overtime work which
entitles the covered employee to overtime pay.
v. Principles in Determining Hours Worked
1. All hours which the employee is required to give his employer are hours
worked, regardless of whether such hours are spent in productive labor
or involve physical or mental exertion."
2. If the work performed was necessary or it benefited the employer, or
the employee could not abandon his work at the end of his normal
working hours because he had no replacement, all time spent for such
work shall be considered as hours worked, if the work was done with
the knowledge (NOT APPROVAL) of his employer or immediate
supervisor,
3. The time during which an employee is inactive by reason of
interruptions in his work beyond control shall be considered as hours
worked:
a. If the imminence of the resumption of work requires the
employee's presence at the place of work;
b. If the interval is too short to be utilized effectively and gainfully
in the employee's own interest.
 vi. Waiting TIme
1. If engaged to wait - Time spent is considered as hours worked because
his time is already controlled by the employer, hence the employee
could no longer effectively use the time spent waiting for his own
purposes.
2. If waiting to be engaged - Time spent is not considered as hours worked
because his time is not yet controlled by the employer considering that
there has been no engagement yet.
vii. Travel Time
1. Home-to-work-work-to-home travel - not considered as hours worked
because it is a normal incident of employment.
2. Considered as hours worked - if required to deviate from his normal
home-to-work-work-to-home travel. (i.e. required to deliver or pickup a
letter from employer)
viii. On Call Time
1. If required to remain on call - considered as hours worked because the
employee cannot use the time effectively and gainfully for his own
purpose.
2. If not required to remain on call - not considered as hours worked
because the employee can use the time for his own purpose.
ix. Power Interruptions or Brown Outs
1. Less than twenty (20) minutes- Considered as hours worker because the
imminence of resumption of work requires the worker’s presence at the
time the work resumes. If the employees cannot use the time efficiently
or gainfully for their own interest.
2. More than twenty (20) minutes - not considered as hours worked, if the
employee is free to leave or go elsewhere wherein the employees can
use their time effectively for their own interest.
 x. Rest Period
1. Less than twenty (20) minutes - Considered as hours workers because
the time is too short for the employee to utilize it gainfully for personal
purposes.
2. More than twenty (20) minutes - not considered as hours worked if the
employee is completely relieved of his duties such that he can rest
completely
3. Note: Note: An employee need not leave the premises of the workplace
in order that his rest period shall not be counted as hours worked, it
being enough that he stops working, may rest completely and may leave
his workplace, go elsewhere, whether within or outside the premises of
his workplace.
xi. Coffee Break
1. Less than twenty (20) minutes - considered as hours worked;
2. More than twenty (20) minutes - not considered as hours worked;
xii. Meal Periods
1. Less than twenty (20) minutes - considered as hours worked;
2. One (1) hour is not considered as hours worked, unless the employees
are not completely relieved of their duties during the meal period.
xiii. Overtime Work
1. Overtime work refers to services rendered beyond eight hours in a day.
The term "day" refers to the 24-hour period reckoned from the time the
employee started working. Work rendered in excess of eight hours
within this 24-hour period is overtime work.
2. Overtime Limits for Certain Employees
a. For Public Utility Bus Drivers and Conductors - Public utility bus
drivers and conductors may render overtime work up to four (4)
hours a day only.
b. For Seamen - Seamen may render overtime work up to six (6)
hours a day only.
3. Can an Employee Be Compelled to Render Overtime Work?
a. General Rule: Covered employees cannot be compelled to render
overtime work because that would violate the constitutional
injunction against involuntary servitude. This means that
generally, an employee who refuses to render OT work cannot be
subjected to disciplinary action
b. Exceptions:
i. War or national/local emergency;
ii. Actual or impending disaster/calamity;
iii. Urgent work to be performed on machines/ installations;
iv. When Necessary
1. To prevent loss or damage to perishable goods;
2. To avail of favorable weather conditions; and
3. To complete the work started before the 8th hour.
c. Refusal to render OT work under the exceptional circumstances
above - Employee can be subject to disciplinary action
4. Overtime Pay Rates
a. Rates
i. On an ordinary day - 25% of the regular wage.
ii. On holiday or rest day - 30% of the holiday or rest rate
b. Compensability
i. Overtime work rendered without approval of (but known
to) the department head is compensable evein if there is
a standing circular against overtime work
ii. Compensable if:
1. The overtime work was necessary
2. It benefited the company; or
3. The employee could not abandon his work at the
end of his eight-hour work because there was no
substitute ready to take his place.
iii. Overtime pay can be incorporated in the monthly salary
provided that there is a clear written agreement
 knowingly and freely entered into by the employee and
the mathematical result shows that the mathematical
result already includes the overtime pay
iv. Note that the right to be compensated for overtime
services cannot be waived because it is against public
policy." However, a claim for unpaid overtime pay can be
waived because what is being compromised is not the
right (future) to overtime pay but the unpaid (past)
overtime compensation.
v. Offsetting Undertime with Overtime Not Allowed. Tnis
because the obligation to pay overtime compensation is
mandatory. An employer cannot evade payment of
overtime pay for overtime services rendered on one day
by offsetting it with undertime incurred another day.
vi. Who has the Burden of Proof of Proving Entitlement?
1. Employee has the burden of proving his claim for
non-payment of overtime pay. He must prove that
he has rendered overtime work because this is not
incurred in the normal course of business

l. Night Shift Differential

i. Night shift differential is additional compensation given to a covered employee
for working between 10:00 P.M. and 6:00 A.M.
ii. Rate
1. The night shift differential is 10% of the regular wage for each hour of
work rendered between 10:00 P.M. to 6:00 A.M.
m. Weekly Rest Day
i. The rest day is the period of inactivity of not less than 24 consecutive hours
given to an employee after rendering service for a week.
ii. The rest day need not be on a Sunday. Hence, an employer may open for
business on Sundays, provided the employees are given their weekly rest day
iii. Duration of Rest day
1. For ordinary employees - twenty-four (24) consecutive hours
2. For Health Personnel
 a. Twenty-four (24) consecutive hours - in localities with a
population of less than 1,000,000 or in hospitals or clinics with a
bed capacity of less than 100.
b. Forty-eight (48) hours in localities with a population of at least
1,000,000; or in hospitals or clinics with a bed capacity of at
least 100.
iv. Daily paid employees who do not work during their rest days are not entitled to
compensation.
v. Compensation for Working on Rest Day - Workers are entitled to additional
compensation called premium pay
1. If rest day falls on an ordinary day-additional 30% of the regular wage.
2. If rest day falls on a special working holiday- additional 30% of the
regular wage.
3. If a rest day falls on a special non-working holiday additional 50% of the
regular wage.
4. If rest day falls on a regular holiday-230% of the regular wage.
vi. Who has the Burden of Proof of Proving Entitlement?
1. Employee has the burden of proving his claim for non-payment of
premium pay. He must prove that he has worked on his rest day because
rest day pay is not a normal business occurrence
vii. Can an Employee Be Compelled to Work on His Rest Day?
1. General Rule: No
2. Exceptions:
a. Actual or impending emergencies
b. Urgent work to be performed on machinery or installations
c. Abnormal pressure of work due to special circumstances.
d. When Necessary
i. To prevent serious loss of perishable goods,
ii. To avail of favorable weather conditions.
e. When the nature of work requires employees to w continuously
for seven (7) days in a week
f. Where the exigencies of the services so require as determined by
the employer, health personnel in cities or municipalities with a
population of at least 1,000,000 or those employed in
 hospitals or clinics with a bed capacity of at least 100, may be
required to work on one of their weekly rest days.
n. Special Holidays
i. Special holidays are those which the law designates as such or those which the
national or local governments may declare from time to time.
ii. Types Special Holidays
1. Special working holiday; and
2. Special non-working holiday.
iii. National Special Working Holidays Fixed by Law
1. Last Monday of January - National Bible Day;
2. February 4 - Philippine-American War Memorial Day,
3. April 27 - Lapu-Lapu day (except in Lapu-Lapu City where it is a
non-working holiday);
4. September 3 - Surrender of Japanese military forces;
5. September 8- Feast of the Nativity of the Blessed Virgin
iv. National Special Non-Working Holidays Fixed by Law
1. August 21 - Ninoy Aquino Day;
2. November 1- All Saints Day;
3. December 8- Feast of Immaculate Conception):
4. December 31 - Last day of the year.
v. Daily-paid employees who do not work during special non working holidays are
not entitled to compensation.
vi. Covered employees who worked during special non working holidays shall be
entitled to additional pay called premium pay
vii. Rates
1. Special non-working holiday alone additional 30% of the regular wage.
2. Special non-working holiday falling on a rest day. additional 50% of the
regular wage.
3. Special working holiday - Not entitled to additional pay since you have
to work on that day
viii. Who has the Burden of Proof of Proving Entitlement?
1. Employee must prove that he has worked on a special non working
holiday because holiday work is not a normal business occurrence
o. Regular Holidays
i. The National Regular Holidays
1. New Year's Day - January 1
2. Maundy Thursday - Movable date
3. Good Friday - Movable date
4. Eid Ul-Fitr - Movable date
5. Eidul Adha - Movable date
6. Araw ng Kagitingan - April 9 (or Monday nearest)
7. Labor Day -May 1 (or Monday nearest)
8. Independence Day - June 12 (or Monday nearest)
9. National Heroes Day - Last Monday of August
10. (Bonifacio Day - November 30 (or Monday nearest)
ii. No Work No Pay not applicable to Regular Holidays because employees are
entitled to their pages during Regular Holidays even if they do not work
iii. Rate of Holiday Pay
1. Regular Holiday Alone
a. If the employee did not work - 100% (holiday pay).
b. If the employee worked-200% (100% as holiday pay and 100% for
services rendered).
2. Regular holiday falling on special non-working holiday:
a. If the employee did not work because of a non-working holiday
100% (holiday pay).
b. If the employee worked - 230% (100% as holiday pay, 100% as
compensation for services rendered, and 30% as premium pay for
working on a special non-working holiday)
3. Regular holiday falling on rest day:
a. If the employee did not work because of the rest day 100%
(holiday pay).
b. If the employee worked 230% (100% as holiday pay, 100% as
compensation for services rendered, and 30% as premium pay for
working on rest day)."
4. Regular holiday falling on special non-working holiday which is a rest
day:
a. If the employee did not work because rest day 100% (holiday
pay).
b. If the employee worked - 250% (100% as holiday pay, 100% as
compensation for services rendered, and 50% as premium pay for
working on a special non-working holiday that falls on rest day).
5. What if 2 are on the Same Date?
a. Covered Employee entitled to holiday pay on both Holidays
i. If the employee does not work - he should be paid 200%
ii. If the employee works, he should be paid 300%
6. Rules on Regular Holiday while on Leave of Absence
a. If on leave with pay-entitled to holiday pay.
b. If on leave without pay - not entitled to holiday pay.
7. Effect of Absences on the Right to Holiday Pay
a. If absent without pay on the day before the regular holiday - not
entitled to holiday pay.
b. If the day before the regular holiday is a non-working day or rest
day - entitled to holiday pay if he worked (or went on leave with
pay) on the day immediately preceding the non-working day or
rest day,
c. If there are two (2) successive regular holidays, like Maundy
Thursday and Good Friday - entitled to holiday pay for both
holidays only if he worked (or went on leave with pay) on the
day immediately preceding the first holiday.
8. Covered employees who are not reporting for work while enjoying
disability benefits under the social security law or employee's
compensation law are entitled to holiday pay, the amount of which is
the same percentage as the social security or employee's compensation
benefits being enjoyed by the employee.
9. Holiday Pay When Business is Temporarily Closed
a. If the establishment temporarily closes its operations because of
yearly inventory, repair, or cleaning of machinery, the covered
 employees are entitled to holiday pay for the regular holidays
that fell during the temporary closure.
10. If the employer temporarily shuts down or suspends its operations under
Article 301 of the Labor Code because of losses or lack of work, the
covered employees will not be entitled to holiday pay for the regular
holidays that fell while the operations are suspended.
iv. Seasonal workers are not entitled to holiday pay during off season work
v. Holiday Pay of Private School Teachers
1. During semestral break - not entitled to holiday pay
2. During Christmas vacation - entitled to holiday pay
3. Faculty members paid on per lecture hour-not entitle to holiday pay,
because they are paid only for work actually done
vi. Monthly paid employees are entitled to holiday pay because they are not
among those excluded in Article 82 of the Labor Code."
vii. How do we determine if Holiday Pay is included in Monthly Salary?
1. Look at the divisor used in computing the daily rate
a. If the divisor is at least 261 days, the holiday pay of
monthly-paid employees is deemed incorporated in their salary.
b. If 251 days is used as a divisor in computing the daily rate, the
holiday pay of monthly-paid employees is not yet included in
their monthly salary because the 251 days is the result of
subtracting all Saturdays, Sundays, and 10 regular holidays from
the total number of calendar days in a year.
viii. Who has the Burden of Proof of Proving Entitlement?
1. In a complaint for non-payment of holiday pay, it is incumbent upon the
employer to prove payment rather than on the employee cupre to prove
non-payment. The rationale for this rule is because the pertinent
personnel files, payrolls, records, and other similar documents are not
in the possession of the worker but are in the custody and control of the
employer.
ix. Not Entitled to Holiday Pay
1. Employees of retail and service establishments regularly employing less
than 10 workers;
2. Employees paid purely commission basis;
 3. Government employees and employees of GOCCs with special charters
4. Managerial employees;
5. Officers and members of the managerial staff;
6. Field personnel;
7. Members of the family of the employer who are dependent on him for
support;
8. Domestic helpers;
9. Persons in the personal service of another; and
10. Workers who are paid by results.
p. Flexible Work Schedule
i. Flexible work schedule is an arrangement where the employee can vary his
arrival and departure time without affecting the core work hours as defined by
the employer.
ii. If individual productivity as well as core hours of the employer will be affected,
the employer may request exemption from the DOLE to perform parental duties
and responsibility to children or dependents where physical presence is
required
iii. Children or dependents refer to those
1. Living with and dependent upon the solo parent for support
2. Unmarried; and
3. Unemployed.
4. Under 22, or over 22 but unable to full protect themselves from abuse,
neglect, cruel exploitation because of physical or mental disability
iv. Purpose is to enable a Solo Parent
v. Who are entitled
1. Solo Parents
vi. Categories of Solo Parent
1. A parent who provides sole parental care and support of the child or
children due to birth as a consequence of rape due to final conviction,
death of the spouse, deterntion of spouse at least 3months, physical or
mental incapacity of the spouse certified by public or private medical
practititioner, legal separation or de facto separation for at least 6
months, declaration of nullity or annulment of marriage as
 decreed by a court recognized by law or due to divorce, abandonment
of spouse for at least 6 months,
2. Spouse or any family member of an OFW or guardian of child or children
of OFW if the OFW belongs to low or semi-skilled category and is away
from the Philippines for an uninterrupted period of 12 months.
3. Unmarried mother or father who keeps and rears the chid or children
4. Legal guardian
5. Adoptive or foster parent who solely provides care and support to a
child
6. Any relative within the 4th degree of consanguinity or affinity
7. Parent or legal guardian who assumes parental care and support of the
child as a result of death, abandonment, disappearance or absence of
parents for at least 6 months
8. A pregnant woman who provides full parental care to her unborn child
vii. Solo parent does not lose status as such even if the other parent provides
occasional assistance or seasonal gifts that do not meet the legal requirement
of support under the Family Code. The absence of a valid or legal marriage
between the mother or the father of a child or dependent does not
automatically entitle the individual to the solo parent benefit if the parental
care and support are shared
viii. Duration of Flexible Work Schedule
1. The flexible work schedule benefit is available as long as the employee
remains to be a solo parent. If the solo parent ceases to be as such, in
the sense that he/she is no longer left alone with the responsibility of
parenthood, his/her right to flexible work schedule (and other benefits
of a solo parent) will terminate.
q. Compressed Work Week
i. Compressed workweek is an arrangement whereby:
1. The normal work-days per week is reduced to less than six (6) days;
2. The normal work hours per day is increased to more than eight (8)
hours; but
3. The total number of normal work hours per week remains unchanged.
ii. Conditions for Adoption of CWW
1. Consent - Majority of the covered employees or their duly authorized
representatives must expressly and voluntarily give their consent.
a. Note: This consent may be expressed through collective
bargaining or other legitimate mechanisms of participation such
as labor-management councils, employee assembly or
referendum.
2. Certification-The employer must get a certification (from an accredited
health and safety organization or from the firm's safety SC committee),
that work beyond eight (8) hours is within threshold limits or tolerable
levels of exposure, and set in the Occupational Safety and Health
Standards.
a. Note: This applies to firms using substances, chemicals and
processes or operating under conditions where there are
airborne contaminants, human carcinogens, or noise, prolonged
exposure to which may pose hazards to the employees' health
and safety.
3. Notice - The employer must notify the Regional Office of the
Department of Labor and Employment having jurisdiction over the
workplace about the adoption of the compressed workweek scheme.
iii. Failure to comply with the conditions for compressed workweek will hold the
employer liable to pay the corresponding overtime pay to the employees
concerned.
iv. Firms that Cannot Adopt a CWW
1. Construction industry;
2. Health services;
3. Occupations requiring heavy manual labor;
4. Occupations or workplaces where workers are exposed to airborne
contaminants, human carcinogens, substances, chemicals or noise that
exceed the threshold limits.
r. Telecommuting
i. This is a work arrangement which allows an employee in the private sector to
work from an alternative work place with the use of telecommunication or
computer technologies
ii. Employers in the private sector may offer a telecommuting program to its
employees on a voluntary basis
iii. In a telecommuting arrangement the terms and conditions of employment
should not be less than the minimum standards set by law
iv. In case of differences in the interpretation of a telecommuting work
arrangement, differences shall be treated as grievances under the applicable
grievance mechanism of the company. If there is no mechanism or if the
mechanism is inadequate. The grievance shall be referred to the Regional
Office of the DOLE which has jurisdiction over the workplace for reconciliation
s. Wages
i. Refers to the compensation payable paid by employer to an employee for work
done or to be done
ii. Wage vs Salary
1. 1st Difference
a. Wages refer to the character of employment.
b. Salaries refer to compensation for a higher employment and
implies a position of office.
2. 2nd Difference
a. (Wages-exempt from execution or attachment except for debts
incurred for food, shelter, clothing, and medical attendance as
per Article 1708 of the Civil Code.
b. Salaries not exempt from execution or attachment, hence, they
can be garnished."
iii. Facilities
1. Facilities are items of expense, necessary for the employees
subsistence.
2. Examples are board and lodging, subsidized meals
3. Fair and reasonable value of facilities customarily furnished by the
employer tom the employee are part of wages, and therefore may be
deducted from wages if:
a. Employee voluntarily accepted the facilities and
b. Authorized a deduction in writing
4. The phrase "customarily furnished" means long-established constant
practice connoting regularity or permanency. If the grant is temporary
(even if enjoyed monthly), it cannot be characterized as customarily
given to make it a part of wages.
iv. Supplements
1. Supplements are extra remuneration or benefits given to employees
over and above those provided by law.
a. Examples include vacation leave pay, sick leave pay, housing
benefits, car plan, educational assistance, insurance
b. Not part of wages, they are benefits given to augment the
earnings of the employee.
c. Benefits granted voluntarily, regularly and unconditionally
cannot be withdrawn due to the principle of non-diminution of
benefits
v. How to determine whether a Benefit is a Supplement or a Facility?
1. Not so much on the kind of benefit given but its purpose A benefit will
not be considered as facility if the purpose:
a. Primarily for the benefit of the employer; or
b. Necessary to the conduct of the employer's business.
c. For example, meals given free to crew members of a ship, out of
necessity, while they are on high seas are not considered as
facilities because the grant is necessary to maintain the health
and efficiency of the crew members during the voyage.
vi. Principle of Non-Diminution of Benefits?
1. Benefits granted voluntarily, regularly and unconditionally become part
of the terms and conditions of employment, hence, they cannot be
reduced or withdrawn because benefits granted for a long period of
time ripen into a company practice and create a vested right upon the
employees
a. To be considered as company practice, the grant should have
been done consistently, voluntarily, and deliberately over a long
period of time
2. Beltran vs AMA (Penned by the Bar Chair)
a. Quentin was hired in June 1990 by AMA. 8 years later he was
promoted as registrar of the school and was able to work as
such until April 1999. While serving as registrar, he was promoted
as school administrator or chief operations officer of AMA’s
College in Binan Laguna in January 1999. Quenting alleged that
sometime in 2008, he applied for early retirement relying on a
long-standing policy of AMA in granting early retirement benefits
to its employees. While application was pending, Quentin was
requested to continue his employment until after enrollment
period. Later he was informed of the approval of his application
and the processing of the payment of his benefits. On June 3
2008, Quentin was compelled to leave immediately to avoid the
cancellation of his Visa as a permanent resident. One Spetember
3 2010, while on vacation in the Philippines, Quentin filed a
complaint for payment of retirement benefits or separation pay
against AMA. AMA contended that Quentin’s request in 2008 for
early retirement was disapproved. Before the denial could be
communicated, Quentin had already left the country without
submitting a resignation letter and without following the
company standard policy on turn over of work and
accomplishment of clearance. AMA added that it was willing to
release to Quentin his last salary and 13th month pay in the total
amount of PhP 28,046.34. Quentin retorted that he underwent
exit interview,
 clearance procedures, and turn over of work accountabilities.
Quentin then claimed that his basic monthly salary was
51,310.00 and not PhP 25,000.00. He also denied that he
received the unliquidated budget for the 2008 graduation. Lastly,
Quentin argued that there was no written retirement plan, AMA
has a long-standing practice of granting early retirement,
separation pay, or cash gift or benefit to those who have not
reached the compulsory retirement age or mandatory twenty
(20) years of service.
b. ISSUE: Was Quentin Entitled to Retirement Benefits?
c. RULING:
i. Quentin was entitled to retirement benefits from AMA.
Article 302 of the Labor Code provides for the voluntary
retirement age of 60 years old and mandatory retirement
age of 65 years old. In addition to the age requirements,
the employee must have served at least five years in the
company. The statutory retirement benefit is pegged at
one-half month salary for every year of service or a
fraction thereof. The employer however, is free to grant
other retirement benefits and impose different age or
service requirements, provided that the benefits shall not
be lesser than those provided in Article 302.
ii. The SC then discussed Art 100 of the Labor Code. The
Article xpressly prohibits the elimination or reduction of
benefits received by employees. However, the basis for
the grant of said benefit must be shown through an
express policy, written contract, or an unwritten policy
that has ripened into a company practice. To be
considered a practice, it must be consistently and
deliberately made by the employer over a significant
period of time.
iii. The SC added that it has not defined what constitutes a
"significant period of time. Jurisprudence explains that
the matter is decided according to the peculiar facts and
circumstances of each case. The common denominator of
which is the regularity and deliberateness of the grant of
benefits over a significant period of time.
iv. In the present case, the SC found that Quentin was able
to prove through substantial evidence that the existence
of an established company practice of granting early
retirement to its employees who have rendered at least
10 years of service, regardless of age.
1. Specifically, the SC admitted the affidavits of
Salvacion and Elsa (2 former AMA employees) who
attested that they were former employees of AMA
who were granted retirement benefits. The SC
noted that although they did not personally
confirm the award of their early retirement, the
affidavits show that they occupied managerial
positions and were privy to the policies of the
school and the movements of retirement of their
subordinate personnel. Nonetheless the SC found
that affidavits revealed the following:
a. Salvacion was AMA’s school director in QC
while Elsa was the registrar of the basic
education department (also in QC)
b. Salvacion worked for AMA for 11 years. Elsa
was with AMA for 18 years.
c. AMA granted an early retirement program
to its employees who have rendered at
least 10 years of service
d. Both received early retirement benefits of
1 month salary for every year of service
pursuant to the retirement program of AMA
 e. Other employees were able to avail of the
early retirement program
v. AMA merely denied that it had an existing early
retirement policy and the grant of Salvacion and Elsa's
requests were isolated cases. However, the SC stressed
that AMA did not submit controverting evidence to refute
Salvacion and Elsa's statements in their affidavits as to
the grant of early retirement benefits to its other
employees.
vi. Notably, AMA did not explain why Salvacion and Elsa’s
requests for early retirement were granted, but Quentin’s
request was denied.
vii. The SC held that Quentin substantially proved that AMA
had a consistent company practice of granting early
retirement to its employees who have rendered at least
10 years of service.
viii. Thus Quentin was entitled to retirement benefits.
3. No Violation of The Principle
a. The principle of non-diminution of benefits is not violated if the
action does not result in reduction or elimination of benefits
i. Example: In an establishment where the employees enjoy
a 15-day vacation leave with pay and 15-day sick leave
with pay, the employer and the employees can agree to
eliminate the 15 day sick leave in exchange for a 30-day
vacation leave which the employees can avail of not only
for vacation purposes but also in case of sickness. In this
case the employees did not suffer any reduction of
benefit because the 15-day sick leave was merely
incorporated in the vacation leave.
b. The principle of non-diminution of benefits is not violated if the
employer deducts the fair and reasonable value of facilities from
the wages of an employee. This is because the fair and
reasonable value of facilities is actually a part of the employee's
 wages, considering that if they are not so furnished, the
employee would spend and pay for them anyway.
c. The principle of non-diminution of benefits is not violated if an
employer reduces the bonuses it used to grant its employees
because bonuses are not mandated by law, as the grant of bonus
is entirely dependent on the profits.
d. The principle of non-diminution of benefits is not violated if the
employer withdraws a benefit that has been granted by mistake.
This is because a right cannot be based upon a mistake.
i. Note: The mistake may be a mistake of fact, i.e., belief
that the employees are entitled to the benefit when they
are not so entitled, or a mistake of law, ie., erroneous
construction or application of doubtful or difficult
question of law. Mistake is 109 presumed if something
which had never been due was given. Under the
circumstances, the employer cannot only discontinue the
benefit but may even recover what it has erroneously
paid, under the principle of solutio indebiti.
e. The principle of non-diminution of benefits is not violated if the
benefit is stopped because of promotion or reclassification of
positions
vii. Minimum Wage
1. Fixing the minimum wage is a power that inherently belongs to
Congress. However, Congress has delegated the said power to the
Regional Tripartite Wages and Productivity Board (RTWPB).
2. Wage Orders
a. Minimum wage is promulgated through wage orders which the
RTWPB issues either
i. Motu proprio, whenever conditions in the region, province
or industry so warrant, or
ii. By virtue of a petition filed by any interested party.
b. Wage orders cannot Be Disturbed for 12 months
 i. This means that no petition for wage increas can be
entertained within the 12-month period.
ii. However, if supervening conditions transpire (such
extraordinary increase in prices of oil and basic
goods/services), the RTWPB may exercise its wage fixing
function even before the expiration of the 12 month
period.
3. Compliance with the Minimum Wage Law is Mandatory. Minimum Wage
cannot be the subject of a compromise.
4. Sanctions for Failure to Comply with the Prescribed Minimum Wage
a. Double indemnity
b. Criminal liability, i.e., fine ranging from P25,000.00 to
P100,000.00 or imprisonment ranging from two years to four
years, or both without the benefit of probation,
viii. Wage Distortion
1. Wage distortion is a situation where an increase in the minimum wages
prescribed by law or wage order results in the elimination or severe
contraction of intentional quantitative differences in wage rates
between and among employee groups in the same establishment within
the region thereby effectively obliterating the distinctions embodied in
the wage structure based on skills, length of service, or other logical
bases of differentiation.
2. Elements
a. The establishment must have an existing hierarchy of positions
with corresponding salary rates
i. Note: Without a grouping or classification of employees
establishing wage distinction among such employees,
there can be no wage distortion because there would be
no basis for saying that there was elimination or severe
contraction of wage distinction
ii. Note: The formulation of a wage structure is a
management discretion. The employees cannot meet
their own classification of employees and use it as a basis
to correct wage distortion. Neither can the NLRC
 under the guise of rectifying a wage distortion,
unilaterally impose upon an employer a new scheme of
classification of employees where none has been
previously established
b. The RTWPB (or Congress) issued a wage order (or law) fixing the
minimum wage
i. Note: For wage distortion to exist, the wage increase
must result from implementation of a minimum wage law
or wage order. Article 124 of the Labor Code does not
contemplate wage increase brought about by
implementation of a collective bargaining agreement.
Neither does it contemplate wage adjustment brought
about by merit increase.
c. The new minimum wage resulted in significant increase in the
salary rate of the lower pay class without a concomitant increase
in the salary rate of a higher one to the extent that distinction
between the two pay classes has been eliminated or severely
contracted.
i. Note: The quantitative wage distinction need not be
obliterated. It is enough that the wage distinction was
severely contracted
d. The resulting distortion must be in the same establishment
within the region.
i. Note: The grant of higher wages in the same
establishment in one region than in the same
establishment in another region is not wage distortion.
The difference in wages between employees in the same
pay scale in different regions is not the mischief sought to
be banished by law.
3. Procedure for Correction of Wage Distortion
a. In unorganized (non-unionized) establishments:
i. Negotiation - The employers and workers shall negotiate
to correct such distortions.
 ii. Conciliation/Mediation - The employers and workers shall
negotiate to correct such distortions.
iii. Compulsory Arbitration - If the NCMB fails to settle the
dispute, the matter shall be referred to the National
Labor Relations Commission (NLRC) for compulsory
arbitration.
b. In organized (unionized) establishments:
i. Negotiation - The employer and the union shall negotiate
to correct the distortions,
ii. Grievance machinery - If the negotiations fail, the Batter
shall be brought to the grievance machinery under their
collective bargaining agreement
iii. Voluntary arbitration - If the grievance machinery fails to
settle the dispute, the matter shall be threshed out
through voluntary arbitration
4. Wage Increases Given Unilaterally or Under the CBA
a. Wage increases given by employers, either unilaterally or as a
result of collective bargaining negotiations is enough to correct
wage distortion.
5. In the correction of wage distortion, it is not required that the historical
gap that existed before the implementation of the wage order be
restored in exactly the same amount.
ix. Manner of Payment of Wages
1. Form of Payment of Wages
a. Wages should be paid in legal tender. This is mandatory. Payment
of wages in a medium other than legal tender will not produce
the effect of payment. Hence, it will not discharge the employer
from liability for unpaid wages.
b. Paying wages partly in cash and partly in kind is illegal. This is
even if the said method of payment was requested by the
employee himself.
2. Frequency
a. Wages should be paid at intervals not exceeding 16 days.
b. Delayed payment of wages may be justified only by the following
circumstances
i. Force majeure (acts of man); or
ii. Fortuitous events (acts of God).
1. Nore: The employer must pay the wages
immediately after the force mining or fortuitous
event has ceased
3. Place
a. Wages should be paid at or near the place of undertaking.
b. Exceptionally, wages may be paid outside the place of
undertaking:
i. In case of deterioration of peace and order conditions, or
because of actual or impending emergencies caused
bycalamity;
ii. If the employer provides free transportation to the
employees back and forth, and
iii. Under any other analogous circumstances, provided that
the time spent by the employees in collecting their wages
shall be considered as compensable hours worked.
4. To Whom
a. Wages should be given directly to the workers to whom they are
due
b. Exceptionally the employer may release the wages to another
person:
i. When authorized in writing by the employee; or
ii. When authorized by law.
c. In case of Death of Employee
i. In case of death of an employee, the employer can
release the unpaid wages to the heirs upon submission (by
the heirs) of an affidavit attesting to:
ii. Their relationship with the deceased; and
 iii. The fact that they are his heirs, to the exclusion of all
other persons
d. In case of Bankruptcy (Art 110)
i. The mere fact that an employer is suffering from heavy
losses does not automatically call for the application of
Article 110 of the Labor Code. Article 110 of the Labor
Code will apply only in cases of bankruptcy or liquidation
of the employer's business. This means that before the
workers' preference may be invoked, there must first be
an insolvency proceeding, i.e., a declaration of
bankruptcy or judicial liquidation of the employer's
business, Without an insolvency proceeding or judicial
liquidation order, Article 110 will not apply. This is
because of the very nature of a preferential right of
credit. A preference of credit bestows upon the preferred
creditor the right to have his credit satisfied ahead of
other claims against the debtor. Therefore, it becomes
material only when the properties of the debtor are
insufficient to pay his debts in full because if the debtor
can pay all his creditors in full, there is no need to
determine which creditors shall be paid first.
ii. Preferential right of credit attains significance only after
the properties of the debtor have been inventoried and
liquidated, and the claims of various creditors have been
established. Enforcement of the creditor's preferential
right (such as that established in Article 110 of the Labor
Code), can only be done in bankruptcy, insolvency and
general judicial liquidation proceedings where all persons
having an interest in the assets of the debtor are given
the opportunity to establish their respective claims.
iii. Article 110 of the Labor Code should be read in relation
to the Civil Code scheme on classification and preference
 of credits because of its impact on the entire credit
system. The Civil Code classifies credits against an
insolvent into three general categories, namely:
1. Special preferred credits;
a. Special preferred credits constitute liens or
encumbrances on the specific property to
which they relate. They take precedence
over ordinary preferred credits. Hence,
special preferred credits must first be
discharged out of the proceeds of the
property to which they relate before
ordinary preferred creditors may lay claim
to any part of such proceeds.
b. If money claims of workers classify as
special preferred credits concur with the
other special preferred credits they will be
treated on an equal basis and satisfied
concurrently and proportionately until tax
liens shall have been satisfied
2. Ordinary preferred credits
a. Ordinary preferred credits do not create
any lien on specific property. They simply
create rights in favor of certain creditors
to have cash and other assets of the
insolvent applied in curtain sequence or
order of priority
3. Common credits
a. Common credits do not enjoy preference
5. To what category of credit do monetary claims of workers fall?
a. Unpaid compensation arising from a contract for a piece of work
(or contracting or subcontracting) is a special credit. Unpaid
compensation arising from a contract of labor or employment is
an ordinary preferred credit. Therefore the monetary claims
contemplated under Article 110 are ordinary preferred credits
because they are credits for services rendered (inaudible*) of
the insolvent of the employees. They do not impress any lien on
 the property of the insolvent employer but merely creates
preference of credit (ie., a preference in application, not lien) in
favor of the employees.
6. Taxes vis-a-xi Money Claims of Workers
a. Article 110 of the Labor Code provides that "unpaid wages and
b. monetary claims (of workers) shall be paid in full before claims
of the government and other creditors may be paid," does it
mean that monetary claims of workers under Article 110 of the
Labor Code will take precedence over taxes?
i. Answer: It depends.
1. If the taxes and the monetary claims are both
classified as special preferred credits, taxes take
precedence over the monetary claims of workers
2. If the taxes and the monetary claims are both
classified as ordinary preferred credits, the
monetary claims take precedence over taxes and
assessments mentioned therein Article 2244 of the
Civil Code.
7. Mortgage vis-a-vis Money Claims of Workers
a. Article 110 of the Labor Code provides that "unpaid wages and
monetary claims (of workers) shall be paid in full before claims
of xxx other creditors may be paid," does it mean that monetary
claims of workers under Article 110 of the Labor Code will take
precedence over claims of creditors secured by mortgage?
i. Answer: It depends on the following situations
1. If the monetary claims of workers fall under the
classification of special preferred credit, the
monetary claims of the mortgage credits will have
to be treated equally and satisfied concurrently
because both are special preferred credits.
2. If the monetary claims of workers fall under the
classification of ordinary preferred credit, (i.e.
monetary claim under Article 110 of the Labor
Code) the mortgage credit will take precedence
over the monetary claim because such mortgage
credit are special preferred credits
x. Prohibitions on Wages
1. Interference in Disposal of Wages
a. Employers cannot dictate upon their employees on how to spend
their wages. Neither can employers impose upon their employees
to buy goods from a specific store or to avail of services of a
specific establishment.
2. Wage Deduction
a. As a rule, employers cannot make any deduction from the wages
of their employees. They can make deductions from wages only
when
b. Authorized by law; or
c. Authorized in writing by the employee.
i. Written authorization to deduct is not required for:
1. Deductions made in compliance with writs of
execution against the employee.This is because
deduction is made due to a court order.
2. Deductions made for due and demandable debt of
the employee to his employer. This is because
Article 1706 of the Civil Code authorizes an
employer to withhold wages for a debt that is due
and demandable.
3. Deductions for income tax, premium contributions
to the Social Security System, PhilHealth, and
Pag-IBIG Fund. This is because the obligation to
deduct is mandated by law.
4. Deductions for labor education activities. This is
because Article 250(0) of the Labor Code
authorizes it.
5. Deductions for agency fees assessed by the
collective bargaining agent against non-union
members covered by the bargaining unit who
accept the benefits under the collective
bargaining agreement. This is because Article
259(e) of the Labor Code authorizes it.
 3. Deduction to Ensure Employment
4. Withholding of Wages and Kickbacks
a. An employer cannot validly withhold any amount from the wages
of an employee to pay for the employee's obligations to a third
party
5. Damages for Loss or Damage
a. General Rule: Employers cannot oblige employees to put up a
deposit for loss or damage to tools, materials or equipment.
b. Exception: The only instance when an employer can oblige an
employee to put up a deposit to answer for loss or damage to the
employer's tools. materials, or equipment is when it is an
industry practice.
c. If the practice of making deposits is recognized, the employer
can make deductions from the deposit only when the following
conditions are complied with:
i. The employee must be clearly shown to be responsible
for the loss or damage after due investigation;
ii. (2) The deduction must not exceed the actual loss or
damage, and
iii. Deduction must not exceed 20% of the wages in a week
t. 13th Month Pay
i. Thirteenth month pay is an extra remuneration mandated by Presidential
Decree No. 851 given to rank-and-file employees who have rendered at least
one month of service, the amount of which is equivalent to at least one-twelfth
(1/12) of the basic salary earned during the calendar year.
ii. Who are Entitled
1. Rank-and-file employees, regardless of their employment status,
whether employed on a full-time or part-time basis;
2. Piece-rate workers
3. Domestic workers
4. Private school teachers and faculty members of universities and colleges
5. Government employees working part-time in a private enterprise, e.g.,
educational institutions, are entitled to 13th pay from their private
employer.
iii. Who Are Not Entitled
1. Employees who have not yet rendered service for one month
2. Employees who are paid purely on commission, boundary, or task basis,
and those who are paid a fixed amount for performing specific work,
irrespective of the time consumed in the performance thereof.
a. Note: Employees who are paid a fixed salary plus commission are
entitled to 13th month pay based on their total earnings during
the calendar year, i.e., on both their fixed salary and
commission.
3. Persons in the personal service of another,
4. Employees already receiving the equivalent of 13th month pay
iv. Basis of Computation
1. In computing the 13th month pay, only the basic salary is considered.
"Basic salary" does not include allowances and other monetary benefits
such as the cash equivalent of unused vacation and sick leave credits,
maternity leave, cost-of-living allowances, night shift differential,
overtime pay, premium pay, and holiday pay
v. Are Commissions Considered Part of the Basic Salary for 13th Month Pay
Purposes?
1. Commissions of salesmen comprising a predetermined percentage of the
selling price of the goods sold by each salesman are considered part of
the basic salary for purposes of computing 13th month pay. This is
because said commissions are part of the salary structure of the
salesman
2. Commissions of medical representatives are not part of the basic salary.
This is because said commissions are productivity bonuses akin to profit
sharing payments considering that medical representatives do not affect
any sale of any article at all
3. Overriding commissions do not form part of the basic salary. This is
because said commissions are not earned through actual market
transactions of the employee concerned.
vi. Overload Pay of Teachers Not Part of Basic Salary
1. Compensation received for handling overload" is extra pay, hence, it is
not part of the basic salary.
 vii. When 13th Month Pay Given
1. Should be paid not later than December 24 of each year or one-half
(1/2) of before the opening of the regular school and the other half on
or before December 24.
u. Bonus
i. Generally, bonus is not a demandable and enforceable obligation because the
granting of bonus is basically dependent upon the realization of profits
ii. Bonus becomes a demandable obligation:
1. If the grant thereof arises from contract
2. When by practice, it is given without any condition, regardless of
whether profits are realized
v. Service Charges
i. Charges collected by service establishments from customers for amenities that
they enjoyed
ii. Who Are Entitled
1. All employees of establishments collecting service charges are entitled
to the service charges, except managerial employees.
iii. Amount to be Distributed
1. One hundred percent (100%) of the service charges collected should be
distributed equally to covered employees.
iv. Frequency of Distribution
1. Should be every 2 weeks or twice a month at intervals not exceeding 16
days
v. Effect of Abolition of Service Charges
1. If the service charge is abolished, the share of the covered employee
shall be integrated into their wages. The amount to be integrated shall
be based on the average monthly share of the employee for the past12
months immediately preceding the abolition or withdrawal of such
charges.
vi. Effect of Increase in Minimum Wage
1. If the minimum wage is increased by law or wage order, the wage
increase cannot be taken from the service charges.
w. Service Incentive Leave
i. Rate of SIL
1. Service incentive leave is five (5) days with pay per year,
ii. Condition for Entitlement
1. entitled to the service incentive leave, the covered employee must have
rendered at least one year of service (whether continuous or broken)
iii. Employee Option
1. If the covered employee does not use or commute his service incentive
leave, it will accumulate, and the employee will be entitled to all his
accumulated service incentive leave upon his resignation or separation
from work.
iv. Prescriptive Period
1. Claims for service incentive leave prescribe after three years
2. Considering that service incentive leave is cumulative, the three-year
prescriptive period should be reckoned:
a. From the time the employer refuses to pay its monetary
equivalent; or
b. From termination of employment
v. Not Entitled to SIL
1. Employees who have not rendered one (1) year service.
2. Employees of establishments regularly employing less than 10
employees;
3. Employees already enjoying vacation leave with pay of at least five (5)
days;
4. Government employees and employees of GOCCs with special charter:
5. Managerial employees;
6. Officers and members of the managerial staff;
7. Field personnel;
8. Members of the family of the employer who are dependent on him for
support;
9. Persons in the personal service of another; and
10. Workers who are paid by results.
11. Employees of establishment exempted by the DOLE
x. Vacation Leave
i. The grant of vacation leave is not a standard of law. But a prerogative of
management, hence it is not a demandable obligation
y. Maternity Leave (for employees in the private sector)
i. Who are Entitled
1. Female workers, married or unmarried, regardless of employment
status, are entitled to maternity leave.m
ii. When Available
1. In case of childbirth, miscarriage, or emergency termination of
pregnancy regardless of frequency.
iii. Duration
1. For pregnancy/childbirth
a. Ordinary employees 105 days with full pay, regardless of whether
normal or cesarean delivery. Extendible for 30 days without pay
at the option of the employee
b. Solo parents - 120 days
2. For miscarriage or emergency termination of pregnancy
a. 60 days with full pay.
iv. Maternity should be enjoyed in a continuous and uninterrupted manner. It may
be availed of before or after the period of actual delivery. But the postnatal
leave shall not be less than 60 days,
v. Extension
1. Is available only in case of live childbirth. No extension in case of
miscarriage or emergence termination of pregnance.
2. The extended maternity leave is without pay
vi. Assignment of Maternity Leave Credits
1. Part of maternity leave benefits may be assigned.
a. In case of live childbirth, the employee may allocate 7 days of
the maternity leave to the child’s father regardless of whether
the father is married to the female worker. The allocated leave
granted to the child’s father is over and above that is provided
under the paternity leave act.
b. In case of death, absence or incapacity of the father, the 7 day
benefit may be allocated to an alternate caregiver.
 c. If the female employee dies or becomes permanently
incapacitated, the balance of the maternity leave shall accrue to
the father of the child who share the same household or to a
qualified caregiver who is relative within the 4th degree of
consanguinity in case of death, absence or incapacity of the
father.
vii. Components of Maternity Leave Pay
1. The SSS maternity benefit which is based on the average daily salary
credit, to be paid by the SSS,
2. Salary differential between the cash benefit from the SSS and the
regular wages of the employee, to be paid by the employer.
viii. Exempted from Paying Salary Differential
1. Employers who are already providing similar benefit
2. Retail or service establishments and other enterprises regularly
employing not more than 10 workers (excluding the owners) regardless
of status, for at least six (6) months in any calendar year.
3. Micro-business enterprises
4. Distressed establishments
ix. Effect of Voluntary Resignation or Termination Without the Employees Fault
1. If childbirth, miscarriage, or emergency termination of pregnancy takes
place within 15 calendar days from termination of employment, the
maternity leave benefit shall still be granted because the right thereto
has already accrued. This means that the employer will still advance the
SSS maternity benefit, and if not exempted, will still have to pay the
salary differential
2. If childbirth, miscarriage, or emergency termination of pregnancy took
place after 15 calendar days from termination of employment, the
employee will be entitled only to the SSS maternity benefit. The
employer is not obliged to pay the salary differential.
x. Effect of Dismissal on the RIght to Maternity Leave Pay
1. Illegal dismissal - The employer shall pay the employee the full
maternity benefit (i.e., 105 days for childbirth, or 60 days for
miscarriage or emergency termination of pregnancy). This includes the
 applicable maternity leave benefit the employee would have received
had she not been illegally dismissed
2. Valid dismissal - The employee will be entitled only to the SSS maternity
benefit. The employer is not obliged to pay the salary differential.
z. Paternity Leave’
i. Who are entitled
1. All married male employees, regardless of their employment status, are
entitled to paternity leave.
ii. When can it be availed of
1. Can be availed of in case of wife’s childbirth or miscarriage. It may be
enjoyed before during or after delivery by his wife, but not later than
60 days after the date of said delivery
iii. Limitation
1. Paternity leave can be availed of only for the first four childbirths or
miscarriages of the legitimate wife.
iv. Duration
1. The duration of paternity leave is seven (7) days with full pay (ie.,
including allowances and other monetary benefits). This is not
commutable to cash if unused
v. Condition for Entitlement
1. The woman who gave birth or suffered miscarriage must be the
legitimate wife
2. At the time of the delivery or miscarriage, the male spouse must be an
employee and cohabiting with his lawful wife
3. The employee must apply for paternity leave with his employer stating
the expected date of delivery
aa. VAWC Leave/ Battered Woman Leave
i. Who are entitled
1. Female employees who, personally or her child whether legitimate or
illegitimate, suffered from or has beon threatened with physical,
sexual, psychological, or economic abuse, by her husband, former
husband, or by a person with whom be has or had sexual or dating
relationship, or by a person with whom she has a common child
 ii. Duration
1. 10 days, extendible when the necessity arises as specified in a
protection order. The ten-day VAWC leave can be availed of only for the
days when the woman-employee has to attend to medical and legal
concerns
iii. Not Cumulative and Not Convertible to Case
iv. Requirements to avail
1. The only requirement is a certification from the Punong Barangay
Kagawad, prosecutor or the Clerk of Court, where the case for violence
against women and their children is pending
bb. Parent Leave for Solo Parent
i. Whoa are entitled to Parental Leave
1. Solo parents (male or female)
ii. Duration
1. The duration of parental leave for solo parents is seven (7) working
days,
2. This is not convertible to cash if unused
iii. Conditions for Entitlement
1. To be entitled to the parental leave, the solo parent must:
a. Have rendered at least one (1) year of service, whether
continuous or broken;
b. Apply for parental leave (with his/her employer) within a
reasonable period; and
c. Prove his/her solo parent status through his Solo Parent
Identification Card
iv. Up to when can a solo parent avail of the parental leave benefit?
1. The parental leave benefit is available as long as the employee remains
to be a solo parent. If the solo parent ceases to be as such, his/her right
to the benefits of a solo parent will terminate.
2. A solo parent does not lose his/her status as a sole parent even if the
other parent provides occasional assistance and/or seasonal gifts that
do not meet the legal requirement of support under the Labor Code
cc. Special Leave for Women (Gynecological Leave)
i. Who are entitled Duration of Special Leave
 1. Female employees who undergo surgery because of gynecological
disorders are entitled to special leave.
ii. Duration
1. Maximum of two (2) months with full pay (monthly basic salary plus
mandatory allowances)
a. The medical certificate will determine the duration of the leave
2. Not cumulative and not convertible to cash if unused
iii. When Available
1. Can be availed of every instance of gynecological surgery for a
maximum period of 2 months per year
2. If the woman-employee had undergone gynecological surgery during her
maternity leave, she is entitled only to the difference between the
special leave benefit and the maternity leave benefit.
iv. Condition for Entitlement
1. Have undergone surgery due to gynecological disorder as certified by a
competent physician;
2. Have rendered at least six (6) months continuous aggregate employment
service for the last twelve (12) months prior to surgery:
3. File an application for special leave (with her employer) within a
reasonable time from expected date of surgery or within the period
prescribed by company policies
E. Contracting or Subcontracting
a. Contracting or sub-contracting is an arrangement whereby an employer (principal)
engages the services of a contractor who undertakes to perform a certain work, task
or job on his own account under his own responsibility free from the control and
direction of his employer (principal) in all matters except as to the result of the work
b. Contracting or sub-contracting of a job, work, or service is not illegal per se. Art 106
and 107 of the Labor Code recognizes the right of an employer to engage a contractor
for the performance of a task or job.
c. Trilateral Relationship
i. The principal who decides on the job to be contracted
ii. The contractor who undertakes to perform the job;
iii. The workers who accomplish the job.
d. Requisites
i. The contractor must have a distinct and independent business;
ii. The contractor must have substantial capital or investments in the form of
tools, equipment, machinery or material necessary in the conduct of the
business
iii. The contractor must perform the job on his own account under his own
responsibility, under his own manner and method, free from the control of the
direction of the principal (in all matter except as to the results thereof)
e. Independent Contractor
i. One who carries on an independent business with sufficient capitalization,
without being controlled by the principal as to how work is to be accomplished
ii. A person does not become an independent contractor simply because he is
denominated as such. A person who ahs no capital or money of his own to pay
for his workers cannot be considered as an independent contractor. There is no
genuine independent contractor relationship if the principal pays the
contractor a lump sum representing only the salaris of the workers
f. Registration
i. Registration is a mandatory requirement. Failure to register shall give rise to
the presumption that the contractor is engaged in labor-only contracting. But
this presumption is not conclusive it is merely a disputable presumption which
can be overcome by proof that the contractor has a distinct and independent
business with substantial capital or investment, work premises and necessary
equipment to carry out the contracted services and that it performs the
contracted service free from control and direction of the principal in all
matters connected to the performance of the work except as to the results
thereof.
ii. Registration merely removes the legal presumption of being a mere-labor only
contractor. It does not bar the party from proving that the contractor is indeed
a labor-only contractor by showing that the contractor merely supplies workers
to the principal, the activities performed by the worker are directly connected
to the main business of the principal, no substantial capital or investment.
g. Contractors who are not required to register
i. Firms engaged in information technology-enabled services involving an entire
business process,
ii. PCAB Licensed Contractors in the Construction Industry
h. Legal Effect of Valid Contracting or Subcontracting Arrangement
i. The relationship of Employer-employee is not created between the principal
and the employees of the contractor.
ii. The principal is solidarily liable with his contractor for unpaid wages to the
extent of the work performed under their contract (iIf the contractor fails to
pay the wages of his employees)
iii. The principal is subsidiarily (not solidarily) liable for the civil liabilities of his
contractor under the Social Security Law
iv. The principal is not solidarily liable for backwages of the contractor's
employees. The only instance where a principal can be solidarily liable for the
backwages and separation pay is when there is proof that the principal
conspired with the contractor in the illegal dismissal of the employees
v. The principal is not solidarily liable for separation pay of the contractor's
employees. This is because there is no employer-employee relationship
between the principal and the contractor's employees.
vi. The principal is not liable for damages for acts or omissions of the contractor
vii. If the Government or GOCC with special charters enter into a contract with a
private contractor, it can be held liable for unpaid wages of the contractor’s
employees
i. When is contracting or subcontracting illegal?
i. When entered into with a labor-only contractor.
ii. When the principal farma out work to a "cabo."
iii. When entered into with an in-house agency.
iv. When entered into with an in-house cooperative which merely supplies workers
to the principal.
v. When contracting was done because of an impending or actual strike or
lockout.
vi. When contracting interferes with the exercise of their right to
self-organization.
vii. When the contractual employees are required to sign as a precondition to
employment or continued employment:
1. An antedated resignation letter,
2. A blank payroll;
3. A waiver of labor standards, minimum wages, and welfare benefits; or
 4. A quitclaim releasing the principal or contractor for future claims.
viii. When employees are required to become members of a cooperative.
ix. When the employees of the contractor or sub-contractor are required to
perform functions which are currently being performed by regular employees of
the principal.
x. When the contractor or sub-contractor repeatedly hires employees under an
employment contract of short duration
xi. When the employees of the contractor or sub-contractor are required to sign a
contract fixing the period of employment to a term shorter than the term of
the Service Agreement
xii. Such other practices, schemes or employment arrangements designed to
circumvent the right to security of tenure
j. Legal Effect of Illegal Contracting
i. The registration of the contractor will be canceled
ii. The employees of the contractor will be considered employees of the principal
1. Employees of the contractor will be absorbed by the principal and they
will be entitled to all rights and benefits accorded to employees of the
principal
k. Labor-only Contracting
i. Is an arrangement where the contractor does not have substantial capital or
investments in the for of tools, equipment machinery and work premises
ii. Merely recruits or supplies workers for a principal to perform a job, work or
activity that is directly related to the main business of the principal employer
iii. Labor-only contracting is absolutely prohibited
iv. Elements
1. The contractor merely supplies workers only to a principal;
2. The activities performed by the workers are directly related to the main
business of the principal;
3. The contractor does not have substantial capital or investment in the
form of tools, equipment, machinery or work premises, to carry out the
contracted job or service
v. Legal Effect
1. Employees of the labor-only contractor will be considered employees of
the principal (i.e. absorbed by the principal) and accorded benefits
given to regular employees of the principal
l. Daguinod vs Southgates Foods (Did not dIscuss due to lack of time)
 m. Job Contracting vs Labor Only Contracting
i. 1st Difference
1. Labor-only contracting - the contractor provides manpower only. Job
contracting the contractor provides services
2. Labor only contracting - employer-employee relationship is created by
law between the the principal employer and the employees of the
labor-only contractor
ii. 2nd Difference
1. Labor only contracting - employer-employee relationship is created by
law between the principal employer and the employees of the
labor-only contractor.
2. Job contracting - no employer-employee relationship is created
between the employees of the contractor and the principal employer.
iii. 3rd Difference
1. Labor-only contracting - the principal employer is considered as direct
employer of the contractor's employees.
2. Job contracting - the principal employer is considered as indirect
employer.
iv. 4th Difference
1. Labor-only contracting the principal employer and the labor-only
contractor are solidarily liable for all the rightful claims of the
contractor's employees.
2. Job contracting the principal employer and the contractor are solidarily
liable only for unpaid wages
F. Enforcement of Labor Standards
a. Visitorial And Enforcement Power
i. Under Art 128, the SOLE or his duly authorized representatives have the power
to inspect establishments to determine if employers are complying with labor
standards
b. Compliance Orders
i. SOLE or his duly authorized representatives have the power to issue compliance
orders and writs of execution if violations are discovered during inspection
ii. The power is intended to give workers immediate access to their rights and
benefits without being inconvenienced by litigation
iii. This stems from the theory that the worker need not litigate to get what
legally belongs to him.
c. Remedy from Compliance Orders
i. Compliance orders are appealable to the Secretary of Labor and Employment
within 10 calendar days from receipt of the Order
ii. The appeal will be perfected only upon the posting of a cash or surety bond
issued by a reputable bonding company duly accredited by the Secretary of
Labor and Employment in the amount equivalent to the award in the order
appealed from.
iii. Unlike decisions of Labor Arbiters that are appealed to the National Labor
Relations Commission (NLRC), reduction of appeal bond is not proper for orders
or decisions of the Regional Director that are appealed to the Secretary of
Labor and Employment. This is because there is no rule that Authorizes the
SOLE to reduce an appeal bond, hence if the appeal bond is insufficient, the
appeal must be dismissed for non-perfection.
d. Power to Suspend Operations
i. If a violation of safety rule poses a grave or imminent danger to the health and
safety of the workers in the workplace, the Regional Director can order the
suspension of operation of any unit or department of an establishment.
ii. If the violation is attributable to the fault of the employer, the employees
concerned are entitled to their wages during the period of suspension
e. Features of the VIsitorial and Enforcement Power
i. The visitorial and enforcement powers are exercisable over establishments and
not over individual employees, because what is sought to be achieved by its
exercise is compliance with labor standards laws and regulations;
ii. The visitorial and enforcement power is not restricted by the amount involved.
Even if the amount involved is more than P5.000.00 per employee, the
visitorial and enforcement power can still be exercised. This is unlike the
adjudicatory power under Article 129 of the Labor Code which limits the
jurisdictional amount to P5,000.00.
iii. Orders issued pursuant to the visitorial and enforcement power will apply only
to employees who are still working with the establishment
f. Limitations the Visitorial And Enforcement Power
i. The enforcement power or the power to issue compliance orders or writs of
execution cannot be exercised when the employer contests the findings of the
inspectors and raises issues supported by documentary proofs which were not
considered during the inspection. A motion to dismiss on the ground of lack of
jurisdiction is not the contest contemplated by the exception clause under Art
128(b) of the Labor Code to bar the Regional Director from exercising his
enforcement power. However, if the employer raises the issue of how a
particular Wage Order should be interpreted and applied, the Regional Director
cannot exercise his enforcement power because the issue will necessitate the
examination of evidentiary matters not verifiable in the normal course of
inspection. Under this situation, the Regional Director shall endorse the case to
the appropriate Arbitration Branch of the National Labor Relations Commission.

– END –
 LABOR LAW II
Atty. Paulino Ungos Jr.
September 16, 2022

ACADS SCRIBES NOTES TEAM: HANNAH KEZIAH MORALES | ADRIAN MACASAQUIT | ANDREA JOSES TAN | ELOISA BUÑO | BIANCA
MARGARITA PUJALTE | SHERRY PAGAY | JANYN MARIELLA MONTEALEGRE

LABOR RELATIONS

A. Right to Self-organization
a. What is the Right to Self- Organization?
i. It is the right to form, join, and assist in the formation of associations for
purposes not contrary to law.
ii. Constitutional basis: Sec 8, Article III.
b. Some rights in the Right to Self-Organization
i. To abstain from joining a union
ii. To choose which union he would join
iii. To cancel his membership with the union
iv. Absolute rights? No, not absolute.
1. Absolute rights? No, not absolute.

c. Limitation: Union Security Clause

i. Where a stipulation in the collective bargaining agreement requires employees
covered by the CBA unit to become members of the contracting union and to
maintain their union membership in good standing as a condition for
employment.
ii. Common Types of Union Security Agreements
1. Closed Shop
2. Union Shop
3. Maintenance of Membership Shop
4. Agency Shop

iii. Are USA valid? Yes. authorized by Article 259, LC. valid and legal
 iv. Legal Effect of Union Security Agreement
1. The employee must join the union, and maintain his membership in
good standing to keep his employment
a. The union member can resign from the union only during the
freedom period.
2. Effect if an Employee Refuses to Join the Union or Fails to Maintain His
Membership with the Union:
a. The union member will be subject to dismissal even if he may
not be aware of the union security agreement.
b. Note: the authority to dismiss must be expressly stipulated in the
agreement.
c. Can he resign? Yes. only during the freedom period.

d. Limitations
i. Cannot be enforced against employees who are already members of another
union at the time of the signing of the CBA.
1. Limitation 1: All members of Union 2 should join Union 1. However,
Union 2 members don’t want to join because they are already part of
Union 2. Can the closed shop agreement be made applicable to them?
No, because of limitation 1.
ii. Cannot be enforced against employees who were refused admission by the
union itself without any reasonable ground.
1. Limitation 2: similar to estoppel
iii. Cannot be enforced against employees who are members of religious sects
which prohibit their members from joining a labor organization.
1. Limitation 3: INC cannot be forced to join a union. Before catholic and
where members and they were converted to INC. can they be dismissed?
No, limitation 3. Religious beliefs superior to contractual rights.

B. Unfair Labor Practice

a. Essential Element of ULP
i. There is ULP when there are acts that violate the right to Self-organization
ii. Without such element, no matter how unfair, it cannot be considered ULP.
 b. Two Aspects of ULP
i. Administrative (civil) aspect; and
ii. Criminal aspect
c. The proper time to file a Criminal Case
i. Only when there is:
1. A final judgment in the administrative proceedings
2. Declaring that ULP has been committed
ii. The Criminal aspect of ULP cannot be filed:
1. Without filing the administrative case;
2. Simultaneously with the administrative case;
3. Prior to the finality of the decision in the administrative case;
4. When the final decision in the administrative case does not declare that
ULP has been committed.
a. Ex. A complaint for ULP was dismissed by the LA. You cannot file
a criminal case because it was not declared that there was ULP.
d. Probative Value of the Final Judgment
i. Cannot be used as proof of guilt in the criminal case.
ii. Can only be used as proof of compliance with the procedural requirements for
the filing of the criminal case.
e. Prescriptive Period of ULP
i. For administrative aspect - 1 year from commission
ii. For criminal aspect- 1 year from the finality of the judgment in the
administrative case because the prescriptive period does not run during the
pendency of the administrative proceedings.

C. Interference, Constraint or Corecion of Employees

a. It is unlawful for an employer to:
i. Interfere with,
ii. Restrain or
iii. Coerce employees in the exercise of their right to self-organization.
b. Test of interference: right to self-organization
i. Mere attempt to curtail to join is already ULP.
ii. Success or purpose is not determining factor whether ULP has been committed.
c. Requiring an Employee not to Join a Union
i. It is unlawful for an employer to require as a condition of employment that a
person or an employee:
1. Shall not join a labor organization, or
2. Shall withdraw from one to which he belongs.
ii. If an applicant was made to sign a contract which stipulates that he is not a
member or refrains or withdraws membership from the labor union, or if should
not withdraw, he should resign is called a yellow-dog contract
d. Contracting Out Services
i. It shall be unlawful for an employer to contract out services or functions being
performed by union members:
1. When such will interfere with, restrain, or coerce employees in the
exercise of their right to self-organization
2. Becomes ULP only when it interferes, restrains, coerces employees in
their exercise to self-organization
e. Organizing or Assisting in Organizing a Union
i. It is unlawful for an employer to:
1. Initiate, dominate, assist, or otherwise interfere with the formation or
administration of any labor organization,
2. Including the giving of financial or other support to it or its organizers or
supporters.
ii. COMPANY-UNION - mere act of supporting (need not be financial) may be in the
form of special privileges may be ULP
f. Discrimination
i. It is unlawful for an employer to:
1. Discriminate against an employee regarding wages, hours of work, and
other terms and conditions of employment: In order to encourage or
discourage membership in any labor organization.
g. Dismissal for Testifying against Employer
i. It is unlawful for an employer to:
1. Dismiss, discharge, or otherwise prejudice or
2. Discriminate against an employee
3. For having given or being about to give testimony under this Code.
 ii. To constitute ULP, the testimony should relate to matters to the exercise of
right to Self Organization
1. Testimony to illegal strike case, etc.

h. Violation of the Duty to bargain collectively

i. It is unlawful for an employer to violate the duty to bargain collectively as
prescribed by this Code.
ii. To be liable for violation of the duty to bargain collectively, the obligation to
bargain must exist.
iii. Obligation to bargain must exist when the union seeks to bargain is certified as
CBA of the employees (must be legitimate LO)
1. No more voluntary recognition
2. BARGAINING AGENT MUST BE CERTIFIED BY THE DOLE
i. Paying negotiation or attorney’s fees to the union
i. It is unlawful for an employer to:
1. Pay negotiation or attorney’s fees to the union or its officers or agents
as part of the settlement of any issue in collective bargaining or any
other dispute.
ii. It constitutes ULP because the act of paying as part of settlement of
bargaining issues is in the nature of a bribe which could entice the CBA to
follow wishes of the employer.
j. Violation of Collective Bargaining Agreement
i. It is unlawful for an employer to violate a collective bargaining agreement
1. To constitute unfair labor practice, the violation of the CBA must be
gross in character
2. Gross violation of the CBA means flagrant and/or malicious refusal to
comply with the economic provisions.
ii. To constitute ULP, violation of CBA must be GROSS. It must be flagrant or
malicious refusal to comply with the economic provisions.
1. 2 components of CBA: economic and political
2. Economic: economic benefits such as wages, bonus, leaves, 13th month
leave, vacation leave without pay. - it is a benefit
3. Non-economic benefits: union recognition, security, noise lockout
4. Violation of CBA pertains only to economic provisions
5. Non-economic = not ULP.
 6. What is the remedy? Threshed out to grievance machinery or voluntary
arbitration
7. Flagrant or Malicious
8. Even if economic, no ULP if it’s an honest mistake

k. Restraint or Coercion of Employees

i. It is unfair labor practice for a labor organization to:
1. Restrain or coerce employees
2. In the exercise of their rights to self-organization.
ii. Expelling because filed petition for audit = restraint. ULP
iii. Causing an Employer to Discriminate Against An Employee
iv. It is unfair labor practice for a labor organization to cause or attempt to cause
an employer to:
1. Discriminate against an employee, including discrimination against an
employee with respect to whom membership in such organization has
been denied or
2. To terminate an employee on any ground other than the usual terms and
conditions under which membership is made available to other
members.
v. Mere attempt to cause discrimination is ULP
l. Violation of the Duty to Bargain Collectively
m. It is unfair labor practice for a labor organization to:
i. Violate the duty, or
ii. Refuse to bargain collectively with the employer,
iii. Provided it is the representative of the employees
iv. To be liable, an obligation to bargain must exist. In so far as the union is
concerned, it attaches only when it is certified as bargaining agent
n. Causing an employer to pay for services which were not performed
i. It is unfair labor practice for a labor organization to cause or attempt to:
1. Cause an employer to pay or deliver or agree to pay or deliver any
money or other things of value, in the nature of an exaction,
2. For services which are not performed,
3. Including the demand for fees for union negotiations.
ii. The liability for ULP is not dependent on whether the employer succeeded.
Mere attempt to cause an employer in cash or kind for services not rendered is
ULP
 o. Asking or Accepting Negotiation Fees
i. It is unfair labor practice for a labor organization to:
1. Ask for or accept negotiation or attorney’s fees from employers
2. As part of the settlement of any issue in collective bargaining or any
other dispute
a. If a LO asks an ER to give attorneys’ fees its guilty of ULP
b. If ER accepts - equally guilty of ULP
c. If LO never asks but accepts its guilty of ULP
D. Labor Organizations
a. Labor Organization
i. An association of employees created for collective bargaining or dealing with
employers concerning terms and conditions of employment
ii. Objective: collective bargaining
b. Common Types of Labor Organizations
i. LOCAL UNION - a labor organization operating at the enterprise level
ii. NATIONAL UNION OR FEDERATION - a labor organization with at least ten (10)
local chapters or affiliates, each of which must be a collective bargaining agent
iii. INDEPENDENT UNION - a labor organization operating at the enterprise level
that acquired legal personality through independent registration and is not
affiliated with a national union or federation.
iv. LOCAL CHAPTER OR CHARTERED LOCAL - a labor organization without an
independent registration whose legal personality is derived from its mother
union or federation.
1. Local union: 10; independent: own registration; local chapter: no
registration derived from mother

c. Qualified to Form or Join a Labor Organization

i. Supervisors; and
ii. Rank-and-File Employees
1. S AND R CANNOT LUMP INTO ONE SINGLE UNION; THEY SHALL BE
SEPARATE; BUT THE UNION ITSELF CAN JOIN OR AFFILIATE IN THE SAME
FEDERATION
2. S- If the exercise is not clerical or routinary; EFFECTIVE
RECOMMENDATION not simple.
d. Disqualified from Forming or Joining a Labor Organization
i. Enumeration:
1. Managerial employees;
2. Confidential employees who have access to labor relations matters;
3. Employees-members of cooperatives;
4. Government employees;
5. Employees of GOCCs;
6. Workers who are ambulant, intermittent, itinerant and those without
definite employers.
ii. Managerial Employees
1. those vested with powers or prerogatives to lay down and execute
management policies and/or hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline employees
2. Determined not by the title of the job but the nature of the employee’s
function. Point: whether employee possesses authority
3. E.g Juan Dela Cruz, floor manager business card. Is he a managerial
employee? No. look at his function
4. DISMISSING: Article 255, LC.
5. REASON: disqualified because of conflict of interest brought about
nature of position
6. If they were allowed to join, an employer might not be assured of their
loyalty
iii. Confidential Employees
1. Only those who have access to labor relations information are
disqualified from forming or joining a labor organization.
2. NOT ALL CONFIDENTIAL ARE DISQUALIFIED
3. Financial trade secrets
4. Only those who have access to labor relations information are
disqualified
5. Legal basis for dismissal: doctrine of necessary implication
6. Potential conflict of interest - they could be governed by their own
personal motives; undue advantage; acts as spies of either parties.
7. Normal duties they become aware of labor relations
 iv. Employees-Members of Cooperatives - to fall within the disqualification, the
employee must at the same time be a member of the cooperative
1. Reason for DQ: members of cooperative are co-owners and they cannot
bargain with themselves
v. Government employees - government employees are disqualified from
organizing a labor organization because the terms and conditions of
government employment are fixed by law.
1. Only congress can improve their terms and conditions; through
legislation
E. Government-Owned or Controlled Corporations (GOCCs)
a. Types
1. GOCCs with original charters, i.e., created by law; and
2. GOCCs organized under the Corporation Code
b. Governing Law
i. GOCCs with original charters - governed by the civil service law
ii. GOCCs established under the Corporation Code - governed by the Labor Code
c. Can Employees of GOCCs with Original Charters form or join a Labor Organization?
i. No, because the terms and conditions of their employment are fixed by law.
ii. Only congress can improve the terms and conditions of their employment.
d. Can employees of GOCCs established under the Corporation Law form or join a labor
organization?
i. No. Although governed by the Labor Code, employees of GOCCs established
under the Corporation Code cannot form, join, or assist in the formation of a
labor organization.
ii. Hence, they cannot bargain collectively or negotiate economic terms with their
employers.
e. Why aren’t they allowed now? Economic terms are fixed by GOCC Governance Act of
2011 provides for COMPENSATION AND BENEFIT SYSTEM whether chartered or
non-chartered.
f. GSIS FAMILY BANK EMPLOYEES UNION v. VILLANUEVA | GR No. 210773, January 23 2019
i. FACTS: Royal Savings Bank later changed to GSIS Family Bank was organized
under the Corporation Law. Later, it became a GOCC because the GSIS became
the controlling stockholder. On June 6, 2011, the GOCC Governance Act of 2011
was signed into law. The GOCC Governance Act of 2011 established a National
 Position Classification and Compensation Plan for all GOCCs whether chartered
or non-chartered. At that time, the CBA between the GSIS Family Bank and the
Union was about to be negotiated.
ii. ISSUE: Can GSIS Family Bank, a non-chartered GOCC proceed to negotiate a
CBA with the Union?
iii. RULING: With the enactment of the GOCC Governance Act of 2011, GSIS Family
Bank can no longer enter into a CBA with the Union. This is because the GOCC
Governance Act of 2011 has provided a Compensation and Classification
System, which applies to all GOCCs, chartered or non-chartered

g. PNCC v NLRC | GR No. 248401, June 23, 2021

i. FACTS: PNCC, a corporation created under the Corporation Law used to give its
employees a mid-year bonus. Later, it became a GOCC. When the GOCC
Governance Act of 2011 took effect, PNCC stopped giving the mid-year bonus.
The NLRC held that the discontinuance of the mid-year bonus was not proper
considering that PNCC (having been created under the Corporation Law) is
covered by the Labor Code and not by the Civil Service Laws, and therefore,
the stoppage of mid-year bonus was not proper.
ii. FIRST ISSUE: Is PNCC a GOCC?
iii. RULING ON FIRST ISSUE: PNCC is a non-chartered GOCC
iv. SECOND ISSUE: Are PNCC employees covered by the provisions of the Labor
Code?
v. RULING ON SECOND ISSUE: Since PNCC was organized under the Corporation
Code, it is governed by the Labor Code, not by the Civil Service Law
vi. THIRD ISSUE: Is PNCC governed by the GOCC Governance Act of 2011?
vii. RULING ON THIRD ISSUE: Although governed by the Labor Code, PNCC is not
exempt from the coverage of the GOCC Governance Act of 2011.
viii. What was removed was the Right to Form Union. Other rights under LC are
still being applied.

h. Lumanta v NLRC | 170 SCRA 79

i. FACTS: Food Terminal, Inc (FTI) was a GOCC organized under the Corporation
Law. It undertook a retrenchment program because of financial difficulties. For
failure of FTI to pay the retrenched employees their separation pay, the
affected employees filed with the NLRC a complaint for unpaid separation pay.
FTI moved to dismiss the complaint on the ground of lack of jurisdiction. FTI
 argued that being a GOCC, its employees are governed by the Civil Service Law
not by the Labor Code
ii. ISSUE:: Does the claim fall within the jurisdiction of the NLRC
iii. RULING: the claim falls under the jurisdiction of the NLRC even though FTI is a
GOCC. The reason is because FTI was organized under the Corporation Law.
i. Government employees may form associations
i. The right of government employees to form association is not available to:
1. Members of the AFP, BFP, PNP, BJMP;
2. High-level or managerial employees; and
3. Employees whose duties are of highly confidential in nature

F. Legitimate Labor Organizations

a. How to become a Legitimate Labor Organization
i. Through independent registration; or
ii. Through affiliation with a duly registered federation.
1. Registered with the Department of Labor
2. File the application: RO DOL (independent unions); or Bureau
3. Certified under oath by secretary and attested to by president: 2
requirements must concur
4. Strict compliance: if attested by president but is not certified under
oath by sec. Union does not become legitimate (fatal)

b. The Legal Effects of Registration

i. Registration confers legitimacy and legal personality upon the labor
organization.
ii. It enables the labor organization to exercise all the rights accorded to a
legitimate labor organization.

c. Rights of Legitimate Labor Organizations

i. Right to be certified as collective bargaining agent;
ii. Right to request for audited financial statements;
iii. Right to sue and be sued;
iv. Right to own property;
v. Right to levy special assessments and extraordinary fees.
d. Right to request for audited financial statements
i. Can be availed of only when the legitimate labor organization has already been
certified as collective bargaining agent.
ii. Even if already certified as collective bargaining agent, the right can be
exercised only
1. During the freedom period, if no petition for certification election has
been filed by any union; or
2. During the collective bargaining negotiations.
iii. Right cannot be exercised anytime; can only be exercised during FP, CBN

e. The Right to Levy Special Assessments and Extraordinary Fees

i. A general membership meeting must be called for the purpose;
ii. A written resolution approving the special assessments or extraordinary fees
must be executed by majority of all the union members during the meeting;
and
iii. The minutes of the meeting should be recorded by the union secretary and
attested by the union president.

f. When does an Independent Union become a Legitimate Labor Organization?

i. Upon issuance of the certificate of registration
1. Prescribed requirements; failure to comply will invalidate
2. Can a union for Petition for Certification for Election pending
registration? Yes. if the application has no infirmity

g. Cancellation of Registration
i. Only through a direction action for cancellation
1. direct petition for cancellation. NOT COLLATERAL ATTACK
2. Some members of the union do not belong to the bargaining unit. Will it
warrant cancellation of registration? No. members who do not belong
will be deleted from the list.
h. Effect of a Petition for Cancellation
i. The mere filing of a petition for cancellation of registration does not divest the
union (whose registration is sought to be canceled) of its legitimacy and legal
personality.
ii. Only a final order of cancellation can strip a legitimate labor organization of its
rights.
i. Remedy from Order or Cancellation
i. Appeal within 10 days from receipt to the following agencies:
1. Bureau of Labor Relations - if the case was decided by the DOLE
Regional Director;
2. Secretary of Labor and Employment - if the case was decided by the
Bureau of Labor Relations in the exercise of its original (not appellate)
jurisdiction.
a. Orders issued by BLR in its appellate jurisdiction are not
appealable - may be reviewed only by special civil action for
certiorari by the CA
b. Can a Union become a Legitimate Labor Organization without
undergoing the normal process of registration? - Yes, by
affiliating with a duly registered federation or national union, in
which case, it becomes a local chapter or chartered local.
j. When does a local chapter become a legitimate labor organization?
i. When all required documents have been submitted to the BLR, specifically:
1. Charter Certificate;
2. Names and Addresses of the Officers of the Local Chapter
3. Principal Office of the Chapter; and
4. Constitution and by-laws of the local chapter
ii. Can the local chapter file a petition for certification election before the
submission of the required documents? - Yes, if the federation or national union
has already issued a Charter Certificate to it.
1. Legal basis: Article 241, LC
2. Relationship F and LU: principal (local union) -agent (federation)
relationship
3. Even if LU is not registered
4. In case of illegal strike, liabilities is on LU even if federation signed the
cert to strike
 k. Disaffiliation
i. Generally, the local union (with the approval of majority of its members) can
disaffiliate from its mother federation only during the freedom period, i.e., the
60-day period prior to the expiry of the collective bargaining agreement.
ii. Exceptionally, disaffiliation may be done before the freedom period, if there is
a substantial shift of allegiance on the part of the majority of the members of
the union.

G. Collective Bargaining Unit

a. Collective Bargaining Unit
i. A group of employees with a given employer unit who share mutual interests in
wages, hours or work, working conditions and other subjects of collective
bargaining.
ii. BARGAINING UNIT IS NOT THE SAME AS UNION
iii. UNION CERTIFIED AS BARGAINING AGENT WILL REPRESENT THE BU
iv. Possible 2 or more unions may exist in the BU
v. As to which who will represent will be settled through certification of election

b. Collective Bargaining Agent

i. The legitimate labor organization certified by the DOLE to bargain with the
employer on behalf of employees covered by the bargaining unit, for better
terms and conditions of employment.
ii. NOTE: The bargaining agent must be certified as such by the DOLE.

c. Mode of Certification
i. Through SEBA certification;
ii. Through certification election

d. SEBA Certification
i. Proper only when there is no other legitimate labor organization within the
bargaining unit sought to be represented by the union
ii. If there are two or more legitimate labor organizations with the bargaining
unit, the proper course of action is certification election.
 1. The legal effects of SEBA Certification
a. The union becomes the certified collective bargaining agent of
the employees covered by the bargaining unit
b. Filing of a petition for certification election is barred for a
period of one (1) year from date of issuance of the SEBA
Certification.
e. Certification Election
i. The process of determining through secret ballot the sole and exclusive
collective bargaining agent of the employees in an appropriate bargaining unit.
f. Legal Standing of an Employer in a Certification Proceeding
i. A mere by-stander because certification election is the sole concern of
workers.
g. When can a Petition for Certification Election be filed?
i. In unorganized establishments - anytime.
ii. In organized establishments - during the freedom period.
h. Petition for Certification Election Cannot be Filed
i. Within one (1) year from certification as bargaining agent.
ii. Within one (1) from holding a valid certification election.
iii. When the collective bargaining negotiations resulted in a deadlock that has
been submitted to conciliation, arbitration or is the subject of a valid notice of
strike or lockout.
iv. When there is a duly registered collective bargaining agreement.
i. Who can file Petitions for Certification Elections
i. An independent union;
ii. A local chapter;
iii. A federation/national union, on behalf of its local chapter; or
iv. An employer
j. If the Employer files the petition, it reverts itself to a bystander after filing. Can the
order/decision of the med-arbiter in a Certification Proceeding be appealed?
i. IN UNORGANIZED ESTABLISHMENTS
1. If the petition is granted - not appealable. Any issue arising therefrom
may be raised as a protest.
2. If the petition is dismissed - appealable to the sole within ten (10) days
from receipt thereof.
 ii. IN ORGANIZED ESTABLISHMENTS
1. Order/decision granting or dismissing the petition - appealable to the
SOLE within ten (10) days from receipt thereof.
2. Who are qualified to vote in COE? All members (probationary, on strike,
religious organization, etc.)
3. How about dismissed employees, can they vote? Yes, if they filed a case
for ID but their ballots will be segregated
k. Notice of election
i. A mandatory requirement which cannot be waived
ii. Must be posted at least 10 days before the actual date of the election in two
most conspicuous places in the company premises
iii. Posting is a mandatory requirement which cannot be waived by the parties
l. Re-run Election
i. A voting conducted when the certification election (consent election or run-off
election) results in a tie
m. Condition for Run-off election
i. The certification election should have at least three (3) choices;
ii. None of the choices obtained a majority of the valid votes cast;
iii. The total votes for all contending unions are at least 50% of the number of
votes cast; and
iv. There are no challenged ballots, which can materially alter the results
n. Failure of election
i. When majority of the eligible voters were not able to vote
ii. COURSE OF ACTION IN CASE OF FAILURE OF ELECTION - file a motion for the
immediate holding of another election within six (6) months from the
declaration of failure of election
o. Valid Election
i. When majority of the eligible voters were able to vote.
ii. Valid Election will bar any union from filing a petition for certification election
within one (1) year from the holding of the election (election year bar rule).
 p. Certification as Bargaining Agent
i. The winning union will be certified as the collective bargaining agent if:
1. No protest was filed within the 5-day period from the close of the
election proceedings; and
2. No challenge or eligibility issue was raised, or if one was raised, the
resolution of the same will not materially alter the election results.
q. Legal Effects of Certification as Bargaining Agent
i. Certification qualifies the union to act as the collective bargaining agent of the
employees covered by the bargaining unit.
ii. It will bar any union from filing a petition for certification election within one
(1) year from certification.
r. The Certification Year (or Negotiation Year) Bar Rule
i. No petition for certification election can be filed or entertained within one (1)
year from certification as collective bargaining agent.
s. When should the Certified Bargaing Agent Start the CBA Negotiations?
i. Within one (1) year from certification as bargaining.
ii. Legal effect if agent did not start it in 1 year - filing by any union is not barred
t. Courses of Action in case of Deadlock
i. Bring the matter to the NCMB for conciliation and mediation;
ii. Submit the matter for arbitration; or
iii. Declare a strike or lockout
u. The Deadlock-bar Rule
i. No petition for certification election can be filed or entertained when the CBA
negotiations that resulted in a deadlock, has been submitted to conciliation or
arbitration or is the subject of a valid notice of strike or lockout.

H. Signing of the CBA

a. If the parties agree on the terms of the CBA, the union officers and the
representatives of the management will sign the CBA.
b. The signed CBA must be posted
i. For 5 days in at least 2 conspicuous places in the establishment.
ii. This is a mandatory requirement.
 c. The CBA must be certified
i. After the expiration of the 5-day posting, the CBA should be submitted to the
employees covered by the bargaining unit for ratification.
ii. This is a mandatory requirement.
d. Registration of the CBA
i. After ratification, the CBA should be submitted to the DOLE for registration.
ii. Purpose of Registration - to ensure its stable and undisturbed administration.
e. The Legal Effect of Registration
i. After ratification, the CBA should be submitted to the DOLE for registration.
ii. Purpose of Registration - to ensure its stable and undisturbed administration.

I. The Contract Bar Rule

a. In General
i. If there is a duly-registered CBA, no petition for certification election can be
filed or entertained except during the 60-day period prior to the expiry of the
5-year term of the CBA.
ii. To bar a petition for certification election, the CBA must be duly registered.
iii. A CBA is duly registered if all the requisites for registration have been complied
with.
b. Examples of CBAs that are not Duly Registered
i. A CBA that was registered without complying with the posting requirement.
ii. A CBA that was registered even though it was entered into prior to the 60-day
freedom period.
iii. A CBA that was registered even though it was entered into with a labor
organization that merely extended voluntary recognition.
c. Validity of Unregistered CBA
i. VALID - The only effect of an unregistered CBA is that it will not bar the filing
of a petition for certification election by another union
d. Term of a CBA
i. Representation aspect - five (5) years reckoned from the date of its effectivity
ii. Other terms - may be renegotiated not later than three (3) years after its
execution.
e. Effectivity of the Renegotiated CBA
i. AGREEMENT WITHIN SIX (6) MONTHS FROM EXPIRY OF THE 3RD YEAR OF THE
CBA - the effectivity shall retroact to the day immediately following the expiry
of the third year
ii. AGREEMENT AFTER SIX (6) MONTHS FROM EXPIRY OF THE 3RD YEAR OF THE CBA
- the parties are given the discretion to fix the effectivity thereof.
iii. IF NEGOTIATIONS RESULTED IN A DEADLOCK AND THE MATTER WAS SUBMITTED
FOR ARBITRATION - the effectivity shall be the date when the arbitrator’s
decision become final.
f. The Hold-over Principle
i. In the absence of a new CBA, the terms and conditions of the existing
agreement subsists until a new agreement is reached.
g. Check-off
i. A method by which the union requires the employer to withhold from each
employee’s wages an amount equal to the union dues, agency fees, and special
assessments payable by the employee which money the employer, in turn,
delivers over the union.
h. Individual written check-off is needed
i. Check-off of union dues, special assessments, attorney’s fees, and other
extraordinary fees must be supported by an individual written authorization
duly signed by the employee, and specific as to the amount, purpose, and
beneficiary of the deduction.
ii. One sheet of paper = one employee (individual)
iii. Revocation of Check-Off Authorization
iv. Need not be done individually - it can be done collectively.
i. Difference between Union Dues and Agency Fees (asked for the bar)
i. 1st Difference
1. UNION DUES - assessments made by the Union against union members
2. AGENCY FEES - assessments made by the union against non-union
members covered by the bargaining unit who accept the benefits under
the CBA
ii. 2nd Difference
1. UNION DUES - requires individual written check-off authorization
2. AGENCY FEES - do not require individual written check-off authorization
J. Strike
a. What Constitues a Strike
i. THERE MUST BE STOPPAGE OF WORK
1. If the employees establish themselves (during their one-hour lunch
break) at the gates of the company, holding placards to inform the
passersby about their labor dispute with their employer, there is no
strike because there is no stoppage of work, considering that it is lunch
break.
ii. THE STOPPAGE OF WORK MUST BE CONCERTED
1. The concerted stoppage of work may take the form of:
2. Mass leave
3. Slowdown
4. Sit-down
5. Similar activities such as concerted violation of a hotel’s grooming
standards.
iii. THE STOPPAGE OF WORK MUST BE TEMPORARY
1. Mass leave arising out of a labor dispute is a strike because it is a
concerted action that resulted in temporary stoppage of work
2. Mass resignation cannot be considered as a strike even if it arose from a
labor dispute because the stoppage of work, though concerted, is
permanent.
iv. THE STOPPAGE OF WORK MUST ARISE FROM A LABOR DISPUTE
1. The refusal of employees to work because they will join a mass
demonstration in protest of police abuses is not a strike because the
stoppage of work, though concerted and temporary, is not the result of
a labor dispute.
2. The refusal of employees to work because they will join the welgang
bayan is considered as a strike even if they have no labor dispute with
their employer, because welgang bayan is a general strike. The stoppage
of work is a sympathy strike, hence, illegal.
b. Who can declare a Strike
i. Only a certified collective bargaining agent can declare a strike.
ii. If there is no certified bargaining agent, a strike can be declared by a
legitimate labor organization on the ground of unfair labor practice.
1. Implications:
a. Unregistered union cannot strike even if ER committed ULP
b. Union registration canceled with finality cannot strike because
no personality
c. The legal grounds for declaring a Strike
i. Collective bargaining deadlock; and
ii. Unfair Labor Practice
d. Requirements
i. Notice of Strike
ii. Strike Vote; and
iii. Strike Vote Report
e. Notice of Strike
i. Should be filed with the NCMB at least:
1. 15 days before the intended date of strike- if the ground is unfair labor
practice
2. 30 days before the intended date of strike - if the ground is deadlock in
collective bargaining.
f. Can the 15-day cooling off period be dispensed with?
i. The 15-day cooling-off period need not be observed in case of
1. Union busting
2. Where the existence of the union is threatened
3. Because of the dismissal of the duly elected union officers.
ii. Dismissed union officers If appointed only = must observe cooling off period
iii. Dismissed union officers must be Duly elected. Not in accordance with by laws
= must observe 15 day cooling off period
g. Strike Vote
i. The decision to declare a strike must be approved by the majority of the total
union membership through secret ballot in a meeting duly called for the
purpose.
ii. Results must be reported to NCMB in seven (7) days.
 h. When can the Union stage the Strike
i. The union can declare a strike only after the lapse of the:
1. Cooling-off period, and
2. Seven-day strike ban
ii. E.g Notice of strike was filed on June 15 ULP cooling off until June 30.
Submitted June 30. Strike ban union cannot strike on July 1 but instead on July
8. If they want to July 1, they must report results on or before june 23
i. Can Strikers Block the Gate of the Company?
i. No. The right to strike does not authorize the strikers to obstruct the free
ingress to and egress from the employer’s premises.
j. Suppose the Strikers Block the Gate of the Company, what is the Legal Effect?
i. An illegal act is committed.
ii. The strike will be rendered illegal.
iii. The union officers and members who participated in the commission of such
illegal act will stand to lose their employment status.
k. Can the Empoyer Summarily Remove the Blockade?
i. No. The blockade can be removed only through a writ of injunction from the
NLRC.
l. Sanctions for Illegal Strike
i. Union officers who knowingly participated in the illegal strike can be dismissed,
i.e., penalized with loss of employment status.
m. Sanctions for Committing Illegal Acts during the Strike
i. Strikers, whether union officers or plain members, who committed illegal acts
during the strike can be dismissed, i.e., penalized with loss of employment
status.
K. Lockout
a. Is the temporary refusal of an employer to furnish work to union members because of
a labor dispute.
b. The Legal Grounds for declaring a Lockout
i. Collective bargaining deadlock; and
ii. Unfair labor practice.
c. The Mandatory Requirements of a Lockout
i. Notice of lockout;
ii. Lockout vote; and
 iii. Lockout vote report
d. Notice of Lockout
i. Should be filed with the NCMB at least:
1. 15 days before the intended date of lockout - if based on unfair labor
practice; or
2. 30 days before the intended date of lockout - if based on collective
bargaining deadlock
e. Lockout Vote
i. Before declaring a lockout, the employer must first conduct a referendum
among the Board of Directors (in case of a corporation), or partners (in case of
a partnership) to determine whether the Board or Partners are in favor of a
lockout.
ii. Lockout Vote Report
1. The employer should report the results of the lockout voting to the
NCMB at least 7 days before the intended lockout.
iii. Limitations on the Right to Strike or Lockout
1. A strike or lockout cannot be declared:
a. On grounds involving inter-union and intra-union disputes.
b. On grounds other than unfair labor practice and collective
bargaining deadlock.
c. Without first having bargained collectively.
d. Without complying with the legal requirements
e. During the pendency of cases involving the same grounds for the
strike or lockout.
f. After assumption of jurisdiction by the Secretary of Labor and
Employment or after the dispute has been certified to the NLRC
for compulsory arbitration.

L. National Interest Dispute

a. Legal Basis
i. Art 278. Strikes, Picketing and Lockouts- (g) When, in his opinion, there exists a
labor dispute causing or likely to cause a strike or lockout in an industry
indispensable to the national interest, the Secretary of Labor and Employment
may assume jurisdiction over the dispute and decide it or certify the same to
the Commission for compulsory arbitration. xxx
 ii. The law does not specify indispensable to the national interest. However, the
rules specify: health, air traffic control, water, other industries recommended
by the national tripartite.
b. Powers of the Sole on National Interest Dispute
i. Assume jurisdiction over the dispute and decide it; or
ii. Certify the dispute to the NLRC for compulsory arbitration
1. Actual strike or lockout is not a condition for the exercise of the power
because Sec of Labor does not need to wait.
c. The Legal effect of Assumption or Certification Orders
i. Assumption or certification orders automatically enjoin on actual or intended
strike or lockout
1. Regardless of the validity of claims, parties must cease or desist acts
that will undermine the authority of the Secretary of Labor.
d. Employer must Re-admit all Workers
i. The law uses the phrase “readmit all workers”
1. The workers qualified for readmission are strikers who do not commit
illegal acts during the strike and union officers who do not participate in
the illegal strike
2. Strikers who committed illegal acts during the strike and union officers
who participated in the illegal strike may not be readmitted.
ii. Under the same Terms and Conditions
1. The law further uses the phrase readmit “under the same terms and
conditions”
2. This contemplates physical reinstatement and not payroll
reinstatement, although payroll reinstatement may be resorted to when
physical reinstatement is impracticable
iii. UST vs NLRC
1. Since the Secretary's order specifically provided that the dismissed
faculty members shall be readmitted under the same terms and
conditions prevailing prior to the present dispute, the NLRC should have
directed the actual reinstatement of the concerned faculty members. It
therefore erred in granting the alternative remedy of payroll
reinstatement. Article 263(g) is one such limitation provided by law. To
the extent that Art. 263(g) calls for the admission of all workers under
the same terms and conditions prevailing before the strike, UST is
 restricted from exercising its generally unbounded right to transfer or
reassign its employees.middle of first semester.

e. Scope of Injunctive Effect of Assumption/ Certification Orders

i. Assumption or certification orders enjoin only the actual or impending strike or
lockout, not the imposition of sanctions against the strikers.
1. Immediately executory
ii. The Legal Effect of Defiance of Assumption or Certification Orders
1. Strikers who do not return to work commit an illegal act because Article
279 (a) of the Labor Code prohibits the holding of a strike after
assumption of jurisdiction by the Secretary of Labor and Employment
2. Therefore, they can be dismissed.

M. Management Prerogatives
a. General
i. Only managerial employees
ii. NLRC can review to see whether bad faith or grave abuse - may reduce
excessive penalties but cannot absolve
b. Who can exercise Managerial Prerogatives?
i. The exercise belongs solely and exclusively to the employer and no one else.
c. The Managerial Prerogatives
i. To choose whom to hire
ii. To promote employees
iii. To transfer employees
iv. To change work schedule
v. To reorganize and abolish a department
vi. To reduce personnel
vii. To close down its business
viii. To promulgate company policies, rules, and regulations.
d. Limitation on the Prerogative to Choose whom to Hire
i. The prerogative to choose whom to hire is subject to the limitations imposed
by the Anti-Age Discrimination in Employment Act which forbids employers
from, among others:
1. Placing a job advertisement which suggests age preference; or
2. Declining an applicant for employment simply because of age. UNLESS it
is a bona fide occupational qualification
ii. Bona fide occupational qualification- standard
1. E.g airline company can prescribe maximum weight of FA; maximum
retirement age of pilots
iii. No Spouse Employment Policy
1. A company policy prohibiting its employees from marrying employees of
a competitor company is valid
2. Employers have the right to guard their trade secrets, manufacturing
formulas, marketing strategies, and other confidential programs from
competitors.
3. What is sought to be avoided: conflict of interest
4. Duncan Association v. Glaxo Wellcome Philippines, Inc. | G.R. No.
162994
a. The prohibition against personal or marital relationships with
employees of competitor companies upon Glaxo’s employees is
reasonable under the circumstances because relationships of
that nature might compromise the interests of the company. In
laying down the assailed company policy, Glaxo only aims to
protect its interests against the possibility that a competitor
company will gain access to its secrets and procedures.
b. That Glaxo possesses the right to protect its economic interests
cannot be denied. No less than the Constitution recognizes the
right of enterprises to adopt and enforce such a policy to protect
its right to reasonable returns on investments and to expansion
and growth.
c. Indeed, while our laws endeavor to give life to the constitutional
policy on social justice and the protection of labor, it does not
mean that every labor dispute will be decided in favor of the
workers. The law also recognizes that management has rights
which are also entitled to respect and enforcement in the
interest of fair play.
iv. Anti-Nepotism Employment Policy
1. Validity if there is a “reasonable business necessity”
2. It must be shown how the marriage could be detrimental to the business
operations and not on the mere fear that the employees married to
each other will be less efficient.
3. Star Paper Corp. v. Ronaldo Simbol | G.R. No. 164774 | April 12, 2006
a. In challenging the anti-nepotism employment policies in the
United States, complainants utilize two theories of employment
discrimination: the disparate treatment and the disparate
impact. Under the disparate treatment analysis, the plaintiff
must prove that an employment policy is discriminatory on its
face. No-spouse employment policies requiring an employee of a
particular sex to either quit, transfer, or be fired are facially
discriminatory. On the other hand, to establish disparate impact,
the complainants must prove that a facially neutral policy has a
disproportionate effect on a particular class.
b. To justify a bona fide occupational qualification, the employer
must prove two factors: (1) that the employment qualification is
reasonably related to the essential operation of the job involved;
and, (2) that there is a factual basis for believing that all or
substantially all persons meeting the qualification would be
unable to properly perform the duties of the job.
c. The Court did not find a reasonable business necessity in the
case at bar. Petitioners’ sole contention that “the company did
not just want to have 2 or more of its employees related
between the third degree by affinity and/or consanguinity” is
lame. That the second paragraph was meant to give teeth to the
first paragraph of the questioned rule is evidently not the valid
reasonable business necessity required by the law.
d. In the case at bar, respondents were hired after they were found
fit for the job, but were asked to resign when they married a
co-employee. The policy is premised on the mere fear that
employees married to each other will be less efficient. If the
questioned rule is upheld without valid justification, the
 employer can create policies based on an unproven presumption
of a perceived danger at the expense of an employee’s right to
security of tenure.
e. IT IS ONLY IN THIS CASE: Failed to show how the policy of
marriage is prejudicial - no reasonable business necessity in so
far as this case is concerned.
f. Other cases must have reasonable business necessity

v. Non-Competition Employment Policy

1. Valid if:
a. Imposed against employees who have an insight into the general
scope and details of their employer’s business; and
b. The contract provides for a limitation upon either time or place.
2. Daisy B. Tiu v. Platinum Plans Phil, Inc. | G.R. No. 163512
a. A noninvolvement clause is not necessarily void for being in
restraint of trade as long as there are reasonable limitations as
to time, trade, and place.
b. In this case, the non-involvement clause has a time limit: two
years from the time petitioner’s employment with respondent
ends. It is also limited as to trade, since it only prohibits
petitioner from engaging in any pre-need business akin to
respondent’s.
c. More significantly, since petitioner was the Senior Assistant
Vice-President and Territorial Operations Head in charge of
respondent’s Hongkong and Asean operations, she had been privy
to confidential and highly sensitive marketing strategies of
respondent’s business. To allow her to engage in a rival business
soon after she leaves would make respondent’s trade secrets
vulnerable especially in a highly competitive marketing
environment. In sum, we find the non-involvement clause not
contrary to public welfare and not greater than is necessary to
afford a fair and reasonable protection to respondent.
vi. Security of Tenure
1. Means that the employer cannot dismiss an employee without:
2. Just cause, or authorized cause.
N. Illegal Dismissal
a. General
i. Prohibited by law,
ii. Without just cause;
iii. Not commensurate to the offense committed; or
iv. Forced to quit because of serious insult or inhuman and unbearable treatment
b. Remedy for Illegal Dismissal
i. Complaint for illegal dismissal filed with the Arbitration Branch of the NLRC
1. Petition for injunction is not the proper remedy
c. The Reliefs for Illegal Dismissal
i. For OFWs:
1. Reimbursement of placement fee with 12% interest per annum; and
2. Basic salaries for the unexpired portion of his employment contract
ii. For Local Workers:
1. Reinstatement;
2. Backwages; or
3. Separation pay (with or without backwages) if reinstatement is not
longer possible or feasible.
d. Circumstances that will bar Reinstatement
i. Circumstances
1. Transfer or business ownership
2. Reduction of personnel due to business reverses
3. Closure of business
4. Abolition of position
5. Attainment of compulsory retirement age
6. Incapacity of the employee
7. Strained Relations
a. Reinstatement is not feasible when the relationship between ER
and EE is no longer harmonious
8. Conviction in criminal case for the same offense that caused his
dismissal
 e. Circumstances that will Forestall the Running of Backwages
i. Circumstances
1. Death
2. Physical or Mental Incapacity
3. Closure of Establishment
4. Confinement in Prison
5. Attainment of Retirement Age
f. Earnings Elsewhere Not Deductible From the Award of Backwages
i. If the employee who was illegally dismissed was able to get another job after
his dismissal, his earnings from his new job cannot be deducted from the
backwages that may be awarded to him.
g. The Relief of Damages
i. Moral Damages- the claimant should prove that the dismissal was attended by
bad faith, fraud, social humiliation, wounded feelings, grave anxiety and
similar injury resulted therefrom.
ii. Exemplary Damages- the employee should prove that his dismissal was done in
a wanton, oppressive or malevolent manner.
h. Liability of Corporate Officers
i. Generally, corporate officers cannot be held personally or solidarily liable with
the corporation for backwages, damages or other money claims of employees,
even if they were impleaded in the complaint.
ii. Exceptionally, corporate directors and officers can be held personally or
solidarily liable:
1. If the corporate officer acted in bad faith, or
2. If the corporation is no longer existing and the employee can no longer
run after the company to satisfy the judgment in his favor.

O. Just Causes for Dismissal

a. Misconduct
i. Requirements
1. Misconduct must be: serious and work connected
a. If serious, but not work-connected: Will not warrant the penalty
of dismissal
b. If work- connected but not serious: will warrant a penalty lesser
than dismissal
ii. LAGROSAS v. BRISTOL MYERS SQUIBB (GR No. 168637)
1. First, the incident occurred outside of company premises and after
office hours since the district meeting of territory managers which Lim
attended at McDonalds had long been finished. McDonalds may be
considered an extension of Bristol-Myers office and any business
conducted therein as within office hours, but the moment the district
meeting was concluded, that ceased too. When
2. Lim dined with her friends, it was no longer part of the district meeting
and considered official time. Thus, when Lagrosas assaulted Lim and
Menquito upon their return, it was no longer within company premises
and during office hours.
3. Second, Bristol-Myers itself admitted that Lagrosas intended to hit
Menquito only. In the Memorandum dated March 23, 2000, it was stated
that You got out from your car holding an umbrella steering wheel lock
and proceeded to hit Mr. Menquito. Dulce tried to intervene, but you
accidentally hit her on the head, knocking her unconscious. Indeed, the
misconduct was not directed against a co-employee who unfortunately
got hit in the process.
4. Third, Lagrosas was not performing official work at the time of the
incident. He was not even a participant in the district meeting. Hence,
we fail to see how his action could have reflected his unfitness to
continue working for Bristol-Myers.
5. In light of Bristol-Myers failure to adduce substantial evidence to prove
that Lagrosas was guilty of serious misconduct, it cannot use this ground
to justify his dismissal. Thus, the dismissal of Lagrosas employment was
without factual and legal basis.
6. See also NLRC v SALGARINO (G.R. No. 164376)
iii. National Labor Relations Commission, et al., vs. Ma. Bernadette S. Salgarino
G.R. No. 164376, July 31, 2006
1. While petitioners had complied with the procedural aspect of due
process in terminating the employment of respondent, they failed to
comply with the substantive aspect of due process as the act
complained of does not constitute serious misconduct. Hence, we still
hold that the dismissal is illegal.
 2. Based on the foregoing, the respondent may have committed an error of
judgment in deciding to pass her students, but it cannot be said that she
was motivated by any wrongful intent in doing so. As such, her
misconduct cannot be considered as grave in character which would
warrant her dismissal from employment. We, thus, find her to be guilty
only of simple misconduct. It is settled that a misconduct, which is not
serious or grave, cannot be a valid basis for dismissing an employee.
3. In order to constitute serious misconduct which will warrant the
dismissal of an employee under paragraph (a) of Article 282 of the Labor
Code, it is not sufficient that the act or conduct complained of has
violated some established rules or policies. It is equally important and
required that the act or conduct must have been performed with
wrongful intent.
b. Disobedience to Employer’s Orders
i. Requirements
1. The disobedience must be willful i.e, intentionally done without
justifiable excuse; and
2. The order must be reasonable, lawful, known to the employee, and
work connected

ii. ESCOBIN v NLRC | GR No. 118159

1. Disobedience, to be a just cause for termination, must be willful and
perverse mental attitude rendering the employee’s act inconsistent with
proper subordination.
2. A willful or intentional disobedience justifies dismissal only when the
rule, order or instruction is (1) reasonable and lawful, (2) sufficiently
known to the employee, and (3) connected with the duties which the
employee has been engaged to discharge.
3. TThe reasonableness and lawfulness of a rule depend on the
circumstances of each case. Reasonableness pertains to the kind or
character of directives and commands and to the manner in which they
are made. In this case, the order to report to the Manila office fails to
meet this standard.
4. It was grossly inconvenient for the guards who were residents and heads
of families in Basilan. The guards were not provided with funds to
defray their transportation and living expenses. The dismissal in this
 case was too harsh a penalty for the insubordination which was neither
willful nor intentional. The guards’ failure to answer PISI’s show-cause
letters does not negate this conclusion as PISI granted other guards a
second chance to explain, an opportunity it denied Escobin and his
group.
a. Notes
i. Refusal to render overtime work as to warrant dismissal
of employee = involuntary servitude because the order is
unlawful
ii. As to exceptional circumstances will constitute valid
dismissal because the order is lawful
iii. See also FLP ENTERPRISES INC v. DE LA CRUZ | GR 198093
c. Neglect of Duty
i. Requirements
1. GROSS (i.e, glaringly noticeable) and
2. HABITUAL (i.e, more than a single or isolated act)
a. Note: DAMAGE TO EMPLOYER IS NOT ESSENTIAL. CAN DISMISS
EVEN IF ER DID NOT SUSTAIN, IT IS ENOUGH IT WAS PREJUDICIAL
ii. Milagros Panuncillo vs. CAP Philippines, Inc. G.R. No. 161305, February 9, 2007
1. By petitioner’s repeated violation of Section 8.4 of respondent’s Code of
Discipline, she violated the trust and confidence of respondent and its
customers. To allow her to continue with her employment puts
respondent under the risk of being embroiled in unnecessary lawsuits
from customers similarly situated as Josefina, et al. Clearly, respondent
exercised its management prerogative when it dismissed petitioner.
2. The employer cannot be compelled to continue the employment of a
person who was found guilty of maliciously committing acts which are
detrimental to his interests. It will be highly prejudicial to the interests
of the employer to impose on him the charges that warranted his
dismissal from employment.

d. Commission of a Crime
i. The crime must be committed against the person of the:
1. Employer
2. Authorized representative; or
3. Immediate member of the employer’s family,
e. Analogous Cases
i. Requirements
1. To be considered analogous, the offense must have an element similar
to the specific grounds enumerated under Article 297 of the Labor Code
2. The analogous cause must involve a voluntary or willful act or omission
of the employee
ii. John Hancock Life Insurance v. Joanna Davis | G.R. No. 169549
1. In this case, petitioner dismissed respondent based on the NBIs finding
that the latter stole and used Yuseco’s credit cards. But since the theft
was not committed against petitioner itself but against one of its
employees, respondents misconduct was not work-related and
therefore, she could not be dismissed for serious misconduct.
2. Nonetheless, Article 282(e) of the Labor Code talks of other analogous
causes or those which are susceptible of comparison to another in
general or in specific detail. For an employee to be validly
3. dismissed for a cause analogous to those enumerated in Article 282, the
cause must involve a voluntary and/or willful act or omission of the
employee.
4. The labor arbiter and the NLRC relied not only on the affidavits of the
NBIs witnesses but also on that of respondent. They likewise considered
petitioners own investigative findings. Clearly, they did not merely
adopt the findings of the NBI but independently assessed evidence
presented by the parties. Their conclusion (that there was valid cause
for respondents separation from employment) was therefore supported
by substantial evidence. All things considered, petitioner validly
dismissed respondent for cause analogous to serious misconduct.
iii. Armando G. Yrasuegui vs. Philippine Airlines, Inc. G.R. No. 168081, October 17,
2008
1. The obesity of petitioner is a ground for dismissal under Article 282(e)
of the Labor Code.
2. The standards violated in this case were not mere "orders" of the
employer; they were the "prescribed weights" that a cabin crew must
maintain in order to qualify for and keep his or her position in the
company. In other words, they were standards that establish continuing
 qualifications for an employee’s position. In this sense, the failure to
maintain these standards does not fall under Article 282(a) whose
express terms require the element of willfulness in order to be a ground
for dismissal. The failure to meet the employer’s qualifying standards is
in fact a ground that does not squarely fall under grounds (a) to (d) and
is therefore one that falls under Article 282(e) – the "other causes
analogous to the foregoing."
f. Other Valid Causes For Dismissal
i. Other
1. Failure to comply with government regulation
2. Immorality
3. Sexual Harrassment
4. Safe Spaces Act - even if there is no working relationship
5. Drug Abuse
6. Breach of USA
7. Illegal Strike
8. Commission of Illegal Acts during strike
9. Defiance of return to work order
ii. St. Luke’s Medical Center Employee’s Association - AFW ( SLMCEA-AFW ) and
Maribel S. Santos vs. National Labor Relations ( NLRC ) and St. Luke’s Medical
Center, Inc. G.R. No. 162053, March 7, 2007
1. Complainant-appellant cannot insist on her sterling work performance
without any derogatory record to make her qualify as an x-ray
technician in the absence of a proper certificate of Registration from
the Board of Radiologic Technology which can only be obtained by
passing the required examination. The law is clear that the Certificate
of Registration cannot be substituted by any other requirement to allow
a person to practice as a Radiologic Technologist and/or X-ray
Technologist. No malice or ill-will can be imputed upon private
respondent as the separation of petitioner Santos was undertaken by it
conformably to an existing statute. It is undeniable that her continued
employment without the required Board certification exposed the
hospital to possible sanctions and even to a revocation of its license to
operate. Certainly, private respondent could not be expected to retain
petitioner Santos despite the inimical threat posed by the latter to its
business.
g. Criminal Case is not a Condition Precedent for Dismissal
i. Right to Dismiss- not dependent upon a verdict of guilt or innocence in a
criminal case
ii. Effect of Acquittal- does not invalidate the dismissal
iii. Effect of Conviction- will nullify the final judgment declaring the dismissal
illegal as a supervening event
1. Sampaguita Garments Corp. vs. NLRC | G.R. No. 102406 – June 17, 1994
a. Santos stole from Sampaguita and was dismissed. While she filed
a labor case, Sampaguita filed a criminal case. NLRC ruled for
Santos in the labor case, SC found her guilty in the criminal case.
NLRC still sustained their decision. Sampaguita filed a petition to
reverse this, stating that she cannot be reinstated + paid back
wages if she has just been convicted of theft in another case. SC
ruled in their
b. favor, but held them liable for damages for dismissing Santos
without complying with the procedural requirements.
c. DOCTRINE: Conviction is a valid ground for dismissal, which also
deprives the guilty EE of their right to separation pay if it
involves turpitude. Such would have the effect of rewarding
rather than punishing the erring EE for their offense.
h. Procedural Requirements for Dismissal for Just Cause
i. The Due Process Requirement in Dismissal for Just Cause
1. Written notice to explain
2. Hearing, if necessary
3. Written notice of decision
ii. (Belated Due Process Rule) The Legal Effect of Dismissal Without Due Process
1. Where the dismissal is adjudged to be valid, lack of due process does
not nullify the dismissal or render it illegal, much less ineffectual
2. The employer is only liable for nominal damages, the amount of which is
addressed to the sound discretion of the court.
iii. Note:
1. With due process - no employer’s liability
2. Without due process - liable for nominal damages
3. If illegally dismissed - liable for employee’s back wages
P. Authorized Causes for Dismissal
a. Authorized Causes
i. Installation of labor-saving device
ii. Redundancy
iii. Retrenchment to prevent losses
iv. Closure of establishment not due to serious losses
b. Redundancy
i. A mode of reducing personnel when the required services are more than what
is demanded by the actual requirements of the enterprise.
ii. Can exist even if there is no other person holding the same position as that
held by the employee declared to be redundant.
iii. Requisites of a Valid Redundancy Program
1. The abolition of redundant positions must be done in good faith
2. Fair and reasonable criteria must be used in ascertaining what positions
are to be declared redundant
3. Note:
a. Not destroyed by independent contractor criteria
b. Seniority
c. Employer can declare redundancy even if not bankrupt but due
to necessity of the position
c. Retrenchment
i. A mode of reducing personnel to prevent or minimize business losses and thus
protect and preserve the employer’s viability
ii. Requisites of a Valid Retrenchment Program
1. The retrenchment must be adopted to prevent losses or further losses
2. Fair and reasonable criteria must be used in ascertaining who would be
dismissed and who would be retained
3. The retrenchment must be resorted to as a last resort and after less
drastic means have been tried and found wanting or insufficient
4. Note:
a. Actual or expected losses must be substantiated
b. Criteria:
i. Efficiency
ii. Seniority
 iii. Physical Fitness
iv. Age
v. Status - temporary, casual, or regular employee
vi. Last in, first out is applied
c. Examples: rotation of workers: reduction of workers or salary of
executives
d. Distinguish Retrenchment and Redundancy ( Article 298 of the
Labor Code )
iii. Retrenchment vs Redundancy
1. Retrenchment
a. Employees are termed to avoid or minimize losses
b. Result of business recession, seasonal fluctuations, lack of work
c. Payment of separation pay of 1 month or at least ½ month pay
for every year of service, whichever is higher, a fraction of six
(6) months service is considered as one (1) whole year.
2. Redundancy
a. Results when the services of an employee are in excess of what
is reasonably demanded by the actual requirements of the
enterprise
b. Last in, first out not applied
c. Payment of separation pay of 1 month or at least one (1) month
pay for every year of service, whichever is higher, a fraction of
six (6) months service is considered as one (1) whole year.
d. Procedural Requirements for Terminating Employment for Authorized Cause
i. Serve a written notice at least one (1) month in advance to the:
1. Affected employees, and
2. Department of Labor and Employment (DOLE)
e. Relief for Employees Terminated for Authorized Causes
1. Separation pay Equivalent to
a. At least 1 month pay or 1 month pay for every year of service,
for:
i. Redundancy, or
ii. Installation of labor-saving device
b. At least 1 month pay or 1/2 month pay for every year of service,
for
i. Retrenchment to prevent losses;
 ii. Closure of establishment not due to serious business
losses
c. No suspension pay if closure is due to:
i. Serious business losses; or
ii. Act of the Government without fault on the part of the
employer
f. Termination of Employment due to Illness
i. Continued employment is prohibited by law or is prejudicial to his health or to
the health of his co-employees; and
ii. Medical certificate from a competent public health authority that the disease
cannot be cured within 6 months even after proper medical treatment.

Q. Lay-off/Temporary Closure
a. Whether done in good or bad faith, temporary closure should not exceed six (6)
months
b. May be extended by agreement in case of war, pandemic, and similar national
emergencies
c. Note
i. If more than six (6) months, employer / employee relationship will terminate
ii. If in good faith, separation pay of one (1) month or 1/2 month pay for every
year of service
iii. If in bad faith, wages for 6 months plus separation pay
iv. Employment status remains suspended in case of war, unless the employee
resigned during war
v. If employer decides to extend, employee is entitled for separation pay

R. Constructive Dismissal
a. A situation where the employee gives up his employment ( resigns ) because the
employer does things that are intended to force the employee to quit
i. The resignation is involuntary because the employee stops working, considering
the continued employment is no longer feasible due to harsh, hostile, and
unbearable working conditions set by the employer.
 b. Voluntary Resignation
i. INDICATIONS OF VOLUNTARINESS
1. When the employee expresses gratitude in the resignation letter
2. When the employee ( who misappropriated company funds ) resigns
because the employer threatened to file criminal action for estafa
against him
ii. Note: Voluntariness of resignation is not negated by the fact that the employee
was made to sign a ready-made resignation letter
c. Courtesy Resignation - tantamount to forced resignation
i. ENTITLED TO THE RETIREMENT BENEFIT UNDER THE LABOR CODE
1. All employees are generally entitled:
a. Regardless of their position, designation, or status, and
b. Irrespective of the method by which their wages are paid

S. Retirement
a. When can an employee Retire or be Retired?
i. IF THERE IS A RETIREMENT PLAN, CBA OR EMPLOYMENT CONTRACT - upon
reaching the criteria established in the retirement plan, CBA, or employment
contract
ii. NO RETIREMENT PLAN, CBA, OR EMPLOYMENT CONTRACT - upon reaching the
retirement age prescribed by the Labor Code
b. Validity of Early Retirement
i. VALID if there is an express agreement between the employer and the
employee
ii. The mere mention of the retirement plan in the letter of appointment cannot
be construed as consent especially when the letter of appointment does not
specify details of the retirement program
iii. LAYA vs. PHILIPPINE VETERANS BANK G.R. No. 205813, January 10, 2018
1. FACTS:Laya was employed by the Philippine Veterans Bank as Chief
Legal Counsel. When he reached the age of 60, Laya was retired by the
Philippine Veterans Bank pursuant to the Retirement Plan which
provides that an employee can be retired at the age of 60. To protest
his unexpected retirement, Laya filed a complaint for illegal dismissal.
2. ISSUE: Was Laya validly retired?
 3. RULING: No. Laya was not validly retired because he did not consent to
early retirement. Lay’s knowledge of the existence of the retirement
program at the time of his engagement will not suffice. His implied
knowledge did not equate to the voluntary acceptance.
iv. The Retirement Pay under the Labor Code
1. A total of 22.5 days for every year of service because it is composed of
the following:
a. 15 days salary based on the employee’s latest salary rate;
b. Cash equivalent of five (5) days service incentive leave; and
c. 1/12 of the 13th month pay due to the employee
v. Computation of Length of Service in Case of Re-hiring
1. If the employment was validly severed and the employee was re-hired,
the length of service should be reckoned from the date of re-hiring, and
not from the date of initial hiring
vi. Computation of Length of Service in case of Absorption into the Regular
Workforce
1. Not from the date of absorption but from the first day of service

T. Jurisdiction of the Labor Arbiter

a. Termination DIsputes that are Beyond the Jurisdiction of the LA
i. Dismissal of corporate officers
ii. Dismissal of employees that calls for interpretation or implementation of a CBA
or company personnel policies
b. Money Claims of Employees
i. IF THE COMPLAINANT PRAYS FOR REINSTATEMENT - the Labor Arbiter has
jurisdiction, regardless of the amount involved
ii. IF THE COMPLAINT DOES NOT PRAY FOR REINSTATEMENT:
1. More than Php5,000.00 - the Labor Arbiter has jurisdiction
2. Php5,000.00 and below - the Labor Arbiter has no jurisdiction
c. Claims Against International Organizations
i. Labor Arbiters do not have jurisdiction over disputes between an international
organization and its employee
1. REASON: Because international organizations enjoy diplomatic
immunity; hence, beyond the jurisdiction of the courts or local agencies
of the Philippine Government
d. Remedy from the Decisions of the LA
i. Appeal to the NLRC
ii. Motion for reconsideration ( including motion for new trial, or petition for
relief from judgement ) are prohibited hearings
iii.
iv. Decisions of the LA Ordering Reinstatement - Immediately Executory Even
Pending Appeal
1. MANNER OF COMPLIANCE:
a. Physical Reinstatement
b. Payroll Reinstatement, which means that the employee would be
receiving his salary although not physically reporting to work.
2. RIGHT OF CHOICE - the employer alone has the right of choice
e. Reinstatement Salaries Not Refundable
i. If the reinstatement order was reversed on appeal, the employee ( who was
reinstated in the payroll during the pendency of the appeal ) is not obliged to
refund the salaries that he received.

f. Reinstatement Pending Appeal - Proper Only When the Decision of the LA Orders
Reinstatement
i. If the decision of the labor Arbiter did not order reinstatement ( despite his
finding that the employee was illegally dismissed ), the NLRC, in resolving the
appeal, cannot order payment of reinstatement salaries.

g. Appeal Bond
i. Required only for employers who appeal for monetary award
ii. COMPUTATION - exclude damages and attorney’s fees
iii. FORM - cash or surety bond
iv. UNENCUMBERED CASH BOND - A cash bond posted by the employer in another
case which has been dismissed with finality and which has not yet been
released
 v. UERM-Memorial Medical Center and Dr. Isidro Carino vs. National Labor
Relations Commission and UERM Employees Association, et al. G.R. No. 110419
March 3, 1997
1. The sole issue before the Court is whether or not petitioner complied
with the appeal bond requirement under the Labor Code and the NLRC
Rules by filing a Consolidated Motion to release the cash bond it posted
in another case, which had been decided with finality in its favor, with a
view to applying the same cash bond to the present case.
2. The Supreme Court allowed the appellant-employer to post a property
bond in lieu of a cash or surety bond. The assailed judgment involved
more than ₱17 million; thus, its execution could adversely affect the
economic survival of the employer, which was a medical center.
3. In the case at bar, the judgment involved is more than P17 million and
its precipitate execution can adversely affect the existence of
petitioner medical center. Likewise, the issues involved are not
insignificant and they deserve a full discourse by our quasi-judicial and
judicial authorities. We are also confident that the real property bond
posted by the petitioners sufficiently protects the interests of private
respondents should they finally prevail. It is not disputed that the real
property offered by petitioners is worth P102,345,650. The judgment in
favor of private respondent is only a little more than P17 million.

vi. Lepanto Consolidated Mining Corporation vs. Belio Icao G.R. No. 196047,
January 15, 2014
1. This is a Petition under Rule 45 of the Rules of Court seeks to annul and
set aside the Court of Appeals (CA) Decision. In the assailed Decision
and Resolution, the CA upheld the Order of the National Labor and
Relations Commission (NLRC) First Division dismissing petitioner’s appeal
for allegedly failing to post an appeal bond as required by the Labor
Code. Petitioner had instead filed a motion to release the cash bond it
posted in another NLRC case which had been decided with finality in its
favor with a view to applying the bond to the appealed case before the
NLRC First Division. Hence, the Court is asked to rule whether the
 petitioner had complied with the appeal bond requirement. If it had, its
appeal before the NLRC First Division should be reinstated.
2. It is undisputed that the petitioner has an unencumbered amount of
money in the form of cash in the custody of the NLRC. To reiterate,
petitioner had posted a cash bond in the separate case Dangiw Siggaao,
which was earlier decided in its favor. As claimed by petitioner and
confirmed by the Judgment Division of the Judicial Records Office of
this Court, the Decision of the Court in Dangiw Siggaao had become final
and executory, or more than seven months before petitioner had to file
its appeal in the present case. This fact is shown by the Entry of
Judgment on file with the aforementioned office. Hence, the cash bond
in that case ought to have been released to the petitioner then.
3. Under the Rule VI, Section 6 of the 2005 NLRC Rules, "[a] cash or surety
bond shall be valid and effective from the date of deposit or posting,
until the case is finally decided, resolved or terminated, or the award
satisfied." Hence, it is clear that a bond is encumbered and bound to a
case only for as long as 1) the case has not been finally decided,
resolved or terminated; or 2) the award has not been satisfied.
Therefore, once the appeal is finally decided and no award needs to be
satisfied, the bond is automatically released. Since the money is now
unencumbered, the employer who posted it should now have
unrestricted access to the cash which he may now use as he pleases – as
appeal bond in another case, for instance. This is what the petitioner
simply did. Third, the cash bond posted in Dangiw Siggaao is more than
enough to cover the appeal bond required in the present case.
4. Fourth, this ruling remains faithful to the spirit behind the appeal bond
requirement which is to ensure that workers will receive the money
awarded in their favor when the employer’s appeal eventually fails.
There was no showing at all of any attempt on the part of petitioner to
evade the posting of the appeal bond. On the contrary, petitioner’s
move showed a willingness to comply with the requirement. Hence, the
welfare of Icao is adequately protected.
5. Having complied with the appeal bond requirement, petitioner’s appeal
before the NLRC must therefore be reinstated.
vii. Appeal Bond Not Required
1. When the employee is the appellant;
2. When the appeal questions only the award of damages or attorney’s fees
3. When there is no monetary award; or
4. When the decision of the Labor Arbiter does not state the amount of the
monetary award
viii. Reduction of Appeal Bond
1. File a Motion to Reduce Appeal Bond within the reglementary period to
appeal, citing a meritorious ground; and
2. Post a provisional bond equivalent to 10% of the monetary award
ix. Judicial Review of NLRC Decisions
1. Special civil action for certiorari, with the Court of Appeals
2. Not a part or continuation of the NLRC proceedings - it is an
independent action
3. Will not stay the execution of the NLRC Decision, unless a temporary
restraining order is issued by the Court of Appeals

– END –
 TAXATION LAW
Atty. Deborah Acosta
September 17, 2022

LECTURE NOTES TEAM: BIDO, Alexandre Janus B. | CERA, Karla Isabella O. | MILO, Jose Francisco B. | ROSARIO, Briant Allen |
DOMINGUEZ, Mary Grace B. | MONTEALEGRE Janyn Mariella | PAGAY, Sherry Jane B.
CHECKED BY: HANNAH KEZIAH MORALES (Chairperson for Academics) | ADRIAN MACASAQUIT (Deputy for Academics)

POLITICAL AND INTERNATIONAL LAW / REMEDIAL LAW

I. GENERAL PRINCIPLES OF TAXATION

NOTE: Please refer to the presentation shared and provided by Atty. Acosta for Taxation Bar Lecture

CONSTITUTIONAL LIMITATIONS ON TAXATION

● Due Process Limitations (Article III, Section 1, 1987 Philippine Constitution)
○ Substantive - taxes must be reasonable and for a public purpose
○ Procedural - tax assessment and collection must not be arbitrary

● Equal Protection Limitations (Article III, Section 1, 1987 Philippine Constitution)

○ Recall the requisites for a Valid Classification
■ Rests on substantial distinctions
■ Germane to the purpose of the law
■ Not applicable or limited to current conditions only
■ Applies equally to all members of the same class

● Religious freedom (Article III, Section 5, 1987 Philippine Constitution)

○ Recall Sec. 30 of the NIRC - income of non-stock corporations and organizations
organized and operated exclusively for religious purposes

● Non-impairment of contracts (Article III, Section 10, 1987 Philippine Constitution)

● No imprisonment for non-payment of a poll tax (Article III, Section 20, 1987 Philippine
Constitution)
○ Applicable to residence tax only, not for all other kinds of taxes
● Uniformity and equality of taxation and a progressive system of taxation (Article III, Section
28, 1987 Philippine Constitution)
○ Progressive Taxes - the tax rate goes up based on the taxpayer’s ability to pay.
○ Recall that the imposition of regressive taxes is not prohibited. An example of a
regressive tax is VAT.
○ All taxable articles or kinds of property of the same class shall be taxed at the same
rate.

● Prohibition against taxation of real property of charitable institutions, churches, parsonages

or covenants, mosques and non-profit cemeteries (Article VI, Section 28, 1987 Philippine
Constitution)
○ Actual, Direct, and Exclusive use for Religious, Charitable, or Educational purposes

● Prohibition on taxation of non-stock, non-profit educational institutions (Article XIV, Section

4, 1987 Philippine Constitution)
○ All revenues and assets - RPT, local business tax, donor’s tax, customs duties, VAT,
percentage tax and income tax - non-stock, non-profit educational institutions
○ Actual, Direct, and Exclusive use for Educational Purposes
○ Sec. 30, last paragraph of the Tax Code - not applicable
○ Section 30 of the Tax Code
■ Corporations exempt from income tax - including non-stock corporations or
associations organized and operated exclusively for religious, charitable,
scientific, athletic or cultural purposes and government educational
institutions.
■ “Notwithstanding the provisions in the preceding paragraphs, the income of
whatever kind and character of the foregoing organizations from any of their
properties, real or personal, or from any of their activities conducted for
profit regardless of the disposition made of such income, shall be subject to
the tax imposed under this Code.”
○ All grants, endowments, donations or contributions used actually, directly, and
exclusively for educational purposes - exempt from tax; see also Section 101, Tax Code
○ Government educational institutions - special law
○ Sec. 27(B) of the Tax Code - Taxation of proprietary educational institutions
○ The gross income from unrelated trade, business or activity should not exceed 50% of
the total gross income.
■ Excess of 50% - taxed like an ordinary corporation
● A Majority vote of all members of Congress is required for tax exemptions (Article VI, Section
28, 1987 Philippine Constitution)
○ Includes tax amnesties and tax refunds
○ This does not include the revocation of the tax exemptions
○ The rationale is that the grant of tax exemptions will decrease the amount of revenue
collected by the government.

● Prohibited use of tax raised for special purposes (Article VI, Section 29, 1987 Philippine
Constitution)

● Tax bills must originate exclusively in the House of Representatives (Article VI, Section 24,
1987 Philippine Constitution)
○ Senate may introduce amendments and even make an entirely different bill than the
House’s version; Senate may propose or concur with amendments

○ The initiative for filing revenue, tariff, or tax bills must come from the House of
Representatives on the theory that, elected as they are from the districts, the
members of the House can be expected to be more sensitive to the local needs and
problem

● President’s veto power on appropriation, revenue, and tariff bills (Article VI, Section 27, 1987
Philippine Constitution)
○ Line-item veto only allowed for these bills.

● Grant of power to create own sources of revenue to the LGUs (Article X, Section 5, 1987
Philippine Constitution)
○ Power to tax is inherent in the government and assigned to Congress.
○ This power can be delegated by law to the local government units.
○ The LGU’s exercise of this power can be limited by laws passed by Congress.
■ The main limiting law is the Local Government Code of 1991.
■ Another limiting law is the Renewable Energy Act where LGUs are prohibited
from imposing real property tax on renewable energy developers at a rate more
than the rate provided by the Act.
 II. LOCAL GOVERNMENT

LOCAL TAXATION - PART OF POLITICAL LAW

LOCAL TAXATION
● Local Business Taxes
○ Recall that LGUs cannot tax the instrumentalities of the national government, like
PAGCOR. This is based on the supremacy of the national government over LGUs.
○ Fundamental Principles same as the general principles of taxation
○ All taxes must be uniform in each LGU within their taxing jurisdiction..
○ Tax collection cannot be delegated to private individuals.
○ Taxes collected shall inure to the benefit of the LGU collecting the tax.
○ Each LGU shall evolve a progressive system of taxation.
■ Recall that regressive taxes are not prohibited.
○ Taxes imposed shall be based on the ability to pay and for public purposes only.
○ Taxes should not be unjust, oppressive, excessive or confiscatory.
○ not be contrary to law, public policy and national economic policy, nor in restraint of
trade

● Common Limitations on LGUs:

○ Unless otherwise provided herein, the exercise of the taxing powers of provinces,
cities, municipalities, and barangays shall not extend to the levy of the following (Sec.
133, Local Government Code):
■ Income tax, except when levied on banks and other financial institutions;
■ Documentary stamp tax;
■ Taxes on estates, inheritance, gifts, legacies, and other acquisitions mortis
causa, except as otherwise provided herein; (Tax on Transfer of Real Property
Ownership)
■ Customs duties, registration fees of vessel and wharfage on wharves, tonnage
dues, and all other kinds of customs fees, charges, and dues except wharfage
on wharves constructed and maintained by the local government unit
concerned;
■ Taxes, fees, and charges, and other impositions upon goods carried into or out
of, or passing through, the territorial jurisdictions of local government units in
the guise of charges for wharfage, tolls for bridges or otherwise, or other
 taxes, fees, or charges in any form whatsoever upon such goods or
merchandise;
■ Taxes, fees, or charges on agricultural and aquatic products when sold by
marginal farmers or fishermen; (If sold by commercial farmers and fishermen,
LGUs can impose)
■ Taxes on business enterprises certified by the Board of Investments as pioneer
or non-pioneer for a period of six (6) and four (4) years, respectively from the
date of registration; (These enterprises have a tax holiday during this period)
■ Excise taxes on articles enumerated under the National Internal Revenue Code,
as amended, and taxes, fees, or charges on petroleum products;
■ Percentage or value-added tax (VAT) on sales, barters or exchanges, or similar
transactions on goods or services except as otherwise provided herein; (See
Sec. 140 of the Local Government Code)
● HYPO BAR Q: With respect to an ordinance passed by an LGU imposing
VAT or income tax on a certain entity, the issue will be whether or not
that ordinance is actually a valid exercise of the taxing power of the
LGU?
● No, Under the LGC they are prohibited from imposing income,
percentage, VAT because they are already imposed by the national
government.
■ Taxes on the gross receipts of transportation contractors and persons engaged
in the transportation of passengers or freight by hire and common carriers by
air, land, or water, except as provided in this Code;
■ Taxes on premiums paid by way of reinsurance or retrocession;
■ Taxes, fees, or charges for the registration of motor vehicles and for the
issuance of all kinds of licenses or permits for the driving thereof, except
tricycles;
■ Taxes, fees, or other charges on Philippine products actually exported, except
as otherwise provided herein;
■ Taxes, fees, or charges, on Countryside and Barangay Business Enterprises and
cooperatives duly registered under R.A. No. 6810 and Republic Act Numbered
Sixty-nine hundred thirty-eight (R.A. No. 6938) otherwise known as the
"Cooperative Code of the Philippines" respectively; and
■ Taxes, fees, or charges of any kind on the National Government, its agencies
and instrumentalities, and local government units.
○ If the national government elects to tax a particular area or subject, the LGU
concerned cannot exercise its taxation power over the same (exclusionary rule)
○ See Petron Corp. vs. City of Navotas
● Residual Taxing Powers (Sec. 186 of LGC)
○ Local government units may exercise the power to levy taxes, fees or charges on any
base or subject not otherwise specifically enumerated herein or taxed under the
provisions of the National Internal Revenue Code, as amended, or other applicable
laws:
○ Provided, That the taxes, fees, or charges shall not be unjust, excessive, oppressive,
confiscatory or contrary to declared national policy:
○ Provided, further, That the ordinance levying such taxes, fees or charges shall not be
enacted without any prior public hearing conducted for the purpose.

● Requisites for a Valid Ordinance

○ A tax ordinance cannot be enacted without a public hearing
○ The power to impose a tax, fee, or charge or to generate revenue under this Code
shall be exercised by the sanggunian of the local government unit concerned through
an appropriate ordinance. (Sec. 132, LGC)
○ Quorum is required to pass a tax ordinance. (Sec. 53, LGC)
○ Tax ordinance must be approved by the local chief executive (Sec. 54, LGC)
■ The provincial governor has 15 days to act upon the ordinance. The
city/municipal mayor has 10 days to act on the ordinance.
■ If vetoed for being ultra vires, it will go back to the sanggunian
■ Barangay captain has no veto power.
■ After these periods, the ordinance is deemed passed.
■ A veto of the tax ordinance may be overruled by a vote of ⅔ of all members of
the sanggunian.

○ Review of Tax Ordinances:

■ Within 3 days after its approval, copies of the approved tax ordinance of the
municipality or city shall be furnished to the provincial Sanggunian, and in the
case of barangay ordinances, within 10 days from enactment, copies shall be
forwarded to the municipal Sanggunian, or the city Sanggunian, for review of
the ordinance (Sec 56, LGC).
■ The provincial or city or municipal Sanggunian shall review the tax ordinance
within 30 days after receipt of a copy thereof. If, within the 30 day period, the
provincial, municipal or city Sanggunian takes no action, the tax ordinance
shall be deemed approved.
 ■ If the provincial Sanggunian finds that the ordinance is beyond the power
conferred upon the city or municipal sanggunian, it shall declare the ordinance
invalid in whole or in part.
■ If they find the barangay ordinance inconsistent with the law or city/municipal
ordinance, the Sanggunian shall return the same with recommendations, in
which case the barangay ordinance is suspended until such time the revision
called for is effected
○ Publication of the ordinance (Sec. 188, LGC)
○ Public dissemination of the ordinance (Sec. 189, LGC)

LOCAL TAXATION REMEDIES

○ Remedy for unconstitutional tax ordinance:

■ Appeal to Secretary of Justice within 30 days from ordinance’s effectivity.
■ DOJ Secretary has 60 days to rule on the ordinance’s constitutionality.
■ Even if an appeal is pending before the DOJ, the effectivity of the ordinance will not
be suspended. The LGU can start collecting tax already.
■ After an adverse ruling, appeal shall be taken to the appropriate court within 30 days
from receipt of the decision.
■ These periods are mandatory.
○ Note the case of De Lima vs. City of Manila
■ Involves an ordinance passed by the Sangguniang Panglungsod ng Maynila
■ They questioned the validity of the ordinance
■ They filed the case from the DOJ to the RTC
■ ISSUE: Whether the RTC has jurisdiction
■ HELD: It is the Court of Appeals that has jurisdiction because it involves the exercise
of quasi-judicial power by the Secretary of Justice and that is the proper subject of a
special civil action for certiorari which is within the jurisdiction of the Court of
Appeals
● Tax remedies for local business taxes
○ Government
■ Administrative
● Tax lien over property of taxpayer &
● Right to exercise Distraint and Levy

■ Judicial
● File a civil action for collection
● LGU has to make an assessment first and if that assessment becomes
final and executory for failure of the taxpayer to file a protest against
that assessment or if there is a final judgment of the court on the
validity of the assessment, then that is the time the LGU can file a civil
action for collection.
● Prescriptive period
○ 5-year period from the due date to assess (10 years from
discovery of fraud or intent to evade payment)
○ 5 years from assessment to collect
○ The running of the periods of prescription provided in the
preceding paragraphs shall be suspended for the time during
which:
(1) The treasurer is legally prevented from making the
assessment of collection;
(2) The taxpayer requests for a reinvestigation and executes
a waiver in writing before the expiration of the period
within which to assess or collect; and
(3) The taxpayer is out of the country or otherwise cannot be
located. (Sec. 194(d), LGC)
■ Taxpayer
● Before Assessment
○ Question constitutionality or legality of ordinance (e.g., tax is
unjust, confiscatory or oppressive) by filing an administrative
appeal to Secretary of Justice within 30 days from date of
effectivity
○ Action for declaratory relief
■ In order for the taxpayer to validly rely or claim this
action, the requisites for declaratory relief must be
present.
● After Assessment
○ Filing of protest within 60 days from receipt of the assessment
○ Filing of an action for a refund within 2 years from payment of
the tax.
○ Injunction against the collection of tax

● Protest of assessment within 60 days

○ Wait for the assessment by the Local Treasurer before you file
the protest.
○ Can be in the form of just a statement of accounts that shows
the computation of taxes, tax due and deadline for payment
○ Claim in the protest that the assessment is invalid because it
violated the due process right of the taxpayer because it failed
to state the nature of the levy and the grounds for making the
assessment on the part of the treasurer against the taxpayer.

○ Questions on the form or computation of assessment: remedy is

to file a written protest against the assessment within 60 days
from receipt of assessment.
○ After the 60-day period, the assessment will become final and
executory and the LGU can file a collection case against the
taxpayer or avail the administrative remedies.
○ Payment under protest is not required in protesting local
business taxes.

○ The local treasurer has 60 days to decide on the protest.

○ Treasurer can deny in full the protest or rule, if partly correct,
that the assessment be reissued so that the correct amount of
taxes will be collected.
○ In case of an adverse decision, file the appeal within 30 days
from receipt of the decision with the RTC or MTC.
○ If there is no decision, go to local courts from the lapse of the
period. Otherwise, it becomes final and executory.
■ Under the revised Rules of Court, if the amount
concerned is above 2 million pesos, the competent court
is RTC within 30 days
 ■ If the RTC gives an adverse decision, file a MR or a Motion
for New Trial whichever is applicable within the 15 day
period.
■ File a petition for review with the CTA Division.
■ MR or Motion for New Trial is a prerequisite before filing
■ If filed before the RTC first, pathway is RTC -> CTA
Division -> CTA en banc -> Supreme Court
■ If filed before the MTC first, pathway is MTC -> RTC
(appellate jurisdiction) -> CTA en banc -> Supreme Court

● Claim for refund

○ If erroneously or illegally collected
○ The 2-year period from erroneous payment of local business tax
or the date of the year that the taxpayer is entitled to a refund
or credit.
■ Tax paid is based on the 2018 ordinance, which was valid.
The ordinance became invalid in 2022. The payment
based on 2018 is illegal.
■ The taxpayer is entitled to a refund as of January 31,
2022.
■ Supervening cause principle
● This principle only applies to local business taxes
only.

○ The claim must first be filed with the treasurer within the 2 year
period. There is no specific period within which the treasurer has
to act on your refund.
○ If the 2-year period is about to expire without any action by the
treasurer, you go directly to the regular courts and file your
claim there.
○ The court may entertain the appeal as long as the case if filed
within the 2 year period and the written claim had earlier been
submitted to the treasurer.
○ Same case for claims for refund for NIR taxes except for VAT. You
just have to file an admin claim refund first within the two year
 period and if the period is about to lapse, you file already a
judicial claim for refund.
■ Flowchart: Date of Payment of Taxes: within 2 years file
an administrative claim.
○ If there is denial of refund or if the two year period is about to
lapse, go to RTC if 2 million or more, then go to the CTA division,
then CTA en banc, then Supreme Court.
○ Less than 2 million: go to MTC first then RTC then en banc. RTC
already has appellate jurisdiction here.
■ HYPO: What if I was forced to pay local business taxes?
Most cases in reality, taxpayers are forced to pay local
taxes even before to filing a protest because payment of
local taxes is a prerequisite to issuance of mayor’s
permit.

○ Recall the case of City Treasurer of Manila vs. Philippine

Beverage Partners, Inc.
■ In this case, Coca-cola paid the LBT
■ They filed a protest on the grounds that the ordinance
should be null and void and that there was double
taxation.
■ The protest was denied. Coca-cola paid the LBT and then
filed a refund claim.
■ SC: taxpayer can pay the taxes and file a protest
■ Remedies: Protest and wait for decision for 60 days or Pay
the tax under protest and file a claim for refund
■ You cannot pay and claim for refund immediately because
it is the protest that will trigger the claim for refund.
■ The payment under protest will not abandon the
questioning of the validity of the assessment.
 REAL PROPERTY TAXATION - PART OF POLITICAL LAW

● Multiple jurisprudence stating that it is the national government that imposes the real
property tax. This is the previous law.
● Under the local government code, it is the LGUs that have the power to impose the real
property tax. It is the province, city, or municipality within the metro manila area.
○ If it is a municipality in the province, it has no power to impose a real property
tax.
○ It is the province that has the power to impose the real property tax.
● Real property tax is a direct tax on ownership as a general rule.
○ There are certain instances in the LGC wherein the tax liability is imposed based
on the beneficial use of the property.
■ EXAMPLE: even if the owner is the government who is exempt from real
property tax, real property tax will still be imposed based on the beneficial
use if it is being used by private entities for commercial purposes thru a
lease agreement with the national government.
● That property will still be subject to real property tax even if it is
owned by the government.

● Since it is a direct tax on ownership, can the LGU assess real property tax on the lessor for
the real properties of its lessees?
○ NO, since it is based on ownership. The real properties of the lessees are owned by
the lessee and therefore the lessee should be liable to the LGU.
■ EXAMPLE: you own a building and you are leasing units of the building to
lessees, those lessees made improvements on the unit (leasehold
improvements).
● LEASEHOLD IMPROVEMENTS. Under the LGC, improvements on the
property are considered real property and shall be subject to real
property tax.
● Those leasehold improvements, owned by the lessee, shall be
subject to real property tax. Since the lessee is the owner of such
improvements, they shall be liable to the LGU for the RPT.
● The RPT is imposed on real property such as buildings, machinery, and other
improvements.
○ Take note of the definition of “Machinery” in the LGC.
● When imposing real property taxes, you must comply with the rules and/or requirements
under the LGC and not the Civil Code.
○ The concepts of movables and immovables under the Civil Code under property
law.
■ A movable shall be considered as immovable if it is attached to the
property permanently.
■ BUT TAKE NOTE that under the LGC, machinery, even if not attached
permanently to the real property shall be subject to real property tax.
■ Even if it is mobile, self-powered, or self-propelled, and not permanently
attached to the real property, it will be subject to RPT for as long as they
are directly and essentially used for the particular needs of the industry.
● If it is being used for the business of the owner of the property, that
will be subject to real property tax
● EXAMPLE: ATM that is mobile? It is subject to real property tax. This
is so because it is actually, directly and essentially used to meet the
needs of the banking business which owns the ATM.

● Improvements, like leasehold improvements, are defined under the LGC as a valuable
addition made to the property or immolation in its condition amounting to more than to a
repair or replacement.

● Examples of RPT:
○ Tanks that are not embedded in the real property and are considered
improvements on the land so they are subject to RPT
○ Old jurisprudence stating that electrical posts are exempt from RPT, is not
applicable anymore. This is due to the excise provision of the LGC.
■ August 2015 case – Transformers, electric posts, transmission lines,
insulators, and electric meters of Meralco shall qualify as machinery. Even if
they are not permanently attached, they are still actually, directly, and
essentially used to meet the needs of the particular industry which is the
power distribution industry, by their very nature in achieving its business
purpose. This is therefore subject to RPT.
 ○ Underground Tanks, elevated tanks, water tanks, and air compressors are subject
to real property tax.
■ Note: even if they are not immobilized, if they are essential to the business
of the taxpayer, they should be considered as real property subject to RPT.
■ If immobilized and not essential for the business, it is still real property
subject to RPT.
■ If not immobilized and not being used in the business of the taxpayer, it is
not subject to RPT.
■ If it is mobilized and necessary to the business of the taxpayer, it shall be
considered as machinery and subject to RPT.
○ Power barges, floating and movable are real property since it is specifically
specified as immovable according to Article 415 of the Civil Code.

DETERMINATION OF FAIR MARKET VALUE

● 1st step: LGU to determine the fair market value of the property.
■ The fair market value shall be determined by the local assessor of the concerned
LGU and the local assessor shall also make a determination on what kind of
property it is based on use, whether it be agricultural, residential, etc. The value
of the property shall be based on the actual use of the property.
■ After such the local assessor shall produce the notice of assessment or the tax
declaration.
■ The tax declaration to be issued shall bear the name of the owner, the address of
the property, and a table that shall show the use of the property (whether
agricultural, commercial, cultural, etc.), the fair market value, and the
assessment level.
■ The assessed value shall be used in the computation of the real property tax.
○ IF THE ASSESSMENT MADE BY THE ASSESSOR IS WRONG, the remedy is to go to the local
board of assessment – appeals within 60 days from receipt of the notice of assessment.
■ The LBAA has 120 days to decide on the appeal.
■ If the decision of the LBAA is adverse, you have 30 days to file an appeal with the
CBAA.
● A motion for reconsideration may be filed but the fresh period rule shall not
apply. Hence, the 30-day period shall still run.
■ Proceed to the CBAA.
■ Proceed to the CTA en banc, not division.
 ● Take note: the appeal of the assessment shall not suspend the collection of
the RPT.
○ The LGU will still collect the RPT based on the initial assessment of
the assessor.
○ The RPT shall just be adjusted prospectively after attaining the final
judgment of the courts.

● NAPOCOR v CBAA: discusses the tax exemption in favor of the GOCC at that time.
○ However, the exemption of the RPT was not applied by the Court because at the time the
RPT was assessed, the owner was not NPC but the private corporation, BOT partner, and
actual and direct use of the machinery equipment did not belong to NAPOCOR but
belonged to the BOT partner. Therefore there is no basis for claiming tax exemption.
○ Tax exemption is not transferable.
■ If the tax exemption is in favor of the government, government
instrumentality, or GOCC, it strictly belongs to that entity, and its tax
exemption cannot be transferred using a contractual provision. The
contract cannot be honored by the LGU.
● Under article 234 of the LGC, provides for 5 exceptions from RPT.
■ Take note: this list is exclusive. Should there be additional exemptions,
they must be from Congress.
○ Real property owned by the Republic of the Philippines or any of its political
subdivisions except when the beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person;
■ Even if the property is owned by the Republic of the Philippines, once the
beneficial use of the property has been transferred to a taxable person the
property shall be subject to RPT and the taxpayer shall not be the Republic
of the Philippines, but the one using the property.
○ Charitable institutions, churches, parsonages or convents appurtenant thereto,
mosques, nonprofit or religious cemeteries, and all lands, buildings, and
improvements actually, directly, and exclusively used for religious, charitable or
educational purposes;
■ The constitutional limitation is also applicable to Art 234 of the LGC.
Church and other religious institutions, religious cemeteries, etc shall be
exempt from RPT.
■ Land and buildings actually, directly, and exclusively used for religious,
charitable, and educational purposes shall be exempt.
 ○ All machinery and equipment that are actually, directly and exclusively used by
local water districts and government-owned or - controlled corporations engaged
in the supply and distribution of water and/or generation and transmission of
electric power;
■ Cited the NAPOCOR case and why they are exempt.
○ All real property owned by duly registered cooperatives as provided for under R. A.
No. 6938; and
■ Real property owned by cooperatives, even if rented out to taxable
persons, shall be exempt from RPT.
■ Basis of exemption of cooperatives: Ownership.
■ If real property owned by the Republic of the Philippines, exempt.
● However, if the use was granted or leased to a taxable person, the
property is now subject to real property tax.

○ Machinery and equipment used for pollution control and environmental protection.
Except as provided herein, any exemption from payment of real property tax
previously granted to, or presently enjoyed by, all persons, whether natural or
juridical, including all government-owned or -controlled corporations are hereby
withdrawn upon the effectivity of this Code.
■ Keywords: “use for pollution control and environmental protection”

TESTS OF EXEMPTION

○ Three Tests:
■ Ownership Exemption for government and cooperatives.
● If use is transferred or leased to a taxable person, subject to RPT.
■ Character Exemption
● If it’s a property owned by a charitable institution, church, non-profit, etc., it is
exempt.
■ Usage Exemption
● If it is land, building, and improvements
○ Use for religious, charitable, non-profit institutions, etc. → EXEMPT
○ Machinery used by local water districts and GOCCs engaged in water and
electric power → EXEMPT
○ Machinery used for pollution control and environmental protection →
EXEMPT
● If a property is owned by a religious and charitable institution but used for purposes not
exempt, the tax exemption shall not attach because it is clear from the LGC and the
Constitution that the land, building, and improvements must be actually, directly, and
exclusively used for charitable, religious, and/ or educational purposes for it to be exempt
from RPT.

● Take note: Exemption granted to property owned by the Republic of the Philippines, not
just the national government. It’s a broader term and synonymous with the government of
the Philippines.
○ Government instrumentalities vested with corporate powers or corporate entities
performing public functions are exempt from RPT.
■ EXAMPLES: MIAA, Banko Sentral ng Pilipinas, UP, National Railway, and etc.
● These are examples of government instrumentalities. They are also
performing government or public functions and shall be exempt from
RPT. They are part of the Republic of the Philippines and its political
subdivisions.
● Take note: GOCCs are subject to RPT.
● LRTA is not exempt. While it is a public utility, it is profit-earning. It
is not being operated for public service.

● Charitable institutions (ex. Lung Center of the PH)

○ Lands, directly, and exclusively used for charitable purposes are exempt from RPT.
○ Actual, direct, and exclusive use of the property is the direct, immediate, and
actual application of the property to the purposes of which the charitable
institution is organized.
■ If the property is being used for the public hospital and such is catering to
the charity patients of the Lung Center, the property is exempt from RPT.
■ However, for the portions of the land being leased to private entities as
well as parts of the hospital being leased to private individuals, those
properties are subject to RPT.
● Why? Because those properties are not actually, directly, and
exclusively used for charitable purposes.
 ● Question: Is machinery, used actually, directly and exclusively for educational purposes,
exempt from RPT?
○ NO. The language of law states land, building, and improvements.
○ Machinery is not included.
■ EXAMPLE: There is a school and it is a proprietary educational institution.
● The property of the school is exempt from RPT if it is actually,
directly, and exclusively used for educational purposes. Land,
Buildings, and improvements.
● However, your machinery will be subject to RPT even if it is actually,
directly, and exclusively for educational purposes.
○ Exemption is only granted to land, buildings, and
improvements.

● Question: How about machinery being used by non-stock, non-profit educational

institutions, are they exempt from RPT?
○ YES. Under the Constitution, it is all revenues and assets. The constitution used the
word asset.
○ As long as the machinery is used for educational purposes, it shall be exempt from
RPT, not based on the LGC but the Constitutional provision.

Fundamental Principles for Real Property Taxes

● Appraisal
○ It is the process of determining the value of the property putting it in writing and valued.
○ Usually from the owner. If not, the LGU shall do the appraisal and shall proceed with the
assessment. After they will issue the tax declaration. RPT will accrue. They will issue a
notice of assessment stating the tax due and the demand for payment. After, the
collection of RPT.
○ This cycle shall be guided by the following principles,
■ Real property shall be appraised at its current and fair market value;
■ Real property shall be assessed based on its actual use;
■ Real property shall be based on a uniform classification within each local political
subdivision;
■ Appraisal, assessment, levy of real property, and the collection, just like local
business taxes, cannot be left to any private person.
■ Appraisal and assessment shall be equitable.
● RPT accrues every year. It is due every year, at the beginning of the year. The deadline is
dependent on the local ordinance setting such.
○ Can be paid in quarterly installments.
● Responsibility for collection of the RPT belongs to the treasurer.

REAL PROPERTY TAXATION REMEDIES

TAX REMEDIES FOR REAL PROPERTY TAX

● Same as local business tax.
○ Tax lien and levy.
● No distraint?
○ This is a tax directly on the property. Just levy on the property and sell the
property in a public auction.
JUDICIAL REMEDY
● Same as LBT
● Civil action; prescription period?
○ 5 & 10 yrs
○ 5 years to collect from the date it became due.
○ 10 years from the discovery of fraud or intent to evade payment.

RPT; Collection Remedy in case of Levy

● When the RPT is delinquent, a notice of delinquency shall be posted.
● The notice of delinquency shall be published once a week for two (2) consecutive weeks in
a newspaper of general circulation.

CONTENTS OF A NOTICE OF A LEVY

● Just like a public auction rules for forfeiture of property in the case of real estate
mortgage, after a public auction, there is a right to redemption.
○ 1 year for the right of redemption from the date of sale.

REMEDIES OF THE TAXPAYER

● If you disagree with the notice of assessment of RPT of the treasurer, not the assessor,
you have to pay first before filing a protest.
○ No protest shall be entertained until payment has been made.
■ There are cases where the SC allowed for a surety bond but it is rare since
the LGC specifically states that payment is required before filing a protest.
 ■ When tendering payment to the treasurer, you will say that you are paying
under protest so the official receipt shall state “under protest”.
Subsequently, you will file a formal written protest after paying.
■ Protest must be filed within 30 days from the payment of the tax to the
treasurer.
■ The treasurer shall decide within 60 days from receipt of such.
● If the protest is decided in favor of the taxpayer, the tax may be
refunded or applied as a tax credit automatically by the treasurer.
● If the protest is denied or the protest was not acted by the treasurer
within the 60 days prescribed by the LGC, the taxpayer may appeal
the assessment to the LBAA.
● If the assessment is illegal or void and the treasurer has no power to
act at all, the taxpayer shall sue for a refund in a competent court.
● If the assessment is erroneous or illegal, the taxpayer may file a
claim for refund within 2 years from payment or file an appeal with
the LBAA of the city or province within 60 days from receipt of the
assessment.
● Notice of assessment
○ Upon receipt, the taxpayer must pay the tax and the protest must be filed within
30 days from payment.
○ The treasurer has 60- days to decide on the protest.
■ If there is denial or inaction, the taxpayer has 30 days to file an appeal to
the LBAA.
● The LBAA has 120 days to decide.
● If there is an adverse decision of the LBAA, go to the CBAA then CTA
en banc.
● Refund
○ 2 years from the date the taxpayer is entitled to such reduction.
○ The supervening cause principle also shall apply to RPT.
○ The treasurer has 60 days to decide.
■ If there is an adverse decision from the treasurer, file an appeal to the LBAA
(same process)
■ If it is a refund of payment of taxes, you have 2 years to file a claim for a
refund with the treasurer.
● If there is an adverse decision, you go to the LBAA à CBAA à CTA en
banc
 ● Question: Do Provinces still have a share in the RPT?
○ NO.
■ Example: The collection of the RPT by the province is shared with the
municipality and barangay. If the municipality becomes a city, the RPT
collected by the component city will be shared with the city and the
barangays under that city.

NIRC INTERNAL REVENUE TAX REMEDIES

1) Tax Return
Could be
● Income Tax Return
● VAT Return
● Documentary Stamp Tax Return
● Withholding Tax Return

2) Filing of Tax Return

● Law prescribes the Due date
● Based on Self-Assessment System of the Philippines
● Assess your own taxes and indicate such fact in the tax return
● Pay-as-you-file System, Pay corresponding return

3) Audit of the BIR - Occurs after filing of return

● Audit must be preceded with a Letter of Authority (LOA)
● LOA, must be served to the taxpayer within 30 days from issuance
● LOA – Is valid for 120 days from receipt of the taxpayer
○ The audit can still extend for more than 120 days without need to
revalidate or re-issue the LOA.
● Any assessment arising from an audit beyond the 120-day period of an issued LOA is
still valid
● Assessment without any LOA – can be declared void for failure to comply with the
due process requirements provided by law
4) Discussion of Discrepancy and Notice of Discrepancy
● Issued by the BIR after the Audit
● BIR has 30 days to discuss discrepancies found in the audit

5) Preliminary Assessment Notice (PAN)

● Issued after Discussion of Discrepancy and Notice of Discrepancy
● Has to be issued within 10 days from conclusion of discussion of discrepancy
● Remedy of taxpayer against the PAN
○ Reply or Response from the PAN within 15 days from the issuance of the PAN
○ Failure to file a reply or response from the PAN is NOT PREJUDICIAL to the
taxpayer, as failure to do so will not make the assessment final and
executory
○ Consequence will only be the issuance of a Final Assessment Notice (FAN)
○ If a reply or response is made by the taxpayer
■ BIR could agree with the taxpayer and agree with the taxpayer that the
tax paid in the return was proper
■ BIR could lower the assessment
■ BIR could completely ignore the reply or response and issue a FAN
■ BIR has 15 days to respond to the reply or response
● If BIR does not respond, it will issue a FAN
● The FAN must be made within the prescriptive period of
assessment for internal revenue taxes which is either 3 years or
10 years
● Section 228 provides instances wherein a PAN is no longer needed
prior to the issuance of the FAN

6) Prescriptive period for assessment of Internal Revenue Taxes

● General rule: 3 years from the last day of filing a return or 3 years from the date of the
return, whichever is later
● Examples:
A) For tax liabilities from January to December 2021, the deadline of the filing of the
Annual Income Tax Return is April 15, 2022. ABC Corp submitted a late return and filed
its return on April 30 2022.
○ The 3-year period to assess begins on April 30 2022
 B) For tax liabilities from January to December 2021, the deadline of the filing of the
Annual Income Tax Return is April 15, 2022. ABC Corp submitted an early return and
made a return on April 10, 2022

● The 3-year period to assess begins on April 15 2022

● Exception: In case of a fraudulent return, false return or omission to file a tax return, the
BIR has 10 years from the discovery of a fraudulent return, false return or discovery of
failure to file a return to assess the internal revenue tax.

7) Final Assessment Notice

● Remedies
○ Protest against the FAN, within 30 days from the receipt of the FAN
○ Failure to file, is PREJUDICIAL, as failure to file a protest would make the
assessment FINAL and EXECUTORY
■ In such case the only remedy of the taxpayer is to ask for a COMPROMISE or
ABATEMENT of the Internal Revenue Tax due
■ Once the FAN is Final and Executory, the next step is for the BIR to collect
the tax due
● Kinds of Protest
○ Reinvestigation
■ If the taxpayer will submit additional supporting documents to support its
protest
■ Taxpayer has 60 days from the protest to submit the additional supporting
documents
○ Reconsideration
■ If the taxpayer will NOT submit additional supporting documents to support
its protest but is merely asking the BIR to reconsider the assessment made
in the FAN

● Decision of the BIR

○ Reinvestigation
■ Decision must be made within 180 days from the lapse of the 60-day period
to submit additional supporting documents
○ Reconsideration
■ Decision must be made within 180 days from the request for
reconsideration
● Remedy from the Decision of the BIR (in the alternative)
○ Appeal with the BIR Commissioner
■ In case the decision was rendered not by the Commissioner but its
authorized representative
○ Appeal with the CTA in division
○ In case the decision was rendered by an authorized representative, the taxpayer
can choose either appeal to the BIR Commissioner OR directly to the CTA, the
appeals are in the ALTERNATIVE
○ PERIOD TO APPEAL is either
■ 30 days from the decision of the BIR
■ 30 days from the lapse of the 180 day period of the BIR to decide the
protest

● Remedy from the Denial of Appeal by the CTA In Division

○ Motion for Reconsideration within 15 days from the receipt of the decision
○ If MR is denied, appeal to the CTA En Banc within 15 days from the denial

● Remedy from the Denial of Appeal by the CTA En Banc

○ Petition for Review on Certiorari to the SC under Rule 45

- END -
 PRACTICAL EXERCISES II
Atty. John R. Jacome
September 19, 2022

ACADS SCRIBES TEAM: HANNAH KEZIAH MORALES | EMMANUELLE GRACE VILLAS |MARIA CHRISTINA ARCE | QUIMBERLYN RANCHEZ | JOSES
TAN
CHECKED BY: ADRIAN MACASAQUIT (Deputy for Academics) | HANNAH KEZIAH MORALES (Chairperson for Academics)

A. INTRODUCTION
● Conduct a specific survey on different legal forms that you will expect to come out in the bar exams.
● Includes frequently asked questions
○ Criminal Complaint, Motion to Quash etc

B. COVERAGE FOR PRACTICAL EXERCISES (CAGUIOA BAR EXAM 2022)

1. Practical Exercises (Civil Law)
○ Demand and Authorization Letters
○ Simple Contracts
○ Complaint
2. Practical Exercises (Criminal Law)
○ Drafting of Complaint,
○ Information
○ Affidavits of Desistance
○ ETC -
 PRACTICAL EXERCISES (CIVIL LAW)

A. Demand and Authorization Letters

1. Demand Letters

Labor
● Allege short facts - to let the receiver understand what you are talking about.
● Include what you demand - amount you’re demanding
● Include a time frame when you want your demand to be satisfied.

○ Usually within 3 banking days (if estafa) or 5 days (if BP 22); the usual is about 5-10 days.
■ Notice to explain must be sent at least within 5 days before they’re
required to submit an answer/reply otherwise, it is a violation of due
process.
■ Kings of Kings: The reasonable time for notice to explain, to be given to an
employee who is to be disciplined for just cause must be at least within 5 days.
Otherwise, it is violation of due process.
 Demand Letter to Pay and to Vacate

● Before you can file a case of ejectment, especially unlawful detainer, you need to serve the
respondent a demand within 1 year.
○ Within that year, the reckoning period will start; if it lapses, it will be accion publiciana or accion
reivindicatoria. It should be a demand letter to pay AND vacate.
■ OR - it is a demand for simple collection of money and not ejection.
■ AND - use for ejectment; to pay AND vacate.
2. Authorization Letters
● This is the usual format: Mention the principal and attorney-in-fact.
● Do we consider SPA, or even a GPA, as a contract?
○ In essence yes, because it’s a contract of agency
○ In practice, it is not required for the agent to sign.
○ Make sure that the principal is able to sign.
● Format:
○ Parties.
○ Transactions agent is authorized to do.
○ “Hereby giving and granting…”

● What do you put in SPA?

○ Acknowledgment and not Jurat.
■ Parties and acts performed.
■ Representation you are allowed to do.
● This to sell a parcel of land:
○ Format:
■ Parties
■ Different deeds and acts to perform
■ “Hereby in granting…”

● Any sale of real property in representation, you should have SPA, otherwise, the sale is VOID

Authority to Sell
● Mention the location, the description of the property, the price.
○ Elements of a contract.
■ Consent: Implied by taking the form.
■ Object: Property.
■ Consideration: Price.
● Capital gains Tax is shouldered by the seller when it comes to ordinary sale.
● Registration expenses, documentation, transportation and so forth, will be borne by the buyer as they
will benefit from the transaction.

Authority to lease

● Consent is implied, consideration should be there, object which is the lease property
● For lease, put the fixed period of time, or indefinite
xxxx

Demand and Authorization Letters

Practical Exercises (Civil Law)
[title, body, caption…]
 AUTHORIZATION TO INSPECT AND APPRAISE

● Art. 1878 NCC; acts of dominion vis-a-vis acts of administration

○ Take note in all these SPA particularly, under art. 1878 NCC, SPA are necessary for acts of
dominion.
○ Distinction between SPA and GPA:
■ If it's an act of dominion, you should execute SPA.
● E.g.: To make payment, to sell, to sell, to waive obligation, to lease, acts of
conveyance.
■ If acts of administration, simply execute a general power of attorney or acts of
administration.
● Acknowledgment vis-a-vis jurat
● If it's an affidavit, use jurat.
○ Because you are swearing to tell the truth.
○ General rule, executed by a sole person.
○ But there are instances where two or more person will join the affidavit
● If a contract is to be drafted, use acknowledgment.
● In both jurat and acknowledgement, the notary public would not know whether you’re telling the
truth or what you are agreeing about.
● What is important is that the person in favor whom the document is notarized is alive.
○ There would be ethical implications if the affiant is:
■ Dead.
■ Not present in the country during the time of notarization.
○ This could be ground for disbarment.
● If there is no instruction to exclude, put jurat or acknowledgement.
● If none, no need to put.
● S.S. = scilicet
○ Venue section of the notary.
○ From Latin, it means “in particularly” or “namely”.
○ In other words, what is the jurisdiction that grants license to the notary public.
Competent Evidence of Identity
● If you are issued government IDs, you undergo a series of questions, inquiries, investigations and so
forth, under the penalty of perjury.
● Write a sample of competent of identity.
● If not provided in the problem, assume.
○ Passport issued by the Department of Foreign Affairs (DFA)
○ Driver’s license issued by the Land Transportation Office (LTO)
○ Professional Regulation Commission (PRC)
○ ID Card for nurses, physicians, engineers and other professionals National Bureau of
Investigation (NBI)
○ Clearance Police Clearances Postal ID Cards issued by the Philpost Voter’s ID issued by the
COMELEC
○ Barangay Certifications
○ GSIS e-cards
○ SSS cards
○ Philhealth ID Cards
○ Senior Citizen’s Cards issued by the OSCA
○ OWWA IDs
○ OFW IDs
○ Seaman’s Books
○ Alien Certificate of Registration/Immigrant Certificate of Registration issued by the BI, for
foreigners
○ Government Office IDs
○ Certification from the National Council for the Welfare of Disabled Persons
● EXCEPT Cedula
○ Community Tax Certificate CTC / Cedula is NOT a “Competent Evidence of Identity” since it
does not contain any photograph of the persons and may be easily obtained without any
supporting documents.
JURAT

● Instead of Competent Evidence of Identity, it can be an oath or confirmation of one credible witness.
● Or the party signing is not a party of the document, but personally known to the notary public.
● You just have to present 2 credible witnesses:
○ Names and IDs.
○ This might not be asked in the Prac Exercise, but in your legal ethics.
 ● If the person signed the document in front of the notary public, even without competent evidence of
identity, it is valid as long as the person signed in the presence of the notary public.

CONTRACTS

Parts of Contracts
MASTER the basic parts of contracts: (T.P.B.S.A)
1. Title
2. Parties
3. Body (Stipulations)
4. Signatures
5. Acknowledgment

● MASTER the specific part/s or requirements for some documents.

● There are instances where a particular contract requires something.
○ For donation, very important that the donation should be accepted by the donee so you put in
the format "accepted by".
GENERAL CONTRACTS

General Contract (Corporation)

● A corporation organized under and by virtue of the laws of the Republic of the Philippines.
● Put duly represented by because it has a different juridical personality.
 General Contract (Persons)
● For persons, then this is the format.
● As you will notice, no more representation .l
● In most instances, if the seller is married, marital consent of the spouse must be secured.
○ Because the requirement in most cases, like conveyances, especially if there is no agreement
or absolute community property, it means all property of the spouses are co-owned.
○ Contract void if no consent.
● Don’t forget the witness and acknowledgment
SALE, LEASE, MORTGAGE
A. NON-REAL ESTATE PROPERTIES
● e.g. car, jewelry
● This is another way of writing it.

Contract of Lease (Motor Vehicle)

● By sale, Art. 1458 of NCC
○ a contracting party obligates himself to transfer ownership, to deliver the determinate thing,
and the other to pay thereof the money which is equivalent.
● By lease, merely enjoyment of the property for a price certain for a period
○ Temporary enjoyment of a thing.
● Since it's just a motor vehicle, you only have to put subject matter, consideration, parties agreed to
lease, period (month/year), advance deposit, and other terms and conditions.
● Other expenses are borne by the lessee.
● You just have to allege that the lessor and lessee agreed.
○ Don’t forget the subject matter and consideration.
● Since the lessee is using the vehicle, normally, he is responsible for the care or the fuel.
CHATTEL MORTGAGE

● See Art. 2085

● Chattel mortgage is only a secondary contract dependent on the principal contract. More often than
not, the principal contract is the contract of loan.
● If you fail or defaulted in your loan, the chattel mortgage will be the one to satisfy.
● Never fail to mention or include an affidavit of good faith.

MEMORIZE FOR MORTGAGE: “That for, and consideration of, this indebtedness, and to assure the
performance of said obligation to pay, the MORTGAGOR, conveys by way of CHATTEL MORTGAGE to the
MORTGAGEE, his heirs and assigns, the following personality now in the possession of said MORTGAGOR”

● There is a special part of a chattel mortgage that needs to be alleged as required by law: the amount
in words, the parties, marital consent (if married),the witnesses, and the acknowledgement, and the
affidavit of good faith. [See format below]
● The Rationale of the law in requiring the affidavit of Good Faith: that personal property is supposed
to secure the performance of the obligation. You cannot take it [personal property] away from the
locality where it is registered to defraud the creditor.
● The security is in the possession of the debtor but at the very least by the execution of the affidavit
of GF, in essence, one declares that “If I defaulted, I make the collateral available to satisfy the
judgment.” [See example of Affidavit of Good Faith below]
[Affidavit of Good Faith pwedeng before or after acknowledgement. But suggested putting it before the
acknowledgement para sabay ng notaryo.]

● Other forms of Chattel Mortgage

Sale, Lease, mortgage (Real Estate Properties)
● Format in Real Estate Mortgage is the same as the Chattel mortgage.
○ EXCEPTION: No need for Affidavit of Good Faith in Real Estate Mortgage

A. Contract to Buy and Sell

● Sale is the obligation to transfer ownership, and sell a determinate thing for a price or certain
amount of money.
● Remember the elements of sale: Consent, Object (a subject matter of a contract), and the
consideration (price). These must be written in the contract. [See form of Contract to Buy
and Sell below]

● When asked to draft a simple deed of sale, indicate the purchase price, the taxes [who will be
responsible for that?], and then the transfer of title.
● There is no hard and fast rule on stipulations. You can put taxes, other expenses etc. What is
important is for you to impress the examiners that you know other matters aside from the
subject matter and the consideration but do not sacrifice your time.
● Do not forget the acknowledgement part. [See example of Acknowledgment with two parties
(Bilateral contract)]
B. Contract to Sell
● Contract of sale is not a contract to sell.
● The ownership retains to seller subject to suspensive condition in order to be transferred to buyer
○ If confused, remember the concept of res perit domino.
■ Res perit domino - the property perishes in account of the owner
● if the thing is already delivered, you are the owner and you will bear the loss
○ Sale is a consensual contract but only for perfection. But ownership transfers after the
delivery, which can be actual or constructive. Actual means taking possession of the property
by traditio brevi manu and so on.
○ NOTE: Constructive delivery of property happens when the deed of sale is executed.
● Contract to sell is one of the exception from res perit domino
○ You should know the difference between a contract of sale and a contract to sell.
○ Remedy is insurance (insure the property)
○ IMPORTANT: Amount usually is in installment (you need to allege this)
■ If one whole payment then it will no longer be a contract of sell but a Deed of
Absolute Sale

● Contract to sell may be paid in installments. [See Example below]

● Note that in default(absence of stipulation, the CGT and Real Estate Tax shall be for the account of
the Seller while documentary stamps tax, registration fee, registration expenses, and all other
miscellaneous fees and expenses shall be for the account of the buyer.
● However, in real situations, parties may stipulate who will shoulder the expenses.
● Do not forget also the acknowledgement [see example below]

● Example of a Deed of Absolute Sale [See examples below]

● The important thing is to mention the word “SELL”.
● Is it possible that the Deed of Absolute Sale is only signed by the vendor? Is this correct? Yes, as long
as it does not impose an obligation to another party, there exists a unilateral contract to sell.

Another example of Simple Deed of Absolute Sale

● NOTE: Whatever you cannot donate, you cannot sell (conjugal properties). [Emphasizing this in
substantive law, there should always be marital consent. The rule when it comes to spouses,
whatever that spouses cannot donate, cannot also be sold, mortgage, conveyed.]
● EXCEPTION: when there is a prenuptial agreement.
● If asked to draft a donation between husband and wife: DONT; not allowed.

C. Earnest Money Receipt Agreement

● Know the difference between earnest money and option money.
● EM: money is part of the consideration; a proof of the perfection of the contract.

● Paano kung ang pianapa-draft is option money receipt?

○ You don't have to say "it forms part of the purchase price" because option money is a contract
where you are given a time to think, and the seller is not bound to offer to another party in
that particular period.
● See Example of Earnest Money Receipt below.
● See Example of Acknowledgement Receipt of Documents below.
○ [Hindi na siguro ito itatanong sa bar, pero pag nag-practice na kayo ng law, make sure to know
what this is.]
● Make sure na meron yung acknowledgement receipt. [Kailangan ito sa pag-transfer ng property. BIR
will require all this before giving CAR (certification authorizing registration), which is needed in your
tax law.]

D. Assignment
● Know the difference between assignment of credit and subrogation.
● In subrogation, a third party faces the obligation of the debtor to the creditor with the
consent of the creditor. As a consequence, the third party paying, steps into the shoes of the
original creditor and becomes the subrogee of the latter.
● In assignment of credits, the original creditor transfers the right to the assignor. The assignee
would have the right of the assignor to proceed against the debtor; this may be gratuitous or
onerous. The assignment would have the effect of sale.
● See example of assignment of credit
● Example of Assignment and Transfers of Rights.

● NOTE: If gratuitous, no need to put the amount. Just remember, it is like sale, but the word used is
"assignment".
● This is almost the same as sale, the only difference is the use of the term “assignment, assignor, and
assignee.”
 E. Contract of Lease
● A lease may be a lease of things, service, etc. but it is temporary in nature.

[If you're being asked to simply draft a contract of lease, make sure you put the property or the subject
matter, the consideration or the rental, the lease payment, and the stipulations on deposit and advance,
sublease.]

● Make sure you know what's the meaning of the right of first refusal.
○ Right of first refusal: if the property is to be sold, the lessee has the first option to be offered
the property.
● Make sure to include in the stipulation the sublease agreement if asked to do so. Why?
○ If sublease is not put in the contract of lease, it is understood to be excluded. If you want
sublease to be applied in the agreement, put it in the contract.Therefore the lessee becomes
the sublessor and third party becomes sublessee.
● See picture below for the usual terms and conditions.
○ Usually, this will not be asked in the bar but if malaki yung points [20 pints] na ibigay sa
question, include the usual terms and conditions.
 ● See example of sublease below

[#6: This is an example of stipulation for sublease.]

● See Example of rent-to-own contract below
● [Kung ang piana-draft lang sublease, Draft a contract of lease with sublease. If not indicated in the
contract of lease, sublease is prohibited]
● See example of sublease contract below.
● Take note of what kind of agreement of lease is being asked.
● See example of Agreement for Lease Upon the Expiration of Existing Lease with Another below.
● Memorize the last paragraph [see the sentences in bold type in the example above.

● Example of Simple Agreement to Lease

● In the above example, make sure that you mention that the assignor assigns to the assignee the
lease.
● This also applies in the assignment of mortgage.
● See example of Lease of Business or Professional Office.

● NOTE: make sure to mention the purpose of the lease.

● See example of option purchase contract below.
● See example of surrender of lease above.
○ Usually, this is not issued in real situation.
● See example of cancellation of lease below.
● Just in case itanong, take note of the promissory note. [tinatanong siya minsan sa bar exam].
● See example of promissory note below.
Sample Confidential Disclosure Agreement
● Employment contract is contractual by nature. Not merely contractual as it is vested with public interest
that’s why the State may intervene. This is why labor is protected by law and the Constitution
○ Disclosure agreement -parties are allowed to disclose confidential information. In the process of
executing or performing their respective duties, when there comes a time when there is a need to
disclose confidential info, parties are allowed to disclose.
○ Non-Disclosure agreement - strict stipulation or express prohibition not to disclose information or
need to acquire permission in order to disclose information from the employer or the one securing
the data (in connection with Data Privacy Act of 2012)

Sample Non-Disclosure Agreement

Sample Non-Disclosure/Non-Compete Agreement
Non-compete clause:
● Allowed in some employment contracts.
● Agreement where you restrict the engagement of a professional after cessation of the
employer-employee relationship, the employee is not allowed to disclose whatever he/she
encounters in the course of their employment.
○ In case of termination (ie voluntary resignation, termination due to just cause etc), you can
execute a non-compete clause so that they may not allowed to work in a similar industry or
establishment for a particular period or year.
■ SC Decision: Lock-in period should not exceed 2 years otherwise it is unjust and
unreasonable .
● If you are given a question or were asked to draft a non-compete clause
with a lock-in period of 5 years, this is not allowed as anything beyond 2
years will be unjust and unreasonable.
 Sample of Contract of Employment

Contract of Employment
● If asked to be drafted, write the usual labor standards provision on salaries/wages and job
description, duties, and responsibilities.
● Sometimes you need to attach the job description, if you don’t want to put it in the body itself.
● Acknowledgement then notarial details.
Sample of Employee Waiver, Release, and Quitclaim
Employee Waiver, Release, and Quitclaim
● This is to avoid complications after employment .
● After the employee has resigned or terminated, they can no longer claim by way of separation pay,
overtime pay etc from the company.
○ This is also true in labor cases where you need to compromise more often than not your
option in NLRC etc is to compromise or execute waiver.
○ Jurat and notarial details.

Sample of Employment Contract Between Firm and Employee

Contract of Employment Between Firm and Employee
● Since examiners are lawyers, it will be apt to look at this
 FAMILY

● Possible contracts may be asked in Prenuptial Agreement as asked in the previous bar exam
● Under the Family Code, the automatic property regime is Absolute Community Property (ACP)

Sample of Prenuptial Agreement (General Contract)

 Sample of Acknowledgment for Prenuptial Agreement (General Contract)

Prenuptial Agreement
● Parties
● Stipulations - normally separations of properties, liabilities, financial disclosures
● Acknowledgement and Notarial Details
Sample of Prenuptial or Premarital Agreement (Between Parties)
 Sample of Acknowledgment for Prenuptial or Premarital Agreement (Between Parties)

Sample of Exhibits of Properties for Prenuptial or Premarital Agreement (Between Parties)

 Sample of Petition For Adoption of Minor

Sample of Affidavit of Legitimation of Child

Sample of Petition for Legal Separation

Sample of Petition (Probate of Will)

 Sample of Petition for Judicial Settlement of Estate of a Deceased Person

Petition For Adoption of Minor, Affidavit of Legitimation of Child, Petition for Legal Separation, Petition
for Judicial Settlement of Estate of a Deceased Person
● Might not be included as syllabus ask for complaints or contracts and not petitions
● Shown to help for SPECPRO
 COMPLAINTS

Common Types of Complaints:

a. Sum of Money
b. Unlawful Detainer
c. Specific Performance
d. Injuction
e. Reivindicatoria

A. COMPLAINTS
a. Parts of Pleadings
i. Caption
ii. Title
iii. Parties
iv. Body (allegations)
v. Prayer (relief sought)
vi. Signature of Counsel
vii. Copy Furnished
viii. Explanation
ix. Verification and Certification of Forum Shopping (especially for initiatory pleadings)
x. Jurat
● Not acknowledgment for pleadings

Sample of Complaint for Action Reinvindicatoria (Sample Format)

● Format
○ Statement of Facts
■ Lay down your facts like writing a digest
■ Put annexes as evidentiary facts
○ Before the allegations of prayer for prelim injunction, you need to allege not only ultimate facts but
evidentiary facts. You have to summarize it.
■ On the last part, before the prayer, enumerate list of documentary pieces of evidence.
■ List down with annex;
● If plaintiff or prosecution, A,B,C,D;
● If defendant or accused 1,2,3,4.
○ Enumerate all documentary AND testimonial evidence which must be alleged in the complaint
○ Prayer for Criminal injuction or why you should be given what is asked
○ Signature of Counsel
○ Copy Furnished
○ Explanation
○ Verification and Certification of Forum Shopping (especially for initiatory pleadings)
○ Jurat

Sample of Answer
● Answer
○ Not indicated in the syllabus
○ Answers with counterclaim
■ If you have a counterclaim, need to know the difference between permissive and compulsory.
● For compulsory, arises from the series of transactions and is normally used for damages. No
need to pay for additional docket fees
● For permissive counterclaim, because you just want to include a suit that involves the same
parties pero magkaiba na. You have to file and pay docket fees. If not, the court would not
take cognizance.
○ Admissions and denials
■ If actionable documents, denial must be specific and under oath otherwise it is deemed as
admission
● Eg.Promissory note - must be specifically denied under oath otherwise deemed admission. If
not true, it is tantamount to affirmative defenses
■ Affirmative defenses
● Rule 16: Motion to Dismiss - removed under the new rules
○ MTD Grounds under the new rules: Litis Pendentia, Res Judicata, Prescription, Lack of
Jurisdiction over the Subject Matter
○ All the rest that used to be grounds for motion to dismiss are now affirmative defenses

● APPLICABLE RULES IN COMPLAINTS: Rules of Court, Rule 3, Section 1 to Section 22

 Sample of Complaint Against Alternative Defendants

Complaint Against Alternative Defendants

● If you don’t know who’s at fault.
● If alternative defendants - Mr.Y and/or Mr. Z.
 Sample of Complaint Against Defendant Whose Name or Identity Is Unknown

Complaint Against Defendant Whose Name or Identity Is Uknown

● If unknown - Mr. Plaintiff v Driver of Yellow Taxi
● Allowed under Rule 3, Sec 14 (ROC):
○ Section 14. Unknown identity or name of defendant. - Whenever the identity or name of a defendant
is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the
case may require; when his identity or true name is discovered, the pleading must be amended
accordingly.
 Sample of Complaint Against Persons Doing Business Under Common Name

Complaint Persons Doing Business Under Common Name

● If the corporation is the defendant, San Miguel Corporation, normally you don't know the representative
○ Make sure you make the proper name as provided in the SEC.
● But if the corporation is a plaintiff and there should be a succeeding representative, state the
representative.
● What if it’s a sole proprietorship, how do you indicate the name?
○ Not a corporation
○ Mention the representative or owner
○ (owner/representative name) Doing business under the name and style (name of business)
○ AAA doing business under the name and style of Lugawan ni AAA
 Sample of Complaint Against Unwilling Co-plaintiff

Complaint Against Unwilling Co-plaintiff

● You need to allege in your complaint no. 2: that defendant xxx should be joined as plaintiff, but is
included in this complaint as defendant for the reason that his consent to be party plantiff cannot be
obtained
● Basis is Rule 3 Sec. 10:
○ Section 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can
not be obtained, he may be made a defendant and the reason therefor shall be stated in the
complaint.
 Sample of Complaint by Married Woman Without Joining Husband

Complaint Against Unwilling Co-plaintiff

● Paraphernal property - property which the wife has complete control over, not part of her dowry.
 Sample of Complaint for Damages

Complaint for Damages

● Torts, Negligence, and Accident cases (Reckless imprudence resulting to damage of property)
● Allege your grounds and prove elements/requisites.
● Allege what constitutes damages.
○ In the bar, you don’t have to put everything that constitutes moral damages or attorney’s fees
kasi madami yun at mauubusan kayo ng oras.
○ You just need to allege what accident happened
● Take note of strict liability when it comes to animals. You are the owner of an animal, you have the duty
that it would not cause damage to another.
● Swimming pool - attractive nuisance.
 Sample of Complaint for Unlawful Detainer

Complaint for Unlawful Detainer

● Summary Procedure - Ejectment case.
● You need to allege there, initially the procession is legal by way of rent, the contract expired but still
did not vacate despite your demand in 1 year.
○ You complied with the demand of Katarungang Pambarangay, still did not vacate.
● For Forcible Entry, no need to allege above aside from the forced entry.

Sample of Complaint for Sum of Money

Complaint for Sum of Money
● Always asked in the bar.
● Be careful as the examiner may confuse you.
○ In the new rule, if it falls under the small claims case and simple collection of sum of money, this is
not needed.
○ It has a pro forma which is merely filled up (MTC)
● Complaint for RTC but MTC have pro forma
● Attach demand letter with complaint for sum of money
○ REMINDER: Under the law, there is no delay if there is no demand (judicial/extrajudicial) which is the
basis of the demand .
○ Condition precedent, otherwise your case will be dismissed.

Sample of Complaint for Partition (Verification and Jurat)

Sample of Complaint With Prayer For Issuance Of Writ Of Preliminary Attachment
 Sample of Affidavit for Preliminary Attachment

Complaint With Prayer For Issuance Of Writ Of Preliminary Attachment

● Allege your cause of action (ie indebtedness)
● Ground to remove the property in #3
○ Must be proved (ie absconding)
● That you are willing to put a bond
● Attach an affidavit of merit for preliminary attachment
● Same with injunction but the allegation is great and irreparable injury
 Sample of Complaint for Abatement of Nuisance

Legal Basis: Title VIII. - NUISANCE (Article 694 to Article 707 NCC)
 Sample of Complaint for Accounting and Receivership

Complaint for Accounting and Receivership

● Loss of trust with the investment businesses and wants to ask for accounting.
● No need for the owner to sign, lawyer’s signature shall suffice when it comes to itinerary pleadings.
● The parties will sign the verification and certificate of forum shopping, that the plaintiff did not file any
pending in the RTC.
 Sample and Legal Basis of Complaint for Acknowledgment of Natural Child

● Where the father is single and the woman wants the man to acknowledge the child
 Sample of Complaint for Annulment of Marriage

Complaint for Annulment of Marriage

● Annulment is different from declaration of nullity of marriage, where the marriage is void ab initio
because it did comply with the formalities, related by consanguinity.
● In annulment, valid but to be declared void.
● Just be sure that you know the distinction for the grounds which will be alleged.
● Please take note of Article 45 of the Family Code, the grounds for annulment.
○ What we only have is “partial divorce”. If the foreign spouse is allowed to remarry under their
law, then a Filipino spouse can remarry.
Art. 45. A marriage may be annulled for any of the f ollowing causes, existing at the time of the marriage:

(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age

or over but below twenty-one, and the marriage was solemnized without the consent of the parents,

guardian or person having substitute parental authority over the party, in that order, unless after

attaining the age of twenty-one, such party freely cohabited with the other and both lived together

as husband and wife;

(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited

with the other as husband and wife

(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full

knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the

same having disappeared or ceased, such party thereafter freely cohabited with the other as husband

and wife;

(5) That either party was physically incapable of consummating the marriage with the other, and such

incapacity continues and appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears

to be incurable
 COMPLAINT FOR COLLECTION OF FIRE INSURANCE
(Court)

______________________,
Plaintiff,

-versus- CIVIL CASE

No.____________
______________________,
Defendant.
x—---------------------------x

C O M P LAI N T

COMES NOW the plaintiff by the undersigned attorney, and unto this Honorable Court, respectfully alleges:
1. That plaintiff __(name)___ of legal age and a resident of __(address)___ and defendant
___(name)___, a fire insurance company with office address at _____(address)_____.
2. That on __(date)___, plaintiff, who was the sole and exclusive owner of a _(restaurant)__ situated at
_______________, Philippines, insured said restaurant and all Mahogany tables and Mahogany chairs,
with defendant corporation against loss from fire, for the amount of Php __________, plaintiff having
paid to defendant on said date the sum of Php _____________, corresponding to the yearly premium
covering the period of said insurance, namely from ________________, up to, and including
_____________.
3. That defendant corporation agreed and bound itself to insure the aforementioned restaurant and all
Mahogany tables and Mahogany chairs of plaintiff, for the amount, and during the period stated
above, and as evidence of said contract, defendant issued Policy Number __________ copy of which
is attached to the complaint as Annex “A” and made an integral part thereof.

4. That, on ___________, the aforementioned restaurant of plaintiff, plus all Mahogany tables and
Mahogany chairs contained therein, were totally lost due to a fire which completely gutted the
premises.
5. That the value of the restaurant and all Mahogany tables and Mahogany chairs thus lost and
destroyed amounted to, at least Php ______________.

Sample of Complaint for Collection of Fire Insurance

 COMPLAINT FOR DAMAGES BASED ON CONTRACT

(Caption and Title)

COMES NOW the plaintiff by the undersigned attorney, and unto this Honorable Court, respectfully alleges:

1. That plaintiff _________ of legal age and a resident of ___________ and defendant __________ is
likewise of legal age and a resident ______________________.
2. That on ___________, plaintiff entered into a contract with defendant whereby the latter, as
building contractor, bound himself to construct for the former a __________ on a lot identified as No.
________, Philippines.
3. That, in paragraph ____ of the Building Contract between plaintiff and defendant, complete copy of
said contract having been attached hereto as Annex “A”, it is provided that the construction of the
aforementioned _________ shall be terminated, in accordance with contract specification, on or
before _____________, and that, in case of failure on the part of the defendant to finish said
construction within the stipulated period, he is bound to pay plaintiff, as damages, the sum of Php
_________ for every day after _______ until the movie house is completed as per contract.
4. That defendant failed to finish the construction above mentioned on _________, but he did succeed
in finishing the same on the evening of _________, or a total of ___ days after the deadline specified
in the contract.
5. That plaintiff had made demands for the payment of damages amounting to Php ________,
corresponding to the above mentioned ___ days laps, at the rate of Php ________ per day, but
defendant failed and refused, and still fails and refuses, without any justifiable cause or reason, to
pay said amount to plaintiff.

WHEREFORE, it is respectfully prayed that judgment be rendered:

1. Ordering defendant to pay to plaintiff the sum of Php ________, plus interest thereon, at the legal
rate from the date this complaint was filed until the amount is paid:
2. ______Costs ________, ______other reliefs ____.
___________________, _____________________.

Sample of Complaint for Damages Based on Contract

Complaint for Damages Based on Contract
● An Obligation is a juridical necessity to give, to do, or not to do.
● The five sources are law, contract, quasi-contract, delict, and quasi-delict.
● So, if you are asked in the bar exam, ‘what is the obligation without an agreement?’ Then the answer is
the four; law, quasi-contract, delict, and quasi-delict.
○ The law may be harsh but that is the law; quasi-contract because it is unilateral and voluntary action
(e.g. negotiorum gestio and solutio indebiti); delict because there is no obligation in committing a
crime; quasi-delict when there is a damage and the damage is arising out of the negligence of the
debtor or obligor without a pre-existing contract causing damage to another.
○ When it comes to quasi-delict, although it mentions in the law that one of the elements without the
existence of pre-existing contract, it is already well-settled under jurisprudence, Air France v.
Carrascoso, that there might be tortious action even if there is a contract.
○ You need to allege the facts that are included when you enter into a contract.
● In quasi-delict, although it mentions without the existence of pre-existing contract, it is established in
jurisprudence that there might be tortious action even when there is contract (Air France v Carrascoso)
 COMPLAINT FOR DAMAGES BASED ON TORT

(Caption and Title)

1. That plaintiff of _________ of legal age and a resident of ______________ and defendant
____________ is likewise of legal age and a resident of __________________________.
2. That plaintiff was the owner of a sari-sari store, situated at ___________________, Philippines, and
the defendant was the occupant of the office space directly on top of plaintiff’s sari-sari store.
3. That defendant, whose business license was that of a ________________, store several chemicals in
his office, and on _______, as a consequence of defendant’s negligence, said chemicals leaked,
resulting to damages stocks of merchandise and total loss of plaintiff’s sari-sari store.
4. That the stocks of merchandise which plaintiff had in stock at the time, and which was completely
damaged, including the following:
_________________________,
_________________________,
_________________________,
_________________________,
_________________________.
5. That, due to the total loss of the sari-sari store, the business of plaintiff had to stop, thereby causing
losses to plaintiff in the sum of Php _________ a day, which was his average daily net profit from said
business; and it will take plaintiff at least ______ (__) months to locate another store space and to
re-establish his business.
6. That, even should plaintiff be able to put up another sari-sari store after said period of ___ (__)
months, the temporary cessation of his business will cause him damages, due to loss of patronage
and goodwill, amounting to Php _________, more or less.
7. that on ________, plaintiff notified defendant of the amount of plaintiff’s losses, the same amount
averred in this complaint, and, at the same time, plaintiff demanded payment thereof by defendant,
but the latter failed and refuses to pay the same to plaintiff.

WHEREFORE, it is respectfully prayed that judgment issue:

 For the _______________= Php __________,
For the _______________= Php __________,
For the _______________= Php __________,
For the _______________= Php __________,
For the _______________= Php __________,
For the _______________= Php __________.
Total = Php _______________

2. Ordering the defendant to pay interest thereon at the legal rate, from the date of the filing of the
complaint, until the entire amount is fully paid.
3. ___________________ __________________.
___________________ ______________ _________________
Place Date Signature

Sample of Complaint for Damages Based on Tort

Complaint for Damages Based on Tort

● If there is no contract but there is negligence, there is a tort.
● e.g. A potted plant fell down from the second floor of the house, and then a bystander passed by.
○ There is tort; Favorite pet caused injury to another, there is tort.
● You just need to allege the facts (referring to the latter complaint form).
○ You have to prove that the defendant is the proximate cause of the damage.
○ Normally, you can allege the demand letter but definitely you need to somehow compute the
amount that you lose from the damage caused by the defendant.
● This is also applicable to schools, vicarious liability.
○ e.g. Naaksidente yung bata sa school, tumalon from the third floor, grade 6 pupil, kasi sira
pala yung kandado nung cr. Anong ginawa nya? Dumaan sa bintana, nahulog. Is the school
liable? Yes, because the school did not exercise due diligence in securing that the locks are
properly secured. Yung iniwan ng teacher yung mga bata, grade 1, mahilig sa barbeque,
nagtusukan ng mata, tinusok yung mata ng isang estudyante. Is the school liable? Yes.
● Strict liability in torts and also the application of res perit domino.
○ e.g. Mga doctor na nakaiwan ng gunting during the operation, or cotton, in the stomach of the
victim and then closed the stomach of the victim, that is res perit domino.
● Doctrine of Proximate Cause
○ General rule, if you are claiming for damages, bare allegations are not enough especially for
actual and compensatory damages. Actual damages must be supported by evidence.
■ [e.g. hospital bills, receipts, etc.]
■ [e.g. Minsan sinasama ang life expectancy; ‘I am earning 100,000 per month, ran over
the person, that person died, so we have to compute the earnings of the person until
the age of 75; Tawag dun loss of earning capacity.]
■ [e.g. Sometimes you also have to compute the actual and compensatory damages
including in the loss of earning capacity from the time the person was hospitalized and
the earning that the person should have received or in some cases, for example,
nabangga yung vehicle and the vehicle was used in business but now it cannot be used
in the business because of the tort or quasi-delict, then the income or expenses that is
being spent for the rental of another vehicle because of the supposed vehicle was ran
over, in that case, the person liable has to also pay the rental.]
● Even moral damages, exemplary damages, nominal damages.
● You need to allege evidentiary facts, otherwise it is a mere paper.

COMPLAINT FOR INFRINGEMENT OF TRADEMARK

(Caption and Title, but add, as party defendant, the name of the Director of Patents as “Director of
Patents”)

1. That plaintiff is duly registered owner of a manufacturing plant for ____________ and his products
are generally known by the trademark “_________________” which trademark is duly registered in
his name with the Intellectual Property Office (IPO).
2. That said trademark is designed on a ________ background, with the ___________________________,
and with the words “___________” written in script immediately ________________________.
3. That plaintiff had been using said trademark since the year ___, when it was first registered with the
Bureau of Patents (BOP) of the Intellectual Property Office (IPO), until the present time and he had
spent at least Php ______ in advertising and popularizing said trademark, by means of internet,
billboards, handbills, posters, newspaper advertisement, television and radio programs,
announcements and other such advertising media; and due to said advertising campaign, the
aforementioned trademark is now known all over the Philippines, and identified with the products
put out by plaintiff.
 4. That, on or about _____________, defendant _______________ started manufacturing, and putting in
the market, ___________, which come under the same classification as plaintiff’s products, and
used, as trademark for said articles, the name “_____________”, with the following designs,
_________________, ________________________, ______________________.
5. That the aforementioned trademark of defendant _________________ infringes plaintiff’s trademark,
both by idem sonans and similarity in design.
6. That the other defendant, __________________, as Director of Patents, agreed to register, as he did
register, trademark “___________________” in the name of defendant, notwithstanding previous
registration in his office of plaintiff’s trademark, and in spite of plaintiff’s representation against
defendant’s application for registration.
7. That defendant’s products are of inferior quality, and, as a consequence of the public display and
sale of said products, under a trademark which infringes that of plaintiff, the latter has suffered ,
ans is suffering, damages, due to loss of prestige and patronage, which is reasonably evaluated at
Php _______________.
8. The former patronizers and clients of plaintiff’s products decide to buy defendant’s goods, under the
mistaken belief that they are xxx.

WHEREFORE, it is respectfully prayed that judgment be rendered:

1. Ordering defendant ____________________ to stop using the trademark described in Paragraph 4
hereof, and to withdraw from the market all his products bearing the said trademark;
2. Ordering defendant ___________________ Director of Patents to immediately cancel the registration
in his office of said trademark;
3. Ordering defendants, jointly and severally, to pay plaintiff, as damages, the sum of Php __________,
in accordance with Paragraph 7 of this complaint, and the additional sum of Php _________ per month, from
______ date ________, until the registration of defendants trademark is cancelled and all products bearing
the same are completely withdrawn from the market; plus interest on said amounts at the legal rate from
their due date of payment until they are fully paid;
4. _____________, ____________________
___________________ ________________ _____________________
Place Date Signature

=========================
Definition:
Idem sonan - a name or trademark incorrectly written which, when read, has a sound similar to the name or
trademark.
 COMPLAINT FOR MAINTENANCE AND SUPPORT
(Court)
________________,
Plaintiff,
-versus- CIVIL CASE
No. _______
________________,
Defendant.
x—-----------x

COMES NOW the plaintiff by the undersigned attorney, and unto this Honorable Court, respectfully alleges:
1. That plaintiff _________________ of legal age and a resident of ___________ and defendant
__________ is likewise of legal age and a resident of _____________________.
2. That plaintiff is the lawfully wedded wife of defendant, their marriage having been celebrated and
consummated on ___________ by and before the _____________ of _________________, _____________
Philippines, copy of the marriage contract between them being attached to this complaint as Annex “A”.
3. That plaintiff and defendant begot on ______________ a child, _______________.
4. That on ____________, defendant abandoned plaintiff and his minor child, for another woman with
whom he at present cohabits, and since said date, defendant has failed and refused and still refuses, to
provide for the maintenance and support of plaintiff and his child;
5. That defendant is the owner of __________ situated at ___________, and has an average monthly net
income of Php ____________, more or less, while plaintiff is without any source of income, and has to
depend on the charity of relatives and friends for the sustenance of herself and of her child.

WHEREFORE, it is respectfully prayed that judgment issue ordering defendant;

1. To give to the plaintiff a monthly allowance of Php _______ to be paid in advance on or before the
____th day of each month.
2. To give to plaintiff, by way of support pendente lite, a monthly allowance of Php _____ per month,
the first monthly allowance to start retroactively from the 1st day of this month, and to subsequent ones to
be paid in advance on or before the ___th day of each succeeding month.
3. ___________________, ________________.
___________________ __________________ ________________________
Place Date Signature
Sample of Complaint For Maintenance And Support
Complaint For Maintenance And Support
● This is about a wife suing the defendant for support.
○ Just need to allege that the son/daughter is really the child of the defendant. You also have
to allege the capacity of the defendant who is to give support. And the needs of the child.
This is assuming the parties are no longer living in one roof.
● A complaint for maintenance and support may be filed with the prayer of issuance of support
pendente lite.
○ While the main case for support is being litigated, you can already ask for support pendente
lite.
● Under VAWC, failure to give supporter is economic abuse
○ If you voluntarily fail to support and capable, it might constitute economic abuse. With recent
jurisprudence though, SC has become lenient.
 COMPLAINT IN A CLASS SUIT
(Court)

__________, __________,
__________, __________,
__________, __________,
__________, __________,
and _________.
Plaintiff,
CIVIL CASE
No. _____
-versus-
________.
Defendant.
x—------- —------------x
COMPLAINT
COMES NOW the plaintiff by the undersigned attorney, and unto this Honorable Court, respectfully alleges:
1. That plaintiffs ___________ of legal age and resident of _______________, _____________ of legal
age and a resident of
_______________________, _________ of legal age and a resident of
_______________________, _________ of legal age and a resident of
_______________________, _________ of legal age and a resident of
_______________________, _________ of legal age and a resident of
_______________________, _________ of legal age and a resident of
_______________________, _________ of legal age and a resident of
_______________________, _________ of legal age and a resident of
_______________________, and defendant _____________ is likewise of legal age and a resident of
_______________________.
2. That the subject matter of this suit is general interest to nine (9) persons more or less, all of when
are residing at _____________ and herein plaintiffs are sufficiently numerous and xxx

Sample of Complaint In A Class Suit

[e.g. Oposa v. Factoran]

 COMPLAINT IN A COLLECTION CASE

(Caption and Title)

COMES NOW the plaintiff by the undersigned attorney, and unto this Honorable Court, respectfully alleges:
1. That plaintiff _________ of legal age and a resident of _____________ and defendant ___________ is
likewise of legal age and a resident of ________________.
2. that , on _________, defendant borrowed from plaintiff the sum of ______________ PESOS (Php
______), which indebtedness was to be paid and to earn interest in accordance with the terms of promissory
note which was executed by defendant on the same date, which was executed by defendant on the same
date, which instrument is copied verbatim, hereunder:

“For value received, I promise to pay _________ the sum of _________________________PESOS (Php _____),
with one (1) year from the date of this promissory note, plus interest at the rate of 12% per annum.
_______________, Philippines.
____(date)______ (Sgd.) _____________.”
3. That the payment of said indebtedness is now overdue, and defendant has failed and refused, and
still fails and refuses, to pay the same, notwithstanding repeated demands from plaintiff.
4. That defendant likewise failed to any interest due on the aforementioned obligation.
WHEREFORE, it is respectfully prayed that judgment issued in favor of plaintiff and against defendant,
ordering the latter:
1. To pay to plaintiff the sum of Php __________, plus interest thereon at the rate of 12% per annum
from _____________ until complete payment is made;
2. __________________, ___________________
__________________ _________________ ____________________
Place Date Signature

Sample of Complaint In A Collection Case

[e.g. promissory note, bill of exchange in a form of check, loan contract]

[has to allege that the indebtedness is now overdue and that the defendant failed to pay and refused and
still refuses such indebtedness.]
 COMPLAINT BY MINOR OR INCOMPETENT PERSONS
__________ (Court)

__________, as guardian of the

Minor, __________.
Plaintiff,
CIVIL CASE
-versus- No. ________

___________,
Defendant.
x—-------------------------x

COMPLAINT

COMES NOW the plaintiff by the undersigned attorney, and unto this Honorable Court, respectfully alleges:
1. That plaintiff is the legal guardian of the minor ________, by virtue of an order issued on
__________, by the Regional Trial Court of _________-, Branch ________, in connection with Special
Proceeding No. ________ of said court. And that defendant __________– is of legal age and a resident of
____________________.
2. (Allegation of cause of action).

Sample of Complaint By Minor or Incompetent Person

Complaint By Minor or Incompetent Persons

● A Minor cannot sue for himself without a guardian

Rules of Court. Rule 3. Parties to Civil Action.

Sec 5. Minor or incompetent persons. - A minor or a person alleged to be incompetent, may sue or be sued,
with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem.
 COMPLAINT OF MARRIED WOMAN JOINING HUSBAND AS PLAINTIFF
_________ (Court)

___________, ___________,
Plaintiffs,
-versus-
CIVIL CASE
No.______
___________,
Defendant.
x—--------------------x
COMPLAINT
COMES NOW the plaintiff by the undersigned attorney, and unto this Honorable Court respectfully alleges:
1. That plaintiff ____________ of legal age and a resident of _______________, plaintiff __________ of
legal age and a resident of ___________ and defendant ____________ is likewise of legal age and a resident
of ______________.
2. That plaintiff ____________is included as party plaintiff for the reason of his being the husband of
the other plaintiff __________.
3. (Allegation of Cause of Action).

Sample of Complaint Of Married Woman Joining Husband As Plaintiff

-NOTES-

Rules of Court. Rule 3. Parties to Civil Action

Sec. 4. Spouses as parties. Husband and wife shall sue or be sued jointly, except as provided by law.
 COMPLAINT WHICH OMITS TO JOIN NECESSARY PARTIES

(Caption and Title)

COMES NOW the plaintiff by the undersigned attorney, and unto this Honorable Court, respectfully alleges:
1. That plaintiff _____________ of legal age and a resident ___________ and defendant ___________ is
likewise of legal age and a resident of _________________.
2. That, on _____, defendant, jointly with one ____________, signed a promissory note for Php
__________, which promissory note is copied verbatim hereunder:

“________________,________________,______________, (Copy promissory note),

_____________________,________________,________________,____________________,
_________________________,_________________-,_____________________.
3. That _________________ is not made a party in the present case, for the reason that said person had
already paid his share in the obligation to plaintiff.
4. _______________________, ______________________, _________________, ___________________.
(Further allegations facts), ___________________________, _____________________,
___________________________, ________________________.

Sample of Complaint Which Omits to Join Necessary Parties

Complaint Which omits to Join Necessary Parties

● Use especially with indispensable parties, under the Rules, an indispensable party is a party where no
final determination of the case can be held without impleading the indispensable party;
● can be done by the judge motu propio; if the judge found out that indispensable party is not
included, it can order the parties to include the indispensable party
 COMPLAINT WITH ALTERNATIVE CAUSES OF ACTION

Caption and Title

COMES NOW the plaintiff by the undersigned attorney, and unto this Honorable Court, respectfully alleges:
1. That plaintiff _________ of legal age and a resident of _________ and defendant ____________ is
likewise of legal age and a resident _________________.
2. That, on ___________-, defendant hired the services of plaintiff for the construction of defendant’s
poker room, and as consideration of said service, defendant promised to pay plaintiff the sum of Php
________________.
3. That, pursuant to said virtual contract, plaintiff rendered the services aforementioned and
terminated the construction of said poker room on ________________, the date agreed upon completion of
the work.
4. That, even should the defendant fail to prove the existence of the verbal contract mentioned in
Paragraph 2 hereof, still the reasonable value, on quantum meruit, of plaintiff’s services in Php __________.
5. That defendant failed, and still fails in spite of repeated demands, both oral and written, to pay
plaintiff any portion of the aforementioned amounts.
WHEREFORE, plaintiff prays that the defendant be ordered:
To pay plaintiff the sum of Php _____________, in accordance with the verbal contract between them, and
should this court rule that no such contract exist, then to pay plaintiff the same amount as the reasonable
vale, on quantum meruit, of the services rendered by the plaintiff, plus costs, and such other remedies as
may be just and equitable.

_________________ _________________ ________________________

Place Date Signature

Sample of Complaint With Alternative Causes of Action

Complaint With Alternative Causes of Action
● can be accion reivindicatoria; sometimes, in collection in sum of money but if unable to collect the
money, specific performance. Under the rules, it is possible
● essence of the abovementioned complaint is in paragraph 4 of the complaint
○ The first cause of action, specific performance, but if not alternatively they pay. Either
specific performance or sum of money
AVERMENT, pleading.

Source of Definition = Bouvier Dictionary

Comes from the Latin verificare, or the French averrer, and signifies a positive statement of facts in
opposition to argument or inference. Cowp. 683, 684.

2. Lord Coke says averments are two-fold, namely, general and particular. A general averment is that which
is at the conclusion of an offer to make good or prove whole pleas containing new affirmative matter, but
this sort of averment only applies to pleas, replications, or subsequent pleadings for counts and a vowries
which are in the nature of counts, need not be averred, the form of such averment being et hoc paratus. est
verificare.

3. Particular averments are assertions of the truth of particular facts, as the life of tenant or of tenant in
tail is averred: and, in these, says Lord Coke, et hoc, &c., are not used. Co. Litt. 362 b. Again, in a
particular averment the party merely protests and avows the truth of the fact or facts averred, but in
general averments he makes an offer to prove and make good by evidence what he asserts.

4. Averments were formerly divided into immaterial and impertinent; but these terms are now treated as
synonymous. 3 D. & R. 209. A better division may be made of immaterial or impertinent averments, which
are those which need not be stated, and, if stated, need not be proved; and unnecessary averments, which
consist of matters which need not be alleged, but if alleged, must be proved. For example, in an action of
assumpsit, upon a warranty on the sale of goods, allegation of deceit on the part of the seller is
impertinent, and need not be proved. 2 East, 446; 17 John. 92. But if in an action by a lessor against his
tenant, for negligently keeping his fire, a demise for seven years be alleged, and the proof be a lease at will
only, it will be a fatal variance; for though an allegation of tenancy generally would have been sufficient,
yet having unnecessarily qualified it, by stating the precise term, it must be proved as laid. Carth. 202.

5. Averments must contain not only matter, but form. General averments are always in the same form. The
most common form of making particular averments is in express and direct words, for example: And the
party avers or in fact saith, or although, or because, or with this that, or being, &c. But they need not be in
these words, for any words which necessarily imply the matter intended to be averred are sufficient. See, in
general, 3 Vin. Abr. 357 Bac. Abr. Pleas, B 4 Com. Dig. Pleader, C 50, C 67, 68, 69, 70;

1 Saund. 235 a, n. 8 3 Saund. 352, n. 3; 1 Chit. PI. 308; Arch. Civ. PI. 163; Doct. PI. 120; 1 Lilly's Reg. 209
United States Dig. Pleading II (c); 3 Bouv. Inst. n. 2835-40.
QUANTUM MERUIT

Source of Definition = http://legal-dictionary.thefreedictionary.com/quantum+meruit

[Latin, As much as is deserved.] In the law of contracts, a doctrine by which the law infers a promise to pay
a reasonable amount for labor and materials furnished, even in the absence of a specific legally enforceable
agreement between the parties.

A party who performs a valuable service for another party usually enters into a written contract or
agreement before performing the service, particularly when the party is in the business of performing that
service. For instance, most professional roofers hired to repair a roof insist on having a formal agreement
with the owner of the house before beginning the repairs. In the absence of an agreement or formal
contract, the roofer may be unable to recover losses in court if the transaction goes awry. Quantum meruit
is a judicial doctrine that allows a party to recover losses in the absence of an agreement or binding
contract.

By allowing the recovery of the value of labor and materials, quantum meruit prevents the Unjust
Enrichment of the other party. A person would be unjustly enriched if she received a benefit and did not pay
for it when fairness required that payment be made. Quantum meruit can be used to address situations
where no contract exists or where a contract exists but for some reason is unenforceable. In such cases
courts imply a contract to avoid an unjust result. Such contracts are called quasi contracts.

Quantum meruit also describes a method used to determine the exact amount owed to a person. A court
may measure this amount either by determining how much the defendant has benefited from the
transaction or by determining how much the plaintiff has expended in materials and services.

The doctrine of quantum meruit was developed in the seventeenth century by the royal Court of Chancery in
England. This court worked apart from the common-law courts to grant relief that was due under general
principles of fairness but could not be obtained under the strict legal precedents of the common-law courts.
The system of basing decisions on basic principles of fairness became known as Equity. The Chancery Court
developed quantum meruit along with other equitable doctrines that allowed a person to recover or collect
for other valuable acts performed without a contract, such as the delivery of goods or money. Some of the
first cases of quantum meruit involved recovery by persons in so-called trades of common calling, such as
innkeepers, tailors, blacksmiths, and tanners.
As service industries increased, so did claims for recovery under quantum meruit, and the doctrine was
adopted by colonial courts. U.S. courts now apply quantum meruit principles in a wide variety of cases,
including cases involving attorneys' fees, physicians' fees, construction work, government contracts, and
even domestic relations suits for "palimony." Palimony is a form of financial support that is similar to
Alimony but arises out of a nonmarital relationship.

Courts have crafted four basic elements that the plaintiff must prove before she may recover under the
doctrine of quantum meruit: (1) that valuable services were rendered; (2) that the services were rendered
to the defendant; (3) that the services were accepted, used, and enjoyed by the defendant; and (4) that the
defendant was aware that the plaintiff, in performing the services, expected to be paid by the defendant.

The case of Montes v. Naismith and Trevino Construction Co., 459 S.W.2d 691 (Tex. Civ. App. 1970),
illustrates how quantum meruit works. In August 1968 Abraham Montes began oral negotiations with Abdon
Perez regarding improvements Montes sought for his homestead. Perez testified that Montes brought a
contract to him more than once, but that the contract was never complete, and no contract was ever
signed. Despite the lack of a contract, Perez arranged for the Naismith and Trevino Construction Company to
do the work on Montes's house. Montes paid $1,800 to Perez, and Perez withdrew from the transaction.

Naismith and Trevino made improvements on Montes's homestead for a total value of $3,835.36, but Montes
refused to pay for the improvements. Naismith and Trevino brought suit against Montes, arguing that even
though they did not have a contract with Montes, they should be paid for their labor and the materials they
used in making improvements to his house. The court agreed and entered judgment for Naismith and Trevino
in the amount of $1,760, the amount of the services and materials provided by Naismith and Trevino less the
amount Montes had paid to Perez. The court based its ruling on the theory of quantum meruit.

The doctrine of quantum meruit is contained in court decisions and, to a lesser extent, in statutes. It can be
a confusing doctrine: many courts mix quantum meruit with the similar principles of restitution and unjust
enrichment. Restitution is a broad term that describes measures taken by a civil or criminal defendant to
restore a victim to the status that he enjoyed before the defendant caused a loss or injury.

Unjust enrichment is an equitable approach to civil relationships that covers more than just contractual
situations.
A civil plaintiff may recover under the doctrine of unjust enrichment by showing (1) that the plaintiff
conferred a benefit on the defendant; (2) that the defendant appreciated or knew of the benefit; and (3)
that, under the circumstances, it was unfair for the defendant to accept or retain the benefit without
paying for it. Most courts consider quantum meruit a particular form of legal restitution that follows the
basic restitutionary principle of preventing unjust enrichment.

=============================================================================================

COMPLAINT WITH ALTERNATIVE JOINDER OF PARTIES

COMES NOW the plaintiff by the undersigned attorney, and unto this Honorable Court, respectfully alleges:
1. That plaintiff _________ of legal age and a resident of __________________, defendant
____________ is likewise of legal age and a resident of __________________ and co-defendant
________________ is likewise of legal age and a resident of ________________________.
2. That on _________________, the two defendants were jointly occupying the premises immediately
on top of plaintiff’s poker club.
3. That, on said date, either one of said defendants or both of them, willfully or recklessly or
negligently spilled chemicals on the floor of their premises, which chemicals leaked through the wooden
floor into plaintiff’s poker club, causing irreparable damage to two (2) poker tables, to the damage of
plaintiff in the amount Php _________________.
WHEREFORE, plaintiff prays that judgment issue ordering either one of defendants, or both of them to
indemnify plaintiff in the amount of Php ________________, with interest thereon from the date this
complaint was filed, plus costs.
_____________________________ ____________________ _____________________
Place Date Signature

Sample of Complaint With Alternative Joinder Of Parties

Complaint With Alternative Joinder Of Parties

● Joinder - The union in one lawsuit of multiple parties who have the same rights or against whom rights
are claimed as co-plaintiffs or co-defendants. The combination in one lawsuit of two or more causes of
action, or grounds for relief.
● In this case, you do not know who is at fault, therefore you implead them as alternative parties

COMPLAINT WITH PRAYER FOR ALTERNATIVE REMEDIES

1. ____________________________________________.
2. ____________________________________________.
3. ____________________________________________.
(Statement of Cause of Action for the recovery of motorized fishing boat which was on good running
condition when taken from plaintiff, but is at present in the possession, illegally, of defendant, and is
no longer in running condition, many essential parts thereof missing, The reasonable market value of
the vehicle is averred at Php ______________)
4. ____________________________________________.
5. ____________________________________________.
6. ____________________________________________.
WHEREFORE, plaintiff prays that defendant be ordered:
To return to plaintiff the motorized fishing boat which is the subject matter of his action in
the same condition averred in Paragraph ______________________ of this complaint, and should defendant
fail to do so, then to pay to plaintiff the sum of Php ________________ plus costs.

_____________________________ ___________________ ______________________

Place Date Signature

Sample of Complaint With Prayer for Alternative Remedies

Complaint With Prayer for Alternative Remedies

● These are the things, remedies or reliefs; specific performance, injunction; as to injunction, you are
not particularly interested with the money.
● Remember, cases that are incapable of pecuniary estimation are recognizable by the Regional Trial
Court.
○ If your main remedy is specific performance or your alternative remedy is payment [Specific
performance or injunction, these are cases incapable of pecuniary estimation. Because of
that you are not interested in the money. For purpose of jurisdiction, cases incapable of
pecuniary estimation, jurisdiction of RTC
● if the main remedy is specific performance, you can alternatively pray for payment

● This is not applicable to death.

 COMPLAINT WITH TWO CAUSE OF ACTION
(Caption and Title)

COMES NOW the plaintiff by the undersigned attorney, and unto this Honorable Court, respectfully alleges:
FIRST CAUSE OF ACTION
1. That plaintiff _____________ of legal age and a resident of _____________ and defendant
__________ is likewise of legal and a resident of _______________________.
2. That, on __Date1___, defendant borrowed from plaintiff the sum of Php ____Amount1____, for which
defendant issued a promissory note copied hereunder:
(Copy Promissory Note)
3. That payment of the aforementioned obligations is now overdue, but defendant fails and refuses to
pay the same, notwithstanding plaintiff\s demands.
SECOND CAUSE OF ACTION
1. Plaintiff reproduces herein the allegations in Paragraph 2 of the First Cause of Action.
2. That, on __Date2__, defendant rented and used plaintiff’s Mercedes Benz Van for a trip to
__________, promising and obligating himself to pay plaintiff the sum of Php __Amount2___ for the
same.
3. That defendant fails and refuses to make said payment, in spite of plaintiff’s demands.
WHEREFORE, plaintiff prays that defendant be ordered:

ON THE FIRST CAUSE OF ACTION:

1. To pay plaintiff the sum of Php ___Amount1___, plus interest thereon at the legal rate from the
commencement of this action, until said amount is fully paid.

ON THE SECOND CAUSE OF ACTION:

1. To pay plaintiff the sum of Php ____Amount2_____, plus interest thereon at the legal rate, from the
commencement of this action, until fully paid.
2. ___________Costs___________, _______Other reliefs_______.

Sample of Complaint With Two Cause of Action

 PRACTICAL EXERCISES (CRIMINAL LAW)

Drafting of Complaint, Information, Affidavits of Desistance, etc.

A. Essential Parts of an Information [Information: where it basically criminally charges a person for
what is allegedly committed]
a. Caption
b. Heading
c. Opening Sentence
d. Body Alleging Acts or Omissions constituting a crime
e. Contrary to Law
f. Certification of Preliminary Investigation
g. Jurat
h. List of Witnesses
i. Bail Recommended

INFORMATION

Information
● An information is a document being filed to court; not to a fiscal or prosecutor because more often
than not they are the ones who file it to the court
● criminally charges a particular person, now called as the accused, to be held in trial for the crime
allegedly committed.
○ You should know the elements of the alleged crime.]
○ Somebody died, with intent to kill, mode of killing , there is aggravating circumstance.
Remember justifying, exempting, mitigating, and alternative circumstances need to be
alleged in the information

Alleged the 5W and 1H (Who, What, Where, When, Why, and How)
● Facts
● Crime (as well as present elements)
● JEMA Circumstances
 ○ Allege the basics. remember 5Ws, 1H: Who, What; what was the crime committed?; when;
where, because it will determine the jurisdiction of the court. Under the rules, venue is
jurisdictional. How, how was the crime committed.
● Stages of commission of crime
○ Memorize the definition of each stage as they will matter in drafting of the information
○ Be mindful of crimes where there is no certain stages of commission
ALWAYS MENTION IN INFORMATION: .. did there and then willfully, unlawfully, and feloniously…

(CAPTION)

INFORMATION

The undersigned, ___________, accuses _____________ of the crime of SWINDLING/ESTAFA, committed as

follows, to wit:
That on or about _____________, at about ____________(a.m./p.m.), in the City/Municipality of
_______________, Province of _____________ and within the jurisdiction of this Honorable Court, the said
accused having received from _______________ a variety of Ready-to-Wear goods valued at P___________
for the purpose of selling the same on commission, under the express obligation of holding the same in trust
for __________________ and to remit the proceeds of the sale of the said goods, if sold, or to return the
same in case of non-sale, within _____________ (_____) days from receipt thereof, the said accused did
then and there, willfully, unlawfully, and feloniously, misappropriate and convert the said goods or theirs
proceeds to his personal use and benefit to the damage and prejudice of _____________ in the amount of
P__________________.
Contrary to law.
_____________, Philippines, ______ Date _________.

PROSECUTOR

Witnesses:
_______________________
_______________________

(Certification of Preliminary Investigation)

Sample Information - Estafa
Information - Estafa
● In the crime of estafa, the main elements are deceit and damage; if it is only physical possession and
was taken away from the victim, it is not estafa or swindling, that is theft. If there is trust and
confidence, that is qualified theft; if the possession of the victim is juridical but the person
misappropriated it, that is estafa.
○ e.g. rented a car for 1 week, after 1 week he did not return it, what is the crime committed?
Estafa. But if a person stole a stand-by car on the side of the street, what is the crime
committed? Carnapping.
● *highlighted, “the said accused did then and there, willfully, unlawfully, and feloniously, (and then
the elements of the crime) misappropriate and convert the said goods or theirs proceeds to his
personal use and benefit to the damage and prejudice of the complainant in the amount of (and then
the amount), contrary to law, place, date, prosecutor, witnesses, and cert of PI.

FORM NO. 11: HOMICIDE

(CAPTION)

INFORMATION
The undersigned, ______________, accuses _____________ of the crime of FRUSTRATED HOMICIDE,
committed as follows, to wit:
That on or about _______________, at about ____________ (a.m./p.m.), in the City/Municipality of
______________, Province of _____________ and within the jurisdiction of this Honorable Court, the said
accused, armed with a jungle knife, and with evident intent to kill, did then and there willfully, unlawfully,
and feloniously assault, attack and wound one ____________ inflicting mortal wounds in different parts of
his body, which would have directly caused the death of said __________, thus performing all acts of
execution which would have produced the crime of homicide as a consequence, but nevertheless did not
produce the same by reason of caused independent of his will, that is, because of the timely medical
assistance rendered on the said ___________________.
Contrary to law.
_____________, Philippines, _______ Date _______.
PROSECUTOR
Witnesses:
___________________
___________________
(Certification of Preliminary Investigation)
Sample Information - Frustrated Homicide
Information - Frustrated Homicide
● For murder, or homicide, there is intent to kill; theft, with intent to take; physical injury, with intent to
injure.
○ *highlighted did then and there willfully, unlawfully, and feloniously assault, attack and
wound one (person) inflicting mortal wounds in different parts of his body, which would have
directly caused the death of said victim, thus performing all acts of execution which would
have produced the crime of homicide as a consequence, but nevertheless did not produce the
same by reason of caused independent of his will, that is, because of the timely medical
assistance rendered on the said victim.
● It is different if it is attempted homicide, although you need to allege the intent to kill, there is no
mortal wound.
● At the same time, the allegation in attempted, commences the performance of an action but did not
produce the act.
○ In consummated, the act was finalized. That is why you need to attempted, frustrated, and
consummated. However, there are crimes which do not have frustrated stage, like rape.
○ There is no such thing as a crime of frustrated rape. Simple touching of the labia is
consummated rape. But the element of rape is penetration. Otherwise, that is attempted.
 (Information for Damage to Property Through Reckless Imprudence)

(Caption)

INFORMATION

The undersigned, _________________, accuses ____________ of the crime of DAMAGE TO PROPERTY

THROUGH RECKLESS IMPRUDENCE, committed as follows, to wit:

That on or about _______________, at about ___________ (a.m./p.m.), in the City/Municipality of

____________, Province of ______________ and within the jurisdiction of this Honorable Court, the said
accused did then and there, while driving his Isuzu passenger jeepney with Plate No. ____________ under
the influence of liquor and in a reckless and imprudent manner, bumped the said jeepney into the
residential house of ____________ situated at ____________ and along _____________ highway, thereby
causing damage to the front wall of the said residential house to the damage and prejudice of its owner,
__________________________, in the amount of Php _____________________.

Contrary to law.
(Baguio City), Philippines, __Date___.

_______________________
Provincial/ City Prosecutor

Witnesses:
________________________ _________________________
(Certification of Preliminary Investigation)

Sample Information - Damage to Property Through Reckless Imprudence

Information - Damage to Property Through Reckless Imprudence

● Remember an information usually is filed after a preliminary investigation because in other cases,
what is just filed is a complaint.
 ● There are cases, in flagrante delicto, usually snatching, kinuyog ng mga tao, dinala sa prosecutor
tapos inquest proceedings then file information sa korte; Some crimes can be filed directly to the
court, especially MTC, MeTC, MCTC, MTCC, classic example is BP 22 and it is initiated by a
complaint, not complaint-affidavit because a complaint-affidavit is filed during preliminary
investigation. But a complaint may be filed to the first level courts because under the rules, there is
no need to undergo preliminary investigation, yun nga classic example BP 22.
○ *jurisdiction of MTC, MCTC, MTCC, MeTC, and RTC as to criminal cases.
○ 5Ws, 1H
● This is damaged property for reckless imprudence.
○ Example BP 22, you can file a case directly to court via complaint

CRIMINAL PROCEEDINGS

Essential Parts of a Complaint

1. Caption
2. Heading
3. Opening Sentence
4. Body alleging facts or omissions constituting a crime
5. Contrary to law
6. Oath of Complainant with his/her signature
7. Certification of Prosecutor (tantamount to attestation of notary)
8. Jurat

● The certification of the prosecutor, in criminal cases, is tantamount to an attestation of a notary.

● In complaint, there are instances, especially in far-flung areas that lack prosecutors, that may be
filed with a jurat of any notary public that is authorized within its jurisdiction.
 REPUBLIC OF THE PHILIPPINES
MUNICIPAL TRIAL COURT IN CITIES
BIÑAN CITY
PROVINCE OF LAGUNA
PEOPLE OF THE PHILIPPINES,
Complainant,
CRIMINAL CASE NO.___________________
-versus- For violation of BP Blg. 22
MRS. Y,
Accused.
x—-----------------------------x
COMPLAINT
The undersigned MR. X, hereby accuses MRS. Y of the crime of “VIOLATION OF BATAS PAMBANSA BLG.
22,” committed as follows:

“That on or about February 9, 2021, in the City of Biñan, Province of Laguna,

Philippines and within the jurisdiction of this Honorable Court, the accused MRS. Y knowing
fully well, that she had no sufficient funds in credit with the drawee bank to pay her check in
full upon presentment, did then and there willfully, unlawfully and feloniously make, draw
and issue Banco de Oro (BDO) Las Piñas-BF Resort Branch Check No 39794 dated February 9,
2011 in the amount of FORTY SEVEN THOUSAND FOUR HUNDRED THIRTY THREE AND 23/100
PESOS (P47,433.23), Philippine currency, for the account of Company Z, Inc., in partial
payment of their obligation thereto - the total amount of which is P9,413,368.64, and when
said check was presented to the bank for payment, the same was dishonored for reason of
“Non Suff. Fund”, and notwithstanding demand made on the said accused, she failed and
refused and still continuously fails and refuses to replenish her account with the drawee bank
and/or pay in cash the face value of the said check to the damage and prejudice of said
Company Z, Inc., in the aforementioned sum of P47,433.23.

Contrary to law.

Biñan City, Laguna, 30th day of January, 2022.

 MR. X
Complainant
SUBSCRIBED AND SWORN to before me this 30th day of January 2012, Biñan City, Laguna.

Investigating Prosecutor

CERTIFICATION
I hereby certify that I have personally examined the affiant and I am satisfied that he voluntarily
executed and understood the foregoing Complaint.

Sample Complaint - BP 22

Complaint - BP 22
● Classic example of direct filing to MTCC
● May mga kaso required by the rules filed via complaint. Directly without inquest or prelim
investigation.
○ Otherwise if with inquest and prelim investigation, the one that will be filed with court is the
information, which would be the main accusation against the accused. It will be read during
the arraignment.
 COMPLAINT

The undersigned, _________________________, accuses __________________________, of ACTS OF

LASCIVIOUSNESS, committed as follows:

That on or about ______________, in the municipality of _____________ province of ____________,

Philippines, within the jurisdiction of this Court, the said accused, motivated by lust, did then and there,
willfully, unlawfully, and feloniously, commit an act of lasciviousness upon the undersigned by then and
there embracing and kissing her and touching her breast and sexual organs, against her will, and by means
of force.
Agoo, La Union, this _____ day of _______________, 20__.
______________
Offended Party

SUBSCRIBED AND SWORN to before me on this 7th day of July in 2007. Affiant exhibited to me his passport
No. 1234567 issued on June 6, 2006 at Agoo, La Union.
__________________
Metropolitan Judge

WITNESSES:______________________ _____________________

Sample of Complaint - Acts of Lasciviousness

Complaint - Acts of Lasciviousness

● Iba na yun pag if you insert something in the organ, that is sexual assault.
○ In sexual assault, under the Rape Law, as amended, is a crime of rape.
● Difference of sexual assault and rape
○ But if there is no penetration, it is an act of lasciviousness
○ This is an example of a crime under the Revised Penal Code
 Sample of Template Complaint used by Police

Template Complaint used by Police

● This is an example of a complaint by the police
● If you are asked to draft a criminal complaint, draft an information but if you are asked to draft a
complaint-affidavit, it is like a pleading but you are alleging criminal offenses. A complaint-affidavit
is filed during preliminary investigation.
● A complaint is filed to court while a complaint-affidavit is filed to the prosecutor’s office.
○ Format: alleging the evidentiary facts, what crime was committed, basically mentioning the
elements of the crime, and then asking the prosecutor to find probable cause, that is the
essence of preliminary investigation. That in some sense, the prosecution will find probable
cause to indict the respondent to be charged of the crime committed and then after that an
Information will be filed in court so that the respondent will now be accused. But a responsive
pleading to this is a reply.
 (Complaint-Affidavit for Filing of B.P. 22 Case)

COMPLAINT-AFFIDAVIT

I, _______________________, of legal age, Filipino, (single / married / widow), and a resident of

____________________________, Philippines, after being sworn in accordance with law, hereby, depose and
state:
1. That I know the person _____________, who is a resident __________, Philippines;
2. That sometime in the morning of __________, at ____________, Philippines, the said ____________,
issued in my favor a ____________, Check No. ______________ in the amount of _________________
Pesos (Php ___________) as supposed payment for the loan accommodation of ___________________
Pesos (Php ___________), which I had extended to him/her;
3. That the said check is drawn against the account of the said ___________ at __________ with
Account No. ________________;
4. That at the time the said ______________ issued the delivered the said check to me, (he/she) made
the assurance and representation that the said check is a good check and would be covered by
sufficient funds when presented for payment;
5. However, when the above-mentioned check was deposited, the same was dishonored and returned by
the bank on the ground that the same was drawn against a “CLOSED ACCOUNT”. A true and faithful
machine reproduction of the said check is hereto attached as Annex “_________”;
6. As such I immediately notified said ___________ of the dishonor and return of the said check and
demanded from (him/her) that (he/she) make good the said check within ____________ (_____) days
from receipt thereof. A true and faithful machine reproduction of my demand letter to (him/her) is
hereto attached as Annex “________”;
7. When said ____________failed to heed my demands, I endorsed the said check to my legal counsel
who immediately sent a formal demand letter through registered mail with return card on
___________, which was received by the said __________ on ____________. As of date however,
_____________ has unjustifiably ignored all these demands to pay the said account and/or to redeem
the said returned check. A true and faithful machine reproduction of my demand letter to (him/he)
is hereto attached as Annex “___________”;
8. I am therefore executing this Complaint-Affidavit in support of the charges for Violation of Batas
Pambansa Bilang 22 against the said _________ who may be served with subpoena and other
processes of this Honorable Office at (his/her) last known address at _______________ xxx

Sample Complaint-Affidavit
Different from complaint
● Complaint-affidavits are filed with prosecutor during Preliminary investigation
● Complaints - filed with the Court

AFFIDAVIT OF DESISTANCE

REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
City of Las Piñas

MR. X,
Complainant,
-versus- Criminal Case No. 22-0918
For: ATTEMPTED MURDER

MR. Y,
Respondent.
x—-------------------------------------x
AFFIDAVIT OF DESISTANCE
I, MR. X, Filipino, of legal age, married, and with residence address at Blk. 29 Lot 7, Camella Subd.,
BFRV, Talon 2, Las Piñas City, after having been duly sworn to in accordance with law, hereby depose and
say:

1. I am the private complainant in the case entitled “People of the Philippines vs. Mr. Y” for Attempted
Murder pending before the Regional Trial Court, Branch 255, Las Piñas City, and docketed as Criminal Case
No. 15-0511. Said criminal case, which arose from an incident that transpired on 19 March 2022 along Gov.
Sikat St. Las Piñas City, was remanded to the Office of City Prosecutor for the conduct of required
Preliminary Investigation now under Assistant City Prosecutor, Hon. Z.

2. After a careful evaluation of the facts surrounding the case and with thorough soul searching, I found out
that the filing of the instant case against respondent Mr. Y just arose from pure misunderstanding and
misapprehension of facts.
3. In order to move on after the unfortunate incident and to end an otherwise protracted litigation of my
claims, and since the respondent has already expressed his sincerest apology to me and is willing to settle
the civil aspect of the case, which I hereby acknowledge and accept, I am withdrawing my complaint in the
criminal case I filed in the Office of the City Prosecutor of Las Piñas City. Attached herewith as Annex “A” is
a Compromise Agreement that both parties signed and executed and forms an integral part of this Affidavit
of Desistance.

4. Because of the aforementioned, I wish to state that I am no xxx

xxx
6. I have not been forced, coerced, or unduly influenced by anybody in executing this Affidavit of Desistance
and the same is voluntary on my part.
7. I also acknowledge that should the case be dismissed, I shall no longer be able to file a complaint arising
from the same facts surrounding this complaint.

IN WITNESS WHEREOF, I hereby affix my signature this 15th day of June 2022 at Las Piñas City.
MR. X
Complainant-Affiant
Assisted by:

ATTY. W
Counsel for Complainant Mr. X

SUBSCRIBED AND SWORN to before me this 15th day of June 2022 at Las Piñas City. I hereby certify
that I have personally examined the affiant and I am satisfied that he voluntarily and knowingly executed
the foregoing Affidavit of Desistance.
HON. Z
Assistant City Prosecutor
Copy furnished:

REGIONAL TRIAL COURT

Branch 255
Las Piñas City

MR. Y
Village 007
Las Piñas City

ROMULO JACOME & BACULIO Attorneys-at-Law

Counsel for Respondent Mr. Y
Unit 902 Primeland Ventures Bldg.
Market St. Madrigal Business Park

=============================================================================================
6. I therefore respectfully request that the above-mentioned case filed against said _______________
be dismissed as in fact I now withdraw my complaint against him and I further manifest under oath that I am
now desisting from testifying against him in Court or any other government entity or agency in connection
with the said criminal case.

IN WITNESS WHEREOF, I have hereunto set my hands this ____________, at ______________, Philippines.

_______________________
AFFIANT
SUBSCRIBED AND SWORN TO BEFORE ME, a notary public in and for _________________, this ____th day of
_____________ 20___. Affiant personally came and appeared with ________________________ issued by the
________________________ on _________at ______________, bearing his photograph and signature, known
to me as the same person who personally signed the foregoing instrument before me and avowed under
penalty of law to the whole truth of the contents of said instrument.

Atty. ______________________________________
Notary Public
Doc. No. _____ Commission Serial No.________________________
Page No. _____ Notary Public for ____________________________
Book No. _____ Until December 31, 20__
Series of 20___ Office:__________________________
Roll No._________________________
IBP Lifetime Roll No. _____;___/__/__,(Province)
MCLE Compliance Cert. No. _______;___/___/___
Sample Affidavit of Desistance
 Motion to Quash (possibly referred in ETC)

Counsel for the Accused:

____________Signature of Lawyer____________
ATTY. _______Name of Lawyer_______________
OFFICE: __________________________________
ROLL NO. ________ ADMITTED AT BAR: ________
IBP NO. ______;___/___/___;________________
PTR NO. ______;___/___/___;_______________
MCLE COMPLIANCE NO. ______________;______

Sample Motion to Quash

Motion to Quash
● know the grounds for a motion to quash and then argue; caption, title, grounds for motion to quash,
arguments to support the grounds, and then prayer.
● Then it has to be signed by the lawyer.
 Sample - Affidavit of Arresting Officers

Affidavit of Arresting Officers

● Usually used by Police during arrest and entrapment operations
○ When they arrest the respondent and then became accused
○ [Applicable usually during inquest.]
 Sample - Affidavit of Witness

Republic of the Philippines

Office of the City Prosecutor
Manila
Related to: ________________ I.S. No. __________________
I.S No. ________________ Prosecutor __________________
Prosecutor _________________ Date Filed __________________

MEMO OF PRELIMINARY INVESTIGATION

COMPLAINANT/S: RESPONDENT/S
1.______________________________ 1. _________________________________
Address: _______________________ Address: ____________________________
2. _____________________________ 2. __________________________________
_____________________________ __________________________________
3. _____________________________ 3. __________________________________
_____________________________ __________________________________
CHARGE: 4. __________________________________
________________________________________________________________________________
Place of Commission 5. ___________________________________
________________________________________________________________________________
Date ________________ Time ________________(Use back hereof for add, accused)
Witness:
Name ________________________ Address ____________________________
_____________________________ ____________________________________
_____________________________ ____________________________________

NOTE: 1. Has a similar complaint been filed before any other office? (YES OR NO)
2. Is this complaint in the manner of a counter-affidavit? ________(YES OR NO)
3. Are all the above information true and correct _____________(YES OR NO)
THE ABOVE SHOULD BE FILLED UP BY COMPLAINANT OR COUNSEL
Investigation on ___________________ Postpone to ________________________
On relation of________________________
 ________________________________
(Signature of complainant or counsel)
NOTE: Not yet accused but merely complainants and respondents

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
NATIONAL CAPITAL JUDICIAL REGION
BRANCH ____, MANILA

PEOPLE OF THE PHILIPPINES

Plaintiff
SEARCH WARRANT NO._____

-versus- FOR:

x------------------------------------------x

APPLICATION FOR SEARCH WARRANT

The Applicant, ____________________ of the ________________________, ____________________,

after having been duly sworn, states:

That on _________., __________ personally appeared to the office of ________________ and reported that
SUBJECT OF S.W, located at __________________________________ is engaged in the illegal operation of
_______________________________; (See Photos and Sketch as Annex “A”).

That relative to the said information, at around ________, the informer and _________ together with the
undersigned conducted investigation and surveillance operation at ___________________, located at
_____________________________, __________. The undersigned together with ____________ and
_____________ inquires to the said office about _______________.
That on the said occasions, SUBJECT OF S.W, disclosed that they are (illegal activities). (See photos &
sketch and See Attached Calling Card, List of Requirements, Studio Romano Job Order Form & MTC Job
Information as Annexes “B” - “C”)

(modus operandi).

Further, investigation conducted disclosed that _________________________.

On the ensuing investigation, SUBJECT OF SW, ________________found to be engaged in the operation of

illegal activities;

That on the said investigation and surveillance operation the undersigned confirmed and believes that
SUBJECT OF SW and/or any of its Officer, Agents, employees of
_____________________________________, __________ is indeed engaged in
________________________despite the fact that the said office is ________________and is not licensed to
__________________.

The properties, articles, objects and items which are used and/or intended to be used in the
commission of the afore-stated offense in the possession of the SUBJECT OF S.W includes the following:

a. Leads
b. ....

The undersigned has personally verified the report thru surveillance and investigation activities
together with _________________ and _______________, to ascertain the veracity thereof and found the
same to be true and correct;

PRAYE R

WHEREFORE, the Undersigned respectfully prays:

a. that the Honorable Court include in the Search Warrant and express authority to conduct the raid of the
above-mentioned premises at any time of the day or night including SATURDAYS and SUNDAYS considering
that these are the days when the customer traffic are at its peak and to break open the premises to be
searched should the owner thereof refuse entry in the premises or is absent therein.

b. that this Honorable Court cause the immediate issuance of a Search Warrant commanding any Peace
Officer to conduct a search on the above-described premises and to seize the above-described items to be
dealt with as the law directs;

(Date), (Place).
___________________
Applicant

SUBSCRIBED AND SWORN TO before me this _______ day of _____________, ______

______________________
Presiding Judge

CERTIFICATION AND VERIFICATION

I, THE UNDERSIGNED, under oath, depose and say that:

1. I am the applicant in the above-entitled application for Search Warrant;

2. I personally caused the preparation of the foregoing application for Search Warrant and have read
its content and the allegations therein, which are true and correct to my own personal knowledge and
belief.

3. I further certify that (a) I have not therefore commenced or filed any application for a Search
Warrant involving the same issues in any court, tribunal or quasi-judicial agency and to the best of my
knowledge, no such other application for Search Warrant is pending therein; (b) If there is such other
pending Application for Search Warrant, I will therefore inform this Honorable Court of the present status
thereof; (c) If I should thereafter learn that the same and similar application for Search Warrant has been
filed or its pending , I shall report that fact within five (5) days there from to this Honorable Court, wherein
the aforesaid application for Search Warrant has been filed.

____________________
Applicant

Date: ___________________

PRAYER
WHEREFORE, it is most respectfully prayed that the instant petition be considered by the Honorable
Court and further grant the complaint other relief be granted as shall be deemed just and equitable in the
premises.
____________________, _____________________, ________________.
 ___________________________________
(Attorney for the Complainant)
___________________________________
(Address)

Copy furnished:
______________________________________
(Counsel for the Accused)

______________________________________
(Prosecutor on Case)
EXPLANATION
(Proof of Service)
 CIVIL LAW REVIEW
Atty. Joseph Ferdinand M. Dechavez
September 26, 2022

ACADS SCRIBES TEAM: ADRIAN MACASAQUIT | MICA ARCE | SHERRY PAGAY | JOSEPH MILLADO | KARLA MARIE SANTOS | JOANNA
BULAUITAN | DARLYMPLE TABLIZO |
CHECKED BY: ADRIAN MACASAQUIT (Deputy for Academics) | HANNAH KEZIAH MORALES (Chairperson for Academics)

PERSONS AND FAMILY RELATIONS, PROPERTY, WILLS, OBLIGATIONS AND CONTRACTS, SALES

PERSONS AND FAMILY RELATIONS

A. (Art. 2 Civil Code) Effectivity of Laws

● Administrative rules and regulations must be published only if their purpose is to enforce or
implement existing law pursuant to a valid delegation.
● The Administrative Code of 1987 provides that every agency shall file with the UP Law Center
3 certified copies of every rule adapted to it before they become effective.
● Under jurisprudence, the Supreme Court clarified that not all rules and regulations adopted
by every government agency are to be filed with the UP Law Center, otherwise known as, the
Office of the National Administrative Register, only those of general or of permanent
character are to be filed.
○ According to the UP Law Center guidelines, for receiving and publication of rules and
regulations, interpretative regulations and those merely internal in nature- that is
only regulating the personnel of the administrative agency and not the public-
need not be filed with the UP Law Center.
● There is no law requiring the publication of Supreme Court decisions in the official gazette
before they can be binding, and as a condition to their becoming effective. It is the bounding
duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme
Court
1. Once law has taken effect, ignorance of the law excuses no one from compliance
therewith (Ignorantia Legis Non Excusat)
● The public is put on constructive notice of its existence even if a person has no actual
knowledge thereof.

● Mistake of law cannot be used to justify a legal act because everyone is presumed to know
the law and the consequence of its violation.
○ On marriage for instance, while absence or lack of authority of the solemnizing officer to
solemnize marriage, will render the marriage a nullity.
 ○ Article 35 par (2) of the Family code is an exception to the effect that the marriage was
entered into in either or both of the parties, believing in good faith that the solemnizing
officer had the legal authority to do so, but in fact he had none, then the marriage be
considered as valid.
○ Where prospective spouses, for instance, appear before in a notary public, thinking and
believing that he is or the notary public is authorized to solemnize marriage, such is a
case of mistake of law which will not result in a valid marriage
○ On the other hand, if they have gone instead to the court to be married, and assuming
that the judge was not around, but the clerk presented himself as one. This case may
qualify as a good faith marriage- being a case of mistake of fact.
● Presumption of knowledge of an existing law does not apply to foreign laws and judgment
because the Philippines does not take judicial notice of foreign laws.
○ They must not only be alleged, they must also be proven
○ International Doctrine of Processual Presumption - ​provides that if foreign law is not
pleaded, or even if it was pleaded is not true, the presumption is that the foreign law is
the same as Philippine laws.

B. Principle of Non-retroactivity of laws (Article 4, New Civil code)

● Article 256 of the Family code provides for the retroactivity effect of the appropriate
relevant provisions of the family code, subject to the qualifications that such retroactive
application will not prejudice or impair vested or acquired rights in accordance with the civil
code or other laws.
● All family homes constructed AFTER the effectivity of the family code, are constituted as
family homes by operation law.
○ All existing family residences therefore as of August 3, 1988 were considered a family
homes to the benefits in accorded to the family home under the Family code
○ The exemption from execution for sale or attachment and for debts incurred while the
family home exists is effective from the time of the constitution of the Family Home
and as long as the beneficiaries reside therein.
■ However, this exemption is subject to an exception, the debt of the FH must
be incurred after August 3 1988, if before, it must be shown to be constituted
extra judicially or judicially before the FC.
■ The exemption cannot apply to those debts for which the Family Home has
incurred after August 3 of 1988
● Debts must have been incurred prior August 3, 1988, the family home can be executed.
Creditors prior to August 3, 1988 already have vested rights.
C. Mandatory and Prohibitory laws (Article 5, NCC)
● Article 41 of the Family Code and Presumption of Death
○ The marriage contracted by any person during the subsistence of a previous marriage shall
be null and void- it is bigamous- unless, before the celebration of the subsequent
marriage, the prior of spouse had been absent for 4 consecutive years and the spouse
present has well founded belief that the absentee spouse was already dead.
○ ​In case of disappearance - when there is a danger of death under the circumstances set
forth in the provisions of Article 391 of the civil code, an absence of only 2 years is
sufficient
○ For the purpose of contracting subsequent marriage - the spouse present must institute
a summary proceeding as provided in the family code for the declaration of the
presumptive death of the absentee spouse, without prejudice to the effect of the
reappearance of the absentee spouse. Here, to be presumed dead under the rules
established in Articles 390 and 391 (presumptive death), the absentee must have been
missing for at least 7 years, this is the general rule without any information whether or
not he/she still lives.
■ He is presumed dead for all purposes except those of succession. The absentee
shall not be presumed dead for the purpose of opening his succession till after an
absence of ten years.
○ If he disappeared after the age of seventy-five years, an absence of five years shall be
sufficient in order that his succession may be opened.
○ For subsequent marriage, they must institute a special proceeding for presumptive deaht
of the absent spouse
○ If the disappearance qualifies a dangerous circumstances refer to Article 391 of the Civil
Code, and If for the purpose of remarriage, an absence of two (2) years is sufficient,
otherwise, the period is required is four years (4), which will be reckoned at the time of
the incident that cause the disappearance.

D. The Nationality Principle

● Lex loci celebrationis- Article 17 of the 1st par, is the principle of lex loci celebrationis
which relates to the place of the ceremony or law of the place where the contract is made.
○ It adheres to the rule that a marriage that is valid where it was celebrated, is valid
everywhere.
○ Under Article 26 par 1 of the Family code, provides that All marriages solemnized outside
the Philippines, in accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this country, except those
prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.
● Provisions of the Family Code applies only to Filipino Citizens, by analogy the same principle
applies to foreigners such that, they are govern by their National law to family rights and
duties.
● Nationality Principle does not applies to succession
○ Under par 2 art 16 states that with respect to the order of succession and to the amount
of successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country wherein said
property may be found.

Del Socorro vs. Van Wilsem (Gr. No. 193707 December 10, 2014)

Van Wilsem a national of Holland claimed that even if he is here in the Philippines, the
Anti-violence against women and children act does not apply to him because he is a foreigner.
Here, Van Wilsem refused to provide support to his son with del Socorro; this argument is not
tenable because of the Territoriality Principle. Under Article 14 of the Civil code, our penal
laws apply to all persons who commit a felony in PH territory regardless of nationality, gender,
age, or other personal circumstances, subject to treaty stipulations and general principle of
international law. Van Wilsem also argued that the family code and support does not apply to
him because being a foreigner, the national law of Holland applies to mothers pertaining to
his family rights and duties. Yes, this is true. Under the nationality principle, Ph law continues
to apply to Filipino citizens when it comes to their family rights and duties, conditions, and
legal capacity, even if they do not reside in the PH.

Van Wilsem is a citizen of Holland he is subject to the laws of his country and not the
laws of the Philippines as to whether he is obliged to give support to his child as well as the
consequences therein. BUT under the Doctrine of Processual presumption, foreign laws must
be alleged and must be proved, otherwise, they will be considered as the same as ours (PH
Law).

Tenchavez vs Escano (G.R. No. L-19671, November 29, 1965)

In this case, where a filipino married to another filipino went to the US, obtained a
divorce there, such divorce will not be recognized in the Philippines because divorce is not
one of the grounds by which marriages in the PH between filipino citizens may be terminated.
Van Dorn vs Romillo (G.R. No. L-68470 October 8, 1985)

The SC ruled, however, while it is true that owing to the nationality principle
embodied in the 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. Aliens obtained divorces abroad may be recognized in the Philippines
provided they are valid according to their national law.

Republic vs Manalo (G.R. No. 221029, April 24, 2018)

The SC elucidated that par 2 of Article 26 applies even if the Filipino spouse was the
one who filed for divorce.

Republic vs Obecido (G.R. No. 154380 October 5, 2005)

The SC clarified that par 2 of Article 26 applies even where both spouses were Filipino
citizens at the time of their marriage, what is important is that, at the time of their divorce,
one of them is already a foreigner. In mixed marriages, If the divorce is validly obtained
abroad and that divorce gives the alien spouse the capacity to remarry, the Filipino spouse
should then have the capacity to remarry.

Gaspi vs Pacis - Trinidad (G.R. No. 229010, November 23, 2020)

The SC ruled that the probate of a will only involves extrinsic validity and does not
delve into its intrinsic validity unless there are exceptional circumstances which would
require the probate court to catch upon the intrinsic validity of the wills. Thus, when it comes
to the forms and solemnities of contracts, wills and other public instruments which are part
of extrinsic validity the civil code provides that, it shall be governed by the laws of the
country in which they are executed. Article 17 of the 1st par, is principle of lex loci
celebrationis which relates to the place of the ceremony or law of the place where the
contract is made.

For instance, Philippine law following the lex loci celebrationis adheres to the rule that a
marriage that is valid where it was celebrated, is valid everywhere. Under Article 26 par 1 of
the Family code, provides that All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they were solemnized, and valid there
as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4),
(5) and (6), 36, 37 and 38.
E. Conflict of Laws
● Conflict of laws refers to that part of municipal law of a state which directs its court when
confronted with a legal problem involving a foreign element (foreign laws or judgments).
● Doctrine of Forum Non- Conveniens
○ literally means that the forum is not convenient.
○ This doctrine applies in conflict of law cases where there is controversy involving a foreign
element.
○ It gives the courts the choice of not assuming jurisdiction when it appears that it is not
the most convenient forum and the parties may seek redress in another forum.
○ It is a device designed to frustrate elicit means of securing advantages and vexing litigants
that would otherwise be possible if the venue of the litigation were left entirely to the
will of either party.
○ Our courts may assume jurisdiction on the following requisites:
■ That the Philippines is one convenient to take jurisdiction
■ The Philippines is intelligent to make decision
■ The Philippines has power to enforce its decision
○ A mere invocation of the Doctrine of forum non-conveniens cannot operate to
automatically divest the court of jurisdiction.

● Choice of Law
○ Choice of law provisions are fundamental Principle of Autonomy of contracts.
○ Under 1306, 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.
○ Contractual choice of law is not determinative of jurisdiction. Stipulating on the laws of a
given jurisdiction as the governing law of the contract does not preclude the exercise of
jurisdiction by tribunals elsewhere.

● Doctrine of Renvoi
● Means “referring back”.
● It is a procedure whereby a dural matter is presented which the conflict of laws rule of
the forum refers to foreign law.
● The conflict of laws rule of which in turn refers the matter back again to the law of the
forum.
Aznar vs Garcia (G.R. No. L-16749, January 31, 1963)

The SC elucidated that the theory of the Doctrine of renvoi, the court of the
forum determinate the question before it, must consider the entirety the law of the
other jurisdiction, including the rules as to conflict of laws, and apply the law to the
actual question, which the rules of the other jurisdiction prescribed. This may be the
law of the forum.

Saudi Arabian Airlines vs Rebencio (Gr. No. 198587, January 14, 2015)
(Choice of law vs Forum non-conveniens)

The Saudi Airlines asserts that PH court tribunals are not in the position to
make an intelligent decision as to the law and the facts because the respondents
cabin attendants, their contracts require the application of the laws of Saudi Arabia,
rather than those of the Ph. It claims that the difficulty in ascertaining the foreign law
calls into operation the Doctrine of forum non-conveniens , thereby, rendering and
proper the exercise of jurisdiction by PH tribunals. In that case, the SC denied the
Saudi Arabia Airlines. It averred that the choice of law governing the validity of
contracts or interpretation of its provisions does not necessarily imply forum
non-conveniens. Choice of law and forum non-conveniens are entirely different
matters. Here, the contracts signed by the cabin attendants, it was stated that in case
of conflict or in case of dispute between the contracting parties the same must be
resolved applying the law of Saudi Arabia and that is the choice of law.

Choice of law provisions are fundamental principle of autonomy of contracts.

Under 1306, 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. Secondly, contractual choice of
law is not determinative of jurisdiction. Stipulating on the laws of a given jurisdiction
as the governing law of the contract does not preclude the exercise of jurisdiction by
tribunals elsewhere.
F. Human Relations

1. Damnum Absque injuria

● The legitimate exercise of persons rights even if it causes loss to another does not
automatically result in actionable injury.

Example: Mortgagee forecloses the property of the mortgagor because of the

nonpayment of debt. Definitely, it will cause injury to the mortgagor. However, it will
fall under the principle of absque injuria because the mortgagee was legitimately
exercising his right to foreclose the mortgage. And even if it causes loss to another, it
will not result to an actionable injury. The law does not prescribe a remedy for that
loss.

The City of Bacolod vs Phuture Visions (G.R. No. 190289. January 17, 2018)| )
The SC held that the City of Bacolod in ordering the closure of respondent's
bingo operations, were exercising their duty to implement laws and ordinances which
include the local government's authority to issue licenses and permits for business
operations in the city. This authority is granted as delegated exercise of the police
power of the state. If no business permit, the LGU has the right to padlock or close the
operation of such business entity.

Damnum Absque Injuria does not apply when there is an abuse of the person’s
right or when the exercise of his right is suspended or extinguished pursuant to a court
order. Indeed, in the availment of one’s rights such must act with justice. When a
right is exercised in a manner which does not conform with the norms enshrined in
article 19 and results in damage to another, a legal wrong is thereby committed for
which the wrongdoer must be held answerable. The principle of an abuse of a right is
an exception to the principle of Damnum Absque Injuria.

2. Acts Contra bonus mores

● In article 21 which states that “Any person who wilfully causes loss or injury to another
in manner that is contrary to morals, good customs or public policy shall compensate the
latter for the damage”.
 Example: An action for breach of promise to marry has no standing in civil law,
apart from the right to recover money or property advanced by the
complainant upon the faith of that promise. Generally, a breach of promise to
marry per se is not actionable. Except where the plaintiff must actually incur
expenses for the wedding and the necessary incidents thereof.

● In the case of Punag vs CA, the SC held that the acts of the petitioner forcibly abducting
the private respondent and having carnal knowledge with her, against her will.
Thereafter, promising to marry her in order to escape criminal liability only. In this light,
it is contrary to morals and good customs.

● In the case of Pe vs Pe, the SC awarded damages to the family of an unmarried woman
already 24 years old when a married man used trickery and scheme to seduce the former
to the extent of making her fall in love with him.

● In Baksh vs. CA, the Sc awarded damages pursuant to Article 21 , not because of the
promise to marry, but because of FRAUD and DECEIT and the willful injury to the woman's
honor and reputation which followed thereafter. However, in the case of Constantino vs
Mendez, the SC denied the claim of a woman, as regards Amelita’s claim for damages
which is based on Article 19 & 21 of the Civil Code on the theory that through Ivan’s
promise of marriage, she surrendered her virginity, we cannot but agree with the Court of
Appeals that mere sexual intercourse is not by itself a basis for recovery. Damages could
only be awarded if sexual intercourse is not a product of voluntariness and mutual desire.
At the time she met Ivan, Amelita was already 28 years old and she admitted that she
was attracted to Ivan. Her attraction to Ivan is the reason why she surrendered her
womanhood. Had she induced or deceived because of a promise of marriage, she could
have immediately severed her relation with Ivan when she was informed after their first
sexual contact, that he was a married man. Her declaration they repeated their sexual
intercourse only indicates that passion and not the alleged promise of marriage was the
moving force that made her submit herself to Ivan.

3. Volenti non fit injuria

● refers to self- inflicted injury or consent to the injury which precludes the recovery of
damages, by one, who has knowingly and voluntarily exposed himself to danger even if
he’s not negligent in doing so.
 4. Unjust enrichment and Accion in rem verso
● Unjust enrichment - Under article 22 of the civil code, when a person unjustly retains a
benefit to a loss of another or when a person obtains money or property of another
against the fundamental principle of justice, equity and good conscience.
○ The principle of unjust enrichment has two conditions:
■ A person must have been benefited without a real or valid basis or justification ;
and
■ The benefit was derived at another person’s expense or damage.

● Accion in rem verso - it is an auxiliary action available only when there is no other
remedy on contract, quasi contract, crime or delict. If there is other obtainable action
that action must be resorted to and accion in rem verso will not lie.
○ In order the action in rem verso may prosper the essential elements must be present:
a. The defendant has been enriched;
b. The plaintiff has suffered a loss;
c. That the enrichment of the defendant is without just or legal ground; and
d. That the plaintiff has no other action or remedy anymore based on contract,
quasi contract, crime or delict

G. Legal Personality
● Refers to a person's legal standing before the courts of law.
● In civil law, legal personality consist of 2 aspects:
○ Juridical capacity
■ Fitness of the subject of legal relations.
■ Juridical capacity is inherent in every natural person. Therefore, not acquired
■ Acquired from his birth and loss only through death. BUT even prior to his birth, a
child who is still in the mother’s womb, the law grants him provisional personality.
Under PD 603, the civil personality of the child shall commence from the time of
his conception for all purposes favorable to him provided, it be born later with the
condition specified in Article 41of the new civil code.
■ Article 41 - for civil purposes, the foetus is considered born if it is alive at the time
it is completely delivered from the mother’s womb. However, if the foetus had an
intra-uterine life of less than seven months, it is not deemed born if it dies within
twenty-four hours after its complete delivery from the maternal womb.
 ■ Under jurisprudence, a conceived child has a right to support from its progenitors;
an unborn child can be considered as dependent under the collective bargaining
agreement entered into by the labor union and the employer. It may also receive
donations and if ignored by his parents, may result in the preterition of the forced
heir that will annul the institution of testamentary heir, even if such child should
be born after the death of the testator. .
○ Capacity to act
■ It is not inherent in a person.
■ It is attained, conferred, and may be loss through valid causes.
■ A person who possesses the capacity to act, may waive any matter which affects
his property, provided that it does not infringe the right of others, and his waiver is
not forbidden by law and does not contravene public policy.
■ Otamias v. Republic, the SC held that the decision of Colonel Otamias to waive a
portion of his retirement benefit does not infringe the right of third persons even
the right of his family to receive support. The deed of assignment executed by him
was not contrary to law. It was in accordance with the provisions on support in the
family code.
■ Civil interdiction
● Limits a person's capacity to act.
● Person suffering from civil interdiction shall deprive the offender during the
time of his sentence of the rights of parental authority, or guardianship,
either as to the person or property of any ward, of marital authority, of the
right to manage his property and of the right to dispose of such property by
any act or any conveyance inter vivos.
● It is required that the marriage settlement executed by a person, suffering
a sentence of civil interdiction or any subject of any disability, the guardian
appointed by the competent court, must be a party thereto.

■ Alienage limits a person's capacity to act. An alien absolutely prohibited from

acquiring private and public lands in the Philippines. When a foreigner marries a
filipina acquires land, and registers it in the name of his wife, no implied trust has
been created in his favor. No declaration can be made that the subject property
was part of the conjugal or community property of the spouses.
H. Surnames
● Legitimate and legitimated children shall principally use the surname of the father.
● Padilla vs Republic - The SC held that our laws do not authorize the legitimate children to
adopt the surname of a person who is not his/her father. To allow minor children to adopt the
surname of the mother’s second husband, who is not their father could result in confusion in
their paternity.
● In re Divinagracia Jr - The SC held, To allow them, at their mother’s behest, to bear only
their mother’s surname (which they are entitled to use together with their father’s surname)
and to discard altogether their father’s surname, thus removing the prima facie evidence of
their paternal provenance or ancestry, is a serious matter in which, ordinarily, the minors and
their father should be consulted.

● Adopted child
■ The adopted child shall be deemed to be the legitimate child of the adopters and both
shall acquire the reciprocal rights of obligations arising from the relationship of parent
and child, including the right of the adopted to use the surname of the adopter.
■ In the matter of the adoption of Stephanie Nathy Astorga Garcia - The SC held that
being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled
to all the rights provided by law to a legitimate child without discrimination of any
kind, including the right to bear the surname of her father and her mother.

● Illegitimate children
■ The family code states that the illegitimate children shall use the surname of
their mother unless their father recognizes their filiation, in which case, they
may bear their father’s surname.
■ When an illegitimate child is acknowledged and recognized by his/her father,
said child will have the choice for which surname to use.
■ Under jurisprudence, the acknowledgment or recognition by the father of an
illegitimate child makes him mandatorily obliged to support that child, but he
cannot use that as a condition to require the child to use his surname.

● Married woman
■ Married woman has an option, but not a duty to use the surname of the
husband in any of the ways provided in Article 370 of the Civil Code
 ■ Article 370 of the Civil Code provides:
“A married woman may use:
○ Her maiden first name and surname and add her husband’s surname, or
○ Her maiden first name and her husband's surname, or
○ Her husband’s full name, but prefixing a word indicating that she is his
wife, such as "Mrs."
■ When a woman marries a man, she need not apply or seek judicial authority to
use her husband’s name by prefixing the word “Mrs” before her husband’s full
name or by adding his husband’s surname to her maiden firstname.
■ When the marriage ties or vinculum no longer exist, as in the case in the death
of the husband, or divorced as authorized by the muslim code, the widow need
not seek judicial confirmation of the change in her civil status in order to
revert to her maiden name. The use of her former husband’s name is optional
and not obligatory.
■ When a married woman married her husband she did not change her name, only
her civil status. Neither was she required to secure judicial authority to use the
surname of her husband after the marriage, as no law requires it.

Family Code

Marriage as a special contract:

Tan-Andal v. Andal

The Supreme Court explained why marriage is a special contract, stating that when the legal
existence of the parties is merged into one by marriage, the new relation is regulated and controlled
by the state or government upon principles of public policy for the benefit of society, as well as the
parties.

When the object of a marriage is defeated by rendering its continuance intolerable to one of the
parties and productive of no possible good to the community, relief in some ways should be
obtainable.
On Marriage settlements:

● While the nature, consequences and incidents of marriage are governed by law, and not subject
to stipulation, the property relations of these spouses may be fixed in marriage settlements,
provided that it cannot contravene mandatory provisions of the Family Code.

For instance, it cannot be amended or terminated except by court decision, and it becomes
effective upon the celebration of marriage.

Keppel v. Keppel

The matrimonial property agreement entered into by the parties in 1991 or a few years after the
celebration of their marriage on August 30 of 1988, could not be enforced for being in contravention
of a mandatory law.

Delgado v. GQ Realty Development Corporation

The Court found that petitioner Francisco and Victoria expressly agreed in the Ante-nuptial
agreement that the properties of Victoria would be hers exclusively, that any gift that Francisco will
bestow upon Victoria would remain her exclusive property, and that Francisco waived all direct and
indirect interest in Victoria’s properties.

When Francisco therefor purchased a condominium, and gave the same as a gift to his wife Victoria,
such gift falls within the coverage of the Ante-nuptial agreement; therefore, when Francisco
executed the Ante-nuptial agreement and waived any and all rights, interest over the properties of
Victoria, the condo unit that he gave as a gift was deemed included therein.

On Property Relations:

● A marriage celebrated under the Civil Code and those whose property relations are governed by
the regime of Conjugal Partnership of Gains shall continue under such property regime to enjoy
rights of ownership over their separate properties.

● Consequently, to automatically change the marriage settlements of couples who got married
under the Civil Code into Absolute Community of Property in 1988 when the Family Code took
effect would be to impair their acquired or vested rights to such properties.
● Prior to the liquidation of the conjugal partnership, the interest of each spouse in the conjugal
assets is inchoate, a mere expectancy which constitutes neither a legal nor an equitable estate,
and does not ripen into title until it appears that there are assets in the community as a result of
the liquidation and settlement.

● Thus, the right of the husband or wife to ½ of the conjugal assets does not vest until the
dissolution and liquidation of the conjugal partnership or after dissolution of the marriage, when
it is finally determined after settlement of conjugal obligations, if there are still assets left which
can be divided between the spouses or their respective heirs in the latter case if the death of one
of the spouses was the one that terminated the marriage.

● This is the reason why the provisions of the Family Code which requires the consent of one spouse
before the other can sell or mortgage property belonging to the absolute or conjugal partnership
will retroact and apply to marriages celebrated prior to the Family Code. Because prior to the
termination of marriage, neither spouse may claim to have any vested right on the common
properties.

On Validity of Marriage Settlements:

● In order to be valid, marriage settlements must comply with the following requirements:
1. That marriage settlements and any modifications thereof shall be in writing;
2. That they shall be executed before the celebration of the marriage;

● If the marriage does not take place, the marriage settlement including donations by reason of
marriage contained in the marriage settlement shall be considered as void; but those stipulations
in the marriage settlements that are not related at all to the marriage will remain to be valid.

I.e. For instance, if there is an acknowledgement of filiation by one of the parties over a
child, then that acknowledgement will take effect validly.

● The formal requirement that the marriage settlement and its modifications shall be in writing is
provided not only for the purpose of enforceability, but for validity.

● The marriage settlement and its modifications should be registered in the local civil registry and
in the proper registries of property in order to have an effect on third persons.
● Consequently, if a third person purchased a property registered in the name of only one of the
spouses, without the knowledge of the existence of the marriage settlement, he may claim the
benefit of being a buyer in good faith.

On the requirement of legal capacity:

● RA 6809, which amended Art. 234 and 236 of the Family Code and lowered the age of majority to
18, also provides that emancipation shall terminate parental authority over the person and
property of the child who shall then be qualified and responsible for acts of civil life.

The only exception provided in the law is that when he or she enters into a contract of marriage,
parental consent shall still be required until the age of 21.

This means that a contracting party to a marriage who is at least 18 years of age may execute a
marriage settlement without the need to include the persons referred to in Art. 14 of the Family
Code as parties thereto.

● The 21 year old minor referred to under Art. 2180 of the Civil Code on vicarious liability was
expressly excepted from the application of this new law, which means that under Art. 2180, on
vicarious liability, the parents, the guardian, will still be responsible for the acts of the minor
below 21 years of age living in their company.

However, where the person is suffering the penalty of civil interdiction or any other disability, it
shall be indispensable for the guardian appointed by a competent court to be made a party
thereto.

On donations propter nuptias:

Matteo v. Lagua

The Supreme Court explained that donations propter nuptias, or donations by reason of marriage are
without onerous consideration, the marriage being merely the occasion or the motive for the
donation, and not the causa.
The causa for donations propter nuptias would still be the pure liberality of the benefactor. Being
liberalities, they remain subject to reduction for inofficiousness upon the donor’s death if they
should infringe the legitime of the compulsory heirs.

In order that a donation may be reduced for being inofficious, there must be proof, however, that
the value of the donated property exceeds that of the disposable free portion plus the donee’s share
as legitime in the properties of the donor.

On consent as a requirement in marriage:

Republic v. Albios

The SC held that the avowed purpose of marriage under Art. 1 of the Family Code is for the couple to
establish a conjugal and family life. The possibility that the parties in a marriage may have no real
intention really to establish a life together, is however, according to the SC, insufficient to nullify
marriage freely entered into in accordance with law.

The same article 1 provides that the nature, consequences and incidents of marriage are governed by
law and not subject to stipulation. A marriage may thus only be declared void or voidable under the
grounds provided by 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
citizenship, therefore, so long as the essential and formal requisites prescribed by law are present,
and it is not void or voidable under the grounds provided by law, it shall be declared as valid.

Morimoto v. Morimoto

The Supreme Court held that it is still vital to distinguish the authentic underlying consent of the
parties from the external manifestation of such consent during a marriage ceremony. Jurisprudence
therefore recognizes that where there is no bona fide intention of becoming a spouse to another, a
marriage is void for want of consent even when the marriage ceremonies have been conducted, and
there the parties declared their intent to enter into married life.
On parental consent:

● In case either or both of the contracting parties not having been emancipated by a previous
marriage, kapag kinasal na ng una, pangalawang asawa na, you don’t need consent even if
you are between the ages of 18 and 21.

However, if you have not yet been emancipated by a previous marriage, and you are between
the ages of 18 and 21, you have to exhibit to the local civil registrar the consent to your
marriage by your father, mother, surviving parent or guardian, or persons having legal charge
of you in the order mentioned, otherwise the marriage is voidable.

● Parental consent is a requirement that must be submitted when applying for a marriage
license. A Marriage license is a formal requisite of marriage.

● In Atty. Dechavez’ view, where parental consent is sought and submitted but the order of
persons from whom parental consent must be sought is not observed, the same will only
constitute an irregularity in procuring a marriage license, the latter, being only a formal
requisite of marriage. This irregularity will not affect the validity of remarriage, but the party
or parties responsible for the said irregularity shall be civilly, criminally and administratively
liable.

● However, where parental consent is totally absent, the same will constitute a defect in the
legal capacity of the contracting party, an essential requisite of marriage. The latter defect
will render the marriage voidable or annullable under Art. 45 paragraph 1 of the Family Code.

On marriage ceremony:

● An exchange of vows can be presumed to have been made from the testimonies of the
witnesses who stated that a wedding has indeed taken place. Since the very purpose of having
a wedding is to exchange vows of marital commitment, it would indeed be unusual to have
the wedding without an exchange of vows, and quite unnatural for people not to notice its
absence.

● However, the mere private act of signing a marriage contract without a duly authorized
solemnizing officer bears no semblance to a valid marriage, and thus needs no judicial
declaration of nullity.
On marriage in articulo mortis:

● Where either or both of the contracting parties are on the verge of dying, they are no longer
required to secure a marriage license, and the wedding ceremony can push through
wherever they are. Here it is the condition of the ailing party at the time when the marriage
was solemnized which is material.

Thus, even if the parties subsequently survive, this fact will not affect the validity of the
marriage that was solemnized in articulo mortis.

Hilario v. Miranda

The Supreme Court declared the marriage there as invalid for the simple reason that one of
the essential elements in valid marriage which is consent to be freely given was totally
wanting or not present because one of the contracting parties was not only ailing, but was
already unconscious and under comatose condition, and was hovering between life and death,
hecne he could not be said to have given his consent freely.

On certificate of legal capacity:

● The legal capacity to contract marriage is determined by the national law of the party
concerned.

A foreigner therefore desiring to contract marriage must secure beforehand a certificate of

legal capacity to contract marriage, to be issued by the diplomatic or consular official of his
country.

The absence of the said certificate is merely an irregularity in complying with the formal
requirement for procuring a marriage license. This is similar to the case of a parental consent
where parental consent is required to be exhibited to the civil registrar in order to obtain or
apply for a marriage license. Similarly, a certificate of legal capacity must be exhibited or
presented by a foreigner applying for a marriage license here in the Philippines.

● Under Art. 4 of the Family Code, an irregularity will not affect the validity of a marriage
celebrated on the basis of a marriage license issued without that certificate of legal capacity.
On legal ratification of marital cohabitation:

● The 5-year common law cohabitation period which is counted from the date of celebration of
marriage shall be a period of legal union had it not been for the absence of marriage.

This 5-year period should be the years immediately before the day of the marriage, and
should be a period of cohabitation characterized by exclusivity and without legal
impediment, meaning there is no third party involved at any time within the 5 years, and
continuity that the 5-year period must be unbroken.

Void marriage under Art. 35 paragraph 6 of the Family Code: Subsequent marriage or subsequent
marriages that are void under Art. 53.

● This rule presupposes that a previous marriage has been declared void ab initio or annulled by
final judgment under Art. 40 and 45 of the Family Code.

Art. 53 of the Family Code provides that either of the former spouses may marry again, after
their previous marriage has been declared a nullity.

However, the following must be recorded in the appropriate civil registry and registries of
property:
1. Judgment of annulment or of absolute nullity of their marriage,
2. The partition or distribution of the spouses’ properties, and
3. The delivery of the children’s presumptive legitimes (must be of the common children)
● Failure to comply with these requirements will render the subsequent
marriage void. But their children, of course, will be considered as
legitimate.
On psychological incapacity:

Tan-Andal v. Andal

The Supreme Court categorically declares that psychological incapacity is neither a mental
incapacity nor a personality disorder that must be proven through expert opinion.

There must be proof, however, of the durable, or enduring aspects of a person’s personality called
personality structure which manifest itself through clear acts of dysfunctionality that undermines
the family. The spouses’ personality structure

It must make it impossible for him or her to understand and more important to comply with his or her
essential marital obligations.

Proof of these aspects of personality need not be given by an expert. Ordinary witnesses who have
been present in the life of the spouses before the latter contracted marriage may testify on
behaviors that they have consistently observed from the supposedly incapacitated spouse.

With respect to the essential marital obligations, the Molina guidelines provide that the essential
marital obligations are those embraced by Art. 68-71, on the rights and obligations of the husband
and wife, as regards the husband and wife, as well as Art. 220, 221, 225 of the same Code, in regard
to parents and children.

According to the SC, it is true that marriage is a contract primarily between the spouses, but its
cause remains to be the establishment of not just conjugal, but also family life. The spouses’
obligation to their children, once children are conceived, is as much a part of the spouses’ obligation
to each other, failure to perform these obligations to their children may be a ground to nullify a
spouses’ marriage.

Property relations of Art. 36 marriage:

● Art. 147 of the Family Code governs the property relations of marriages declared a nullity
under Art. 36 where there is no showing that:
1. The marriage was incestuous, or void due to public policy,
2. That they lived exclusively with each other as husband and wife, being
capacitated to marry each other; and
3. Having lived exclusively with each other, although under a void marriage,
 Under Art. 147, wages and salaries earned by the parties during their cohabitation shall be
equally divided between them. This is regardless of who worked to earn the wage or salary.

However, if a piece of property was obtained through only one party’s effort, work or
industry, and there is proof that the other did not contribute through the care and
maintenance of the family and of the household, the property acquired during the
cohabitation shall be solely owned by the party who actually worked to acquire the property.

● Where the marriage was declared void under Art. 36 of the Family Code and not under Art. 40
or 45, what governs the liquidation of property owned in common by the parties are the rules
on co-ownership, more particularly under Art. 496 of the Civil Code.

● Partition may be made by agreement between the parties, or by judicial

proceedings.
● It is not necessary therefore to liquidate the properties of these spouses in the
same proceeding for the declaration of nullity of the marriage.

On the declaration of nullity:

● According to Art. 39 of the Family Code, if the marriage is void, it is imprescriptible
● According to Art. 40 of the Family Code, Art. 40 of the Family Code applies retroactively to
marriages celebrated before the Family Code insofar as it does not prejudice or impair vested
or acquired rights.

Thus, a judicial declaration of nullity is required for prior marriages contracted before the
effectivity of the Family Code, but only for purposes of remarriage.

● If a person wants to contract a subsequent marriage and for that marriage to be recognized
under the law as valid, he must first secure a judicial decree declaring the previous marriage
void ab initio.

Otherwise, the subsequent marriage is null and void.

Pulido v. People

The Supreme Court held that the purpose of a prior judicial decree of nullity under Art. 40 was only
to establish the validity of the subsequent marriage, and not to hold one criminally liable for
bigamy for failure to secure the same.

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 the termination of heirship, legitimacy or 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 as long as it is essential to the determination of the case. (COLLATERAL ATTACK)

Likewise, a judicial declaration of absolute nullity of the first or second marriage, presented by the
accused for instance in the prosecution for bigamy, is a valid defense irrespective of the time
wherein which they are secured.

Domingo v. Court of Appeals

The court clarified that a collateral attack against a void marriage may be permitted for purposes
other than remarriage.

De Castro v. Assidao-De Castro

Same ruling, a collateral attack by a spouse to a void marriage in an action for support was allowed.

A collateral attack is defined as an attack made as an incident in another action whose purpose is to
obtain a different relief, not to ask the court to declare a marriage a nullity.

Accordingly, there is a collateral attack on the validity of marriage when as an incident in a pending
action, not precisely brought to nullify the marriage, an attack is made impugning the validity of
marriage to obtain a different affirmative relief, or by way of defense, even though there is no final
judgment yet in a direct proceeding declaring the marriage annulled, or nullified.
A direct attack is an attempt for sufficient cause to have the marriage annulled or declared void in a
proceeding instituted for that purpose.

The requirement of a judicial decree of nullity does not apply to marriages that were celebrated
before the effectivity of the Family Code, particularly if the children of the parties were born while
the civil code was in force.

Judicial declaration of presumptive death:

● The term well-founded belief of death of the absentee spouse must result from diligent
efforts to locate the absent spouse. Such diligence entails an active effort on the part of the
present spouse to locate the missing one.

● The mere absence of a spouse devoid of any attempt by the present spouse to locate the
former will not suffice.

● When a subsequent marriage is contracted after a judicial declaration of presumptive death,

a presumption arises that the first spouse is already dead, and that the second marriage is
legal. This presumption should prevail over the continuance of the marital relations with
the first spouse. The second marriage is presumed valid.

● The burden of proof to show that the first marriage was not properly dissolved rests on the
persons assailing the validity of the second marriage.

● A subsequent marriage contracted in bad faith, even when it was contracted after a court
declaration of presumptive death lacks the requirement of a well-founded belief that the
spouse is already dead. The first marriage will not be considered as validly terminated.

Therefore, the party you contracted the subsequent marriage in bad faith is also not immune
from an action to declare his subsequent marriage void for being bigamous.
Santos v. Santos

The Supreme Court held that while a petition for declaration of nullity of marriage may be filed
solely by the husband and wife, for the purpose of not only terminating the subsequent marriage but
also nullifying the effects of the declaration of presumptive death and the subsequent marriage,
mere filing of an affidavit of appearance will not suffice. Here, the petitioner’s choice to file an
action for annulment of judgment will therefore lie.

Matias v. Court of Appeals

It was held that Art. 41 of the Family Code applies only when a person seeks to remarry and not
when the present spouse intends to get the absentee spouse’s SSS benefits.

Void and Voidable Marriages:

● Distinctions

A marriage that is annullable is valid until otherwise declared by the court, whereas
marriage that is void ab initio is considered as having never to have taken place and
cannot be the source of rights.

A voidable marriage can generally be ratified or confirmed by free cohabitation or

prescription, while a void marriage can never be ratified.

A voidable marriage cannot be assailed collaterally except in a direct proceeding,

while a void marriage can be attacked collaterally.

A void marriage can be questioned even after the death of either party, but voidable
marriages can be assailed only during the lifetime of the parties and not after the
death, in which case, the parties and their offspring will be left as if the marriage had
been perfectly valid.

● The action or defense for nullity is imprescriptible, unlike voidable marriages where the
action prescribes.

Only the parties to a voidable marriage can assail it, but any proper interested party may
attack a void marriage.
 Lastly, void marriages have no legal effect except those declared by law concerning the
properties of the alleged spouse regarding co-ownership or ownership through actual joint
contribution and its effect on the children born to such void marriages, as provided in Art. 50.
On the contrary, the property regime governing voidable marriages is generally conjugal
partnership or absolute community, and the children conceived before its annulment are
legitimate.

● Property relations of a void marriage:

Valdez v. Regional Trial Court

The Supreme Court held that in a void marriage, regardless of the cause thereof, the property
relations of the parties during the period of cohabitation is governed by the provisions of either Art.
147 or 148 of the Family Code.

Under the property regime described in Art. 147, property acquired by both spouses through their
work and industry shall be governed by the rules on equal co-ownership, and a property acquired
during the union is prima facie presumed to have been obtained through their joint efforts.

A party who did not participate in the acquisition of the property shall be considered as having
contributed thereto jointly if said party’s effort consisted in the care and maintenance of the family
and of the household.

Unlike the conjugal partnership of gains, the fruits of the couple’s separate properties are not
included in the co-ownership, meanwhile under the property regime described in Art. 148, when the
common law spouses suffer from a legal impediment to marry, or when they do not live exclusively
with each other as husband and wife, only the property acquired by both of them through their
actual joint contribution of money, property or industry shall be owned in common and in
proportion to their respective contributions.

Such contributions and corresponding shares however are prima facie presumed to be equal.

The share of any party who is married to another shall accrue to the absolute community or conjugal
partnership as the case may be, if so existing under a valid marriage, and the party who has acted in
bad faith is not validly married to another, his or her share shall be forfeited in the manner
prescribed under Art. 147.
The SC also declared that in the liquidation and partition of the property owned in common by the
parties falling under their relationship described under Art. 147 and 148, the provisions on
co-ownership under the Civil Code will apply, which means that the rules set up to govern the
liquidation of either the absolute community or the conjugal partnership of gains, their property
regime recognized for valid and voidable marriages are irrelevant to the liquidation of the
co-ownership that exists between common-law spouses.

Republic v. Villacorta

The SC held that the concealed pregnancy which will vitiate consent must have existed at the time
of the marriage. It is the concealment of the fact of pregnancy of another man at the time of the
marriage that constitutes fraud as a ground for annulment; not pregnancy before the marriage.

Thus, if the wife had previous relations with other men and as a consequence of which, she became
pregnant or bore a child previously, the concealment thereof will not be a ground for annulling the
marriage if at the time the marriage was celebrated, the wife was not pregnant at all.

The incapacity of a party to consummate marriage must exist at the time of the marriage and not
thereafter.

This ground may not be ratified by cohabitation, which means that the injured spouse will not be
estopped from filing the action for annulment even after learning of the defendant’s incapacity. He
or she has cohabited with the other, it is expected that the spouses will try to do everything to
consummate their marriage.

Sexually transmissible disease as a ground for annulment of marriage:

● The fact that the injured spouse was informed of it at the time of the celebration of marriage
is immaterial.

● This ground may not be ratified by subsequent cohabitation, because it is not based on
vitiated consent, but on the fact that the STD is serious and incurable.

However, if the defendant contracted the STD after the marriage, even if it was serious and
incurable, it may not be used as basis to file an action for the annulment of marriage,
although it may constitute as a ground for legal separation.
 If the STD was concealed, the same may constitute fraud and serve as a separate ground for
the annulment of marriage even if the STD was not serious and incurable.

● In all cases of annulment, declaration of nullity of marriage, and legal separation, the
prosecuting attorney or fiscal is ordered to appear on behalf of the state for the purpose of
preventing any collusion between the parties, and to take care that the evidence is not
fabricated or suppressed.

If the defendant spouse therefore fails to answer the complaint, the court cannot declare him
or her in default, but instead the court should order the prosecuting attorney to determine if
collusion exists between the parties.

The prosecuting attorney or fiscal may oppose the application for legal separation or
annulment through the presentation of his own evidence if in his opinion, the proof adduced
is dubious and fabricated.

On confession of judgment:

De Ocampo v. Florenciano

The SC made a qualification to the effect that even supposing that the statement of the defendant
constituted practically a confession of judgment, in as much as there is evidence of adultery,
independent of such statement, the decree may and should be granted since it would not be based
on her confession, but upon evidence presented by the plaintiff.

What the law prohibits here is a judgment based exclusively or mainly on the defendant’s confession.

● Voluntary separation of property agreed upon by the parties via a compromise agreement,
duly approved by the court prior to the judicial declaration of nullity of marriage is valid.

On legal separation:

● An action for legal separation which involves nothing more than a bed and board separation of
the spouses is purely personal.
 Only the innocent spouse may file the action to claim legal separation, and the spouses can by
their reconciliation, stop or abate the proceedings and even rescind a decree of legal
separation already rendered.

● Being personal in character, it follows that the death of one party to the action causes the
death of the action itself.

On donations:

● Every donation or grant of gratuitous advantage, direct or indirect between the spouses
during their marriage shall be void, except moderate gifts which the spouses may give each
other on the occasion of any family rejoicing.

The prohibition shall also apply to persons living together as husband and wife without a valid
marriage.

Agapay v Palang

The woman, a concubine, 22 years old, bought a property with the money provided by the man, who
directed the property be placed in her name alone as the vendee. The transaction was properly a
donation, but one which was clearly void and inexistent by express provision of the law because it
was made between persons guilty of adultery or concubinage at the time of the donation, under
Art. 739 of the Civil Code.

In addition Art. 87 of the FC expressly provides that the prohibition against donation between
spouses now applies to donations between persons living together as husband and wife without a
valid marriage.

For otherwise, the condition of those who incurred guilt would turn out to be better than those in
legal union.

● The spouse may donate a property belonging to the absolute community or conjugal
partnership provided it is moderate and intended for charity, family rejoicing, or family
distress.
On expenses for support:

● The spouses are jointly responsible for the support of the family. The expenses for such
support and other obligations shall be paid from the community property and in the absence
thereof, from the income of each of the separate property.

● In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied
from the separate properties, and their liability is solidary.

● The support of the spouse, their common children and legitimate children of either spouse,
shall be charged against the absolute community or conjugal partnership.

However, the support of illegitimate children, shall be paid from the separate property of the
spouse responsible for giving that support.

● More particularly, in case of legitimate ascendants, descendants, where their

legitimate or illegitimate, and brothers and sisters, whether legitimately or
illegitimately related, only the separate property of the person obliged to give support
shall be answerable.

● In case the obligor had no property, the absolute community or the conjugal
partnership, if financially capable, shall advance the support, which shall be deducted
from the share of the spouse obliged upon the liquidation of the absolute community
or the conjugal partnership.

On presumption of conjugality of a property:

● The presumption of conjugality of a property arises as long as it is shown that it is acquired

during the marriage.

It is not even necessary to prove that the properties were acquired by the funds of the
partnership. In fact, even when the manner in which the properties were acquired does not
appear, that presumption will still apply.

The presumption shall subsist in the absence of clear, satisfactory and convincing evidence to
overcome the same.
 The Benefit to the family must be direct and not just a byproduct or spinoff of the loan
itself.

● Where a husband therefore contracts obligations on behalf of the family, or of the family
business, the law presumes and rightly so that such obligation will redound to the benefit of
the conjugal partnership.
‘
● Note that all debts and obligations contracted during the marriage by the designated
administrator spouse for the benefit of the community of property or by both spouses or by
one spouse with the consent of the other may be charged against the absolute community or
conjugal partnership.

● Debts and obligations contracted by either spouse without the consent of the other may also
be charged against the absolute community or conjugal partnership, only to the extent that
the family may have been benefited.
 PROPERTY

Let’s talk about the laws on property

● Property is not limited to that which is already possessed or owned by man. If you read Art.
414, a property refers to things which are or may be the object of appropriation. Accordingly,
there are many things which are not yet possessed or owned by man but they qualify as
property.

● Appropriability is one of the characteristics of property. The others are utility and
substantivity. It means that when you say appropriability, it means for a thing to be classified
as property, it is enough that it is susceptible of being owned or possessed by man.

So that the sunlight may qualify as a thing but it may become property once it is harnessed
and brought under the control of science like when it is converted into solar power or solar
electricity.

● Appropriability must however be distinguished from the phrase “outside the commerce of
men.” While things outside the commerce of men may not be the object of a contract, they
may not necessarily be disqualified from becoming a property under Article 414.

For instance, the properties of the public dominion like roads are outside the commerce of
men. However there are properties because they are either owned or possessed by the state
or its instrumentalities.

● Now let's go to Article 414. In Article 414, let us stress that a building is an immovable
property regardless of whether or not the steady structure and the land on which it is adhered
to belong to the same owner or whether it is erected by the owner of the land or by a
usufructuary or a lessee.

While a machinery which is movable by nature becomes immobilized when placed by the
owner of the tenement the property or plant but not so when placed by tenant, usufructuary,
or any other person having only a temporary right unless such person acted as the agent of
the owner.
Chavez vs. Public Estates Authority
G.R. No. 133250, July 9, 2002

Foreshore and submerged areas irrefutably belong to the public domain and are inalienable unless
reclaimed, classified as alienable lands open to disposition, and further declared no longer needed
for public service. Such declaration shall be in the form of a law duly enacted by congress or a
Presidential Proclamation in cases where the President is duly authorized by law.

Laurel vs. Garcia

G.R. No. 92013, July 25, 1990

For a land of public domain to be converted into patrimonial property, there must be an express
decoration in the form of a law enacted by congress or Presidential Proclamation in cases where
the President is duly authorized by law and that the public dominion property is no longer intended
for public service or the development of national wealth or that the property has been converted
into patrimonial.

Heirs of Delfin vs. National Housing Authority

G.R. No. 193618, November 28, 2016

The Supreme Court held that a mere endorsement of the Executive Secretary is not the law or
Presidential Proclamation required for converting land of the public domain into patrimonial property
and rendering susceptible to prescription.

● On ownership, we know that ownership is a real right. It is the power belonging to a person
over a specific thing without a definite passive subject against whom such right may be
enforced. Thus, it is said to be enforceable against the whole world.

Being a real right, it gives the holder or owner the right to exclude others from the enjoyment
of the thing. We have the doctrine of self help, which authorizes the owner or possessor of a
property to exclude and to use reasonable force or to use such force as may be reasonably
necessary to prevent or repel an actual or threatened, unlawful, physical invasion of his
property.

● Take note of the distinction between jus possidendi and jus possessionis. The lessee has
jus possessionis but it is the owner that has always had the right to possess or jus possidendi.
 Remember, one of the characteristics of ownership is elasticity so that an owner may give up
his possession over his property to another person. For instance, if the owner of a property
will pledge his property to another person, in such case, the right of possession is held by the
pledgee but upon the payment of the loans, subject of the pledge, the pledge is terminated
and the ownership of the property by the owner becomes full ownership; thus, will have the
right possess and the right of possession.

● There are several remedies available to recover possession. Remember in Article 433 and
434. Under ArtIcle 433 of the Civil Code, it states that actual possession under claim of
ownership raises a disputable presumption of ownership and the true owner will have to go to
court in order to recover ownership. There are therefore several remedies available to
recover possession.

● Accion Interdictal. Accion Interdictal may either be forcible entry or unlawful detainer;
while ownership carries the right of possession but the possession however contemplated by
the concept of ownership is not exactly the same as the possession in issue in a forcible entry
case. I will repeat, the nature of possession in ownership contemplated in the concept of
ownership, is not exactly the same as the possession in issue in forcible entry case.

● Possession in forcible entry suits refers to nothing more than a prior physical possession or
possession de facto. Prior physical possession or possession de facto, not possession de jure.
Title is not the issue and the absence of title is not a ground for the courts to withhold relief
from the parties in an ejectment case. Thus, in a forcible entry case, a party who can prove
prior possession can recover such possession even against the owner himself.

For instance, “yung informal settlers sa likod ng bahay ninyo, pag sinipa mo siya, hindi ka
pumunta sa korte bago siya paalisin, he can file an action for forcible entry against you even
if he is not the owner of the property.”

Possession of a property, remember, belonging to another may be tolerated or permitted even

without a prior contract between the parties so long as there is an implied promise that the
occupant will vacate upon demand.

● Refusal to vacate despite demand will give rise to an action for summary ejectment of
unlawful detainer.
 So the other remedy under Accion Interdictal apart from forcible entry is unlawful detainer. In
forcible entry, the entry into the property is from the beginning, unlawful. On the other hand,
an unlawful detainer, the entry into the property initially was lawful. So unlawful detainer
is the action that must be brought when possession by a landlord, vendor, vendee or other
person of any land or building is being unlawfully withheld after the expiration or termination
of the right to hold possession by virtue of any contract.

● So that the lessee, if after their expiration of the contract of lease, refuses to leave the
property and turn over the property to the owner, then the proper remedy, the action that
must be filed is unlawful detainer. Possession is lawful here from the beginning. It must be
brought within one year from the time the possession becomes unlawful. If the period, again,
is one year from the expiration of the lease or if the reason is non-payment of rent, one year
from the demand to vacate.

● The issue here, similar to forcible entry, is mere physical possession and not juridical
possession, nor ownership. Let me stress, that in unlawful detainer, a demand is a
prerequisite to an action for unlawful detainer when the action is based on failure to pay
rent due, or to comply with the conditions of his lease but not where the action is to
terminate the lease because of the expiration of its term.

I will repeat, in unlawful detainer, a demand is a prerequisite to an action for unlawful

detainer when the action is based on failure to pay rent, due, or to comply with the
conditions of his lease. But demand is not a prerequisite where the action is to terminate the
lease because of the expiration of its term.

The jurisdictional requirement of prior demand therefore is unnecessary if the action is

premised on the termination of the lease due to expiration of the terms of contract. The
complaint must be brought on the allegation that the lease has expired and the lessor
demanded the lessee to vacate not on the allegation that the lessee failed to pay rent.

The cause of action which would give rise to an ejectment case would be the expiration of
the lease. Thus, the requirement under the rules of a prior demand to pay or to comply with
the conditions of the lease and to vacate would be unnecessary.
 Apart from Accion Interdictal we have Accion Publiciana or a plenary action. This is the
action for the recovery of the better right to possess. It must be brought within ten years. In
other words, if you fail to file an action for forcible entry within the period of one year or an
action for unlawful detainer within a period of one year, then you may still have 10-year
period to file an action for action publiciana. This is the action for recovery of the better
right to possess. The issue involved here is who has the better right to possess or de jure and
not de facto possession.

● The other case or remedy that may be filed is Accion Reivindicatoria. This is an action to
recover ownership over real property. I will repeat, this is an action to recover ownership.
Possession is only an incident to ownership. This is an action to recover ownership over real
property. This must be brought within ten years or thirty years depending on whether the
other party seeks to obtain ownership through ordinary or extraordinary prescription.

The issue involved here is one of ownership. So an accion reivindicatoria is a suit which has
for its object the recovery of possession over real property as owner. It is different from
accion publiciana or the plaintiff merely alleged proof of better right to possess without claim
of title. Note that the doctrine of self help is available not only to the owners of the property
but also to any of his lawful possessors.

● Ownership may be acquired by prescription. If in good faith, you have ten years. But it must
be with just title and adverse possession. If in bad faith, you have 30 years by adverse
possession. It is [a] well settled rule, however, that a title, when registered or falls under a
Torrens system, cannot be defeated even by adverse, open, and notorious possession.

● Take note that right of accession or jus accessionis is another attribute of ownership. Jus
possidendi is another attribute of ownership. Our laws on property provide that the ownership
of property gives the right by accession to everything which is produced thereby or which is
incorporated or attached thereto either naturally or artificially.

● So meron tayong accession discreta, yung accession, the right of the owner to everything
which is produced by the property which includes natural, industrial, and civil fruits.
● And accession continua, which may either be accession industrial, accession natural and
accession with respect to movable properties.

● So under Art. 445, whatever is built, planted, or sown on the land of another and
improvements or repairs made thereon, belong to the owner of the land. Thus, even if the
land was being leased when the roads were constructed, the ownership of the improvement
belongs to the owner of the land, not to the lessee.

● Under Art. 433, I will repeat, the Civil Code provides that actual possession under claim of
ownership raises a disputable presumption of ownership. Mere possession of the land was
not adverse against the owner and was sufficient therefore to vest title unless such possession
was accompanied by the intent to possess as an owner which means that the possession must
be in the concept of an owner, not in the concept of a holder.

● Art. 448 of the Civil Code therefore cannot apply where a co-owner builds, plants, or sows on
the land owned in common for then he did not build, plant, or sow upon the land that
exclusively belongs to another but of which he is a co-owner. The co-owner is not a third
person under the circumstances and the situation is governed by the rules of co-ownership.

However, when the co-ownership is terminated by the partition and it appears that the house
of the defendant overlaps or occupies a portion of 5 square meters of the land pertaining to
the plaintiff which the defendants obviously built in good faith, the provisions of Art. 448 of
the New Civil Code apply.

I will repeat, generally speaking, a co-owner who builds, plants, or sows on the land owned in
common is not a builder in good faith because as a co-owner, he builds on a property that
does not belong to another but on the property of which he is a co-owner. A co-owner is not a
third person under the circumstances and the situation is governed by the rules of
co-ownership. However, when the co-ownership is terminated by partition and it appears
that the house of a co-owner overlaps or occupies a portion of five square meters of the land
belonging to his co-owners and which he built in good faith, the provision of Art. 448 of the
Civil Code should apply.

● Take note that if the possessor is a builder in good faith which means that he erected in good
faith on the land, a building, owned by another is entitled to the possession of the land or he's
entitled to the right of retention until has paid the value of the building.
 The owner of the land on the other hand has the option either to pay for the building or to
sell his land to the owner of the building. But he cannot refuse both to pay for the building
and sell the land and compel the owner of the building to simply remove it from the land
where it is erected. The owner is only entitled to the remedy of removal after he has chosen
to sell the land and the other party fails to pay for the same.

Take note, I will repeat, to be deemed a builder in good faith, it is essential that a person
asserts title to the land on which he builds, that he is a possessor in the concept of an
owner, and that he is unaware that there exists in his title or mode of acquisition a flaw
which invalidates it. Therefore, Art. 448 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 a specific legislation on the property and by contract.

Geminiano vs Court of Appeals

G.R. No. 120303, July 24, 1996

The Supreme Court declared that a lessee is not a builder in good faith. Being mere lessees,
the private respondents knew that their occupation of the premises would continue only for
the life of the lease. Plainly, they cannot be considered as possessors nor builders in good
faith.

So that the provision which allows full reimbursement of useful improvements and retention
of the premises until reimbursement is made applies only to a possessor in good faith. One
who builds on the land with the belief that he is the owner thereof 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.

● The applicable law on lease which provides that if the lessee makes in good faith, useful
improvements which are suitable for the use for which the lease is intended, without altering
the form or substance of the property lease, the lessor, upon the termination of the lease,
shall pay the lessee one half of the value of the improvements at the time. Should the
lessor refuse to reimburse said amount, the lessee may remove the improvements even
though the principal thing may suffer damage thereby.
 He shall not, however, cause any more impairment upon the property leased than it is
necessary. The right of reimbursement arises only if the lessor opts to appropriate
improvements. In this case, there was no indication that the respondents chose appropriate
improvements. Thus, they cannot be compelled to pay one half of its value.

● In another case, the Supreme Court held that under Art. 448, in case the trial court
determines that the value of the land is considerably more than the value of the buildings
and improvements, the possessor- the builder may not be compelled to pay the value of
the land. Instead, he shall pay reasonable rent upon the agreement of the parties on the
terms of the lease. In the event of disagreement between the parties, the court shall fix the
terms of the lease.

Republic vs. Holy Trinity

GR No. 172410. April 14, 2008

The Supreme Court has declared that upon deposit by the appropriator of the amount fixed for just
compensation, the owner whose property is sought to be expropriated becomes the owner of the
deposited amount.

On co-ownership:

● There is co-ownership when the different portions owned by different people are already
completely determined and separately identifiable even if not yet technically described.
Take note, that co-ownership only exists for the owners while the property is not yet
physically divided. Although the ideal or fractional or aliquot share is already determined so
where the property is not yet physically divided, a co-owner cannot point to a specific portion
of the property owned in common as his own because his share remains intangible. The
co-owners can either exercise an equal right to live in the house or agree to lease it,
meaning, the co-owners may either agree, they can live together, or anyone of them in the
house owned in common, or they can agree to lease it to a third person. If however, they fail
to exercise any of these options, it would be unjust to require a co-owner who chose to live in
the house to pay rent, after the co-owners, by their silence, have allowed that co-owner to
use the property.
● This one is very important. Where a co-owner may bring an action in ejectment, it includes
all the remedies in order to recover property. It includes forcible entry, unlawful detainer,
action publiciana, action reivindicatoria. So the rule here is where a co-owner may bring an
action in ejectment, without the necessity of joining all the other co-owners as co-plaintiffs
because the suit is deemed to be instituted for the benefit of all. Any adverse judgment
cannot prejudice the rights of the unimpleaded co-owners.

● However, any judgment of the court in favor of the co-owner will benefit the co-owners. A
co-owner has an absolute ownership of his undivided share in the common property. This is to
be distinguished from the provision on Art. 147, paragraph 3, of the Family Code.

● Under the Civil Code, generally speaking, a co-owner has absolute ownership of his
undivided share of the common property and therefore he has the right to alienate or
mortgage his undivided share. The effect of such alienation, however, or mortgage with
respect to the co-owners, shall be limited to the portion that may be allotted to him in the
division upon determination of the co-ownership.

● If a co-owner sells the whole property as is, the sale will affect only his own share but not
those of the other co-owners who did not consent to the sale. Take note under Art. 147 of
the Family Code, paragraph 3, a party who cohabited with the other cannot sell or mortgage
his or her share in the property that they acquired during their cohabitation without the
consent of the other until the termination of the co-ownership.

● Although their property relation is governed by co-ownership but while under the Civil Code,
a co-owner may alienate or share his undivided share with respect to parties living together
as husband and wife without the benefit of marriage or under a void marriage, they
cannot sell or mortgage their respective, undivided share in the property owned or
acquired by them during their cohabitation, without the consent of the other, and until
the termination of their cohabitation.

● An individual co-owner in one case decided by the Supreme Court, an individual co-owner
cannot adjudicate to himself or claim title to any definite portion of the land or thing owned
in common until its actual partition by agreement or judicial decree. What a co-owner may
dispose of is only his undivided aliquot share which shall be limited to the portion that may be
allotted to him. Before partition, a co-heir can only sell his successional rights; however, the
sale prior to partition will not invalidate the sale. However, the interest thereby acquired by
 buyers are limited only to the parts that may be ultimately assigned to a co-owners that sold
the portion of the property upon the partition of the estate.

Cabrera vs. Isaac

G.R. No. 166790, November 19, 2014

A sale by a co-owner of a definite portion of undivided property is void. At the time of the
alleged sale, the entire property was still held in common. The rules allow respondent to sell
his undivided interest in the co-ownership; however, a co-owner has no right to sell or
alienate a concrete, specific, or determinate part of the thing owned in common because his
right over the thing is represented by a quota or ideal portion without physical adjudication.

On possession:

● Even if the possessor is aware that there is a flaw in his title resulting in its invalidation, so long
as he claims ownership of the property and does not acknowledge in another, is superior right, he
is nonetheless considered a possessor in the concept of an owner.

● One whose interest is merely that of a holder such as a mere tenant, an agent, or usufructuary, is
not qualified to become a builder in good faith.

● Only possession acquired and enjoyed in the concept of an owner can serve as a title for
acquiring dominion.

● If a possession of another lasts for more than one year, only possession de facto is lost but not
the real right of possession. Possession de jure is not lost until after the lapse of ten years.

On usufruct:

● Usufruct is a real right of a temporary character which authorizes the holder to enjoy all the
utilities which result from the normal exploitation of the property of another in accordance with
its destination and which imposes the obligation of restoring at the time specified, either the
thing itself or in special cases is equivalent.

● So the main obligation of the usufructuary is to preserve the form and substance of the
property subject of the usufruct. The exception is in the case of an abnormal usufruct where
the property subject of this usufruct is a property that deteriorates through wear and tear.
Quasi-usufruct:

● Where the property subject of the usufruct is a consumable thing. In quasi-usufruct, the
ownership of the property is transferred to the borrower, whereas, thru usufruct, the naked
owner retains the ownership of the property subject of the usufruct.

● The right of enjoyment of the usufructuary extends to all the accessions which the property held
and usufruct may acquire to the servitudes or easements established in favor of such property as
well as to the benefits inherent in the property.

On easement:

The rule is that easement of right of way shall be established at the point least prejudicial to the
estate and where the distance from the dominant estate to a public highway may be the shortest. So
the convenience of the dominant estate’s owner is not the basis for granting an easement of right of
way, especially if the owner’s needs may be satisfied without imposing the easement.

● Easement of light and view consists of two easements; namely, the easement of light, which is to
allow sunlight to get inside the property; and easement of view, so that one can have a view of
his surroundings.

● Easement of light and view is a continuous and apparent easement; therefore, it may be acquired
by prescription. However, the rules to acquire this by prescription differs, depending on whether
the easement is a positive easement or a negative easement.

● An easement of light and view is a positive easement if the opening is made through a party wall.
Here, the party wall being owned by the owners of both sides, making an opening through the
party wall would mean that the owner of the other side is allowing it. So that if he does not
close it for ten ( 10 ) years, then the easement of light and view is deemed to have been acquired
by prescription. On the other hand, if the opening or the window is open not thru a party wall but
thru the wall of the dominant estate, then what may be acquired would be a negative easement
of light and view, meaning, you’re trying to prevent your neighbor from blocking your view.
However, to acquire this kind of easement, it is necessary that the dominant estate observes a
distance of at least two ( 2 ) meters between the wall and the boundary of your neighbor’s
property.
 Otherwise, no easement may be acquired and the kind of window that may be opened is only a
restricted window, in order to allow light and some air.

In addition, in order to acquire a negative easement of light and view, the dominant estate must
serve upon the owner of the servient estate a notarized prohibition, prohibiting him from
blocking your view which he could do without the easement.

SUCCESSION

● Succession is opened upon death of the decedent.

Treyes v. Larlar

The Supreme Court dealt with the right of the heir to inheritance. In that case, Rosie Treyes died and
was survived by her husband, Dr. Treyes and seven siblings. In this case, the surviving spouse
adjudicated to himself all of the properties left by Rosie Treyes, and when the siblings filed an action
for the annulment for the affidavit of adjudication and the transfer of the properties of the wife to
the husband alone. Dr Treyes argued that they do not have personality until they are declared as
heirs.

According to the Supreme Court, no judicial declaration of heirship is necessary in order that an
heir may assert his/her right to the property of the deceased. The right to assert a cause of action as
an heir, although he has not been judicially declared to be so, if duly proven is well-settled in this
jurisdiction.

The property of the deceased person, both real and personal, becomes the property of the heir by
the mere fact of death of his predecessor-in-interest, and as such can deal with it precisely in the
same way in which the deceased could have dealt subject only to the limitations or contract may be
imposed upon the deceased himself.

Accordingly, from the moment of the death of the decedent, the heirs become the absolute owners
of his properties, subject to the rights and obligations of the decedent. The right of the heirs to the
properties of the deceased vest in them even before judicial declaration of them being heirs in the
testate or intestate proceedings.
Uson v. Del Rosario

The Supreme Court held that although the lawful wife has expressly renounced her right to inherit
any future property that her husband may acquire and leave upon his death. Such renunciation
cannot be entertained for the reason that future inheritance cannot be the subject of a contract
nor can it be renounced.

Note that Art. 1080 of the Civil Code allows a person to make a partition of his estate either by an
act inter vivos or by will and such partition shall be respected in so far as it does not prejudice the
legitime of the compulsory heirs. While the law prohibits contracts upon future inheritance, the
partition by the parent as provided under Art. 1080 is a case expressly authorized by law.

Under Art 1080 of the Civil Code, clearly gives a person two options in making partition of his estate,
either by an inter vivos or by will when a person makes a partition by will, it is imperative that such
partition must be executed in accordance with the provisions of the law on wills. However, when the
person makes the partition of his estate by an act inter vivos, such partition 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
the compulsory heirs.

Will
● Take note that the making of a will is strictly a personal act. The duration or efficacy of the
designation of heirs, devisees, or legatees, or the determination of the portions which they
are to take, when referred to by name, cannot be left to the discretion of a third person.

● The testator may not also make a testamentary disposition where another person has to
determine whether or not the will is to be operative. However, the testator may entrust to a
third person the distribution of specific property or sums of money that the testator may
leave in general to specified classes or causes.

● Note that when an uncertainty arises on the face of the will as to the application of its
provisions or when there is an imperfect description of the identity of the heirs, the testator’s
intention may be ascertained from the word of the will itself, taking into consideration of the
circumstances of which it was made but not, but excluding, however, oral declarations of the
testator.
The Qualification of a Testator

● The qualification of a testator must be 18 years of age, at least and he must be of sound
mind.

● To be of sound mind, however, it is sufficient that the testator was, at the time of making the
will, able to know the nature of estate to be disposed of, the proper objects of his bounty
and the character of the testamentary act.

● When you say ‘the nature of the estate to be disposed of’, meaning he knows what are his
properties, when he knows the ‘proper objects of his bounty’ it means that the testator
knows to whom he is giving his properties. The person he instituted is known to him.and the
character of testamentary act means that there is animus testandi and the testator must be
of sound mind.

○ The sound mind does not require that the testator be in full possession of all his
reasoning faculties or that his mind is wholly broken, unimpaired or shattered by
injury or other cause. However, insanity is presumed, one month or less, before
making his will, publicly known to be insane or testator, makes a will after being
judicially declared insane or before the order is set aside.

● Note that a notarial will must be attested and subscribed by three or more credible
witnesses, in the presence of the testator and in the presence of each other.
○ The term ‘in the presence’ does not require actual seeing but that the testator and
the witnesses be so placed that they can see, if they wish, without changing their
relative positions, by merely casting their eyes in that proper direction.

● Note that the attestation clause may be incorporated in the will itself or may be written in a
separate page that need not be signed by the testator.

● Very important, under Art. 823, a devise or legacy to the attesting witness or to his spouse,
parent or child, or anyone claiming under the same is void unless there are three other
competent or disinterested witnesses to the will. However, the person so attesting shall be
admitted as a witness as if the devise or legacy had not been made.
 ● Note that a forced heir is a competent witness and does not lose his legitime that he owes
exclusively to the law but he will lose all his devises or legacies in his favor chargeable to the
free portion.

Revocation of Wills
● Waiver or restriction of the right to revoke a will is void. If the recovcation is made to
depend upon a condition, the non-fulfillment of the condition bars the revocation.

● Thus, if the testator who desires to make a new will cancels the old will by physical
destruction preparing to make a new one and thereafter fails to execute the same or has
invalid disposition, it is presumed that he preferred testacy over intestacy therefore the old
will is not revoked. → This is the Doctrine of Relative Revocation.

● If the will is burned, torn, canceled or obliterated without express direction of the testator,
the will may still be established, proved, and probated, and the estate distributed accordingly
upon proof of its contents and due execution and authorized destruction.

● This is true because even if a will is revoked, that revocation will not be effective if it is not
coupled with animus revocandi or the intention of the testator to revoke the will.

Take note that in animus revocandi, the testator must be of sound mind. Mere intention to
revoke without actual mutilation or destruction does not revoke even if the destruction is
prevented by another person but the latter is incapacitated to inherit. The destruction need
not be of the whole paper.

● If a will executed and kept under the control of the testator cannot be found after his death,
the presumption is that the testator revoked the will, this is the Doctrine of Presumed
Revocation.

● A revocation of a will based on force or an illegal cause is null and void.

Preterition

● Preterition is the omission of one, some or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devises and legacies shall be valid insofar as they
are not inofficious.

So long, however, as the heir gratuitously receives any property at any time, his omission or
preterition does not annul the institution of the heir, but entitles that compulsory heir to
demand merely that his legitime be completed.

Disinheritance

● Disinheritance that is without a specification of the cause, or for a cause the truth of which,
if contradicted, is not proved, or which is not one of those set forth in the Civil Code, shall
annul the institution of heirs insofar as it may prejudice the person disinherited; but the
devises and legacies and other testamentary dispositions shall be valid to such extent as will
not impair the legitime.

Substitution

● The case of simple substitution as distinguished from fideicommissary substitution.

SIMPLE SUBSTITUTION FIDEICOMMISSARY SUBSTITUTION

● In simple substitution, the substitution, ● With respect to fideicommissary

the right of the substitute, is subject to substitution, both the original heir and
the happening of the future and the substitute inherit at the same time
uncertain event, which is either that of from the testator but the possession and
the predecease of the first heir or the enjoyment is held by the fiduciary of the
repudiation of his inheritance by the fideicommissary but the enjoyment and
first heir or incapacity of the first heir. possession is successive.
● If any of those will happen, then the
right of the substitute will arise.
Institution of Heirs

● The Sabinian Doctrine on Art. 873 on institution of heirs, states that impossible, illegal, and
immoral conditions are considered not imposed. Therefore, the effect is that of a pure
institution.

● An absolute condition, in relation to this, an absolute condition not to contract marriage shall
be considered as not written. It is contrary to morals and public policy because it would
deprive a person of one of his inherent or inalienable rights, which is to choose one’s status in
life.
○ However, if the condition is imposed by the deceased spouse, or his ascendant or
descendant, upon his widow or widower, such is valid but if it will only apply to
legitime and the condition is resolutory.
○ A condition not to contract a first marriage, may also be valid, if it is relative. For
instance, if it is a condition not to contract marriage with a determinate person.

● Grandchildren inherit by right of representation except in case that all of those nearer
degree repudiate inheritance when those of the next degree succeed in their own right.
Representation takes place when in case the nearer decedent predeceases, incapacitated or
disinherited but not if he repudiates. Those succeeding in representation shall not inherit
more than what the person they represent would inherit. If living or able to succeed unless all
the nearer degree have repudiated.

● The testator cannot deprive his compulsory heirs of their legitime except in cases of
disinheritance. Neither can the testator impose upon the same any burden, condition or
substitution of any kind whatsoever

Take note that disinheritance applies only to forced heirs. Disinheritance implies revocation of
legacies to the disinherited heir unless the testator otherwise provides.

A subsequent reconciliation between the offender and the offended person deprives the
latter the right to disinherit and renders ineffectual any disinheritance that may have been
made.

In intestate succession, nephews and nieces can represent if they concur with their uncles
and aunts. If they are alone, they inherit equally, not by right of representation.
 OBLIGATIONS AND CONTRACTS

● In breach of contract, negligence is presumed, so long as it can be proved that there is breach of
contract.

Who has the burden to prove? The defendant to prove that there was no negligence in
carrying out terms of contract.

● Additionally, in Breach of Contract, the principle of respondeat superior is followed. This means
when there is a breach of Contract, it is irrelevant for the employer to prove that it had
exercised due care in the instruction or selection of his employees. This is because negligence is
presumed.

In quasi-delict, negligence is direct, substantive and independent.

- Here, unlike in cases of Culpa contractual - the defense of diligence of a good father of a
family is an incomplete defense insofar as parents, guardians, and employers are concerned.

- In Quasi-Delict, there is no presumption of negligence, and it is incumbent on the injured

party to prove negligence of the defendant, the injury, and the proximate cause (Connection
between the negligence and the injury, otherwise the complaint will be dismissed.

● Art. 2180 of NCC provides that the obligation arising from quasi-delict is demandable not only
for one’s own acts or omissions but also for those persons for whom one is responsible
(vicarious liability)

Valenzuela vs. CA

An employer is liable for the negligence of his employees in the discharge of his respective duties,
the basis of which is not respondeat superior, but based on the relationship of pater familias.

● Pater Familias - the theory which bases the liability of the master, ultimately on his own
negligence, and not that of his servant. Before an employer may be held liable for the
negligence of his employee, the act or omission which caused damage must have occurred
when the employee in the actual performance of his assigned tasks or duties. This includes,
any act done by an employee in furtherance of the interests of the employer or on the
 account of the employer at the time of the infliction of the injury or damage. An employer is
expected to impose on its employees the necessary discipline called for the performance of
any act indispensable to the business and beneficial to their employer.

● Bonus pater familias - the responsibility treated under Art. 2180 on vicarious liability shall
cease when the persons mentioned therein proved that they observed DOAGFOAF to prevent
damage.

● Doctrine of assumption of risk - One who voluntarily exposes himself to an obvious known
and appreciated danger assumes the risk of injury that may result therefrom. It rests on the
fact that the person injured has consented to relieve the defendant of obligation of conduct
toward him. Whether he exercised caution or not, is immaterial. (Acceptance of a known and
appreciated risk; VOLENTI NON FIT INJURIA)

● Example: Contract for a piece of work - If he states that the contractor bound himself
to furnish the material, he shall suffer the loss if the work should be destroyed before
its delivery save when there has been delay in receiving it.

● Subsidiary liability of employer - Is an offshoot of the civil action for compensation from civil
liability arising from acts or omissions punished by law. An employer’’s liability in the finding
of guilt against the accused employee is subsidiary. It automatically arises upon the
employee’s conviction and subsequent proof of inability to pay or insolvency.

The employer cannot dispute the civil liability fixed in a criminal case, otherwise, it would
enable them to amend, nullify or defeat a final judgment. The decision convicting an
employee in a criminal case is binding and conclusive upon the liability and amount. It cannot
be separated.

There must be adequate evidence establishing that they are indeed the employers, that the
former are engaged in some kind of industry, that the crime was committed in the discharge
of their duties, that the execution against the latter has not been satisfied due to insolvency.
Obligations may be pure or conditional, or subject to a period.

● Conditional - The acquisition of rights and extinguishment, or loss of those already acquired shall
depend on the happening of the event which constitutes the condition.

● Suspensive - The demandability of its performance including the acquisition and effectivity of
rights arising therefrom are suspended pending the fulfillment of the condition.

Sps. Garcia vs. CA

In a contract to sell, payment of the full purchase price is a positive suspensive condition the
failure of which is not considered a breach, but an occurrence which prevents the obligation of the
seller from transferring the title from being effective.

Romero v CA

SC interpreted the legal effect of a condition in a deed of sale, that the balance of the purchase
price would be paid by the vendee when the vendor has successfully ejected the informal settlers as
not effecting the perfection of the contract but only imposes as a condition the fulfillment of the
condition to pay the balance of the purchase price.

Payment: failure to encash a check delivered to a creditor within a reasonable time produces effect
of payment.

Evangelista vs. Screenex

The payees’ act of keeping the checks in a safe and forgetting to demand the payment of the loan,
either by encashing a check or demanding from terh payor, constitutes an impairment of the check’s
function as security or conditional payment of the loan amount. Hence the payor debtor is
discharged from his obligation to pay and cannot be announced civilly liable for the amounts
indicated thereon.
Rescission of reciprocal obligations

● Where there is no just cause for the fixing of the period, the court may order rescission under
Art. 1197 where it allows the court to fix the duration or period when, from the nature and
circumstances of the obligation, a period was intended and when the fulfillment of the
obligation itself cannot be demanded until after the court has fixed the period for compliance
therewith, the court may order for rescission.

● The failure of the parties to comply with reciprocal obligation allows the wronged party to
seek the remedy of art 1191. The wronged party is entitled to rescission under 1191 and even
the payment of damages.

● Rescission under 1191 is a principal action because it is a remedy for the violation of a
principal pre-station however it will not be permitted for slight or casual breach of contract,
but only for substantial breach as to defeat the object of the parties in making the
agreement.

● Art. 1381 and Art. 1383 on rescission of contracts, pertains to rescission where creditors and
even third persons, not privy to the contract can file an action for rescission due to lesion or
damage as a result of the contract. It is a subsidiary remedy.

● Rescission or resolution under Art. 1191 therefore, is a principal action because of the breach
of a contract and it is immediately available to the party at the time the principal pre station
was breached.

● If a contract of donation provides for automatic rescission or reversion in case of breach of a

condition and the donee violates it, the property donated automatically reverts back to the
donor w/o need of any judicial declaration. It is only when the donee denies the rescission or
challenges its propriety that the court can intervene to conclusively settle whether the
resolution was proper.
PEZA v Philhino sales
Mutual rescission or mutual restitution under Art. 1191 will not negate the contractually
stipulated liquidated damages, because Art. 1191 states that the options of rescission and
specific performance come with the payment of damages in either case, the very same
breach or delay in performance that triggers rescission is what makes damages due.

Delta motors vs. Genuino

Rescission will be ordered only where the breach complained of is substantial as to defeat the
object of the parties in entering into an agreement, it will not be granted where the breach is
slight or casual.

Dular vs. Brgy. Lublob

If a party in a contract of donation provides for automatic rescission or reversion in case of

breach and the donee faults to comply, the property donated automatically reverts back to
the donor without need of any judicial declaration. It is only when the donee denies the
rescission or challenges is propriety that the court can intervene to settle whether the
resolution is proper

Velarde v CA

Rescission abrogates the contract from its inception and requires mutual rescission of benefits
received. Therefore rescission creates the obligation to return the object of the contract. It
can only be carried out when the one who demands rescission can return whatever he may be
obliged to restore.

Solidary obligations
● When one creditor makes a remission or condonation, it extinguishes the obligation to the
amount and extent to which it is made, but the creditor who made the remission becomes
liable to his co-creditors for his shares.

When several, but not all of the creditors, makes the remission there can be no action against
the one who made it; but all of them will be liable for the shares of the creditos who did not
remit. When one is insolvent, his share shall be paid by the others who concurred in the
remission.
 ● When the remission is in favor of a debtor and is partial, not covering his full share, his
character as a solidary debtor continues with respect to the creditors and his co-debtors, but
when the remission is for his full share in the obligation, he ceases to have any relations with
the creditors where he is released, unless the continuance of the solidary relation has been
expressly reserved in which case he shall be a surety of the other debtors.

Contracts of adhesion

● Are not invalid per se, they are binding as ordinary contracts.
● It is where one party imposes a ready made form of contract on the other.
● It is a contract where almost all of provisions are drafted by one party with the participation
of the other party being limited to affixing his signature or adhesion to the contract.

While the court has occasionally struck down contracts of adhesion as void, it did so when the
weaker party has been imposed upon in dealing with the dominant bargaining party and
reduced to the alternative of taking it or leaving it completely deprived of the opportunity to
bargain on equal footing, thus on the terms in a COA is ambiguous the ambiguity shall be
resolved against the party who prepared it.

Mutuality of contracts

● One of the fundamental characteristics of contracts. The contracts must bind both parties
based on the principles that obligations arising from contracts have the force of law between
the contracting parties and that there must be mutuality between the parties based on the
essential quality to which it is repugnant to have only one party bound by the contract,
leaving the other free therefrom.

Its ultimate purpose is to render void a contract containing a provision which makes its
fulfillment dependent exclusively on the uncontrolled will of one of the contracting parties.

Limso vs. PNB

Mutuality is absent when the interest rate in a loan agreement is set at the sole discretion of
one party on where there is no reasonable means where the other party can determine the
applicable interest rate. This is because the parties were not on equal footing when they
negotiated and concluded the terms of the contract.
Elements of contracts

● The meeting of minds need not always be put in writing, and the fact that the document has
not been signed or notarized does not mean that the contract has not been perfected.

● A binding contract may exist even when the signatures have not been affixed because
acceptance may be express or implied. Thus, the parties have been bound to consummate
the contract such as when one party fails to comply with its obligations, it entitles the other
to damages.

MRT vs. Gammon

There is a perfected contract; MRT has already awarded the contract to Gammon, and
Gammon’s acceptance of the award was already communicated to MRT before MRT could
rescind the contract. The first letter shows that Gammon’s acceptance was shown in
Gammon’s mobilization of resources to prepare the performance in advanced payment bonds
and procure the materials necessary for the performance of the project, and all that
remained was the formality of returning the contract documents which was eventually
complied by Gammon, thus there was already mutuality and absolute acceptance of the offer.

As a rule, a contract is perfected upon meeting of minds, it is perfected by mere consent,

that is from the moment there is meeting of the offer and acceptance of the thing and cause
that constitute the contract.

Art. 1934: a loan contract is perfected only upon delivery of the object of the contract.

Ong vs BPI family savings bank

When the bank approved and released the 3M out of the original 5M credit facility the
contract was perfected. Such approval and release of the amounts, although delayed,
perfected the contract between the parties. Hence bound by the said contract.

Another case on consummation:

An agreement to remit money creates a contractual obligation; And once credited to the
account of the payee, the bank has fully executed its obligation and the said agreement can
no longer be rescinded.
 The purchasers of a telegraphic transfer, upon making payment, completes the transaction
insofar as he is concerned though insofar as the remitting bank is concerned the contract is
still executory until the credit is established, thus the amount represented by telegraphic
transfer order is credited already to the account of the payee or appears in the name of the
payee and appears in the books of receiving bank, ownership of telegraphic transfer is
deemed to have been transferred to receiving bank, the local bank has been deemed to have
executed the telegraphic transfer and is no longer the owner of this telegraphic transfer
order.

● Consent must be intelligent; The one who signs the contract is presumed they know the
contents; This is true even in situations where the party is an illiterate person, if he cannot
read, they are negligent if they fail to have the contract read to them. If a person cannot
read the instrument it is his duty to procure a reliable person who can read and explain it to
him before he signs it;

● In Pari Delicto It is well-settled that the law will not relieve parties from the effects of an
unwise agreement they entered into with all the required formalities and with full awareness
of what they were doing.

● According to Jurisprudence, mere forgetfulness without evidence that the same has removed
from the person the ability to intelligently protect property rights will not by itself incapacite
a person from entering into contracts.

● On credit cards: When issuing pre-approved credit card,The CC provider must prove that
person has read and consented to the T&C of the credit card; Failure to prove consent
means that the client cannot be bound by the provision and terms and conditions of the CC
despite the fact that eh already used the credit card.

● This is true even when the client did not deny availing of the credit card by availing purchases
on it, thus the client can only be charged of legal interest, the client should not be
condemned to pay the interest and charges provided in the terms and conditions on the mere
claim of the CC provider without the client's conformity.

● Take note of the distinction between 2 kinds of fraud: The dolo incidente (incidental fraud,
only damages, cannot invalidate contract) v. dolo causante (Serious enough to make the
contract voidable)
 ● Art. 1344 in order that fraud may make a contract voidable, it should be serious and not be
employed by BOTH contracting parties.

● Incidental fraud on the other hand only obliges the person employing it to pay damages. So
that if it did not compel the imputing party to give his or her consent, it shall not serve as
basis to annul the contract in the absence of dolo causante.

On gross negligence amounting to fraud.

Blunden v union bank

Banks are required to observe a high degree of diligence in their affairs, this includes their
dealings concerning properties offered as security for loans.

A bank that wrongly advertises the area of property acquired through foreclosure because it
failed to dutifully ascertain the properties specification is grossly negligent as to practically
be in bad faith in offering the property to a prospective buyer. Any sale made in this account
is voidable due to causal fraud.

In an action to void such sales, banks cannot hide under the defense that the sale was made
on an as is where is basis; As is where is, is a stipulation where it can encompass physical
features which are readily perceptible by an ordinary person possessing no specific skills.
Here, the bank advertised a condo unit with an area of 95 sqm. before the sale, and after the
buyer occupied the unit, the buyer found out that it was only 70 sqm.

On consideration, a contract presumed to be supported by cause or consideration.

Art. 1354 - even if the cause is not stated in contract, it is presumed that it exists and is
lawful, unless the debtor proves the contrary.

Mendoza vs. Palugud

The presumption that a contract has sufficient consideration, cannot be overthrown by a

mere assertion that it has no consideration, here petitioner concedes she did not pay the
consideration for the purchase of the subject property in front or before the notary public,
she asserted the payment was made prior to the notarization of the deed of sale, as show in
her testimony.
 The deed of absolute sale itself is the proof that the sale of the property is supported by
sufficient consideration. This is anchored on the disputable presumption of consideration
inherent in every contract. Although the cause is not stated in the contract, it is presumed
that it exists and is lawful unless the debtor proves the contrary.

Disputable presumption of consideration

On reformation of instruments - may be allowed if subsequent and contemporaneous acts of

parties show that their intentions not reflected in contract.

Sales

Cebu vs Heirs of Morales

In the case of province of cebu vs heir of morales, the SC held that a formal document is not
necessary for the sale transaction to acquire a binding effect, for as long as the essential
elements of a contract of sales are proved to exist in a given transaction the contract is
deemed perfected regardless of the absence of a formal deed evidence in the same.

The SC added, the failure to pay the balance of the purchase price did not render the sale
inexistence or invalid but merely gave rise to a right in favor of the vendor to either demand
specific performance or rescission of the contract of sale. It did not abolish the contract of
sale or result in its automatic invalidation.

Bank of Commerce v Manalo

In Bank of Commerce v. Manalo, the SC held that it is not enough for the parties to agree on
the price of the property, the parties must also agree on the manner of the payment of the
price of the property to give rise to a binding and enforceable contract of sale or contract to
sell. This is because the agreement as to the manner of the payment of the price goes into
the price such that a disagreement on the manner of the payment is tantamount to a failure
to agree on the price.
A contract of sale may be absolute or conditional.

● A deed of sale is considered absolute in nature, where there is neither a stipulation in the
deed that title to the property sold is reserved to the seller until full payment of the price.
No one gives the vendor the right to unilaterally resolve the contract the moment the buyer
fails to pay within a fixed period. Ownership will then be transferred to the buyer upon
actual or constructive delivery of the property sold.

● When the sale is not absolute but conditional, such as to the contract to sell. Where
invariably the ownership of the thing sold is retained until the fulfillment of a positive
suspensive condition, the breach of the condition will prevent the obligation to convey title
from acquiring an obligatory force.

● A contract to sell must be differentiated from a conditional obligation, what characterizes a

conditional obligation is the fact that each efficacy or obligatory force is subordinated to the
happening of a future and an uncertain event so that if the suspensive condition does not take
place the parties would stand as if the conditional obligation had never existed.

● In conditional obligation, the acquisition of right as well as the extinguishment or laws of

those already acquired should depend upon the happening of the event which constitutes the
condition. So that what the condition is imposed upon the imperfection of the contract itself
the failure of the condition will prevent such perfection. If the condition is imposed on the
obligation of the party which is not fulfilled, the other party has the option of either waiving
the condition or refusing to proceed with the sale.

Recto Law
● On Recto law, the rule is in installment sales, if the action instituted is for specific
performance and the mortgaged property is subsequently attached and sold, the sale thereof
does not amount to foreclosure of the mortgage,hence, seller-creditor is entitled to
deficiency judgment

● A stipulation that installment or rent paid shall not be returned to the vendee or buyer shall
be valid in so far as same may not be unconscionable under the circumstances, thus where
the vendor elects to canceled the sale, he may not return to the vendee the installment
already made if there is an agreement to that effect provided that such agreement is not
unconscionable.
● It is worth noting that it is the fact of foreclosure and actual sale of mortgage chattel that bar
recovery of any balance of the purchaser’s outstanding obligation not satisfied by the sale,
thus if the vendor desisted on his own initiative from consummating the auction sale such
desistance was a timely disavowal of the remedy of foreclosure and the vendor can still sue
for a specific performance.

● When the property is sold at an execution sale, the judgment debtor is not required to deliver
the property sold right away because he has a period of 1 year within which to redeem the
property. In the meantime, the buyer should not take actual or physical possession of the
property, if he does so an action for unenforceable entry may be brought against him.

The period of redemption commences to run not from the date of the coction or tax sale, but
from the day the sale is registered.

● Under Art. 1592, in the sale of immovable property even though it may have been stipulated
that upon failure to pay price at time agreed upon, the rescission shall take place, the vendee
may still pay even after expiration of the period as long as no demand for rescission of the
contract has been made upon him either judicially or by notarial act after the demand, the
court may not grant him a new term.

Ramos v Herhuela

● In Ramos v Herhuela, the SC held that article 1191 and 1592 of the civil code, are applicable
to contract of sales while the maceda law applies to contract to sell. The full payment of the
purchase price in a contract to sell is a suspensive condition, the non-fulfillment of which
prevents the prospective sellers’ obligation to convey title from the coming effective.

Still in Maceda Law, the right of the buyer to refund arose only when he had only paid at least
2 installments.
Orbe v. Filinvest

In Orbe v Filinvest, the court emphasized that at least 2 years of installments means
equivalent to the totality of payments diligently or consistently made throughout a period of

2 years. The cancellation of the contract by the seller must be in accordance with section 3 of
the Maceda law which requires a notarial act of rescission and the refund to the buyer of the
full payment of the cash surrender value of the payments on the property.

Actual cancellation of the contract takes place after 30 days from receipt by the buyer of the
notice of cancellation or demand for rescission of the contract by notarial act and upon full
payment of the cash surrender value to the buyer.

In one case, there was a contract of lease of 1 yr with an option to purchase, the contract of
lease expired without the lessee purchasing the property but he remain in possession thereof,
hence there was a explicit renewal of the contract of lease on a monthly basis, however, the
other terms of the contract which are revived in the implied new lease are only those
germane to the lessee’s right of continued enjoyment of the property lease, therefore an
implied new lease does not ipso facto carried with it any implied revival of the option to
purchase the lease premises.

The provision entitling the lessee the option to purchase the lease premises is not deemed
incorporated in the impliedly renewed contract because it is alien to the possession of the
lessee. the right to exercise the option to purchase expired already with the termination of
the original contract of lease for one year. Simply put the SC ruled that the implied renewals
do not include the option to buy as it is not germane to the continued lessee’s use of the
property.
 REMEDIAL LAW
Vice Dean Francesca Señga
October 1, 2022

LECTURE NOTES TEAM: MARIA CHRISTINA ARCE | PIA BARROSO | JOANNA MANUELA BULAUITAN | SAMUEL JOSHUA CRUZ | ANDREA
DE GUZMAN | MARAE DOMINGUEZ | ROSCH EMILLE MANUEL | MIKHAELA MAEIA MAYUGA | SHERRY JANE PAGAY | DAVID GABRIEL
PALLASIGUE | ANDREA JOSES TAN | MARIELLE TELEBRICO
CHECKED BY: HANNAH KEZIAH MORALES (Chairperson for Academics) | ADRIAN MACASAQUIT (Deputy for Academics)

NOTE: Please refer to the presentation shared and provided by Vice Dean Señga for Remedial Law
Bar Lecture

VD SEÑGA JOKE: “Saya ba? Saya ba umupo ng 8 hours a day? Kamusta na yung mga pwet niyo guys,
may kalyo na ba? Sana wala.” *Upon her request that her jokes be included.

JURISDICTION

JURISDICTION – conferred by law

● The law that determines jurisdiction is the law in force at the time of the commencement
of the action (Lee v. Presiding Judge, Municipal Trial Court of Legazpi City, Branch I, G.R.
No. L-68789, 10 November 1986)
● Amendments to BP 129 (RA 11576 took effect on 21 August 2021)

A. Jurisdiction
a. conferred either by law or by the allegations in the complaint
b. R.A. No. 11576
i. Section 19 of B.P. Blg. 129 increasing the jurisdictional amount cognizable by the
Regional Trial Courts:
1. In all civil actions which involve the title to, or possession of, real property, or
any interest therein, where the assessed value exceeds Four Hundred thousand
pesos (Php400,00), except for forcible entry into and unlawful detainer of
lands and buildings, original jurisdiction over which is conferred upon the
Metropolitan Trial Courts, and Municipal Trial Courts in Cities, Municipal Trial
Courts, and
2. Municipal Circuit Trial Courts;
3. In all actions in admiralty and maritime jurisdiction where the demand or
claims exceeds Two million pesos (Php2,000,000);
4. In all matters of probate, both testate and intestate, where the gross value of
the estate exceeds Two million pesos (Php2,000,000); and
 5. In all other cases in which the demand, exclusive of interest, damages of
whatever kind, attorney’s fees, litigation expenses and costs or the value of the
property in controversy exceeds Two million pesos (Php2,000,000).
ii. Section 33 of B.P. Blg. 129 increasing the jurisdictional amount cognizable by the
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts,
and Municipal Circuit Trial Courts:
1. In civil actions and probate proceedings, testate and intestate, including the
grant of provisional remedies in proper cases, where the value of the personal
property, estate, or amount of the demand does not exceed Two million pesos
(Php2,000,000), exclusive of interest, damages of whatever kind, attorney’s
fees, litigation expenses, and costs, the amount of which must be specifically
alleged;
2. In all civil actions which involve title to, or possession of, real property, or any
interest therein where the assessed value of the property or any interest
therein does not exceed Four hundred thousand pesos (Php400,000) exclusive
on interest, damages of whatever kind, attorney’s fees, litigation expenses and
costs, and
3. In admiralty and maritime actions where the demand or claim does not exceed
Two million pesos (Php2,000,000).

DISCUSSION AS TO THE APPLICATION OF THE AMENDED JURISDICTIONAL AMOUNT IN THE BAR

EXAM

So let’s talk about jurisdiction first. As you know, jurisdiction is conferred by law. What law will you
use insofar as determining the jurisdictional amount? Ayan, ang daming mga debate niyan. Ang dami
niyong time magdebate. Okay. Ganito po kasi yan. The law that determines jurisdiction is that
enforced at the time of the commencement of the action. So although the syllabus has a cut-off prior
to the amendment of B.P. 129 of R.A. 11576, it may be more prudent for you to nevertheless take
note of that amendment. Anyway, dalawang numero lang naman yang tatandaan nyo: Php2,000,000
and Php400,000, di ba?

In the amended law, if the real action is in first level courts, the assessed value does not exceed
Php400,000. If it is in the RTC, the assessed value exceeds Php400,000. For all other claims,
demands, gross estate, Php2,000,000 yung threshold amount natin. So, if it is in first level courts,
does not exceed Php2,000,000 and then for RTC, it exceeds Php2,000,000. Then you just need to
remember when that amendment took effect. So it took effect on August 21, 2021. So my advice to
you is that if on the facts of the exam, it shows that the commencement of the action is from
August 21, 2021 onwards, then the applicable law for jurisdiction would be as amended. It should
be the Php400,000 or Php2,000,000 threshold. But if the facts did not mention a date of when the
action is commenced or the date mentioned is before the effectivity of the amendment, then you
use the old rule. You get it? So I hope that clarifies a lot of questions. Di ba mas matagal mag debate.
Yung debate buong maghapon. Eto dalawa lang tatandaan mo: Php2,000,000 at Php400,000, at
August 21, 2021. O Pak! Tapos! Sige move on na tayo. Sana nakuha nyo na yan mga kosa.
 VD SEÑGA JOKE: “Sandali kamuntikan na ako maglaway. Teka. Sipsip laway muna tayo. Sana
kasama sa transcript yung sipsip laway.”

A Complaint for Injunction with prayer for Issuance of Status Quo Order, Temporary Restraining
Orders, and Writ of Preliminary Injunction with Damages was filed, docketed as a civil case, and
raffled to Branch 276 of Regional Trial Court of Muntinlupa City, which branch was not designated
as a Special Commercial Court.

There is a Complaint for Injunction with prayer for Issuance of Status Quo Order and TRO, ang dami
naman hinihingi nito, with Writ of Preliminary Injunction and Damages. Okay. So that is the title of
the complaint filed, yan yung denomination Complaint for Injunction. And then, it was docketed as a
civil case kaya it was raffled to a regular court Branch 276 of the RTC of Muntinlupa so it is not
designated as a special commercial court.

The allegations of the Complaint actually make out an intra-corporate dispute, which was not
denominated in the title of the complaint. The Regional Trial Court of Muntinlupa, Branch 276
granted the motion to dismiss for lack of jurisdiction over the commercial case, specifically, the
intra-corporate dispute. Was the dismissal correct?

Now, although the denomination is just simply a complaint for injunction based on the allegations of
that complaint, it is actually an intra-corporate dispute. Okay. So that is why there was an error
made, instead of raffling the case to a special commercial court in Muntinlupa City it was raffled to a
regular court, specifically to Branch 276. So because it is an intra-corporate dispute but it was
raffled to a regular court, there was a motion to dismiss filed on the ground of lack of jurisdiction
over that commercial case and the RTC granted that motion to dismiss. So the question is, is it valid
to grant that motion to dismiss? Was the dismissal correct? Ano tingin niyo?

VD SEÑGA JOKE: “Gising pa ba kayo? Kakasimula ko palang.”

No. Regional Trial Courts have jurisdiction over intra-corporate disputes. The erroneous raffling
to a regular branch instead of to a Special Commercial Court is only a matter of procedure. It
should not negate the jurisdiction which the Regional Trial Court of Muntinlupa City already
acquired. Branch 276 should have first referred the case for re-docketing as a commercial case and
thereafter, the said case will be assigned to the designated Special Commercial Court. (Gonzales v.
GJH Land, Inc., G.R. No. 202664, 10 November 2015)

Answer is no, it is not correct. Why? The Regional Trial Courts have jurisdiction over intra-corporate
disputes. So the error here is not as to the filing to the correct court, it was filed in the correct
court, the Regional Trial Court that has jurisdiction over intra-corporate disputes. The erroneous
raffling to a regular branch instead of raffling to a special commercial court, according to the
Supreme Court, is only a matter of procedure. Okay?

So that designation of a branch in a court, as a special commercial court, does not affect jurisdiction
as long as it was filed in the correct court, in this case, it is the Regional Trial Court of Muntinlupa.
So according to the Supreme Court, when they filed it in the Regional Trial Court of Muntinlupa, the
Regional Trial Court of Muntinlupa already validly acquired jurisdiction over the intra-corporate
dispute. So sabi ng Supreme Court, it was incorrect to dismiss it because the Regional Trial Court of
Muntinlupa had jurisdiction over the intra-corporate dispute. What should have happened instead is
that Branch 276 should have just referred the case to the Executive Judge so that it can be
re-docketed as a commercial case. After that, it will be assigned to the Special Commercial Court
designated in Regional Trial Court of Muntinlupa. Alright? Okay. Hope that is clear.

On 2 February 1998, A filed a complaint against B in Makati City. In that complaint, A alleges that:
(1) B owes A the sum of Php100,000.00 pursuant to a contract of loan they entered into and B
failed to pay the same when it became due, despite demand;

For this example, I suggest that you get your pen and paper so that you can note down the values for
determining jurisdiction.

VD SEÑGA JOKE: “Kung ayaw mo, okay lang din, di wag. Maaga pa kasi para magmath guys. Pwede
rin kuha kayo tissue. Lagay kayo ng tissue sa ilong para saluhin niyo, in case ma-nosebleed kayo sa
math. Kung CPA ka magaling ka sa math, edi ikaw na ang anak ka ng Diyos.”

So on February 2, 1998, so that is the date of commencement, clearly it is prior to the amendment.
Okay. So A files a complaint against B in Makati City. Alright? Okay.

VD SEÑGA JOKE: “Teka lang, nakikita niyo ba yung font size. Maraming beses na akong nabashing
through the snow na masyadong maliit yung font size ng akin powerpoint. Paano ko malalaman.
Pareact naman diyan guys, kita niyo ba? Eh paano kung ano, paano kung Nokia yung telepono?
Nakazoom ba yung Nokia na telepono? Hindi natin alam.”

So there is a complaint, A against B, it is the same party, A vs. B. Alright? Okay. According to A, A has
three (3) causes of action against B contained in a single complaint. The first cause of action is one
for sum of money, on the ground of breach of contract of loan. So A made a demand, despite
demand, sabi ni B kahit patayin mo ako hindi kita babayaran. Gusto niyang patayin pero hindi niya
magawa because it is a crime.

(2) B is liable to A for damages when B negligently struck A’s car, which caused A to incur
Php150,000.00 for the repair of his car; and Php80,000.00 for moral damages because B caused A
sleepless nights and hurt feelings for his negligent acts and his refusal to timely compensate A;
The next cause of action is that the defendant, B, is liable for damages. Bakit? Because the
defendant, B, struck plaintiff’s car negligently causing A to incur Php150,000.00 for the repair of the
car. So that is compensatory damages. And Php80,000.00 for moral damages. Hindi siya makatulog,
sleepless nights, hurt feelings because of the negligent acts and refusal to timely compensate A. So
the second cause of action, on the other hand, is, ayun na nga, one for damages arising from a
quasi-delict.

(3) pursuant to a contract for services entered between A and B, A build B’s fence, and for his
services, B bound himself to pay A Php100,000.00 but despite having completed the fence and
despite demand, B refused to pay A. Which court has Jurisdiction?

And then the third cause of action is for again recovery of money. The basis here is for breach of
contract of services. So A, the plaintiff, was contracted by the defendant to build the defendant’s
fence. After building, tigas ng mukha ni defendant, ayaw niyang magbayad despite demand. Which
court has jurisdiction.
b. Computation for jurisdiction
i. Totality Rule - the test of jurisdiction is the aggregate amount claimed.
● E.g. (all are for recovery of sums of money) First, contract of loan amounting
to Php100,000; second, damages for the quasi-delict amounting to
Php230,000.00 [Php150,000.00 for compensatory damages, Php80,000.00 for
moral damages]; and third, recovery of money for services performed
amounting to Php100,000. Total of Php430,000.00.
● The given example does not involve title to or possession over real property
and it is capable of pecuniary estimation. It is the Regional Trial Court of
Makati because the total claim is Php430,000.00 and it is within Metro Manila or
in Makati City. There is a single complaint with several causes of action, but all
of them are claims for money or recovery of money and so the test of
jurisdiction is the aggregate amount claimed.

So note here that we have three (3) causes of action in the same complaint, so this is a case involving
joinder of causes of action. Question: do we need to comply with the rule of joinder of parties?
Answer: No. The rule on joinder of parties where it is based on the same or series of transactions and
there is a common question of law and fact, it will only apply if you have several parties. But if the
cause of action is between the same parties, you don’t need to comply with the first requirement for
joinder of causes of action.

So you need to be careful with joinder of causes of action because you don’t strictly apply all of
those requirements for joinder, it depends on the circumstances. So that first enumeration on
complying on joinder of parties, is not applicable in this case because the action is between the same
parties. If it is the same parties, they can have as many causes of action against each other, provided
that it does not include special civil actions or those covered by special rules. Even if they do not
arise from the same transaction or series of transactions, if it is the same parties pwede yan mag
join.

Now the question is, how do we compute the jurisdiction? The rule here that you will apply is the
totality rule. Why? Because all of these actions involve one for recovery of money. Why is it all for
recovery of money? Let’s go back.

The first one, obviously, is for a contract of loan that is for a recovery of money. The totality rule
says that the test of jurisdiction is the aggregate amount claimed. So the principal loan here, there is
no interest sought, is Php100,000.00. So you include that. So the first amount is Php100,000.00.
Okay?

Then the second one is for quasi-delict. Now do not be confused, although BP 129 says that we do
not include damages or interest, that rule only applies if the damages or interest is incidental to
your main action. Here, in this case, the action is primarily for quasi-delict. And in quasi-delict what
are you asking for? Damages. So the principal action in your second cause of action is one for
damages. And what are you asking for when you are for damages, sorry ba? Hindi, hindi mo kailangan
ng sorry. Kailangan mo ng pera para macomfort ka ng mga bagay-bagay na mabibili mo sa Lazada at
Shopee lalo na kapag sale. Although it is one for damages, ultimately, it is actually for recovery of
money. These damages should be included. Sabi ng jurisprudence, if your main cause of action is one
for damages, such as in this case, all of the damages sought would be included. So here, the
Php150,000.00 for the repair of the car is actually what you call compensatory damages, a kind of
damages. And Php80,000.00 for moral damages you include it also. So clearly the main cause of
action here is for damages. Kung may attorney’s fees you include it din. So that is plus Php150,000.00
plus Php80,000.00.

And then the last one is again for recovery of money for services performed, so again that is for
money, Php100,00.00.
Note that the action here is in Makati City, so it is within Metro Manila. So dapat laglagpas yan ng
Php400,000.00 because this does not involve title to or possession over real property and it is capable
of pecuniary estimation.

So which court has jurisdiction? It is the Regional Trial Court of Makati because the total claim is
Php430,000.00 and it is within Metro Manila or in Makati City. There is a single complaint with several
causes of action, but all of them are claims for money or recovery of money and so the test of
jurisdiction is the aggregate amount claimed. Alright? Hope you got that.

Jurisdiction over the subject matter is determined by the allegations of the complaint,
irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims
asserted therein (Multinational Village Homeowners’ Association, Inc. v. Court of Appeals, G.R.
No. 98023, 17 October 1991)
We said earlier that jurisdiction is conferred by law, but at the same time jurisdiction is also
determined by the allegations in the complaint. It doesn’t matter whether the plaintiff is entitled to
recover some or all of the claims. To determine jurisdiction, we look at the allegations of the
complaint.

B. Actions
i. Real action - actions affecting title to or possession of real property, or interest therein.
(Sec. 1, Rule 4 Rules of Court)
● By nature, real actions are incapable of pecuniary estimation.
● Test of jurisdiction for real action is the assessed value of the real property.
● Since the basis of jurisdiction for real actions is the assessed value, it should be
alleged in your complaint. There is what we call the 2-tier rule.
● If not in the complaint, then in the documents attached to the complaint
(Foronda-Crystal v. Son, G.R. No. 221815, 29 November 2017)
● If there is no assessed value for the subject property, the assessed value of the
adjacent lot of the subject property shall be the basis for assessed value to
determine the jurisdiction.
ii. Distinctions among accion interdictal, accion publiciana, and accion reivindicatoria.
● Accion interdictal - An ejectment proceeding which may be either that for
forcible entry (detentacion) or unlawful detainer (desahucio); a summary
action for recovery of physical possession where the dispossession has not
lasted for more than one year, and should be brought in the proper inferior
court.
○ Forcible (detentacion) - deprivation of physical possession of land or
building by means of force, intimidation, threat, strategy, or stealth; for
the first level court to have jurisdiction over the remedy the forcible
entry, must be filed within one (1) from the dispossession. Unless the
dispossession is by means of stealth, then it is one (1) year from the
discovery.
○ Unlawful detainer (desahucio) - one unlawfully withholds possession
thereof after the expiration or termination of his right to hold
possession under any contract, express or implied; for the first level
court to have jurisdiction over the remedy, the unlawful detainer must
be filed within one (1) year from the last demand, unless there is a
contract that provides that there is no need to make a demand.
● Accion publiciana - An ejectment suit filed after the expiration of one year
from the accrual of the cause of action or from the unlawful withholding of
possession of the realty.
● Accion reivindicatoria - An action whereby plaintiff alleges ownership over a
parcel of land and seeks recovery of its full possession. It is a suit to recover
possession of a parcel of land as an element of ownership.
iii. 4 Grounds which motion to dismiss is prohibited
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia;
 3. Res judicata; and
4. Statute of limitations.
● Even if you raise in a motion to dismiss those four (4) grounds to dismiss and it
is denied, you can still assert it as an affirmative defense.
iv. Exception to the prohibition of the motion to dismiss
● Estoppel Jurisdiction (Tijam v. Sibonghanoy, G.R. No. L-21450. April 15, 1968.)
○ The Supreme Court ruled in Tijam v. Sibonghanoy is that it is an undisputed
fact that the action commenced by appellees against the Sibonghanoy spouses
was for the recovery of sum of Php1,908.00 only - an amount within the original
exclusive jurisdiction of inferior courts. True also is the rule that jurisdiction
over the subject matter is conferred upon the courts exclusively by law, and as
the lack of it affects the very authority of the court to take cognizance of the
case, the objection may be raised at any stage of the proceedings. However,
considering the facts and circumstances of the present case, the Surety is now
barred by laches from invoking this plea at this late hour for the purpose of
annulling everything done heretofore in the case with its active participation.
They failed to raise the lack of jurisdiction for 15 years.
○ This cannot be used as a general rule.
○ Estoppel jurisdiction will only apply if the facts are exactly the same as Tijam
vs. Sibonghanoy.
○ If the facts are not the same as Tijam vs. Sibonghanoy, then this exception will
not apply, the general rule will still apply that lack of jurisdiction may be
raised at any time even for the first time on appeal.
v. Principle of Judicial Stability or non-interference
● Principle of Judicial Stability or non-interference - where decisions of certain
administrative bodies are appealable to the Court of Appeals, these adjudicative
bodies are co-equal with the Regional Trial Courts and their actions are beyond the
control of the Regional Trial Court.

Real Action – involves title to, possession over real property or any interest therein (Rule 4, Sec. 1)
● 2-tiered rule
● Assessed value needs to be alleged in the Complaint
● If not in the complaint, then in the documents attached to the complaint (Foronda-Crystal
v. Son, G.R. No. 221815, 29 November 2017)

What are real actions? Those are the actions that involve title to, possession over real property or
any interest therein. Make sure kompleto yan, pasok niyo yung lahat ng terms na yan. Actually by
nature, real actions are actually incapable of pecuniary estimation. Why? Because by definition,
actions that are incapable of pecuniary estimation are actions that are other than recovery of money.
So in a real action, you’re actually not recovering money. Nevertheless, jurisprudence says that
although real action is incapable of pecuniary estimation, the jurisdiction is conferred by law and BP
129 says that if it involves title to, or possession over real property or any interest therein, we look
at the assessed value of the real property and that will be the test of jurisdiction. So under BP 129,
prior to the amendment, yan yung Php20,000.00, etc. threshold depending if within or outside Metro
Manila.

Since the basis of jurisdiction for real actions is the assessed value, it should be alleged in your
complaint. There is what we call the 2-tier rule. It must be alleged in the complaint, but if it is not
alleged in the complaint it can still be alleged in the documents attached to the complaint. So as
long as the assessed value can be determined, whether in the complaint or in its attachments, then
we can determine the jurisdiction of the court.

If the land was not declared for taxation purposes and thus has no assessed value, then the
assessed value of such property shall be determined by the assessed value of the adjacent lots (BP
129, Sec. 33(3) )

What do you do if there is no tax declaration for that property and, therefore, there is no assessed
value? Can you use the market value? Can you use the purchase price? No, because jurisdiction is
conferred by law and the law requires that we only look at the assessed value for real actions. So if
there is no declared assessed value for the land for taxation purposes, BP 129 says that we look at
the assessed value of adjacent lots. So it is still the assessed value.

I have noticed that there are some who think that it is market value. Hindi. Zonal valuation? Hindi pa
rin. Ano lang? Assessed value. But if there is none for that property, then of the adjacent lot that is
in BP 129, Section 33 (3).

● If assessed value is not alleged anywhere in the complaint or its attachments, the case will
be dismissed
● It cannot be determined whether it is the Regional Trial Court or Municipal Trial Court which
has original and exclusive jurisdiction over the action (Spouses Cruz v. Spouses Cruz, G.R.
No. 172217, 18 September 2009)

If the assessed value exists, there is a declared assessed value for the land but you did not allege
that assessed value anywhere in the complaint or even in the attachments, the case will have to be
dismissed for lack of jurisdiction. Why? Because we cannot determine whether it is the RTC or the
first level courts that have jurisdiction because the determination of jurisdiction would be the
assessed value. So if you don’t know the assessed value or it is not alleged in your complaint, you
won’t know which court has jurisdiction and the case will have to be dismissed.

Accion interdictal or a summary ejectment proceeding, which may be either for forcible entry
(detentacion) or unlawful detainer (desahucio), for the recovery of physical or material possession
(possession de facto) where the dispossession has not lasted for more than one year, and should be
brought in the proper inferior court;
Now, this is in your syllabus, the distinctions among interdictal, accion publiciana, and accion
reivindicatoria.

Accion interdictal is your summary ejectment proceeding. There are two kinds, it can be
detentacion/forcible entry or desahucio/unlawful detainer, in either case, the main action is to
recover the physical or material possession that is possession de facto. Ownership is not an issue, but
if the issue of ownership is raised, the court has the power to resolve the issue of ownership only
provisionally for determining the issue of possession. What is important in accion interdictal is that
the dispossession has not lasted for more than one (1) year and the court that has exclusive, original
jurisdiction would be our first level courts. So your accion interdictal is a real action because it
involves possession over real property. But we do not look at the assessed value to determine
jurisdiction of the court because BP 129 categorically provides that first level courts have exclusive,
original jurisdiction, regardless of the assessed value, regardless of the amount of damages that you
seek to recover. The damages you seek to recover are the unpaid rentals, those are only incidental to
your main action which is to recover possession.

Accion publiciana or the plenary action to recover the better right of possession (possession de
jure), which should be brought in the proper inferior court or Regional Trial Court (depending upon
the value of the property) when the dispossession has lasted for more than one year; and

Accion publiciana, again, this is a plenary action but also involving possession which is possession de
jure, the better right of possession. But this time the dispossession has been more than one (1) year.

Remember from forcible entry, for the first level court to have jurisdiction over the remedy the
forcible entry must be filed within one (1) from the dispossession. Unless the dispossession is by
means of stealth, then it is one (1) year from the discovery. No need to make a prior demand in
forcible entry. If it is unlawful detainer, it is one (1) year from the last demand, unless there is a
contract that provides that there is no need to make a demand. If the contract states that the lessee
must vacate the premises upon termination of the lease without need for demand, then you can file
it one (1) year from the termination of the lease.

Kapag lumagpas yung one (1) year period na yan jurisdiction over the remedy wala na yan in the
first level court. Remember that jurisdiction over the remedy is jurisdiction over the process. It is
one that is provided under the Rules of Court and it cannot be subject of waiver.

If that one (1) year period lapses, does that mean that you don’t have anymore remedy? You do, but
this time it is for accion publiciana where the dispossession has lasted for one (1) year. Which court
has jurisdiction for accion publiciana? It depends on the assessed value because it is an action
involving possession over real property. It can be the first level courts and it can be RTC depending
on the assessed value.

Accion reivindicatoria or accion de reivindicacion or reivindicatory action, which is an action for

 recovery of ownership which must be brought in the proper inferior court or Regional Trial Court
(depending upon the value of the property) Macutay v. Samoy, G.R. No. 205559, [December 2,
2020]

Then you have accion reivindicatoria or a reivindicatory action which is an action to recover the
ownership and the court that has jurisdiction is not only the RTC, but either the first level court or
inferior court/RTC depending on the assessed value because this is about title to or interest over real
property. In this case, it is ownership.

ACCION PUBLICIANA ACCION REIVINDICATORIA

An ordinary civil proceeding to determine the Cause of action of the plaintiff is to recover
better right of possession of real property possession by virtue of his ownership of the land
independently of title. It also refers to an subject of the dispute – jus vindicandi
ejectment suit filed after the expiration of one
year from the accrual of the cause of action or
from the unlawful withholding of possession of
the real property

A registered owner or one with a Torrens title
can likewise file an accion publiciana to recover
possession if the one-year prescriptive period
for forcible entry and unlawful detainer has
already passed.
Court can pass upon issue of ownership for the
purpose of resolving possession
Plaintiff's claim of ownership (and necessarily,
possession or jus possidendi) is based on Torrens
title. If defendant disputes the validity of this
Torrens title, the issue of whether there is a
direct or collateral attack on the plaintiff's title
is irrelevant.
The court has the jurisdiction to rule
definitively or with finality on the issue of
ownership and pass upon the validity of the
plaintiff's certificate of title

Accion publiciana determines the right of possession over the real property and in accion publiciana
the issue of title is not resolved. Just like in ejectment, we only look at the issue of possession. In
reivindicatory action, what you want to recover here is ownership; if it is possession, it is possession
by virtue of ownership of the land or jus vindicandi.

Here in accion publiciana, the one who can file can also be the registered owner or the one in whose
favor the torrens title was issued. Pwede rin yan. Basta here the issue is who has the right to
possession de jure. In accion reivindicatoria, there is a claim of ownership and there can be a dispute
as to the validity of the torrens title. So it may be a direct attack on the Torrens title.

● Lack of jurisdiction over the subject matter may be raised at any stage of the proceedings,
 even on appeal.
● The question of jurisdiction may be tackled motu proprio or on appeal even if none of the
parties raised the same (Narra Nickel Mining and Development Corp. v. Redmont
Consolidated Mines Corp., G.R. No. 202877, 9 December 2015)
● Ground for motion to dismiss/assert as affirmative defense

Lack of jurisdiction over the subject matter, this can be raised at any stage of the proceedings, even
for the first time on appeal. The court can even rule on lack of jurisdiction motu proprio, on its own
motion. Even if none of the parties raised the same, whether in the trial court or in the appeal level.
Remember, if you have your Rules of Court with you, please look at Rule 14, Section 1. If you look at
Rule 14, Section 1, ordinary rules provide that upon the filing of the complaint prior to the issuance
of the summons, the court can motu proprio dismiss the complaint if on its face there are grounds to
dismiss, as provided under Section 1, Rule 9. What are these grounds? Lack of jurisdiction over the
subject matter, res judicata, litis pendentia, and statute of limitations. So the court can motu
proprio dismiss if, on the face of the complaint, it can be seen that the court has no jurisdiction. And
rightfully so, the court should be able to motu proprio dismiss because a court bereft of jurisdiction
does not have the power to proceed with the case and to rule on it, otherwise, the judgment would
be void. Right?

In the same way, the defendant could move to dismiss for lack of jurisdiction. Remember under Rule
15, Section 12 (a). If you have your codals, I hope you look at it so you’re also familiar with the
provisions. Motion to dismiss, under ordinary rules, is prohibited except for the four (4) non-waivable
grounds. Again, lack of jurisdiction over the subject matter, litis pendentia, res judicata, and statute
of limitations. If the defendant’s motion to dismiss is denied, can the defendant raise those grounds
again as an affirmative defense? Yes, that is found under Rule 6, Section 5. Even if you raise in a
motion to dismiss those four (4) grounds to dismiss and denied, you can still assert it as an
affirmative defense.

EXCEPTION: estoppel jurisdiction

● Tijam v. Sibonghanoy is the exception, not the general rule, and will only apply if the facts
are the same; if not, then general rule applies, lack of jurisdiction may be raised at any
time

Now that rule is subject to an exception, estoppel jurisdiction. But the Supreme Court clarified that
estoppel jurisdiction is only the exception, it is not to be used as a general rule. And estoppel
jurisdiction will only apply if the facts are exactly the same as Tijam vs. Sibonghanoy. So if the facts
are not the same as Tijam vs. Sibonghanoy, then this exception will not apply, the general rule will
still apply that lack of jurisdiction may be raised at any time even for the first time on appeal.
Alright? Even for the first time on appeal pwede yan. That is our rule.

Tijam factual circumstances:

 ● Case pending 15 years before Defendant raised lack of jurisdiction in CA, after CA rendered
ruling, instead of filing an MR, after manifesting it intended to file MR
● Actively participated in RTC, invoking jurisdiction of RTC (Tijam v. Sibonghanoy, G.R. No.
L-21450, 15 April 1968.)

What are the factual circumstances in Tijam? I summarized it for you so that you know whether we
will apply estoppel jurisdiction, meaning you will be barred from raising lack of jurisdiction. In the
case of Tijam, the case was pending for 15 years before the defendant raised lack of jurisdiction for
the first time in the Court of Appeals. And it was not just after appeal in the Court of Appeals, it was
after the Court of Appeals already rendered an adverse ruling against the defendant. So the
defendant, after receiving the decision of the Court of Appeals, wanted to file a motion for
reconsideration and manifested to the court that the defendant will be filing a Motion for
Reconsideration. Instead of filing a Motion for Reconsideration, the defendant files instead a Motion
to Dismiss for lack of jurisdiction over the subject matter. So after the defendant received an
adverse ruling in the Court of Appeals, did the defendant assail the jurisdiction of the Court of
Appeals for the first time and this was after the defendant actively participated in the proceedings in
the Regional Trial Court. It sought a lot of affirmative reliefs from the Regional Trial Court and in so
doing, the defendant invoked the jurisdiction of the Regional Trial Court. So you cannot invoke the
jurisdiction of the Regional Trial Court and thereafter assail it only after you receive an adverse
ruling. And after 15 years sabi ng Supreme Court, if we were to grant this lack of jurisdiction, it
would render nugatory all of those 15 years of proceedings, which could not be allowed. So the
defendant is now estopped from assailing jurisdiction, but again we only use this Tijam ruling for
exception when it is exactly the same factual milieu. If the facts are not the same, such as in one
case, after appeal pagka perfect ng appeal inassail niya agad yung jurisdiction, it was allowed by the
court because you can assail lack of jurisdiction even for the first time on appeal.

A filed a complaint against B before the Ombudsman for violation of the GSIS Act. The Ombudsman
issued an order of preventive suspension against B to last until the administrative adjudication is
completed but not to exceed 6 months.

There is a complaint filed before the respondent in the Ombudsman, this is an administrative
disciplinary case in the Ombudsman. Remember in the Ombudsman, you can have preliminary
investigation for criminal cases but you can also have administrative disciplinary cases before the
Ombudsman. So before the ombudsman, there was a complaint for violation of the GSIS Act. So the
Ombudsman issued an order of preventive suspension against the respondent and this would last until
the administrative proceeding is adjudicated or completed, but for a period not exceeding six (6)
months.

The propriety of the order of suspension was assailed by B before the Court of Appeals but the
Court of Appeals affirmed the preventive suspension. B filed with the Regional Trial Court a
petition for declaratory relief with prayer for Temporary Restraining Order.
So the respondent assailed that order of preventive suspension by certiorari before the Court of
Appeals. But the Court of Appeals affirmed the preventive suspension. So this time, the respondent
again assailed that order of preventive suspension issued by the Ombudsman, but this time with the
Regional Trial Court under the guise of filing a petition for declaratory relief with prayer for
Temporary Restraining Order. So the respondent was asking the Regional Trial Court to declare the
rights of the parties under that order of preventive suspension. Ano pa bang idedeclare mong rights?
Edi preventively suspended ka pero yan na nga ang style niya para makakuwa siya ng Temporary
Restraining Order, so that the RTC will issue a Temporary Restraining Order before determination of
the declaratory relief para hindi muna siya masuspend.

B prayed that the Regional Trial Court make a definite judicial declaration on the rights and
obligations of the parties asserting adverse legal interests with respect to the implementation of
the suspension order issued by the Ombudsman, and to restrain the implementation of the
Ombudsman order.

May the RTC issue a Temporary Restraining Order?

So the RTC issued that Temporary Restraining Order. The issue here is, can the Regional Trial Court
issue that Temporary Restraining Order? Sinasabi nila na okay lang kasi from the Ombudsman
administrative, it is the court that issued that Temporary Restraining Order, Regional Trial Court. But
sabi ng Supreme Court cannot be. Why?

No. This will violate the principle of judicial stability or non-interference. Pursuant to this
principle, where decisions of certain administrative bodies are appealable to the CA, these
adjudicative bodies are co-equal with the RTCs and their actions are beyond the control of the
RTC.

Because this violates the principle of judicial stability or non-interference. Ano naman yung judicial
stability or non-interference na naviolate here? Although the Ombudsman here is administrative and
the Regional Trial Court is a court, in this instance, when you have an Ombudsman administrative
ruling, the Ombudsman is in the same level as the Regional Trial Court. Why? In Ombudsman
administrative disciplinary cases, after the Ombudsman renders a ruling in that administrative
disciplinary case, the appeal is to the Court of Appeals or you assail it before the Court of Appeals.
So it is therefore in the same level as the Regional Trial Court because Regional Trial Court is
appealable to the Court of Appeals.

You get it? So although the Ombudsman is administrative and Regional Trial Court is judicial, a court,
but in this instance specifically, it is an administrative disciplinary proceeding before the
Ombudsman, it is co-equal with the Regional Trial Court. Because their actions or decisions are both
appealable to the Court of Appeals. Being co-equal, the Regional Trial Court cannot interfere with
the co-equal rulings of the Ombudsman so the Regional Trial Court cannot and should not have issued
that Temporary Restraining Order against the Ombudsman to stop the enforcement of the preventive
suspension order of the Ombudsman.

The Ombudsman's decisions in disciplinary cases are appealable to the CA under Rule 43. The RTC
has no jurisdiction to interfere with or restrain the execution of the Ombudsman’s decision in
disciplinary cases, more so when the CA already affirmed the Ombudsman’s order of suspension.
(Erice v. Sison, A.M. No. RTJ-15-2407, November 22, 2017, J. Caguioa)

The Ombudsman decisions in disciplinary cases, if the penalty is not light or exculpatory, is
appealable to the Court of Appeals under Rule 43. Pareho sila ng level ng Regional Trial Court kung
co-equal sila, alright?

vi. For Ombudsman determination of Probable Cause in Criminal or Non-Administrative Cases

● Republic Act No. 6770 or the Ombudsman Act of 1989 does not provide for the remedy
of appeal from the decisions of the Ombudsman in criminal or non-administrative
cases.
○ After the ruling of the ombudsman in a criminal preliminary investigation, they
can file a motion for reconsideration within 5 days. If your Motion for
Reconsideration is denied, there is no appeal provided.
○ If the decision of the Ombudsman in an administrative charge imposes light
penalties (public censure, reprimand, suspension of not more than one month
or fine equivalent to one month salary) or absolves the respondent of the
charge.
■ Final and unappealable
■ Remedy: Rule 65 of the Rules of Court, to be filed with Court of Appeals
vii. Deceased party in a civil action
● A deceased person does not have the capacity to be sued. He cannot be made a
defendant in a case. A party in a civil action because they have no legal personality.
● Summons served upon the wife as the representative of her late husband when there
was no settlement of estate proceedings instituted in relation to the husband’s estate
was invalid. (Gaffney v. Butler, G.R. No. 219408, November 8, 2017, J. Caguioa; Rule
86)
○ Claimant must file a claim against the estate of the deceased in a proper
proceeding, specially by filing a money claim in the settlement of estate
proceedings, pursuant to Rule 86. (Gaffney v. Butler, G.R. No. 219408,
November 8, 2017, J. Caguioa; Rule 86)
○ In this case, the wife who is alive filed an affirmative defense stating that
there is failure to state a cause of action against the dead one. It was granted.
The wife cannot contend that the claim against her must also be dismissed as it
was not raised in the pleading. Courts cannot grant a relief not prayed for in
the pleadings or in excess of what is being sought by the party. (Gaffney v.
Butler, G.R. No. 219408, November 8, 2017, J. Caguioa)
 ● Who has a legal interest in the estate? The person who stands to benefit or to receive
something from the estate. (e.g. creditors, compulsory heir, voluntary heir, devisees,
and legatees)
viii. Indispensable party
● Indispensable party - is a party-in-interest without whom no final determination can
be had of an action. He is one with such a material and direct interest in the
controversy that a final decree would necessarily affect their rights, so the court
cannot proceed without their presence. (Roy III v. Herbosa, G.R. No. 207246,
November 22, 2016, J. Caguioa; Rules of Court, Rule 3, Sec. 7)
● Non-joinder or misjoinder of a party is not a ground to dismiss.
● Who has the burden of pleading the indispensable parties? It is the plaintiff who has
the burden to implead the indispensable parties except if the court orders the plaintiff
to implead the indispensable party and the plaintiff fails to comply with the order of
the court, the action may be dismissed upon motion of the defendant or upon the
court’s own motion, without prejudice to the right of the defendant to prosecute his
or her counterclaim in the same or in a separate action. (Rule 17, Section 3 Rules of
Court)
For Ombudsman determination of Probable Cause in Criminal or Non-Administrative Cases
● Republic Act No. 6770 or the Ombudsman Act of 1989, does not provide for the remedy of
appeal from the decisions of the Ombudsman in criminal or non-administrative cases.

Okay, let’s review the rulings of the Ombudsman. If it is the ruling of the Ombudsman in a criminal
case for preliminary investigation, this one is non-administrative, so it is the determination of
probable cause of whether to charge the respondent in court. In that case, the Ombudsman Act of
1987 does not provide for a remedy of appeal after the ruling of the Ombudsman. So after the ruling
of the ombudsman in a criminal preliminary investigation, they can file a motion for reconsideration
within 5 days. If your MR is denied, there is no appeal provided.

Aggrieved party may file a petition for certiorari with the SC when the finding of probable cause is
tainted with grave abuse of discretion, amounting to lack or excess of jurisdiction. (Tirol, Jr., v.
Del Rosario, G.R. No. 135913, 4 November 1999; Estrada v. Desierto, G.R. No. 156160, 9 December
2004)

Assuming that the ruling of the Ombudsman is tainted with grave abuse of discretion, since after the
MR there is no appeal or any other plain, speedy, adequate remedy, then your remedy will now be
certiorari. And where do you file it? It is with the Supreme Court. But this requires that the ruling of
the Ombudsman is tainted with grave abuse of discretion. Remember, courts will not interfere with
findings in preliminary investigations of the Ombudsman or the prosecutor because they are granted
a leeway for determination of probable cause; that is within their discretion. Exception only if there
is grave abuse of discretion. So, if it is Ombudsman criminal preliminary investigation, if there is
grave abuse of discretion, after the denial of the MR, there is no more appeal or plain, speedy,
adequate remedy, certiorari to the Supreme Court.
 For Ombudsman determination in Administrative Disciplinary cases
● The remedy against decisions of the Ombudsman in administrative charges, where the
penalty is not light or does not absolve the respondent of the charge, is by appeal to the
Court of Appeals under Rule 43.

If it is an Ombudsman Administrative disciplinary case, you must distinguish the penalty. If the
penalty is not light and it does not absolve the respondent of the charge, then the remedy is appeal,
Court of Appeals, under Rule 43. The decision here in this case is immediately executory but it is
appealable under Rule 43, Court of Appeals.

Sec. 27, Ombudsman Act providing that decisions in administrative disciplinary cases of
Ombudsman may be appealed to the SC under Rule 45 was declared unconstitutional
● violated the proscription in Section 30, Article VI, Constitution against a law which
increases the appellate jurisdiction of the Supreme Court without its advice and
concurrence. (Namuhe v. The Ombudsman, G.R. Nos. 124965, 124932 & 124913, 29 October
1998; Fabian v. Desierto, G.R. No. 129742, 16 September 1998)

There was a case in Fabian v. Desierto where they said that if it is an Ombudsman administrative
disciplinary, penalty is not light, Rule 45 to the Supreme Court. This was struck down by the Supreme
Court for being unconstitutional because it increased the appellate jurisdiction of the Supreme Court
without its advice or concurrence. So now the rule is in Ombudsman administrative disciplinary
cases, if the penalty is not light and not exculpatory, it is appealable to the Court of Appeals under
Rule 43.

If the decision of the Ombudsman in an administrative charge imposes light penalties (public
censure, reprimand, suspension of not more than one month or fine equivalent to one month
salary) or absolves the respondent of the charge
● final and unappealable
● Rule 65, Court of Appeals (Administrative Order No. 07, Series of 1990, Rule III, Sec. 7;
Dagan v. Office of the Ombudsman, G.R. No. 184083, 19 November 2013)

But if the Ombudsman Administrative disciplinary case imposes a light penalty (ano ba yung mga light
penalties? suspension of not more than 1 month, fine equivalent to 1 month salary, public censure,
reprimand, suspension), or it absolves the respondent of the charge (as in wala na daw siyang
kasalanan daw), the nature of the decision in these cases is final and unappealable. Walang appeal.
This is also an instance that you cannot appeal because it categorically provides that it's not
appealable. So assuming that there was grave abuse of discretion, Rule 65 ang remedy natin. But this
time, it is with the Court of Appeals.
So if it's the Ombudsman criminal Preliminary Investigation, Supreme Court yan, yung certiorari mo.
Pero kung Ombudsman administrative disciplinary, Court of Appeals yan lagi. If it is not light, Rule 43.
If it is light or absolved, it is Rule 65. Bakit Rule 65? Because it is unappealable and final.

Should you file a Motion for Reconsideration before availing of Rule 65? If it is not a speedy, adequate
remedy such as if your suspension is for one day, Oh eh di na yan ang adequate remedy. Finifile mo
pa lang yung Motion for Reconsideration mo, tapos na yung suspension mo. So you avail of certiorari,
then you ask for Temporary Restraining Order so that you can suspend the execution of that ruling
against you.

X filed a complaint for sum of money against Y. X filed a motion for leave to file amended
complaint to implead the estate of the late Z, Y’s deceased husband, as additional defendant,
represented by Y, the wife. Y sought the dismissal of the complaint as representative of Z, for
failing to state a cause of action, raising this ground as an affirmative defense.

VD SEÑGA JOKE: “Whew! Ok lang ba kayo diyan? Ako, nangawit yung panga ko dun. Alright, sige.
So I want to cover as much as I can so sana kaya ng braincells niyo. Kaya natin to kasi wala kayong
choice. Wala kayong choice, gustuhin niyo to, pinili niyo to sa buhay niyo.”

There is a complaint for sum of money. There is a motion for leave to file an amended complaint. So
kinasuhan ni plaintiff yung wife. Hindi niya asawa ah. Kinasuhan ni plaintiff si babae. After niya
kasuhan yung babae, in-amend niya yung complaint para kasuhan yung lalaki except patay na yung
lalaki.

VD SEÑGA JOKE: “Gusto niya sigurong kunan yung bulsa ng bangkay. Check niya kung may barya
doon. Ewan ko kung anong trip niya sa buhay.”

Pero in-amend niya yung complaint para i-implead niya yung deceased defendant, which is the
husband of the other defendant. Mag-asawa yung kinasuhan niya, except yung babae buhay, yung
defendant deads na.

VD SEÑGA JOKE: “Tegibells. Sumalangit nawa. Ganun.”

What the plaintiff did is the plaintiff mentioned there that the wife, being the wife, is the
representative of that dead person. So syempre, itong si wife, she filed an answer raising as an
affirmative defense that the plaintiff failed to state a cause of action against the deceased husband.

The trial court did not dismiss the claim as against the estate of Z, ruling that the inclusion of Z’s
estate was necessary for a complete relief on the determination or settlement of the controversy
raised in the case.
 Should the case against the estate of Z be dismissed against the estate of Z?

Yes. Neither a deceased person nor his estate has capacity to be sued. A deceased person does not
have the capacity to be sued and may not be made a defendant in a case. A deceased person or his
estate may not be impleaded as defendant in a civil action as they lack legal personality. (Gaffney
v. Butler, G.R. No. 219408, November 8, 2017, J. Caguioa)

Question: Dapat bang ma dismiss yung kaso against the dead person? Syempre. Kasi di na siya
pwedeng makasuhan. A deceased person does not have the capacity to be sued. He cannot be made
a defendant in a case. Patay na nga yung tao, iniistorbo mo pa. So cannot be a party in a civil action
because they have no legal personality. Also, in this case, the plaintiff sought to have the wife serve
as the representative of the deceased but there was no settlement of estate proceedings instituted
in relation to the estate of the deceased.

No settlement of estate proceedings were instituted in relation to Z’s estate. Nevertheless,

summons was served on Y as representative of Z’s estate. Was there valid service of summons?

So, on the strength of the allegation in the complaint, that the wife is the representative of the
deceased, is there valid service of summons?

No. The Regional Trial Court did not acquire jurisdiction over the person or estate of Z, who was
dead at the time the complaint was filed and no special proceeding to settle his estate had been
filed in court. Summons served upon Y purportedly as the representative of her late husband was
invalid. (Gaffney v. Butler, G.R. No. 219408, November 8, 2017, J. Caguioa)

Answer no. Why? Because there was no settlement of estate proceedings, the wife was never
appointed whether as an executor or as an administrator. So there is improper service of summons
assuming na pwede maging party yung patay. Pero sabi nga ng Supreme Court, he can’t even be a
party. Assuming he can, there is no proper service of summons because the plaintiff just designated
the wife as representative kahit naman there is no settlement of the estate. Note that after the
death of a person, kailangan natin ipa-appoint ang representative executor or administrator.

But what about under the Rules of Court na sinaasabi natin na if there is a deceased under Rule 3,
the heirs can represent. Note that that applies if during the pendency of a case, the party dies. So
when you file the case, buhay siya and during the pendency namatay, substitute siya ng heirs. The
heirs that can substitute do not have to be those that are appointed by the settlement court as an
executor or as an administrator. This is a totally different factual scenario. Why? Because here, the
defendant was dead in the first place before the action was filed.

If the action against Z’s estate is dismissed, what is the remedy of X?

 X must bring a claim against the estate of Z in a proper proceeding, specially by filing a money
claim in the settlement of estate proceedings, pursuant to Rule 86. (Gaffney v. Butler, G.R. No.
219408, November 8, 2017, J. Caguioa; Rule 86)

So what is the proper remedy? The remedy is that the plaintiff should just participate in the
settlement of estate proceedings of the deceased by filing his money claim in that settlement of
estate proceedings pursuant to Rule 86.

What if there is no pending settlement of estate proceedings? Then the creditor can institute it.
Remember, the one who can institute the settlement of estate proceedings is one who has a legal
interest in the estate.

Who has a legal interest in the estate? The person who stands to benefit or to receive something
from the estate. Ano bang pwede mo matanggap dun? Natural, pera diba. So if you are an heir,
compulsory heir, you stand to receive from the estate. Devisees, legatees, sino pa? Creditors
syempre. Kasi ang creditor makakatanggap ng yan from the estate. Bayad muna diba? Bayad muna
bago distribute sa heirs. So the creditors can institute that settlement of estate proceedings.

VD SEÑGA JOKE: “Gets ba? Ok lang ba kayo diyan? Di ko alam kung ok lang kayo pero sana ok lang
kayo mga cosa (??). Sana ok lang mga pwet, mata niyo, at mga ulo niyo because mga ngayong
month, October bago ng bar, aba lahat ng mga sakit lumalabas. Di mo na maintindihan bakit
andami mong nararamdaman. Sakit ng ulo mo, sakit ng likod mo, batok mo. Yan, stress yan. Tawag
diyan stress. Pwede rin old age. Consider mo rin na matanda ka na. Pero sa totoo, marami
talagang nararamdaman because of the stress. Di mo na ma-figure out. Ano gagawin mo? Aba
malay ko di naman ako doctor. Check mo sa doctor. Juris Doctor lang ako. Di ako medical
practitioner. But what you can do is you make sure that you get a good night’s sleep and you drink
your vitamins. Yun yung maipapayo ko kasi di naman po ako doctor. Di ko alam yan. ”

After the Regional Trial Court denied the affirmative defense of Y for the dismissal of the claim
against Z’s estate, Y assailed such ruling before the Court of Appeals and the Court of Appeals
reverse the Regional Trial Court. Will the dismissal of the action against Z’s estate result in the
dismissal of the claim against Y?

So in this case, the wife who is alive filed an affirmative defense stating that there is failure to state
a cause of action against the dead one. It was granted. Na-dismiss yung action against the dead
husband. So now the wife is saying na kung na dismiss yung case against sa husband, dapat
ma-dismiss din yung against the wife.

No. Y only assailed the claim against Z’s estate, as representative of said estate. Courts cannot
 grant a relief not prayed for in the pleadings or in excess of what is being sought by the party.
(Gaffney v. Butler, G.R. No. 219408, November 8, 2017, J. Caguioa)

Is that correct? No. Because the wife only asked for the dismissal of the complaint against the
husband. If she wanted a dismissal of the claim against her, she should have raised it but she did not.
Because the court cannot grant a relief beyond the relief sought for. So she never sought for the
dismissal of the claim against her; only the dismissal of the claim against the husband. So the court
cannot grant a relief that is not prayed for.

What is an indispensable party?

An indispensable party is a party-in-interest without whom no final determination can be had of an

action. He is one with such a material and direct interest in the controversy that a final decree
would necessarily affect their rights, so the court cannot proceed without their presence. (Roy III
v. Herbosa, G.R. No. 207246, November 22, 2016, J. Caguioa; Rules of Court, Rule 3, Sec. 7)

So your indispensable party is a real party in interest or party in interest but also one without whom
no final determination can be had of an action. When you are studying, you don’t have to memorize
it verbatim kasi baka maloka kayo. But try to remember these keywords. Kunyari, an indispensable
party, no final determination can be had in an action. So sobrang important ng indispensable party
kasi kung wala siya, di tayo magkakaroon ng final determination. That indispensable party obviously
would have a material and direct interest in the controversy. Without that indispensable party, we
cannot have a final decree. The court cannot proceed with the action without the presence of the
indispensable party.

So does that mean that if there is a non-joinder of an indispensable party, the action shall be
dismissed? Answer is no. Why? Because non-joinder or misjoinder of a party is not a ground to
dismiss. What is the remedy? You drop. Ibagsak mo sila. Drop those parties or you join them by
impleading them.

Who has the burden of pleading the indispensable parties? It is the plaintiff who has the burden to
implead the indispensable parties. Exception? If the court orders the plaintiff to implead the
indispensable party, despite order of the court. Sabi ng plaintiff, “Di kita susundin”. O ano sagot ng
court? “Pakyu. Idi-dismiss ko. On what ground? Section 3, Rule 17.” Joke lang di sasabihin ng court na
pakyu. Sinabi ko lang yun para magising kayo. The basis is Rule 17, Section 3.

Ano ang nasa Section 3, Rule 17?

VD SEÑGA JOKE: “Di mo alam. Tangu-tango ka diyan. Syempre gamitin mo kamay mo. Lipat mo sa
codal. Ano ka. Para naman alam mo. Di ka mangmang sa buhay.”
Section 3, Rule 17. Yan ay dismissal due to the fault of the plaintiff such as when there is failure to
comply with the order of the court or the Rules of Court.

CAUSE OF ACTION

What is a cause of action?

C. Cause of Action
i. Cause of action - it is an act or omission by which a party violates the right of another.
(Rule 2, Sec. 1)
ii. Elements of a cause of action:
1. A legal right in favor of the plaintiff;
2. A correlative duty of the defendant to respect the plaintiff’s right; and
3. An act or omission of the defendant in violation of the plaintiff’s right. (Multi-Realty
Development Corp. v. Makati Tuscany Condominium Corp., G.R. No. 146726, June 16,
2006)
iii. Failure to state a cause of action
● Test for failure a state a cause of action - Whether the complaint alleges facts
which if true would justify the relief demanded.
● Inquiry is into the sufficiency, not the veracity, of the material allegations.
● If the allegations in the complaint furnish sufficient basis on which it can be
maintained, it should not be dismissed regardless of the defense that may be
presented by the defendant (Heirs of Dolleton v. Fil-Estate Management, Inc.,
G.R. No. 170750, April 7, 2009)
● Failure to state a cause of action is an affirmative defense pleaded in the
answer, when the complaint or pleading asserting the claim states no cause of
action
● Waived if not raised at the earliest time
● Inquiry is into the sufficiency, not the veracity, of the material allegations in
the complaint or pleading asserting the claim
● Any action of the court on such affirmative defense, whether the court grants
or denies the dismissal based on failure to state a cause of action, among
others, cannot be the subject of a motion for reconsideration, it being a
prohibited motion (Rule 8, Sec. 12; Rule 15, Sec. 12)
● If the court rules to dismiss the case on the ground that complaint fails to state
a cause of action, the dismissal is without prejudice to refiling an amended
complaint
● dismissal without prejudice is not appealable, nor can it be the subject of a
petition for certiorari, prohibition or mandamus, pursuant to the categorical
prohibition under Section 12(e), Rule 8.
● such ground may be among the matters to be raised on appeal after judgment
on the merits (Rule 8, Sec. 12).
D. Lack of Cause of Action
● Lack of cause of action refers to the insufficiency of the factual basis for the
action.
● Dismissal due to lack of cause of action is a demurrer to evidence on the
ground of insufficiency of evidence, and is made only after the plaintiff rested
his case
● Lack of cause of action is determined only on the basis of stipulations, judicial
admissions, matters of judicial notice and the evidence adduced by plaintiff
● The court must determine the truth or falsity of the allegations, based on the
evidence presented
● Before that, it cannot be raised as a ground for dismissal
● Dismissal due to lack of cause of action constitutes res judicata on the issue
and will bar future suits based on the same cause of action,
● Remedy against is to file (1) motion for reconsideration, as it is not among the
prohibited motions under the rules and/or (2) an ordinary appeal, by notice of
appeal. Casent Realty Development Corp. v. Philbanking Corp., G.R. No.
150731, 14 September 2007
● E.g. Complaint for breach of contract of carriage. The action is filed against
the operator and owner of the jeepney and the driver as well. The driver files
an answer raising as an affirmative defense the failure to state a cause of
action. The affirmative defense of failure to state a cause of action raised by
the driver is proper because the latter cannot be made liable as he is not a
party to the contract of carriage. (Sanico v. Colipano, G.R. No. 209969,
September 27, 2017, J. Caguioa)

What is a cause of action? Oh gusto niyo deadmahin tong part na to. For your information, sa bar,
julit-julit, every year, naririnig ko reklamo ng mga bar candidates na yung saan yung mga tanong na
sobrang simple yung di nila nasagot. Why? Kasi di nila pinansin kasi feeling nila ah. Alam ko na yan.
Pero pag dating sa exam, “Ay shet. Di ko maalala yung exact wording.” Kailangan alam niyo yung
mga definition basis na yan. Kasi kasi syempre sasabihin “Uy di magaling. Di alam. Engot to.” Ganun.
So kailangan alam niyo yang mga basic-basic na yan. And also, if you have a question that would
appear to be confusing, himayin niyo lang. Malay niyo cause of action lang topic diyan. You just need
to test it against the definition or elements. Pag wala kayong maghugot sa bar, definition lang or
requirements ang basehan niyo to preface it para may pag hugutan kayo.

It is an act or omission by which a party violates the right of another (Rule 2, Sec. 1)

So the rules provide that it is an act or omission by which a party violates the right of another.

What are the elements of a cause of action?

A cause of action requires:
(1) a legal right in favor of the plaintiff;
 (2) a correlative duty of the defendant to respect the plaintiff's right; and
(3) an act or omission of the defendant in violation of the plaintiff's right. (Multi-Realty
Development Corp. v. Makati Tuscany Condominium Corp., G.R. No. 146726, June 16, 2006)

Now, please note that these elements and this definition to a cause of action only applies to our
ordinary rules. Iba ang special rules. If it is special rules, then those provided under the specific
special rules shall apply. Some special rules would not have a cause of action within the meaning of
ordinary rules. Nevertheless, there is a cause of action but it is within the meaning of special rules.
An example of that, the most common one, is your declaratory relief. Because you know that the
requirements sine qua non in our declaratory relief is that when you file a petition to declare the
rights of the parties, it should be filed before any breach.

VD SEÑGA JOKE: “Hindi po beach. Yung beach po yung pinupuntahan niyo na may buhangin. Breach
po, breach. Sabi naman nung isa, you’re such a bitch. Di rin yun. Okay?”

Yung breach na sinasabi ko ay violation. So bago ka mag file ng violation ang pag-file ng declaratory
relief. So within the meaning of a cause of action, di yan papasok kasi wala pang breach. Ibig sabihin,
wala pang act or omission in violation of the plaintiff’s right. Nevertheless, pasok yan as a cause of
action but under the special rules for declaratory relief because declaratory relief, Rule 63, requires
that there should be no breach.

Failure to state a cause of action

What is the test for failure to state a cause of action?

● whether the complaint alleges facts which if true would justify the relief demanded.
● inquiry is into the sufficiency, not the veracity, of the material allegations.
● If the allegations in the complaint furnish sufficient basis on which it can be maintained, it
should not be dismissed regardless of the defense that may be presented by the defendant
(Heirs of Dolleton v. Fil-Estate Management, Inc., G.R. No. 170750, April 7, 2009)

Ano ba ibig sabihin ng failure to state a cause of action? Just remember that when you get confused
by failure to state and lack of cause of action, makikita niyo lang yan sa wording ng dine-define niyo.
Failure; to state by its name, hindi mo na-state. Duh? There is a failure to allege the facts in the
complaint. Which assuming it were true, would justify the relief demanded.

So when you’re looking at whether there is a failure to state a cause of action, the inquiry is not as
to the veracity but on the sufficiency of the material allegations. Without regard kung totoo or not.
Assuming na totoo, will the plaintiff be entitled to the relief demanded? Example. The plaintiff in the
complaint alleges that the defendant owes plaintiff P100,000 and that the loan is due and
demandable on December 31, 2022. Today, that complaint is filed. Oh yun yung allegations in the
complaint. Assuming na totoo na may utang si defendant kay plaintiff and due and demandable yun
on December 31, 2022, will the plaintiff be entitled to the relief prayed for? Answer no because the
loan is due kailan? December 31, 2022. Ano pa lang ngayon mga cosa? October 1, 2022. So, wala ka
pang cause of action. Based on the allegations in the complaint, it does not sufficiently state a
cause of action. The plaintiff would not be entitled to the relief demanded, assuming those
allegations are true.

VD SEÑGA JOKE: “Oh na-gets niyo yun? Kasi di niyo pinansin yung December 31, 2022. Ako, guys,
everyday of my life dinadasal ko lang na sana December na. Specifically, December 24, 2022.
January pa lang dinadasal ko na sana December na. Pagod na pagod na ako pero I am sure na mas
pagod na pagod kayo. So I am sure na gusto niyo na rin umabot ng kahit December 1. Siguro
December 1 yung gusto niyo mangyari. Oh diba? Sana talaga makaraos na din kayo pero tiisin niyo
na po yan para you only have to do it once.”

● Failure to state a cause of action is an affirmative defense pleaded in the answer, when the
complaint or pleading asserting the claim states no cause of action
● Waived if not raised at the earliest time
● inquiry is into the sufficiency, not the veracity, of the material allegations in the complaint
or pleading asserting the claim

Failure to state a cause of action, how do you raise it? It is an affirmative defense pleaded in the
answer. It cannot be under a motion to dismiss whether under summary procedure or under ordinary
rules, you cannot have a motion to dismiss based on the ground of failure to state a cause of action.
That is a prohibited motion. Pati sa summary procedure prohibited yan.

Under summary procedure, dalawa lang ang grounds mo under a motion to dismiss. It is lack of
jurisdiction over the subject matter and failure to comply with prior barangay conciliation
proceedings. If your ground is failure to state a cause of action, that should be raised as an
affirmative defense whether under your summary or ordinary rules. Therefore, note that under Rule
8, it provides that you must already raise those defenses in your answer as an affirmative defense. If
you fail to do so, that will be a waiver. The only grounds for an affirmative defense that will not be
waived if you do not raise it agad in your answer would be the 4 non-waivable grounds: Lack of
jurisdiction over the subject matter, res judicata, litis pendentia, or statute of limitation. But all
other grounds, if you do not raise it at the earliest time in the answer with affirmative defense, it
would be waived.

Again, the inquiry in the failure to state is the sufficiency in the allegations in the complaint. Since
the basis is only the allegations in the complaint, in failure to state a cause of action, you raise this
ground before trial. So it is only a preliminary objection bago ka pa mag present ng evidence kasi nga
in the answer mo siya ir-raise.
If there is an affirmative defense raised in the answer such as failure to state a cause of action, what
will the court do? The court shall motu proprio resolve that affirmative defense within 30 calendar
days within the filing of the answer.

Any action of the court on such affirmative defense, whether the court grants or denies the
dismissal based on failure to state a cause of action, among others, cannot be the subject of a
motion for reconsideration, it being a prohibited motion (Rule 8, Sec. 12; Rule 15, Sec. 12)

What is the remedy against the court’s ruling on the affirmative defense? Note that under Rule 8,
Section 12, sabi, you cannot file an Motion for Reconsideration against the denial of the affirmative
defense but you need to read Rule 8, Section 12 with Rule 15, Section 12 on prohibited motions and
the prohibited motions provide that you cannot file a motion for reconsideration against any action
of the court on the affirmative defense. When you say any action of the court, it means whether the
affirmative defense is granted or the affirmative defense is denied. Kasi ang grant for denial ng
affirmative defense ay action ng court on the affirmative defense. So whether your affirmative
defense is granted or denied, you cannot file a motion for reconsideration. Can you appeal it?
Obviously you cannot appeal an order denying an affirmative defense.

An order that denies an affirmative defense is interlocutory. Why? Pag dineny ang affirmative
defense, what happens? Tutuloy ang kaso. So you cannot appeal that interlocutory order. An
interlocutory order is not appealable. On the other hand, if your affirmative defense is granted, what
is the effect? Obviously if your affirmative defense is granted, edi iyan ay dismissal na ng kaso.

Oh baka maguluhan ka. Ulit. Pag yung affirmative defense denied, syempre tuloy kaso. If affirmative
defense is granted, ma-didismiss yan.

● If the court rules to dismiss the case on the ground that complaint fails to state a cause of
action, the dismissal is without prejudice to refiling an amended complaint
● dismissal without prejudice is not appealable, nor can it be the subject of a petition for
certiorari, prohibition or mandamus, pursuant to the categorical prohibition under Section
12(e), Rule 8.

Let's start first with the denial. Whether granted or denied, you cannot file a Motion for
Reconsideration. Prohibited yun. If your affirmative defense is denied, you cannot appeal that denial.
Why? Because it is interlocutory. So can you assail it by certiorari if there is grave abuse of
discretion? No you cannot because it is prohibited under Section 12(e), Rule 8. That is categorical
prohibition. Please do not make the mistake of thinking that all interlocutory orders cannot be the
subject of certiorari. No. The remedy against interlocutory action if there is grave abuse of
discretion is certiorari. But there are certain provisions under ordinary rules that prohibit certiorari
against specific interlocutory orders. In summary procedure, certiorari against all interlocutory
orders is not allowed. Under ordinary rules, if it is a denial of affirmative defense, that specific
interlocutory order cannot be the subject of certiorari.
If the affirmative defense is granted, it is a dismissal but that dismissal is it with or without
prejudice? It is without prejudice to re-filing your amended complaint. Ayusin mo yung complaint mo
so that it will sufficiently state a cause of action. The dismissal on the ground of failure to state a
cause of action, is it appealable? Answer no. Based on Rule 41, Section 1, a dismissal without
prejudice is not appealable.

● such ground may be among the matters to be raised on appeal after judgment on the merits
(Rule 8, Sec. 12)

If your affirmative defense is denied, we cannot appeal it. We cannot assail it by certiorari. So what
is the remedy? Aba. Tumuloy ka sa kaso. Then, once there is judgment rendered in that case, the
denial of the affirmative defense can be one of the errors raised on appeal after judgment on the
merits.

Lack of Cause of Action

● Dismissal due to lack of cause of action is a demurrer to evidence on the ground of

insufficiency of evidence, and is made only after the plaintiff rested his case.
● Lack of cause of action refers to the insufficiency of the factual basis for the action

Is lack of cause of action the same as failure to state [a cause of action]? Oh spelling pa lang
magkaiba na. Lack of cause of action, this one is connected with your demurrer to evidence.

VD SEÑGA JOKE: “Ano ba ang tamang pronounce? Demyurer, Demoorer? Di na yan nag mamatter
basta tamang spelling sa bar. Yun lang importante guys. Di niyo kailangangan magaling mag
pronounce. Kailangan niyo lang maging tama mag spell. You pronounce it whatever way you need
to pronounce it para tama spelling niyo. Kasi kung mali spelling niyo, baka sabibhin ng examiner
‘Ang obob naman nito. Hindi marunong mag spelling.’ Oh, so dapat tamang spelling tayo. Keber na
sa pangit na pronunciation. Okay? Pero ginoogle ko dati, sabi demoorer. Pero ang point, tamang
spelling po. Yun ang point dito.”

Yung lack of cause of action, sa demurrer to evidence yan. So what is that? The ground is the
insufficiency of evidence and this is only arrived at after the plaintiff has rested his case. When does
the plaintiff rest his case? After the plaintiff has rested his evidence and has already formally offered
and after the court makes a ruling on that formal offer of evidence. So the lack of cause of action
ground is the insufficiency of the factual basis ng kanyang action.

● determined only on the basis of stipulations, judicial admissions, matters of judicial notice
and the evidence adduced by plaintiff
 ● the court must determine the truth or falsity of the allegations, based on the evidence
presented
● Before that, it cannot be raised as a ground for dismissal

How do you determine this? The lack of cause of action is not only based on the evidence presented.
It can also be on the basis of stipulation. Remember, stipulations are your judicial admissions and
they do not require proof anymore. So stipulations are judicial admissions, even matters of judicial
notice and the evidence adduced by the plaintiff. So not limited only to the evidence of the plaintiff
but even judicial admissions and matters of judicial notice. So based on all of those, the court must
determine the truth or the falsity of the allegations. Based on the evidence presented. But before
that presentation of evidence, you cannot raise as a ground lack of cause of action for dismissal
because you can only raise that after trial, after plaintiff has rested his case.

● dismissal due to lack of cause of action constitutes res judicata on the issue and will bar
future suits based on the same cause of action,
● remedy against is to file (1) motion for reconsideration, as it is not among the prohibited
motions under the rules and/or (2) an ordinary appeal, by notice of appeal. (Casent Realty
Development Corp. v. Philbanking Corp., G.R. No. 150731, 14 September 2007)

If the lack of cause of action ground is raised, that is usually in a motion to dismiss in a demurrer to
evidence, then the dismissal, if it is granted, this time it is res judicata on the issue and you cannot
re-file it anymore. That is a dismissal with prejudice. So you cannot re-file the case. The remedy is
either you file for a motion for reconsideration or an appeal. Please do not think that all motions for
reconsiderations under ordinary rules are prohibited. Isa lang ang prohibited. If you have your codal
with you, go and look at that list of enumeration under Rule 15, Section 12. I-isa lang ang prohibited
motion for reconsideration diyan. At ang nag-iisang yun ay on the court’s action on the affirmative
defense. Whether an affirmative defense is granted or denied, an MR on that ruling is prohibited. All
other MRs, not prohibited.

So if there is a dismissal on the ground of lack of cause of action, meaning if your demurrer to
evidence is denied, then you can file a motion for reconsideration. If your demurrer to evidence is
granted, you can file a motion for reconsideration. If your demurrer to evidence is denied, you
cannot appeal that order denying your demurrer to evidence. Why? It does not terminate the case.
Something is left to be done. What is it? You proceed to trial for the defendant's evidence. Something
is left to be done so that interlocutory order is not appealable. If your demurrer to evidence is
granted, it is dismissal with prejudice. The remedy is appeal.

X filed a complaint for breach of contract of carriage against the Operator and Owner of the
Jeepney and its driver, because X was injured while X was a passenger in the said jeepney. May the
driver raise the affirmative defense of failure to state a cause of action?
There is a complaint for breach of contract of carriage. Take note of the cause of action here. It is
breach of contract of carriage. The action is filed against the operator and owner of the jeepney and
the driver as well. The driver files an answer raising as an affirmative defense the failure to state a
cause of action. Is the driver correct? That the complaint fails to state a cause of action against the
driver in this complaint for contract of carriage?

Yes. Since the cause of action is based on a breach of a contract of carriage, the liability of the
owner/operator of the jeepney is direct as the contract is between him and X. The driver of the
jeepney cannot be made liable as he is not a party to the contract of carriage. (Sanico v. Colipano,
G.R. No. 209969, September 27, 2017, J. Caguioa)

Answer yes. Why? Because in a contract of carriage, there are only 2 parties. Who are the parties?
You passenger and you common carrier operator or owner. The driver is just the employee of that
common carrier. So there is no cause of action against the driver.

Do not confuse this with quasi-delict. Ito ay breach of contract of carriage. So obviously, since the
driver is not a party to the contract of carriage, only the employee of the common carrier, the
complaint fails to state a cause of action against the driver. But what if the complaint is for
quasi-delict for that car accident due to negligence? The action is only filed against the common
carrier. Common carrier says that they need to implead the driver as an indispensable party. Is the
common carrier correct? Answer no. Why? Because in quasi-delict, the liability of those liable, the
nature of which is solidary. When you say solidary, you can claim the entire amount against any one
of them. So by just impleading the common carrier, you can recover that entire amount against that
common carrier. The driver is not even indispensable, not even necessary because the obligation here
is solidary. You can have a final determination even just against the common carrier.

VD SEÑGA JOKE: “I’m back ebak. Sana nasa transcript din yung ebak. Inisip ko pa yan during
breaktime ko. Ano kayang magandang malagay sa transcript na yan. Sana nandun yan sa
transcribed lecture ha. I’m back ebak.

Yung pala sa bar, ingat ingat tayo pag na-jjebs tayo during the bar. Anong gagawin niyo pag
na-jjebs na kayo? Aba, release it! Release it baka hindi kayo makapag-isip diba. Ngayon pa ba
niyong iisipin na nakakahiyang jumebs. Jumebs ka. Ilabas mo yan. Baka hindi ka makapag-isip.
Nung bar namin, nakwento ko na ‘to dati pero ewan ko kung yung iba, baka hindi nila alam. Yung
bar namin, ewan ko kung ngayon ganun, sinusundan ka hanggang bathroom. Medyo bukas yung
pinto. Yung friend ko, jebs na jebs na siya kasi kapag kinakabahan siya, na-jjebs daw siya. So
ayun, nung jume-jebs daw siya, ayun, naka-eye-contact lang sila nung watcher. Nagtititigan sila
habang tumatae siya. Eh medyo intense daw kasi kinakabahan daw talaga siya. Ayun, medyo
mabaho talaga. Dahan-dahang sinasara ni watcher yung pinto. Si watcher hindi kinaya yung baho.
Ang point, ilabas niyo yan para makapag-sagot kayo ng exam. Diba tatandaan pa ba nila “ehh
tumae yon.” Ang importante ay mailabas mo yan.”
 COMPULSORY COUNTERCLAIM

E. Compulsory Counterclaim
i. A compulsory counterclaim arises out of or is connected with the transaction or occurrence
constituting the subject matter of the opposing party’s claim and does not require for its
adjudication the presence of third parties of whom the court cannot acquire jurisdiction. (G.
Holdings, Inc. v. Cagayan Electric Power and Light Co., Inc., G.R. No. 226213, September 27, 2017, J.
Caguioa)
● Docket fees should not be collected for compulsory counterclaims as provided by the
Supreme Court in OCA Circular No. 96-2009, which suspended the payment of filing
fees provided in A.M. No. 04-2-04-SC dated 21 September 2004 (G. Holdings, Inc. v.
Cagayan Electric Power and Light Co., Inc., G.R. No. 226213, September 27, 2017, J.
Caguioa; A.M. No. 04-2-04-SC dated 21 September 2004; OCA Circular No. 96-2009
dated 13 August 2009)

Yan po may tanong nako. Gumaganti na yung mga estudyante ko dati. Pinapag-recite nila ako. Akala
niyo. Kaya kong sagutin yan. Ang tanong nila is if it is based on quasi-delict based on vicarious
liability. If the basis is your vicarious liability, again, here, the basis of vicarious liability is that you
want the employer to be liable for the negligence of the employee. Correct? So you want the
employer to be liable and you need to establish whether there is diligence or proper exercise of
diligence of the employer in its selection, training, etc., management of their employees. So here,
you can implead your employee [and] you can also implead your employer. But the Supreme Court
said that if there is a ruling, exactly, that is the case actually Mr. Questioner. That is exactly the case
with the Supreme Court and the Supreme Court said that in that instance, the nature of their liability
would be solidary liability. So in that case, the employer, the operator, and the common carrier, and
the employee were impleaded. However, summons could not be served on the defendant driver. So,
the case proceeded, judgment was thereafter rendered and it was found that the operator should be
liable. So nag-reklamo yung operator on appeal, sabi ng operator: judgment is not valid because the
driver is an indispensable party. So that is why the Supreme Court ruled: you don’t even need to
implead the driver because in that vicarious liability, the liability is solidary. It means you can claim
the amount against any one of them. So even without the driver, we can have a final determination
of the case because the claim- a full amount, can be made only against- even against just the
common carrier. The full amount, dapat babayaran yan ng common carrier. Ok hope that answers
your question.

So let’s go to compulsory counterclaim.

What is a compulsory counterclaim?

A compulsory counterclaim arises out of or is connected with the transaction or occurrence

constituting the subject matter of the opposing party’s claim and does not require for its
adjudication the presence of third parties of whom the court cannot acquire jurisdiction. (G.
 Holdings, Inc. v. Cagayan Electric Power and Light Co., Inc., G.R. No. 226213, September 27, 2017,
J. Caguioa)

Yung compulsory counterclaim niyo, it must arise or it must be connected with the transaction or
occurrence that constitutes the subject matter ng kalaban mo or the opposing party’s claim. Your
compulsory counterclaim is the claim of the opposing party against the other party. Now, as a rule, it
does not require for its adjudication the presence of third parties to whom the party cannot acquire
jurisdiction.

Now, the question is:

Should docket fees be collected for compulsory counterclaims?

No. There is no liability to pay filing fees on compulsory counterclaims, as provided by the
Supreme Court in OCA Circular No. 96-2009, which suspended the payment of filing fees provided
in A.M. No. 04-2-04-SC dated 21 September 2004 (G. Holdings, Inc. v. Cagayan Electric Power and
Light Co., Inc., G.R. No. 226213, September 27, 2017, J. Caguioa; A.M. No. 04-2-04-SC dated 21
September 2004; OCA Circular No. 96-2009 dated 13 August 2009)

I notice that there are some reviewers mentioning cases of Justice Caguioa that mentioned that
there is payment for filing fees for compulsory counterclaims. That is incorrect. That is not accurate.
Why? The basis of that ruling that was cited in some reviewers that mentions that there is
compulsory counterclaim is based on a case during the time when there was a Supreme Court
Administrative Matter No. 04-2-04-SC in September 2004 that said that there will be docket fees for
compulsory counterclaims. But that Administrative Matter was already subsequently suspended by
OCA Circular No. 96-2009. In that subsequent circular of the Supreme Court, the Supreme Court said
it is suspended, the rule in A.M. No. 04-2-04 that requires payment of filing fees. Ang point na gusto
kong sabihin: yung rule na nagsasabi na yung payment ng docket fees sa compulsory counterclaims
sinuspend. So at present, walang payment of docket fees on compulsory counterclaims. I just wanted
to clarify that.

SUMMONS

F. Summons
i. What is summons?
● The summons shall be directed to the defendant, signed by the clerk of court under
seal, and contain:
(a) the name of the court and the names of the parties to the action;
(b) a direction that the defendant answer within the time fixed by these Rules;
(c) a notice that unless the defendant so answers, plaintiff will take judgment
by default and may be granted the relief applied for.
 A copy of the complaint and order for appointment of guardian ad litem, if any,
shall be attached to the original and each copy of the summons. (Rules of
Court, sec. 2, rule 14)
● A writ by which the defendant is notified of the action brought against him. Service of
such writ is the means by which the court may acquire jurisdiction over his person.
Trial and judgment without such service is null and void. (Spouses Olar v. Cuna, G.R.
No. L-47935, May 5, 1979, citing Sy v. Navarro, G.R. No. L-44909, January 31, 1978)
X filed an action for sum of money against Y. In the return of service of summons, it was
alleged that Y refused to receive summons, constraining the process server to tender it on Y.
No Answer was filed and upon motion, Y was declared in default. X was allowed to present
evidence ex parte.

Alright there is an action for sum of money against the defendant. In the return of the service of
summons, nakalagay sa report or return ng sheriff that the defendant refused to receive summons.
And so, the sheriff or the process server was constrained to tender it on the defendant. Remember,
service of summons is personal. But if the defendant refuses to receive it, then isasampal mo ba yung
summons sa kanya? Hindi. Pero gusto mo pero hindi mo pwedeng gawin. So how do you tender it? You
leave it within the view and in the presence of the defendant. So yun yung ginawa ng sheriff and that
is what’s indicated in the return. Then no answer was filed by the defendant. So, there was a motion
to declare defendant in default, the Court ordered to declare defendant in default, and the plaintiff
was allowed to present evidence ex parte.

The trial court later ruled in favor of X. After the decision became final and executory, X
moved for execution, which was granted. Later on, Y’s property, after being attached, was
scheduled to be sold at an execution sale.

Subsequently after presentation of evidence, judgment was rendered in favor of the plaintiff. The
decision became final and executory and the plaintiff moved for execution which was granted. Later
on, the property of the defendant was attached. And remember, how do you attach real property? So
you need to have that annotated or registered with the Registry of Deeds. That’s how you attach or
levy real property. And so, it was scheduled to be sold at an execution sale.

Y allegedly learned of this through another, more than 6 months from the finality of judgment,
and thus filed a petition for annulment of judgment with the Court of Appeals, claiming that
the Regional Trial Court had no jurisdiction over his person.

So, more than 6 months from the finality of judgment, the defendant allegedly learned through
another about the finality of that judgment. And so, the defendant filed a petition for annulment of
judgment. It cannot be petition for relief because lampas na yung 6 months from finality kaya
annulment of judgment ang basis ni defendant. Defendant claims that the Regional Trial Court never
had jurisdiction over his person.
 Y claimed that summons was not validly served on Y, because at the time of the service of
summons, Y allegedly was not residing in the address provided by X in the complaint. Y alleged
in the petition that his lease in the former address was expired already, showing he was no
longer residing in said address, but no lease contract was submitted.

According to the defendant, he was not validly served summons because at the time that the
summons was served on the defendant, he was no longer residing in that address indicated in the
complaint. According to the defendant, his lease in that premise has already expired. And so, he was
no longer residing in that address. But note that as proof of that, the defendant did not submit any
lease contract to show that he was living there pursuant to a lease that terminated.

The lease is established by affidavits of neighbors but there was no affidavit from the alleged
lessor. Will the petition prosper?

Instead, the defendant submitted affidavits of neighbors saying that the defendant was no longer
living there. But the Court noted that there was no affidavit of the alleged lessor. Kung natapos na
yung lease, best evidence lease contract or the affidavit of the lessor. Instead, affidavit ng mga
marites ang binigay niya. Yung mga tsismosang kapitbahay. Will the petition for annulment of
judgment prosper on the ground that there was no proper service of summons and therefore there
was lack of jurisdiction over the defendant.

No. The process server being a public official, enjoys the presumption of regularity in the discharge
of his official duties and functions. The Return of Service of the process server of the RTC
constitutes prima facie evidence of the facts set out therein. Y did not show any clear and
convincing evidence to overturn such presumption. (Yap v. Lagtapon, G.R. No. 196347, January 23,
2017, J. Caguioa)

Okay, ground for annulment lack of jurisdiction kasama yan, yung over the person of the defendant
ha, not just subject matter. Alright. According to the Supreme Court, NO, that petition for
annulment will not prosper. Why? Number one, the process server is a public official. And so, it
enjoys the presumption of regularity in the discharge of its official duties and functions. So the
return of service of summons of the process server is prima facie proof of the facts stated therein.
That prima facie proof, it can be overturned by what evidence? It must be clear and convincing
evidence. In this case, according to the Supreme Court, the affidavits of the neighbors are not
sufficient to overcome the clear and convincing evidence. So sabi ng Supreme Court, the defendant
should have been able to present the lease contract to show that the lease terminated in the
premises and that he was no longer residing there at the time of the service of summons. He should
have been able to present the affidavit of the lessor himself but it is curious why it is the neighbors’
affidavits. So sabi ng Supreme Court, how can you even say that those neighbors would have personal
knowledge of the lease contract between the lessor and the lessee? So the evidence presented,
according to the Supreme Court, was not able to overcome the clear and convincing evidence. And
so, the presumption of regularity in the performance of functions stays. And so the Court gave
credence to the report of the public official in the absence of proof to the contrary that there was
service of summons on the defendant who refused to acknowledge receipt.

PRE-TRIAL

G. Pre-trial
i. What is Pre-trial?
● A device to clarify and narrow down the basic issues between the parties, to ascertain
the facts relative to those issues and to enable the parties to obtain the fullest
possible knowledge of the issues and facts before civil trials and thus prevent trials
from being carried on in the dark. (Heirs of Reyes v. Court of Appeals, G.R. No.
157959, March 28, 2007)
ii. Pre-trial Order
● It controls the subsequent proceedings
● It may be modified provided it is done before trial, to prevent manifest injustice.
(Rules of Court, Rule 18, Sec. 7)
● An issue not raised in the pre-trial order may be ruled upon by the trial court, by
exception, when issues not raised by the pleadings are tried with the express or
implied consent of the parties, they shall be treated in all respects as if they had been
raised in the pleadings, and no amendment of such pleadings deemed amended is
necessary to cause them to conform to the evidence. (Rules of Court, Rule 10, Sec. 5)
● As a rule, no theories, issues, and arguments can be brought to the attention of the
trial court because if not raised in the trial court, it cannot be raised for the first time
on appeal.
○ Exceptions:
a. Subject of judicial notice; or
b. Had already been judicially admitted. (Borromeo v. Mina, G.R. No.
193747, June 5, 2013)

A complaint was filed against A. In A’s answer, A alleged the affirmative defenses of
prescription and laches. However, the issues of prescription and laches were not raised in A’s
pre-trial brief, nor were they included in the pre-trial order.

Trial ensued and A participated in the trial, without also raising the issues of prescription and
laches. Judgment was rendered without ruling on the issues of prescription and laches. May
these issues be raised and considered on appeal?

Alright. There is a complaint.

Okay may tanong sakin. Regarding affirmative defenses, are there instances that it would be granted
and the dismissal will be with prejudice? The answer to that is found under Rule 15, Section 13. Rule
15, Section 13, provides for the grounds for your affirmative defense. Dismissals that are with
prejudice. And if it is with prejudice, then the remedy is MR then appeal. When you say with
prejudice, it means you cannot re-file it anymore. So the remedy against a dismissal with prejudice
is appeal. It cannot be certiorari. Certiorari is not a substitute for an appeal. Certiorari is not
available when there is an appeal or any plain, speedy, adequate remedy. So, the remedy against a
dismissal with prejudice if the affirmative defense is granted and the dismissal is with prejudice, is
either MR then subject to the fresh period rule, appeal. Or even without an MR, you can go straight
to an appeal. What are the grounds of affirmative defense that would lead to a dismissal with
prejudice? That is res judicata, that the claim or the amount has already been paid, abandoned,
waived, that the claim is already extinguished, and also unenforceable under the Statute of Frauds.
You will find all of that under Section 13, Rule 15. So you just memorize those grounds so that you
know what are those with prejudice and all others will become without prejudice. So example lack
of jurisdiction over the person of the defendant without yan. Failure to state a cause of action,
without. Lack of legal capacity to sue without ganyan. Failure to comply with condition precedent
without ganyan. Lack of jurisdiction over the subject matter without ganyan. I hope I answered your
question.

So there is a complaint against the defendant. In the answer of the defendant, the defendant alleged
an affirmative defense of prescription and laches. Now, the prescription and laches, although raised
as an affirmative defense, if the answer was not raised in the pre-trial brief. It was also not included
in the pre-trial order. Take note of that. So it is in the answer that it is not in the pre-trial brief and
not in the pre-trial order. After that, there was trial. The defendant participated actively in the trial
but during the trial, defendant never raised the issue of prescription and laches. Judgment was
rendered without any ruling on the issue of prescription and laches. On appeal, defendant wants to
raise the issue of prescription and laches. Can these issues be raised and considered on appeal?

No. These issues can no longer be raised for the first time on appeal as A is deemed to have waived
them when he failed to have them included in the pre-trial order, his pre-trial brief and to raise it
during trial, where A actively participated in. (Republic v. Capital Resources Corp., G.R. No.
217210, November 7, 2016, J. Caguioa)

Answer: NO. They can no longer be raised for the first time on appeal. Why? Defendant is deemed to
have waived those grounds because he failed to include them in the pre-trial order. And how will it
be included in the pre-trial order? By raising it in the pre-trial brief, or raising it in the trial even if it
is not in the pre-trial order. Note that the pre-trial order is the order that governs the proceedings of
the case. So only the witnesses mentioned in the pre-trial will be presented, only the evidence in the
pre-trial order will be presented, and only the issues raised in the pre-trial order will be resolved by
the court. Exception is although it is not in the pre-trial order, if you presented evidence on that
issue and there is waiver on the part of the other party, whether express or implied consent, meaning
he did not object to that issue not raised in the pre-trial order, then the pleadings are deemed
amended. In this case, defendant actively participated but never raised during the trial and during
the pre-trial the issue of prescription and laches. And so he is deemed to have waived that. And he
cannot raise it for the first time on appeal. Matters that are not threshed out in the trial court
cannot be raised for the first time on appeal.

Pre-Trial Order
● It controls the subsequent proceedings
● may be modified provided it is done before trial, to prevent manifest injustice. (Rules of
Court, Rule 18, Sec. 7)

Can we modify the pre-trial order? Answer: YES. As long as it is done before trial and with the
approval of the court to prevent manifest injustice.

When may an issue not raised in the pre-trial order be ruled upon by the trial court?

By exception, there are issues that are not raised in the pre-trial but they can be ruled upon by the
trial court.

When issues not raised by the pleadings are tried with the express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the pleadings, and no
amendment of such pleadings deemed amended is necessary to cause them to conform to the
evidence. (Rules of Court, Rule 10, Sec. 5)

So what are these again? These are those that are issues not raised but because of the express or
implied consent of the adverse party who did not object when evidence was presented on this issue
that was not raised in the pre-trial order, then the pleadings are deemed amended. There is no need
to amend, to conform to evidence. The pleading is deemed amended.

By exception, may there be theories, issues and arguments not brought to the attention of the
trial court but may be considered by a reviewing court?

Can there be theories, issues, and arguments that are not brought to the attention of the trial court
but may be considered by a reviewing court? As a rule, NO. As a rule, if not raised in the trial court,
cannot be raised for the first time on appeal.

Yes, when factual bases would not require presentation of any further evidence by the adverse
party in order to enable him to properly meet the issue raised such as:
(a) subject of judicial notice; or
(b) had already been judicially admitted. (Borromeo v. Mina, G.R. No. 193747, June 5, 2013)
Exceptions: when these factual bases do not require presentation of further evidence to enable the
reviewing court to resolve it and for the adverse-- it does not require the presentation of further
evidence by the adverse party to properly meet the issue raised. What are these? Matters of judicial
notice and matters that are judicially admitted. Remember under the Rules of Court, if it is a matter
of judicial notice or judicially admitted, there's no need to present evidence on this matter.

DEMURRER TO EVIDENCE

H. Demurrer to evidence
i. What is a demurrer to evidence?
● It is a remedy available to the defendant, to the effect that the evidence
produced by the plaintiff is insufficient in point of law, whether true or not, to
make out a case or sustain an issue. (Republic v. De Borja, G.R. No. 187448,
January 9, 2017, J. Caguioa)
● It is a motion to dismiss on the ground of insufficiency of evidence.
● All motions shall be served by personal service, accredited private courier or
registered mail, or electronic means so as to ensure their receipt by the other
party. (Sec. 5, par. B, Rule 15 Rules of Court)
● The opposing party shall file his or her opposition to a litigious motion within
five (5) calendar days from receipt thereof. No other submissions shall be
considered by the court in the resolution of the motion. (Sec. 5, par. C, Rule 15
Rules of Court)
● The movant cannot file a reply if an opposition is filed because under Rule 15
of the Rules of Court, it says that after the opposition, no other subsequent
pleadings shall be considered by the court in resolving the litigious motion.
ii. When to file demurrer to evidence?
● After the court rules on the formal offer and objections to the formal offer of
evidence because it is the only time after the court rules on the offer that one will
know what evidence was admitted by the court and what evidence constitutes that of
the plaintiff’s evidence.
○ When to make a formal offer of evidence?
■ Testimonial evidence - at the time the witness is called to testify.
■ Documentary or object evidence - after the witness testifies (Sec. 35,
Rule 132 Rules of Court)
○ How formal offer of evidence is made?
■ All evidence must be offered orally. (Sec. 35, Rule 132 Rules of Court)
iii. Effect of a grant of demurrer to evidence
● It is a dismissal similar to a judgment, which is a ruling on the merits of a case.
(Republic v. De Borja, G.R. No. 187448, January 9, 2017, J. Caguioa)
● A ruling granting demurrer to evidence may not be the subject of a Rule 45 petition
with the Supreme Court because the propriety of the trial court’s granting of a
demurrer to evidence entails a calibration of the evidence on record. Factual
questions are not the proper subject of a petition for review under Rule 45, the same
 being limited only to questions of law. (Republic v. De Borja, G.R. No. 187448, January
9, 2017, J. Caguioa)
iv. What is crucial in the determination in demurrer to evidence?
● It is whether the thing in evidence entitles it to the relief sought based on its own
evidence presented, but we cannot use the basis of preponderance of evidence.

Demurrer to evidence
● motion to dismiss on the ground of insufficiency of evidence
● remedy available to the defendant, to the effect that the evidence produced by the
plaintiff is insufficient in point of law, whether true or not, to make out a case or sustain an
issue. (Republic v. De Borja, G.R. No. 187448, January 9, 2017, J. Caguioa)

As I mentioned earlier, your demurrer to evidence is filed after the plaintiff has rested his case. But
by definition based on jurisprudence, you do not file it after--

VD SEÑGA JOKE: “Slower presentation. Sige sorry sorry babagalan ko. Yun yung problema ko
talaga. Minsan masyadong mabilis ako pag na-excite ako. Pag-na-excite ako sa topic? What a nerd.
So I really request you if I’m going too fast please tell me in the chat because in my delusional
head, I might be going slow but actually it’s too fast. So please yes please let me know if I’m
going to fast or too slow as the case may. So I apologize. Okay. so I’ll try to pace myself slower.
Alright. Thank you for that. That you for raising that.”

So let’s go to a demurrer to evidence. So we mentioned earlier that in a demurrer to evidence, you

can only raise this after evidence is presented by the plaintiff. What does the court consider? It is not
only the evidence of the plaintiff but also the stipulations, the judicial admissions, and matters of
judicial notice.

Now, when you say demurrer to evidence, it is actually a motion to dismiss. And this motion is a
litigious motion. That is under Rule 15. So the requirement is that when you file this motion, you
must serve a copy of the motion on adverse party. If you fail to serve a copy of your motion, that is
litigious on the adverse party, the Court will not act on your motion to dismiss by demurrer to
evidence on or on your litigious motion. So you need to serve on the adverse party. So that the
adverse party will have the opportunity to oppose your litigious motion within a period of 5 days.
After the lapse of that period, and you do not file an opposition, then you waive the right to file that
opposition.

Can the movant file a reply if an opposition is filed? Answer: NO. Because under Rule 15, it says that
after the opposition, no other subsequent pleadings shall be considered by the court in resolving your
litigious motion. So if demurrer to evidence, what is the timing? So we said it is after the plaintiff
rested its case. But the resting of the case doesn’t happen exactly after the last witness is
presented. No. For you- because remember the phases of your demurrer to evidence is the evidence
of the plaintiff.

And how do you know what constitutes the evidence of the plaintiff? First, the plaintiff needs to
formally offer the evidence because no evidence will be considered by the court unless it is formally
offered.

When do you make a formal offer? It depends if it is testimonial, documentary, or object. If it is

testimonial evidence, the time to make the offer is at the time that the witness is called to testify. If
it is documentary or object evidence, the time to make an offer is after the witness testifies. Pag
tapos na lahat ng witness, that is the time you made your formal offer of documentary and object
evidence. Oral lang ang formal offer natin. It is orally made, not in writing. And that is the time to
object. Once there is an offer, that is the time the opposing party objects. Then the court will rule
on it.

So, in conclusion, the time to make your demurrer to evidence is after the court rules on the formal
offer and objections to the formal offer. Because it is only when the court rules on your offer that is
the only time that you will know what evidence was admitted by the court, what evidence
constitutes that of the plaintiff’s evidence. After there is a ruling on the formal offer of evidence,
then you can file your demurrer to evidence. In the civil case, there is no need for leave court. Sa
criminal case lang yan. File mo na lang basta yan dito sa civil cases.

This remedy for demurrer to evidence is only available to the defendant. So, the defendant is saying
that, “Hey, court, the evidence of the plaintiff is insufficient to make out a case to sustain the issue
raised.” Kulang, insufficient ang evidence. So, it follows that the defendant has not yet presented
evidence in your demurrer to evidence.

What is the effect of a grant of demurrer to evidence?

● It is a dismissal similar to a judgment, which is a ruling on the merits of a case. (Republic v.
De Borja, G.R. No. 187448, January 9, 2017, J. Caguioa)

If your demurrer to evidence is granted, what is the effect? This is a dismissal that is on the merits.
As similar to a judgment. It is a dismissal with prejudice, because the court makes a ruling on the
merits of the plaintiff’s evidence. And so, if it is a dismissal with prejudice, the remedy is appeal.

May a ruling granting demurrer to evidence be the subject of a Rule 45 petition with the
Supreme Court?
● No. The propriety of the trial court’s granting of a demurrer to evidence entails a
calibration of the evidence on record
● Factual questions are not the proper subject of a petition for review under Rule 45, the
same being limited only to questions of law. (Republic v. De Borja, G.R. No. 187448,
January 9, 2017, J. Caguioa)
Now, question. You know that, or if you don’t know, you will know now that from the RTC judgment
rendered in the RTC’s jurisdiction original, from the RTC, the mode of appeal is by Rule 41. Correct?
Okay. It can be by ordinary appeal, notice of appeal, record on appeal. Right? Rule 41. So that is from
the RTC to the CA.

If the RTC ruling, you want to assail it, but your only issue is only a pure question of law, note that
I’m talking about the RTC ruling rendered in its original jurisdiction lang. From the RTC ruling
rendered in its original jurisdiction, from there, if it is only a pure question of law that is raised, the
remedy is to go to Rule 45 to the Supreme Court. Again, only if it is the ruling of the RTC in its
original jurisdiction and there is a pure question of law.

If it is a pure question of law from the RTC ruling rendered in its original jurisdiction, can you do it
by Rule 41 notice of appeal? Answer: NO. The Rules provide that if you do it by notice of appeal and
it is a pure question of law assailing the original judgment in the exercise of original jurisdiction of
the RTC, CA will dismiss it. Jurisdiction is with the Supreme Court. What’s my basis? Aba, madami.
Jurisprudence. And also, you can find that in Section 1 of Rule 45. It makes mention that you can go
up to the Supreme Court from the RTC on a Rule 45 based on a pure question of law.

Now, since you can raise a judgment from the RTC in its original jurisdiction judgment to the
Supreme Court by Rule 45 on pure question of law, the question now is if there is a judgment of the
court granting a demurrer to evidence, can you assail it to the SC by Rule 45? Sabi ng Supreme Court,
kasi daw original jurisdiction naman ng RTC, can you go to Rule 45 if it is on a demurrer to evidence?
Answer: NO, because Rule 45 must only be on pure question of law. If you’re going to assail the
demurrer to evidence, it entails calibration of evidence on record. And the Supreme Court, on Rule
45, is not a trier of facts. Factual questions are not proper under Rule 45. Kasi nga, di ba ang
demurrer to evidence natin ay basis is insufficiency of evidence. So, if you’re going to assail that,
hindi yan pwede by Rule 45, because if the issue is whether the evidence is sufficient or not, it
requires the court to calibrate the evidence on record and that is a factual issue that is not within
the province of a Rule 45 petition with the Supreme Court.

X assails the grant of demurrer to evidence by appeal, alleging that X was sufficiently able to
establish the burden of proof by preponderance of evidence. Is this ground proper in assailing
the grant of demurrer to evidence?

There is a grant of a demurrer to evidence. Ibig sabihin ay na-dismiss yung kaso with prejudice. So, it
is assailed by appeal. According to the appellant, the plaintiff was sufficiently able to establish the
burden of proof required of the plaintiff by preponderance of evidence. Is this ground proper in
assailing the grant of demurrer to evidence. Answer: NO. Remember here in the question, the basis is
that the plaintiff was able to discharge the burden of proof by preponderance of evidence.

No. In a demurrer to evidence, it is premature to speak of preponderance of evidence because it is

 filed prior to the defendant's presentation of evidence; it is precisely the office of a demurrer to
evidence to expeditiously terminate the case without the need of the defendant's evidence.

What is preponderance of evidence? Preponderance of evidence is evidence of greater weight.

VD SEÑGA JOKE: “Kung sino mas mataba, kung sino mahilig umorder ng Grab Food. ‘Yan, evidence
of greater weight.”

So, it presupposes that it’s not just one party who presented evidence. It’s both parties. Because you
are determining which among the two presented weightier evidence.

So, kung isa lang nagpresent ng evidence in this case, plaintiff lang, sabi ng Supreme Court, it is
premature to speak of preponderance of evidence. Because your demurrer of evidence is filed after
the plaintiff presents evidence but before the defendant presents evidence. So, there is nothing here
to measure the preponderance of evidence. Because the basis of your demurrer is the insufficiency
of the plaintiff’s evidence but not the failure to discharge the preponderance of evidence.

Preponderance of evidence means evidence which is of greater weight, or more convincing than
that which is offered in opposition to it. What is crucial is the determination as to whether the
plaintiff's evidence entitles it to the relief sought. (Republic v. De Borja, G.R. No. 187448, January
9, 2017, J. Caguioa)

So, what is crucial in the determination in demurrer to evidence is whether the thing in evidence
entitles it to the relief sought based on its own evidence presented, but we cannot use the basis of
preponderance of evidence.

ANNULMENT OF JUDGMENT

I. Annulment of Judgment
i. Annulment of Judgment under Rule 47
1. Extrinsic fraud
2. Lack of jurisdiction (over the subject matter and over the person)
3. Denial of due process
ii. Annulment of Judgment - Extrinsic fraud
● Not a valid ground for annulment of judgment if this ground could have been raised in
a motion for new trial or petition for relief.
● If it could have been raised it in a motion for reconsideration or motion for new trial
or in a petition for relief but choose not to and then the decision becomes final and
executory, extrinsic fraud can no longer be raised as a ground in annulment of
 judgment because it is deemed waived nor annulment of judgment itself as the
extraordinary remedy.
● File the action within four (4) years from the discovery of extrinsic fraud. This
presupposes that the judgment is already final and executory. Annulment of judgment
cannot be availed of if another remedy is available or if the decision is not yet final
and executory.
iii. Annulment of Judgment - Lack of jurisdiction (over the subject matter & over the person)
● It is before is is barred by laches or estoppel
iv. Annulment of Judgment - Denial of due process
● The violation of one's due process rights is a defect in jurisdiction. When there is
violation of basic constitutional rights, courts are ousted from their jurisdiction, such
as when there is defective service of summons. (De Pedro v. Romasan Development
Corporation, G.R. No. 158002, 28 February 2005, Arrieta v. Arrieta, G.R. No. 234808,
November 19, 2018; Yap v. Lagtapon, G.R. No. 196347, January 23, 2017, J. Caguioa)

Let’s go to annulment of judgment:

Annulment of Judgment under Rule 47
● extrinsic fraud
● lack of jurisdiction
● denial of due process

The Rules of Court make mention of two grounds for annulment of judgment: extrinsic fraud and lack
of jurisdiction. As I mentioned earlier, lack of jurisdiction can refer to lack of jurisdiction over the
subject matter; it can also refer to lack of jurisdiction over the person. ‘Wag kayo magulat, di naman
kasi nilimit ng Rules ang lack of jurisdiction. Di naman sinabing over the subject matter lang, kaya
pwede rin ‘yan over the person. And there is another ground for annulment of judgment. This is not
under the Rules of Court, but recognized under jurisprudence, that is denial of due process.

Extrinsic fraud cannot be a valid ground if it had been availed of, or could have been availed of, in
a motion for new trial or petition for relief.

Now, extrinsic fraud is not a valid ground for annulment of judgment if this ground could have been
raised in a motion for new trial or petition for relief. If you could have raised it as in an MR or motion
for new trial or in a petition for relief, but you chose not to. Tapos, the decision becomes final and
executory. Can you raise it as a ground in annulment of judgment? NO. You are deemed to have
waived your right to do so. Nor your annulment of judgment is your extraordinary remedy. Only if
there are no other remedies available, but you must not have any fault.

Example, you received a copy of the decision today. But you are claiming that you were not able to
participate in the proceedings because of extrinsic fraud. Instead of filing a motion for new trial,
dinedma mo yung decision. Remember from the notice of decision, you have 15 days to file that
motion for new trial. You did not do so. That 15-day period lapsed, and it became final and
executory. Can you still raise that as a petition for relief? Again, NO. In the same way, petition for
relief is also an extraordinary remedy and you can only avail of it if you cannot have availed of that
ground in your motion for new trial, motion for reconsideration. Petition for relief presupposes that
the decision, when you discovered it, was already final and executory. In this case, when you learned
of the decision, you still had time to file your motion for new trial. So, the remedy is to file a motion
for new trial. That you did not do so is a waiver on your part. Remember, the law does not protect
those who sleep on their rights.

Lack of jurisdiction means either lack of jurisdiction over the subject matter or nature of the
action, or lack of jurisdiction over the person of the defendant

As I mentioned, lack of jurisdiction either means lack of jurisdiction over the subject matter or
pwede rin on the person of the defendant.

The violation of one's due process rights is a defect in jurisdiction.

When there is violation of basic constitutional rights, courts are ousted from their jurisdiction,
such as when there is defective service of summons. (De Pedro v. Romasan Development
Corporation, G.R. No. 158002, 28 February 2005, Arrieta v. Arrieta, G.R. No. 234808, November
19, 2018; Yap v. Lagtapon, G.R. No. 196347, January 23, 2017, J. Caguioa)

Now, when you say violation of due process, sabi ng Supreme Court, violation of due process is
actually a defect in jurisdiction. So, medyo kabarkada niya yung lack of jurisdiction. Why? Sabi ng
Supreme Court, courts are bereft to exercise jurisdiction in violation of due process, which is a basic
constitutional right. A court is ousted from jurisdiction when there is violation of due process, such
as when there is defective service of summons. Kaya medyo barkada niya talaga yung lack of
jurisdiction.

VD SEÑGA JOKE: “Honestly, di mo na kailangan sabihin yung violation of due process kung ganyan
rin lang defective service of summons. Pwede yan mag-fall sa lack of jurisdiction over the person.
Pero anyway, naisip ko lang yan, ‘di naman ako Supreme Court. Basta ang point, tatlo yung
grounds kasama yung violation of due process. Dami kong hanash, di naman ako— tao lang ako, di
naman tayo Supreme Court. Comment comment lang tayo. ‘Wag niyo ilagay sa bar yung comment
‘kong ‘yan, ha?”

Ang sagot niyo dapat due process is a ground for annulment of judgment because where there is a
violation of the constitutional right of due process, courts are ousted of jurisdiction.

So, what is the period within which to file your annulment of judgment? The period to file your
annulment of judgment depends on your grounds.
If your ground is extrinsic fraud, you need to file the action within 4 years from the discovery of the
extrinsic fraud. Again, this presupposes that the judgment is already final and executory. Because
you cannot avail of annulment of judgment if another remedy is available. So if the decision is not
yet final and executory, you cannot avail of annulment of judgment, because the remedy of MR,
motion for new trial, or appeal can still be availed of.

If your ground is lack of jurisdiction, it is before it is barred by laches or estoppel.

Paano naman ang violation of due process? Yung period ‘pag violation of due process, pareho yan ng
lack of jurisdiction. Kasi nga, kakasabi ko lang na if there is violation of due process, a court is bereft
of jurisdiction to proceed with the case. That is in violation of one’s right to due process.

PRELIMINARY INJUNCTION

J. Preliminary Injunction
i. What is a writ of preliminary injunction?
● A writ of preliminary injunction is a provisional remedy in support of the main relief to
preserve the status quo during the pendency of the main case.
● It can be an original action. As an original action, Regional Trial Court solely has
jurisdiction over an action for injunction because it is incapable of pecuniary
estimation. It cannot be filed as an original action in the Court of Appeals.
● Matters resolved in injunction proceedings do not, as a general rule, conclusively
determine the merits of the main case or decide controverted facts therein.
(Philippine Ports Authority v. Nasipit Integrated Arrastre and Stevedoring Services,
Inc., G.R. No. 214864, March 22, 2017, J. Caguioa)
ii. Grounds for granting writ of preliminary injunction
1. That the applicant is entitled to the relief demanded, and the whole or part of such
relief consists in restraining the commission or continuance of the act or acts
complained of, or in requiring the performance of an act or acts, either for a limited
period or perpetually;
2. That the commission, continuance or non-performance of the act or acts complained
of during the litigation would probably work injustice to the applicant; or
3. That a party, court, agency or a person is doing, threatening, or is attempting to do, or
is procuring or suffering to be done, some act or acts probably in violation of the rights
of the applicant respecting the subject of the action or proceeding, and tending to
render the judgment ineffectual. (Rules of Court, Rule 58, Sec. 3; AMA Land, Inc. v.
Wack Wack Residents' Association, Inc., G.R. No. 202342 , July 19, 2017, J. Caguioa)
iii. Requirements to be entitled to a writ of preliminary injunction:
1. there exists a clear and unmistakable right to be protected;
2. this right is directly threatened by the act sought to be enjoined;
3. the invasion of the right is material and substantial; and
4. there is an urgent and paramount necessity for the writ to prevent serious and
irreparable damage (AMA Land, Inc. v. Wack Wack Residents' Association, Inc., G.R.
 No. 202342, July 19, 2017, J. Caguioa)
iv. Grant or denial of the injunctive relief
● The grant or denial of the injunctive relief rests on the sound discretion of the court
taking cognizance of the case; the exercise of judicial discretion will not be interfered
with, except upon a finding of grave abuse of discretion. (AMA Land, Inc. v. Wack
Wack Residents' Association, Inc., G.R. No. 202342, July 19, 2017, J. Caguioa)

Let’s go to preliminary injunction.

Writ of preliminary injunction
● in the nature of an ancillary remedy to preserve the status quo during the pendency of the
main case.

The writ of preliminary injunction, that is your provisional remedy. So, it is your ancillary remedy. It
is sought not for itself, but in support of your main relief. To preserve the status quo, during the
pendency of the main case. However, please note that your injunction can also be a main action. It
can be an original action, it can be a provisional remedy.

As an original action, the court that has jurisdiction over an action for injunction is solely with the
Regional Trial Court because it is incapable of pecuniary estimation.

Can you file an original action for injunction in the CA? HINDI. Kakasabi ko lang, ano ka ba. Cannot be
because that is original action and the basis of jurisdiction is what is in the law. And action for
injunction is incapable of pecuniary estimation.

If you filed your original injunction in the Regional Trial Court, note that BP 129 provides that writ of
injunction will be enforceable within its judicial region. Ano ibig-sabihin niyan? If the Regional Trial
Court of Makati issues your injunction, you can enforce it in Pasig, in Quezon City, in the City of
Manila, not only in the territory but within the judicial region. What is this judicial region? That is
called the National Capital judicial region. If it’s issued in Baguio, can you enforce it in other parts of
Ilocos (Dahil bobo tayo sa geography, ‘di ko maisip)? YES, because they are under the first judicial
region. ‘Pag RTC ‘yan. ‘Pag CA, SC, enforceable in the Philippines.

Although CA and SC does not have original jurisdiction over injunction, it has jurisdiction over a writ
of preliminary injunction as a provisional remedy that is ancillary to the main action pending with
the CA or the SC.

Matters resolved in injunction proceedings do not, as a general rule, conclusively determine the
merits of the main case or decide controverted facts therein. (Philippine Ports Authority v.
Nasipit Integrated Arrastre and Stevedoring Services, Inc., G.R. No. 214864, March 22, 2017, J.
Caguioa)
Now, the matters that are resolved in your injunction proceedings will not or should not determine
the merits of the main case. If your issue in the writ of injunction or the provisional remedy would
amount to a pre-judgment in the main case, the court will not rule on your preliminary injunction
because it will serve as pre-judgment.

Grounds for granting writ of preliminary injunction

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief
consists in restraining the commission or continuance of the act or acts complained of, or in
requiring the performance of an act or acts, either for a limited period or perpetually;

What are the grounds for granting of a preliminary injunction? Syempre the first ground, applicant
should be entitled to that relief, whether in whole or in part, and that relief is that you are stopping
or restraining the commission or continuance of acts that you are complaining or that is prohibitory
or if it is mandatory, you are requiring the performance of an act either for a limited period or
perpetually.

Grounds for granting writ of preliminary injunction (cont…)

(b) That the commission, continuance or non-performance of the act or acts complained of
during the litigation would probably work injustice to the applicant; or

Now, the second ground is that the commission, continuance, or the non-performance of the act that
you are complaining of during the pendency of the litigation would probable work injustice to the
applicant.

Grounds for granting writ of preliminary injunction (cont…)

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the
judgment ineffectual. (Rules of Court, Rule 58, Sec. 3; AMA Land, Inc. v. Wack Wack
Residents' Association, Inc., G.R. No. 202342 , July 19, 2017, J. Caguioa)

And that the party, court, agency, or person is doing, threatening, or attempting to do, or procuring,
or suffering to be done acts that are probably in violation of the right of that applicant with respect
to the subject matter of the action and it would or can render the judgment ineffectual.

Now, apart from these grounds, you need to comply with the requirements to establish entitlement
to a writ of preliminary injunction. Ano ito? Apat ‘yan, dapat memorize-in mo:

What should the applicant establish to be entitled to a writ of preliminary injunction?

(1) there exists a clear and unmistakable right to be protected;
 (2) this right is directly threatened by the act sought to be enjoined;
(3) the invasion of the right is material and substantial; and
(4) there is an urgent and paramount necessity for the writ to prevent serious and irreparable
damage (AMA Land, Inc. v. Wack Wack Residents' Association, Inc., G.R. No. 202342, July
19, 2017, J. Caguioa)

There exists a clear and unmistakable right to be protected or your right in esse. ‘Yan, clear legal
right. When is it clear legal right? When it is founded on law. A legal clear right. If your right is
conditional, hindi ‘yan pwede. Kunwari my common example is expired na yung franchise mo.
Siyempre isasara ka na. Pwede ka bang mag-TRO, writ of injunction, to stop that closure? NO,
because you have no clear legal right because your franchise is already expired.

VD SEÑGA JOKE: “Parang yung ulam sa refrigerator ko na panis na. Pero di ko pa rin tinatapon kasi
tinatamad akong maghugas ng tupperware. O, sana nasa transcript din ‘yan ah.”

This right is the second requirement: the right is directly threatened by the act sought to be
enjoined. And yung invasion na ‘yan (third requirement), dapat material ‘yan and substantial. And
the most important but always neglected requirement: there has to be urgent and paramount
necessity to prevent serious and irreparable damage and also dapat wala ka ng other remedy
available. ‘Pag meron ka pang ibang remedy available, pwede ‘yang i-deny ng court.

The grant or denial of the injunctive relief rests on the sound discretion of the court taking
cognizance of the case; the exercise of judicial discretion will not be interfered with, except upon
a finding of grave abuse of discretion. (AMA Land, Inc. v. Wack Wack Residents' Association, Inc.,
G.R. No. 202342, July 19, 2017, J. Caguioa)

What do you mean by irreparable injury? When it is irreparable, it cannot be quantified. So lost
business profit, that can be quantified, that is not irreparable. Ano ba yung common example ng
irreparable? Reputation, good will.

Now, the Supreme Court ruled that whether the court grants or denies your writ of injunction or
provisional remedy, that is within the sound discretion of the court and it will not be interfered with.
Exception, when there is grave abuse of discretion amounting to lack or excess of jurisdiction.

If it is a provisional remedy as a writ of preliminary injunction, your remedies against it are that you
can seek its dissolution or discharge.

How? Well, you can show the court that there is no basis for the issuance of the writ of preliminary
injunction during the summary hearing for the writ for preliminary injunction.
Or you can tell the court that, “Your Honor, yung damage ko as defendant is far greater if that writ is
issued than if not issued, and my damage is greater than the plaintiff and my damage is irreparable,
pero yung kay plaintiff can be compensated.” ‘Yan, that is another ground. But if you will invoke that
second ground, it is an indispensable requirement that the person against whom the writ is issued
must file a bond in an amount approved by the court. Without the bond, that writ of preliminary
injunction will not be dissolved.

Another remedy is to assail it by certiorari to a higher court. If you assail it by certiorari, there is no
need to give a bond. And if the court finds that it’s certiorari because it is a provisional remedy, it is
interlocutory, not a judgment. So, you cannot appeal it, you assail it by certiorari. If the court finds
that the issuance of the writ is with grave abuse of discretion, then it will be reversed by the higher
court on a certiorari even without the giving of a bond.

But, if your injunction is a permanent injunction, meaning that it is already part of the judgment of
the case, the remedy this time is appeal.

Lagi niyong tinatanong, “What is the instance when there will be a pre-judgment in your provisional
remedy of injunction?” Ito na, bigyan ko kayo ng example since Caguioa case ito.

VD SEÑGA JOKE: “Okay, sabi ko pala hanggang 11 lang ako, pero 11:10 na pala. Mag-lunch break
muna tayo. O, suspense na lang ‘to. Sabi ng iba, ‘Wala naman kaming pake, di kami na-excite.
Excited kaming matulog, ganon.’ ‘Wag kayo mag-alala, makakatulog na rin kayo. Okay? So let’s
take a one-hour break. So let’s resume at 12:15.”

VD SEÑGA JOKE: “Kumusta lunch niyo? Mesherep ba? Sana masarap

ulam niyo. Ako, yung lunch ko air. Nag-klase ako. Kaya 11 muna yung
break natin kasi nagklase muna ako kasi midterms na next week.
Share ko lang muna tong bagong dating ko sa Lazada. Tignan niyo.
Kita niyo ba? Lalagyan siya ng tea. Saya ‘di ba? Kailangan ko ba to?
Well, nung pumunta ko sa Lazada, narealize ko kailangan ko ng
ganito sa buhay. Mahirap pumunta sa Lazada. Ang dami kong
narerealize na kailangan ko sa buhay. Pakisama ‘to sa transcribe na
may pinakita ‘kong butt with poop, na tea, lalagyan ng tsaa.”

A filed a complaint praying that A be granted easement of right of way over B’s property, so that A
may pass through it to be able to construct the building on A’s property, with prayer for issuance of
writ of preliminary mandatory injunction so A may be granted temporary easement.

Prior to the break, we said that it is possible that your provisional remedy for a writ of injunction
would be denied if it would amount to a prejudgment of the merits of the main case. So this is
exactly an example of that: a case penned by Justice Caguioa. So there is a complaint filed asking
that the plaintiff would be granted an easement of right of way over the property of the defendant.
Why does the plaintiff want to get an easement of right of way over the property of the defendant?
So that the plaintiff can pass through it, to be able to construct a building on the plaintiff’s property.
So the plaintiff needs to pass through the defendant’s property in order for the plaintiff to construct
the building on plaintiff’s property. So the provisional remedy here is one for a writ of preliminary
mandatory injunction so that the defendant would mandatorily or be compelled to grant the plaintiff
a temporary easement. So if you’ll notice here, the prayer for a writ of injunction is similar to the
merits of the main case because the main case is to ask for an easement of right of way. The
provisional remedy is to compel the defendant to grant the temporary easement para makadaan si
plaintiff so that he can start building during the pendency of the case.

B sought issuance of a writ of preliminary injunction to restrain such construction pending

determination of the case, which was denied, there being no clear legal right to the injunctive
writ.

So ito namang si B, on the other hand, sabi niya “labanan ng injunction to.” Sabi ni B, “pwes, ako
rin, mag-apply for writ of injunction to stop naman the construction.” Kasi sabi niya, “that there is
still pending determination of the case so i-restrain natin yung construction until we can determine
whether A can have that right of way.”

With the denial of B’s application for writ of preliminary injunction, without presentation of
evidence, the trial court granted A’s application for writ of preliminary mandatory injunction, and
granted temporary easement in favor of A. Was this proper?

But that injunction of B to stop the construction was denied. Since B’s injunction was denied (it was
denied without presentation of evidence), the Court, on the other hand, granted the plaintiff’s
prayer naman for preliminary mandatory injunction so that the plaintiff will be granted by the
defendant temporary easement para mapadaan ni defendant si A sa property ni defendant so A can
build on the property. So is it proper for the trial court to grant this temporary easement pursuant to
a writ of preliminary injunction?

No. In granting A’s application for preliminary mandatory injunction, the RTC prematurely decided
disputed facts and disposed of the merits of the case without the benefit of a full-blown trial
wherein testimonial and documentary evidence could be fully and exhaustively presented, heard
and refuted by the parties.

Sabi ng SC no, because by granting that preliminary mandatory injunction, the RTC already
prematurely decided the disputed facts and disposed the merits of the case without the benefit of a
full-blown trial. Remember, the hearing on a writ of preliminary injunction is just a summary hearing.
It is different from the hearing of the main case which requires the full-blown trial before the
determination of the merits of the case. So sabi ng SC before the evidence can be exhaustively
presented by granting that writ of preliminary injunction and allowing plaintiff to have that
easement of right of way on defendant’s property pursuant to that writ of preliminary mandatory
injunction, it is as if that the Court already judged on the merits of the main case because the main
case is precisely to ask for that easement of right of way. You get it?

The temporary easement of right of way under Article 656 of the Civil Code, similar to the
permanent easement of right of way pursuant to Articles 649 and 650, can only be granted after
proof of compliance with the prerequisites set forth in the articles duly adduced during a
full-blown trial. (AMA Land, Inc. v. Wack Wack Residents' Association, Inc., G.R. No. 202342, July
19, 2017, J. Caguioa)

So sabi ng SC, a temporary easement under Article 656 of the CC is similar to a permanent easement.
And both of these temporary and permanent easements can only be granted after there is proof of
compliance with the requisites set forth under those articles but only after a full-blown trial. So this
is an example where it was improper to grant the provisional remedy because it amounted to a
prejudgment of the main case. Ayos?

X filed a complaint for sum of money. The RTC issued an order directing X to pay additional
docket fees within 15 days. X complied but before X could file its compliance, the RTC
dismissed the case for failure to file docket fees. X filed a motion for reconsideration against
the dismissal, which was denied.

VD SEÑGA JOKE: “Dami namang complaint ng mga taong ‘to. Alam niyo ba nung nagaaral ako sa
bar, everytime nagbabasa ko ng complaint complaint na yan, isip ko, bakit ba kasi mareklamo
‘tong mga taong ‘to?! Kung ‘di sila mareklamo, hindi maraming kaso, ‘di maraming aaralin. So pag
nahihirapan na kayo at marami kayong inaaral, sinong sisisihin niyo? Ah, tignan niyo yung pangalan
nung mga petitioner dyan sa mga SC cases. Sila yung isumpa mo. Wooh, masyado ka mareklamo!
Ganyan.”

There is another complaint for sum of money (inaudible) you can still be allowed to pay the full
docket fees within a reasonable time as long as it is beyond the lapse of the reglementary period or
beyond the prescriptive period. So kunwari appeal yan, after your perfection of appeal hindi
kumpleto yung docket fees mo, hindi outrightly madedeny yung appeal mo. You will have an
opportunity to complete the payment of docket fees but within a reasonable period not before the
lapse of the 15-day period to appeal. Kasi kung nag-lapse na yung 15-day period, ibig sabihin you’re
not able to pay docket fees, hindi mo naperfect yung appeal mo. Pag di mo naperfect yung appeal,
the decision assailed becomes final and executory.

VD SEÑGA JOKE: “Nakita ko bigla yung mukha ko sa gilid ng zoom. Ang laki po. Parang napuno ng
siopao. Yun talaga guys, Grab food is life. Oh, lagay niyo rin yan sa transcript. Gulong gulo na
yung mga tao kasi ang dami kong side kwento.”
Ulit, take 2. May complaint for sum of money. Hindi kumpleto yung payment of docket fees. So the
Court directed the plaintiff to pay additional docket fees within 15 days. The plaintiff complied.
Nabayaran niya within 15 days but the court directed the plaintiff to file the compliance within that
period. Pero hindi na-file yung compliance. So nabayaran pero hindi na-file yung compliance. So
before the plaintiff could file its compliance, the RTC already dismissed the case for failure to file
the docket fees. (Fees yan, hindi fess. Wrong spelling sorry.) So because the Court dismissed it, the
plaintiff filed a motion for reconsideration against that dismissal. That MR was denied.

X timely filed a notice of appeal. The RTC denied due course to the notice of appeal on the
ground that said appeal is not the proper remedy. X then filed a petition for certiorari and
mandamus with the CA, which was denied, for failure to file first a motion for reconsideration
against the RTC order denying to give due course to the notice of appeal. X filed a motion for
reconsideration which was denied.

So plaintiff filed a notice of appeal. Sabi ng RTC, “Ay mali. Hindi ka pwede mag-notice of appeal.”
The RTC denied due course to the notice of appeal. On what ground? Sabi ng RTC that is an improper
remedy. Sabi ng RTC, “Dapat nag-file ka ng petition for certiorari with the CA.” Yan. Improper
remedy yan. Sabi ng plaintiff, “Pakshet. Sige na nga!” So the plaintiff filed a certiorari and
mandamus in the CA to compel the court to accept that there is payment of docket fees so that it
will not be dismissed. But the CA denied that certiorari. Napakamalas naman nitong si plaintiff.
Lahat nalang na-deny. Why? Because there was failure to first file an MR. Remember: in a Certiorari,
as a rule, kailangan mo muna ng MR. Tas sabi ni plaintiff, “Nag-file naman ako ng MR.” No, your MR is
against the judgment. But you did not file an MR daw against the ruling denying the notice of appeal.
Diba? Oh, na-lost na yung mga tao. Ulitin ko.

Yung case dinismiss. Pagkadismiss, nag-MR. Nag-notice of appeal siya, dineny. Pagkadeny ng notice of
appeal, hindi na siya nag-MR. Kaya nag-Certiorari na siya. So kaya the Certiorari was denied kasi
there was another plain, speedy, adequate remedy daw which is to file an MR of the denial of the
giving of due course of the notice of appeal.

X filed a petition for certiorari and mandamus with the SC, to assail the CA decision.

Was the petition for certiorari and mandamus with the SC the proper remedy against the CA
decision?

So bwisit na bwisit na tong si plaintiff pumunta na siya sa SC. But instead of appealing the judgment
of the CA, nag-Certiorari nanaman itong si plaintiff. So what you are assailing in the SC is the
judgment of the CA in a Certiorari case. So there is a Certiorari filed with the CA. It was denied
because they did not file an MR first. And so from the CA, umakyat siya ng SC but by Certiorari under
Rule 65. Is that a proper remedy against the CA Decision?
 No. The proper remedy of a party aggrieved by a decision of the Court of Appeals is a petition for
review under Rule 45, to the SC

When a party adopts an improper remedy, his petition may be dismissed outright (Philippine Bank
of Communications v. Court of Appeals, G.R. No. 218901, February 15, 2017, J. Caguioa)

Answer: NO, because the proper remedy is to appeal. Remember, Certiorari is an original action and
it is not a remedy when an appeal is available. Remember, Certiorari being an original action, the
remedy against it is appeal. So here, appeal was an available remedy. From the CA ruling that denied
the Certiorari, from there dapat umakyat ka sa Rule 45 to the SC. So there is an improper remedy
here. And what is the effect when there is an improper remedy? The petition may be dismissed
outright. Kasi dapat appeal instead of Certiorari.

May the SC give due course to the petition for certiorari and mandamus although it is a wrong
mode of appeal?
● Yes. The SC, by exception, may set aside technicalities and proceed with the appeal when
there is a clear need to prevent the commission of a grave injustice. (Philippine Bank of
Communications v. Court of Appeals, G.R. No. 218901, February 15, 2017, J. Caguioa)

Nevertheless, may the SC give due course to that wrong mode of remedy? Yung Certiorari papansinin
ng SC. By exception, YES. The SC, by exception, may uphold technicalities and proceed with it as if it
is an appeal. The Court can consider your Rule 65 as a Rule 45 provided it is filed within that 15-day
period to file your appeal. So otherwise, pag lumagpas na yung 15-day period, hindi na yan pwedeng
i-consider ng appeal. So by exception, the SC can relax the application of the technical rules of
procedure if there is justifiable reason and to prevent the commission of a grave injustice.

Was the petition for certiorari filed with the CA the proper remedy to assail the order of the
RTC denying the notice of appeal?
● Yes. A trial court’s order disallowing a notice of appeal, which is tantamount to a
disallowance or dismissal of the appeal itself, is not a decision or final order from which an
appeal may be taken. (Philippine Bank of Communications v. Court of Appeals, G.R. No.
218901, February 15, 2017, J. Caguioa)

So, let’s go back. Kanina, nag-file siya sa RTC ng action. Ulitin ko ah kasi baka naconfuse na kayo sa
dami ng nasabi ko. So nag-file siya ng action sa RTC. Although nagbayad siya ng docket fees na
kumpleto, the compliance hindi agad natanggap ng court, dinismiss na ng court. From the dismissal,
nag-MR siya, dineny. Nag-notice of appeal siya, the RTC denied it on the ground that it is not the
proper remedy. From the RTC denial of giving due course to the notice of appeal, nag-Certiorari siya
to the CA. Is that Certiorari a proper remedy to assail the Order of the RTC denying the notice of
appeal? So, what is the subject of the Certiorari in the CA? It is an Order denying the notice of
appeal. It is an Order that is not giving due course to the notice of appeal. And according to the SC,
YES. A trial court’s order disallowing the notice of appeal is tantamount to a disallowance or the
dismissal of the appeal itself. It is not a dismissal or final order from which appeal can be taken.
What is the basis of this? Go to Rule 41, Section 1 kung naconfuse na kayo sa buhay niyo.

Section 1, Rule 41
No appeal may be taken from:
● An order denying a petition for relief or any similar motion seeking relief from judgment;
● An interlocutory order;
● An order disallowing or dismissing an appeal;
● An order denying a motion to set aside a judgment by consent, confession or compromise on
the ground of fraud, mistake or duress, or any other ground vitiating consent;
● An order of execution;
● An judgment or final order for or against one or more of several parties or in separate
claims, counterclaims, cross-claims and third-party complaints, while the main case is
pending, unless the court allows an appeal therefrom;
● An order dismissing an action without prejudice

Look at Rule 41, Section 1. Here, you will find the enumeration of instances where no appeal can be
taken from. So among those in the list, you will find the 3rd bullet point: an order disallowing or
dismissing an appeal. So here, there was a notice of appeal filed. But the notice of appeal was
disallowed. That disallowance of an appeal by notice of appeal is not appealable based on Section 1
Rule 41. So, tignan niyo yung pinakadulo na paragraph ng Section 1 Rule 41. What is the remedy in
these instances where appeal is not a remedy?

Section 1, Rule 41 (Cont.)

In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil
action as provided in Rule 65.
● Grave abuse of discretion
● No appeal, or any plain, speedy, adequate remedy in the ordinary course of law.

Sabi ng rule, in any of the foregoing circumstances, the aggrieved party may file an appropriate
special civil action as provided in Rule 65. Kaya, the Order of the RTC denying the notice of appeal
can be assailed by a Certiorari.

VD SEÑGA JOKE: “Kung kayo nanonosebleed sa Remedial Law, ako inuuhog bleed. Naglalabasan na
‘tong uhog ko. Buti nalang di tayo magkasama. Baka mamaya bawat bahing ko lahat kayo, ‘Oh,
may covid siya.’ Pero sabi nila guys, sa panahon ngayon na may pandemya, mas acceptable pa na
umutot sa public kesa bumahing. Kasi pag umutot daw, wala namang talsik laway dun diba. Oh, di
ka mahahawa. And matetest mo kung may pang-amoy ka pa. Maaamoy mo. Magt-thank you ka pa!
‘Hay salamat, wala akong COVID. Naaamoy ko na nakakasuka yung utot mo.’ Okay? Consistent yan
sa theme ng aking lalagyan ng tsaa. Yan, isabit natin.”
In those instances where appeal is not a remedy (I hope you’re looking at your codal Section 1 Rule
41 para hindi tayo mangmang sa buhay). In all of those instances where appeal is not a remedy, take
note that the Rules mention that Rule 65 may be a remedy. It says may. So it’s not always Rule 65.
For it to be an available remedy (Rule 65), you still need to read it in connection with the provisions
of Rule 65. And what are the requirements in order for you to avail of a Petition for Certiorari under
Rule 65? There must be grave abuse of discretion and there must be no appeal or any, plain, speedy,
adequate remedy under the ordinary course of law. So example, if your dismissal is without
prejudice. Let’s say the ground is failure to state a cause of action. That is not appealable. Should
you assail it with Certiorari? Answer: NO, because there is another plain, speedy, adequate remedy
which is to re-file it with an amended complaint. In the same way, if your dismissal is due to lack of
jurisdiction over the subject matter. Let us say that you filed in the RTC an action for forcible entry.
RTC should dismiss that for lack of jurisdiction. That dismissal is without prejudice. That is not
appealable. Can you assail it by Certiorari? Answer: NO. Why? Because the RTC did not commit grave
abuse of discretion in dismissing. Kasi wala naman talagang jurisdiction ang RTC sa forcible entry.
And the proper remedy in that instance is to re-file it in the Court that has jurisdiction which is in
the first level courts. In this case, what happened was there is a dismissal of an order disallowing
your appeal.

Was the CA correct that before availing of the certiorari under Rule 65 in this case, X should
have first filed a motion for reconsideration assailing the RTC order denying the notice of
appeal?
● No.

So sabi ng SC in that instance, Certiorari was an available remedy. Why? Because there was grave
abuse of discretion. Now, sabi naman ng CA, well, hindi ko dapat yan i-grant yang Certiorari na yan
because there was failure to file an MR first. Because the rule is dapat walang appeal, or any plain,
speedy, adequate remedy. From the RTC Order denying the notice of appeal, hindi na nag-MR si
plaintiff. So sabi ni CA dapat nag-MR muna siya.

As a rule, you file an MR before you avail of a Certiorari because MR is a plain, speedy, adequate
remedy. But that rule is not absolute. It is subject to exceptions, such as when the order is a patent
nullity, as where the court has no jurisdiction.

General Rule: a petition for certiorari under Rule 65 will not lie unless a motion for reconsideration
is filed before the respondent court

Exceptions:
(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceedings have been duly raised and passed
upon by the lower court, or are the same as those raised and passed upon in the lower
court;
 (c) where there is an urgent necessity for the resolution of the question and any further delay
would prejudice the interests of the Government or of the petitioner or the subject matter
of the action is perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such
relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceedings were ex parte or in which the petitioner had no opportunity to
object; and
(i) where the issue raised is one purely of law or where public interest is involved.

VD SEÑGA JOKE: “So marami pang exceptions yan. Hindi ko na iisa-isahing basahin yan on the
ground na pag binasa ko siya na parang robot eh sayang yung laway ko tapos di rin naman kayo
nakinig. Alam niyo na dapat yang exceptions na yan. Yung powerpoint ba ibibigay ko sa inyo? Of
course. Gusto niyo ba ipadala ko na dito? Mamaya. Dito sa chat. Pwede ba mag-attach dito sa chat
dito sa Zoom? Teka lang, lemme figure it out. Oo, pwede. Eto nalang. Eto na ia-attach ko na.
Ia-alay ko na sainyo. Wait lang. Ohmygod, hindi ako marunong mag-to everyone. Pano mag-to
everyone? Oof. Teka lang. Attach ko muna bago magkalimutan. Sinend ko dito sa SBCA Centralized
Bar Operations as direct message. Pwede bang i-send to everyone niyo nalang bilang hindi ko
makita yung option dito to send to everyone. Ayan na, may kopya na kayo.”

The first exception applies in this case, where the order is a patent nullity, as where the court a
quo has no jurisdiction. (Philippine Bank of Communications v. Court of Appeals, G.R. No. 218901,
February 15, 2017, J. Caguioa)

Here, the exception applies that the Order of the RTC denying that notice of appeal is a patent
nullity. Oy, kaso to ni Justice Caguioa ha.

Why is the RTC order denying to give due course to the notice of appeal on the ground that it
is not the proper remedy a patent nullity?
➢ Section 13, Rule 41 provides that the power of the RTC to dismiss an appeal is limited to
instances when: (1) the appeal was filed out of time; and (2) non-payment of the docket
and other lawful fees within the reglementary period.

Bakit patent nullity? Remember, the notice of appeal in this case was filed on time. The notice of
appeal was filed on time but the RTC refused to give due course on the ground that it is not the
proper remedy daw. Please go to Section 13, Rule 41. Tignan niyo para hindi kayo mangmang sa
buhay. Yung Section 13, Rule 41 provides only the instances when the RTC can dismiss an appeal and
those instances are limited only to 2 grounds. So when you file your notice of appeal to the court of
origin, the RTC, in this case, under Rule 41, the RTC can only deny the appeal if the appeal was filed
out of time or if there is nonpayment of docket fees and other lawful fees for the perfection of
appeal within the reglementary period. In this case, what is the ground of the RTC to deny to give
due course to the notice of appeal? The ground is it is not a proper remedy. Ang not a proper remedy,
nagfafall ba yan sa dalawang ito? Hindi. Kasi dalawa lang ang grounds ng RTC to deny giving due
course to the appeal. It is (1) that it is out of time and (2) that it is non-payment of docket fees.

The RTC order denying due course to X’s notice of appeal on the ground that it was a wrong
remedy is a patent nullity, and the RTC acted without or in excess of jurisdiction (Philippine Bank
of Communications v. Court of Appeals, G.R. No. 218901, February 15, 2017, J. Caguioa)

Because the RTC denied due course to a notice of appeal on the ground that it is a wrong remedy, it
is patent nullity. The RTC acted without or in excess of jurisdiction, reason being the RTC’s power to
deny the notice of appeal is only grounded on these two things: the appeal was filed out of time and
non-payment of docket fees for the perfection of appeal.

Do not confuse the grounds of the Court of Origin for dismissal of an appeal with the grounds of the
CA to deny the appeal. Yung Rule 41, Section 13, yan kapag ang magdedeny ng appeal niyo ay yung
RTC in a Rule 41 appeal. Meaning the RTC judgment, you are appealing it to the CA but you filed first
your notice of appeal with the RTC. Before i-elevate sa CA, the RTC can deny the appeal if filed out
of time or no payment of docket fees. Do not confuse it with the grounds of dismissal of appeal
under Rule 50, Section 1. Ano yung nasa Rule 50, Section 1? Yan yung discretionary grounds for the CA
yan to deny the appeal. Ano yung nasa Section 1 Rule 50? Aba gamitin ang mga kamay. Ilipat ang
codal para mapunta sa Rule 50 Section 1. Eh wala kang codal? Ay Jesus take the wheel. Paano ka
mag-bar kung wala kang codal? Kailangan mo ng codal. Pero sana yung updated ha. Mahirap mag-aral
ng procedure kung luma ang inaaral mo.

What is the period for filing a notice of appeal?

● It is within 15 days from notice of the judgment or final order appealed from, or within 15
days from notice of denial of a motion for reconsideration or motion for new trial filed
against said judgment or final order. (Bernardo v. Soriano, G.R. No. 200104, June 19, 2019,
J. Caguioa)

What is the period for filing a notice of appeal? Notice of appeal, that is 15 days. Is it from the date
of judgment? NO. It is from the notice of the judgment that you are appealing from. Within that
15-day period from the notice of the decision or pwede rin from the notice of the denial of your MR.
Because meron tayong tinatawag na fresh period rule.

What is the fresh period rule?

● When a motion for new trial or reconsideration against a judgment or final order is filed by
a party, which was subsequently denied by the court, there is a fresh period of 15 days
 within which to file the notice of appeal, counted from receipt of the order dismissing said
motion for a new trial or motion for reconsideration. (Bernardo v. Soriano, G.R. No. 200104,
June 19, 2019, J. Caguioa)

Ano ba yung fresh period rule? The fresh period rule applies to our appeals. It provides that from the
notice of the court’s decision, you have 15 days. You can file your appeal, or if you choose to, you
can file an MR or motion for new trial within that 15-day period. If your MR or motion for new trial is
denied, from notice of that MR or motion for new trial, you have a fresh period of 15 days within
which to perfect your appeal. And this rule also applies to our criminal cases as we learned in
Criminal Procedure. But does it apply to administrative proceedings? Does the fresh period rule apply
to administrative proceedings?

Does the fresh period rule apply to administrative proceedings?

● GENERAL RULE: NO, it only applies to judicial appeals
● EXCEPTION: when an administrative body’s rules do not explicitly preclude its application;
when it provides for the same or states that the Rules of Court apply suppletorily to such
administrative body’s rules (Puerto del Sol Palawan, Inc. v. Gabaen, G.R. No. 212607, March
27, 2019).

ANSWER: No. As a rule, the fresh period rule only applies to judicial appeals. Now, baka maguluhan
kayo kasi may iba-ibang cases na sinasabing applicable. May iba nagsasabi hindi applicable. Kaya para
hindi na kayo maconfuse, ayan sinummarize ko na para sainyo. General rule, applies lang yan sa
judicial proceedings. Exception: if the administrative rule makes mention of the fresh period rule.
‘Di natural, maga-apply yung fresh period rule. But if the administrative rule does not provide for the
fresh period rule, or says that the fresh period rule will not apply, then obviously it will not apply. If
the administrative rule mentions that we apply the ROC suppletorily, then we can apply the fresh
period rule. But in the absence of that provision in the administrative rule that the ROC will apply
suppletorily, or in the absence of a provision in the administrative rule that makes mention of the
fresh period rule, the fresh period rule will not apply. Ayos?

A filed a Custody case over minor M, against B, with the RTC. The RTC ruled in favor of B,
granting B custody over M, in a Decision dated 5 August 2010. A timely filed a motion for
reconsideration, which was denied in an Order dated 31 August 2010.

Eto, there is a custody case over a minor. The mother files a custody case against the father over
their minor in the RTC. Plaintiff files a custody case against the defendant. The Court ruled in favor
of the defendant granting custody over the minor to the defendant. The decision is dated August 5,
2010. Alam niyo medyo masalimuot tong part na to. Medyo baka kailangan niyong isulat yung mga
petsa na sinasabi ko. Pero kung ayaw niyong isulat tapos gusto niyo maconfuse, pwede rin naman.
Choice mo naman yan. So the Decision is dated August 5, 2010. Remember, the time for you to
appeal is counted from the time of notice. So pwedeng magkaiba yung period to appeal ni plaintiff
and defendant kasi depende kung kailan natanggap ni plaintiff and defendant yung decision. Hindi
yan sabay. From the time that plaintiff received notice of the decision, plaintiff timely filed a MR but
the court denied this in its Order dated August 31, 2010.

A filed a notice of appeal (which satisfies the requirements under Rule 41) and paid the appeal
and other docket fees on 8 September 2010, within 15 days from notice of the order denying
A’s motion for reconsideration.

So from the denial of the MR, plaintiff timely filed a notice of appeal and paid for docket fees on
September 8, 2010. That date is within 15 days from notice of the order denying the MR. So si
plaintiff yan.

On the same day of 8 September 2010, B timely filed a motion for partial reconsideration of
the Decision. The RTC denied to give due course to A’s appeal due to the pendency of B’s
motion for partial reconsideration. It was reasoned that there was no final ruling that disposes
of the case to appeal yet since there is a pending motion for partial reconsideration filed by B.
The RTC instead ordered A to file a comment on B’s motion for partial reconsideration.

On the same day that the plaintiff filed his notice of appeal, defendant naman filed a motion for
partial reconsideration. So it means mas late natanggap ni defendant yung decision kasi nasa MR
palang siya. So from notice of the decision, defendant can either appeal or file an MR. Defendant
chose to file first an MR. So on the same date that the plaintiff filed a notice of appeal, defendant
filed a MR. Because there is a MR filed by the defendant, the court denied to give due course to the
plaintiff’s appeal. Kasi daw may pending MR pa for defendant. So according to the court, the case is
still pending, there is still no final ruling of the case and so you cannot appeal yet daw kasi may
pending MR pa si defendant. And the court instead ordered the plaintiff to file a comment on
defendant’s MR.

Was it proper for the court to deny to give due course to the notice of appeal?
● No. When there is a notice of appeal that satisfies the requirements under Rule 41, the
approval of the notice of appeal becomes the ministerial duty of the court. A’s notice of
appeal was timely filed, within 15 days from notice of the order denying A’s motion for
reconsideration. (Bernardo v. Soriano, G.R. No. 200104, June 19, 2019, J. Caguioa)

QUESTION: Was it proper for the court to deny to give due course to the plaintiff’s notice of appeal?
Remember, the reason why the trial court denied to give due course to the plaintiff’s notice of
appeal is because defendant filed an MR and the defendant’s MR is pending. So hindi pa daw
pwedeng i-appeal ang decision. Is the court correct? The SC ruled NO. Ano ka ba, sabi ng SC. Why? In
this case, the plaintiff’s notice of appeal is filed within 15 days from notice of the denial of the MR.
It was filed on time. It satisfied the requirements under Rule 41. Nagbayad siya ng docket fees.
According to the SC, if the notice of appeal satisfies the requirements under Rule 41, meaning you
filed it on time, there is the material date rule there, etc. and you paid for the docket fees on time,
then the court’s approval of that notice of appeal becomes the ministerial duty of the court. So here,
the notice of appeal was timely filed within 15 days from the order denying the MR and there is
timely payment of docket fees. It was error of the court to deny to give due course to the appeal.

Did the pendency of B’s motion for partial reconsideration preclude A from filing her own
notice of appeal?
● No. A party’s right to appeal is not dependent or on contingent on the opposing party’s
motion for reconsideration. (Bernardo v. Soriano, G.R. No. 200104, June 19, 2019, J.
Caguioa)

But what about the argument of the court that the pending motion for reconsideration of the
defendant precludes the plaintiff from filing an appeal? INCORRECT. Because the party’s right to
appeal is not dependent or contingent on the opposing party’s motion for reconsideration.

Yung time ng party to file depends on when they received their decision. When plaintiff received the
decision earlier, the time to file the MR started to run. So, nag-MR na siya. Noong na-deny yung MR
niya, the time to file the appeal starts to run. So, kailangan na niyang mag-appea.

Defendant received the decision later on. So from notice ni defendant, siya naman, may karapatan to
file his own MR or appeal.

Will A’s Notice of Appeal prevent B from filing a motion for reconsideration against the
decision?
● No. Each party has a different period within which to appeal, which is counted from the
party’s respective notice of the assailed judgment or final order. The timely filing of a
motion for reconsideration by one party does not interrupt the other party’s period of
appeal. (Bernardo v. Soriano, G.R. No. 200104, June 19, 2019, J. Caguioa)

But what about the argument of the court that since there is a motion for reconsideration is pending,
hindi mo pa pwedeng i-appeal ang decision? NO. Sabi ng Supreme Court, each party has a different
period within which to appeal. Your period is counted from your notice of the decision or order that
you are assailing. So the timely filing of an MR or appeal by the plaintiff will not interrupt the period
of the other. It will run from your notice.

So, when defendant filed his MR, it will not affect the period of the plaintiff to appeal. Tumatakbo
pa rin yun since yung counting ng period of plaintiff to appeal is from notice of denial of the motion
for reconsideration. It doesn’t matter that the defendant filed an MR. Tatakbo yung 15-day period ni
plaintiff from the time plaintiff learned of the denial of the MR, plaintiff must file timely an appeal
within that period.
 Will giving due course to A’s notice of appeal divest the RTC of jurisdiction to decide on B’s
motion for reconsideration?
● No. Section 9, Rule 41 provides that the court loses jurisdiction in appeals by notice of
appeal, upon perfection of the appeals filed in due time and the expiration of the time
to appeal of the other parties. There is no expiration of time to appeal yet as B still has
the time to do so. (Bernardo v. Soriano, G.R. No. 200104, June 19, 2019, J. Caguioa)

If the court gave due course to the plaintiff’s notice of appeal, does that mean that the RTC will be
divested of jurisdiction to decide the defendant’s motion for reconsideration? NO. Section 9, Rule 41
provides that the court or the trial court or the court of origin will only lose jurisdiction in appeals by
notice of appeal upon perfection of the appeals filed in due time and the expiration of the time to
appeal of the other parties.

Ibig pong sabihin, when the plaintiff perfected the appeal, that court is not yet deprived of
jurisdiction because there are two requirements in the perfection of appeal for the court of origin to
lose jurisdiction. First, is the perfection of appeal and, second, dapat nag-expire na ang time to
appeal ng lahat.

In this case, the plaintiff first perfected his appeal but the time for the defendant to appeal has not
yet expired. So the court has not yet lost jurisdiction. There is no expiration of time yet on the part
of the defendant to appeal.

QUESTION: Does the fresh period apply to Rule 42? Yes.

QUESTION: Does the fresh period rule apply to Rule 45? Yes.

QUESTION: Does the fresh period rule apply to Summary Procedure? No. Why Not? Kasi po sa Summary
Procedure, a motion for reconsideration against a judgment or a motion for new trial against a
judgment is a prohibited motion. Note that in Summary Procedure, not all MRs are prohibited. Only
the motions for reconsideration against the judgment or the motion for new trial against the
judgment is prohibited. So, in Summary Procedure, if there is an interlocutory order, you can assail it
by MR. Judgment lang ang bawal i-MR sa Summary Procedure. So, if there is a ruling in Summary
Procedure, you cannot file an MR against that judgment, wala tayong fresh period rule na
pag-uusapan dahil MR is prohibited. Remedy in Summary Procedure is to appeal that decision,
ordinary appeal from MTC to RTC under Rule 40. But if it is from the MTC to the RTC and it is
ordinary procedure, yes, there is fresh period under Rule 40. But if it is a judgment from the MTC in
Small Claims, walang fresh period ‘yan. Number one, the judgment in Small Claims is immediately
final, executory, and unappealable. You cannot file an MR against the judgment in Small Claims
because MR against judgment in Small Claims is also prohibited. You cannot appeal in Small Claims
because it is unappealable. Remedy in Small Claims is certiorari, if there is grave abuse of discretion
from the MTC to the RTC.

Let’s go to this problem:

 The Court of Appeals rendered a decision, and appellant received a copy thereof on 30
September 2013. Appellant filed a motion for reconsideration on 6 December 2013. The CA
denied outright the motion for reconsideration. Was the denial proper?
● Yes, because the motion for reconsideration was filed beyond the 15-day reglementary
period to do so. The decision has attained finality because of the lapse of the period within
which to file a motion for reconsideration or appeal. (Heirs of Francisco v. Court of
Appeals, G.R. No. 215599, November 28, 2018, J. Caguioa)

VD SEÑGA JOKE: “Wait lang, tumutulo ang aking uhog. Pakisama ‘yan sa transcript na tumutulo
yung uhog ko.”

The Court of Appeals rendered a decision, and the appellant received a copy of the decision on
September 30, 2013. The appellant filed a motion for reconsideration on December 6, 2013. The CA
denied outright the motion for reconsideration. Was the denial proper? Yes, because it was filed
beyond the 15-day reglementary period. Dapat ang MR mo, i-file mo within 15 days. Ito hindi lang
lagpas 15 days, lagpas isang buwan na ‘yan. So dapat within the 15-day reglementary period lang
from the date of the decision. If you do not do so, then the decision attains finality. ‘Pag final na
‘yan, immutability of final judgment na ‘yan, kahit na maling judgment pa ‘yan because of the
principle of immutability of final judgment. At the risk of errors, litigation must come to an end.

If that 15-day period lapses without filing an MR or an appeal, the decision becomes final and
executory, there is nothing left for you to assail by MR or appeal. If MR is filed out of time, it will also
be denied.

The RTC rendered a decision dismissing a complaint for replevin. A petition under Rule 45 was
filed with the Supreme Court, on pure question of law, with prayer for issuance of preliminary
mandatory injunction to allow petitioner to inspect and conduct an appraisal of the chattels
mortgaged by respondents to determine their current conditions and value.

The SC granted the petition but remanded the determination of the prayer for issuance of
preliminary mandatory injunction to the RTC. Is this procedurally correct?

● Yes. The Supreme Court has the authority to remand cases to lower courts for the reception
of evidence and determination of facts, such as the prayer for issuance of preliminary
mandatory injunction, which requires a determination of the facts and circumstances on
which the prayer is premised. (Land Bank of the Phils. v. Spouses Amagan, G.R. No. 209794,
June 27, 2016, J. Caguioa)

In this case, pwede bang maging original action ang replevin? Yes. It can be an original action, it can
also be a provisional remedy.
From the RTC original jurisdiction decision that denied to dismiss the complaint, a petition for review
on certiorari under Rule 45 was raised to the Supreme Court. We said earlier from RTC pwede yan to
the Supreme Court basta you are assailing the original judgment or judgment rendered in the
exercise of original jurisdiction of the RTC and it is on a pure question of law.

In that petition for review on certiorari with the Supreme Court, there is also a prayer for a
provisional remedy of preliminary mandatory injunction asking the Supreme Court to allow the
inspection and appraisal of chattels mortgaged to determine their current condition and value. The
Supreme Court granted the petition under Rule 45 but remanded the determination for the prayer of
issuance of preliminary mandatory injunction to the RTC. Is this procedurally correct? Can the
Supreme Court remand a case to the lower court for the reception of evidence? Yes. The Supreme
Court has the authority to remand cases to lower courts for the reception of evidence and
determination of facts, such as the prayer for issuance of preliminary mandatory injunction, which
requires a determination of the facts and circumstances on which the prayer is premised.

Is it absolute that only pure questions of law may be raised before the SC in a petition under
Rule 45?
● No. The rule is subject to the following exceptions, among others:

(1) when the findings, are grounded entirely on speculation, surmises or conjectures;
(2) when the inference made is manifestly mistaken, absurd or impossible;
(3) when there is grave abuse of discretion;
(4) when the judgment is based on a misapprehension of facts;
(5) when the findings of facts are conflicting;
(6) when in making its findings the Court of Appeals went beyond the issues of the case, or its
findings are contrary to the admissions of both the appellant and the appellee;
(7) when the findings are contrary to the trial court;
(8) when the findings are conclusions without citation of specific evidence on which they are
based;
(9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs
are not disputed by the respondent;
(10) when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and
(11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by
the parties, which, if properly considered, would justify a different conclusion. (Prudential
Bank v. Rapanot, G.R. No. 191636, January 16, 2017, J. Caguioa)

In addition to the exceptions mentioned above, Kalikasan cases. Sa kalikasan cases, Rule 45 ang
remedy mo. And the Rules categorically provide there that the Supreme court can review questions
of fact in Kalikasan, Rule 45.

QUESTION: If the judgment is not appealable under Rule 41, can it be a subject for a motion for new
trial or reconsideration? You can file a motion for reconsideration for sure.
Motion for new trial, baka hindi. Why? Let’s go back to Rule 41. We need to go through all of the
grounds. You can definitely file an MR against that order, those rulings under Rule 41. But not all can
be a subject of motion for new trial. Like interlocutory order, walang motion for new trial diyan. By
the nature of an interlocutory order, it’s not even a judgment. Ganyan din ‘yan sa order disallowing
or dismissing an appeal. And also an order to set aside a judgment by consent, confession, or
compromise, hindi rin pwede ‘yan. Order of execution, hindi mo rin ‘yan pwede i-motion for new
trial.
Now, if you have a judgment against several judgments or separate judgments, as a rule, you cannot
appeal it unless the court allows it. But you can definitely file a motion for new trial there if the
grounds of FAME are present. If it is a dismissal without prejudice, kunwari it is a failure to state a
cause of action, lack of jurisdiction over the subject matter, wala kang i-n-new trial diyan kasi wala
pa ngang trial in the first place. So it cannot be motion for new trial. You cannot give an all
encompassing answer, it will depend on the ground. So I hope that answered the question on whether
you can file a motion for new trial against these under Rule 41.

QUESTION: Can you assail it by a petition for relief or annulment of judgment? No. Kasi ang petition
for relief, ang annulment of judgment, it presupposes na judgment siya. Dapat judgment siya, and
this petition for relief and annulment of judgment, these are extraordinary remedies. These are only
available when there are no other remedy is available and it presupposes that the judgment is final
and executory. So, here under Rule 41, hindi naman mga judgment ‘yan.
Kapag dismissal of an action without prejudice, hindi ka rin dapat mag-annulment of judgment or
petition for relief kasi you have another remedy, which is you refile it. But if it is filed in the proper
court, let us say it is an action incapable of pecuniary estimation, you filed it in the RTC. Despite
filing it in the correct court, it was dismissed. So, there is no remedy to refile it because you filed it
in the correct court. So, here, the remedy cannot be petition for relief or annulment. It is certiorari
because there is grave abuse of discretion. Note that kapag certiorari naman, the period, lalagpas
‘yan sa finality kasi it is 60 days if it is certiorari. I hope I answered your question.

X lost before the NLRC in a labor case. After his motion for reconsideration was denied, X filed
a petition for certiorari with the CA, which was denied. X then elevated the CA decision to the
SC under Rule 45. X claims the SC, in this case, may review questions of facts. Is X correct?
● No. Only questions of law may be raised. The CA decision will be examined only using the
prism of whether it correctly determined the existence or absence of grave abuse of
discretion on the part of the NLRC, and not on the basis of whether the NLRC decision on
the merits of the case was correct. (San Fernando Coca-Cola Rank-and-File Union v.
Coca-Cola Bottlers Philippines, Inc., G.R. No. 200499, October 4, 2017, J. Caguioa)

Dito sa NLRC pala, from the NLRC in a labor case, you cannot go by Rule 43. The remedy in an NLRC
ruling is after the MR is denied, you file a petition for certiorari with the CA under Rule 65.

So, in the NLRC, you assail it from the NLRC, you go by certiorari to the CA pursuant to St. Martin’s
Funeral Homes because no appeal is available. That is not falling under Rule 43, it is expressly
excluded under Rule 43.
So, from the CA, in a certiorari case, what is your next remedy. How do you assail the ruling of the
CA? From the CA, you go up to the Supreme Court under Rule 45. Now, the petitioner claims that
since it is a labor case, the Supreme Court may review questions of fact. Is the petitioner correct?
Note that what you are assailing here in a petition under Rule 45 is the judgment of Court of Appeals
in a petition for certiorari. So, is it correct? No. Again, Supreme Court, only questions of law can be
raised. So if the certiorari, CA decision will be brought to the Supreme Court, the Supreme Court will
only determine whether the CA correctly determined the existence of grave abuse of discretion on
the part of the NLRC, and not the decision of the NLRC on the merits. Remember, what you are only
assailing in certiorari in the CA is whether the NLRC acted with grave abuse of discretion. It is not an
appeal, it is an original action. Then, if you appeal that certiorari, the Supreme Court will only
determine whether the CA correctly or incorrectly found grave abuse of discretion. Doon lang limited
ang Rule 45 mo ng certiorari.

Ultin ko, sa NLRC administrative case ‘yan, kunwari may labor case ka, walang appeal sa NLRC. Since
there is no appeal, the remedy is certiorari. But note that in a certiorari with the CA, the CA will not
review the factual merits of the labor case. The CA will only determine facts insofar as it determines
whether or not the NLRC acted with grave abuse of discretion. Certiorari is only about the
determination of whether there is grave abuse of discretion. Once the CA rules on the determination
of grave abuse of discretion, if you appeal that to the Supreme Court by Rule 45, the Supreme Court
will not review the merits of the labor case, the Supreme Court will not determine whether the
decision of the NLRC is correct on the factual merits, but, rather, the Supreme Court will review the
CA certiorari decision. Supreme Court will only look at was it correct or incorrect that he CA found
grave abuse? Doon lang limited ang Rule 45.

QUESTION: Synonymous po ba ang lack of cause of action sa demurrer to evidence? No, pero
magkabarkada sila.
Demurrer to evidence is a kind of a motion to dismiss, and the demurrer to evidence is a motion to
dismiss that is filed after the plaintiff has rested its case, after the plaintiff has presented evidence.
The basis of your demurrer to evidence is lack of cause of action. They’re not synonymous but,
rather, magkatambalan. So the lack of cause of action is the basis why the demurrer to evidence
would be granted.
There is lack of cause of action when there is insufficiency of the evidence to prove the claim of the
plaintiff.
So, yung formal offer of evidence, diba no evidence will be considered unless formally offered. Pero
pagka-formal offer mo, it does not automatically form part of your evidence. Kunwari, nag-offer ka
ng Exhibits A, B, C, but the defendant objects to your Exhibit A for being in violation of the original
document rule. So, if the court grants that objection, Exhibit A will not be admitted, B and C na lang
ang matitira. Once the court makes a ruling on the formal offer of evidence, that is the only time
that you will know what evidence is forming part of the plaintiff’s case. If it is offered, kailangan the
court rules on that. Once the court rules on what is the evidence admitted, then you will know what
constitutes the evidence of the plaintiff. From there, you will see whether it is insufficient to
establish the claim of the plaintiff. If insufficient, you can file your demurrer to evidence and the
ground is that there is lack of cause of action. Then, if granted, madi-dismiss.
 What is the law of the case?
● It means that whatever is once irrevocably established as the controlling legal rule or
decision between the same parties in the same case continues to be the law of the case,
whether correct on general principles or not, so long as the facts on which such decision
was predicated continue to be the facts of the case before the court. (Philippine Ports
Authority v. Nasipit Integrated Arrastre and Stevedoring Services, Inc., G.R. No. 214864,
March 22, 2017, J. Caguioa)

VD SEÑGA JOKE: “Alam niyo ba yung law of the case? Ayan yung hindi niyo alam. Law of the case,
yung topic na minemorize niyo pero di niyo naunawaan. Ano ba yang law of the case na yan? Eh
alam mo pala, edi ikaw na, eh di mabuti alam mo, okay? Pero i-kwento ko lang, case din ito ni
Justice Caguioa.”

When you say law of the case, once it is irrevocably established as the rule of a decision or a decision
between the parties, it will continue to be the law of the case between those parties so long as the
facts on which the decision is based continue to be the facts of the case before the court.

VD SEÑGA JOKE: “O, dami kong sinabi, wala kayong naintindihan. Kwento ko na lang sa inyo para
magets niyo.”

X, in a bidding, was awarded by Y to provide cargo handling for Y for 10 years. X accepted the
notice of award. Instead of executing a contract, X asked Y to issue several times a hold over
authority in its favor. These authorities, upon X’s request were extended several times. Before
the contract could be executed, Y revoked the award, upon expiration of the last hold over
authority.

X filed a petition for mandamus with prayer for writ of preliminary mandatory injunction
against Y, praying that Y formally execute the contract with X in accordance with the notice of
award. The RTC granted the writ. Y filed a motion for reconsideration, which the RTC granted,
causing the dissolution of the writ. X filed a petition for certiorari with the CA.

The CA granted the petition, reversing the RTC’s dissolution of the writ. In resolving the
petition, the CA determined whether X had the legal right to continue its operations for cargo
handling. The CA found there was a perfected contract between X and Y for cargo-handling,
although unwritten and that the hold over authorities and its subsequent extensions
constituted partial fulfillment thereof.

The CA decision was sustained by the SC. Thereafter, the RTC dismissed the petition for being
moot and academic, and it had nothing left to do. X filed a motion for reconsideration, which
 was granted, and in the order granting the motion, the RTC directed Y to execute a 10-year
formal contract in favor of X. Y appealed the RTC ruling to the CA, and the CA affirmed the RTC
decision.

Did the CA err in affirming the RTC decision directing the execution of a 10-year contract?

● The present appeal and the previous issue in the injunction case both stem from the same
petition, the same relief, i.e., the execution of a written contract in accordance with the
notice of award. They involve the same facts, parties and arguments. The doctrine of the
law of the case is applicable.
● The factual findings of the CA in respect of the perfected cargo-handling contract in the
injunction proceedings became conclusive upon finality of the Supreme Court’s decision
affirming the same. The 10-year term of the perfected contract had already expired, it was
error for the CA to order the execution of a 10-year contract. (Philippine Ports Authority v.
Nasipit Integrated Arrastre and Stevedoring Services, Inc., G.R. No. 214864, March 22,
2017, J. Caguioa)

So merong government agency, nagpa-bidding sila. Itong si plaintiff, nag-bid siya, so na-award siya ng
bid. So, there is a notice of award of the bid and the plaintiff accepted it. Because of that bid,
magrender siya ng service for 10 years doon sa notice of award. After that notice of award is
accepted, magexecute sila ng contract nila. But instead of executing the contract, the plaintiff,
which is the bidder, asked first for hold authority muna, ‘wag muna yung actual contract daw. Why?
Kasi may mga epal na nagrereklamo bakit napunta kay plaintiff yung award. Sabi ni plaintiff para
walang issue, ‘wag muna natin gawing, “ito na yung kontrata,” temporary muna. Everytime there is a
temporary authority, nage-expire kasi certain period lang yung temporary authority.

The temporary authority was extended several times. Hindi pa rin nae-execute yung contract ni
plaintiff. So, nabwisit itong government agency sabi, “Ayaw mong i-execute yung contract, pwes,
wala ka ng temporary authority. We are also canceling your right pursuant to the award of the bid.”
Sabi naman ng plaintiff, “Teka lang, in-award niyo na sa akin yan, dapat we should execute that
contract.”

Plaintiff filed a petition for mandamus to compel the government agency to execute that contract
with them to respect it and with a provisional remedy of a preliminary mandatory injunction, praying
that they formally execute that contract in accordance with the notice of award. The writ of
preliminary mandatory injunction was granted. Note that this is the provisional remedy. Siyempre,
nagreklamo yung ating government agency. So they assailed that writ of preliminary mandatory
injunction. Remember earlier we said what is your remedy against a provisional remedy if that writ
of injunction is granted? You assail it by certiorari because that is interlocutory if there is grave
abuse of discretion.
So the case before the CA is a petition for certiorari that assails the writ of preliminary mandatory
injunction. The CA, in resolving it, determined that the plaintif had a legal right to continue the
operations. Kasi nga, there is a perfected contract already between the government agency and the
plaintiff. Although it is not yet executed in a written contract, nevertheless, they have a perfected
contract. There was an offer, notice of bid, and the acceptance of the bid. So, there is a contract
although unwritten. So sabi ng CA, from the time that the contract was entered into although
unwritten, nagstart na yung 10-year period. So, remember what was assailed in the CA is only the
provisional remedy.

So bumalik yung case to the RTC. Noong nasa RTC na, sabi ng RTC, “Ano pa ang gagawin ko, eh
nag-rule na yung CA. Sabi ng CA, may right itong si plaintiff to the contract.” So, the RTC rendered a
judgment, and in the judgment of the RTC, it said that the 10-year contract applies. But, this time,
the RTC, in its ruling, said that the 10-year contract is counted from the finality of the decision of
the RTC.

Is that correct? NO, it is contrary to the law of the case. Why? What is the law of the case? The CA
ruling, although it is on a provisional remedy, it is the CA ruling on the right to the contract from the
time it is entered into although unwritten. It means yung 10-year period nagstart noong nag-agree
sila. So, the RTC violated the law of the case when the RTC ruled that the 10-year period is to count
from the finality of the RTC decision. Hindi. It should have counted the 10-year period from the time
that they entered into that agreement. So, by the time na nagka-decision na yung RTC, tapos na yung
10-year period. So that is the law of the case. They should have followed the CA findings.

SPECIAL PROCEEDING

QUESTION (from student): What if there is an acquittal in a criminal case and there is GAD?
● You cannot file a motion for reconsideration against that acquittal.
● General Rule: Before a certiorari, you file a Motion for Reconsideration.
● Exception: GMA case: Acquittal in criminal cases, with GAD = cannot file a Motion for
Reconsideration/appeal against that acquittal. Remedy is Certiorari Rule 65 provided there is
GADALEJ.
○ RATIONALE: Since it violates the rule against double jeopardy. It will place the accused
twice in jeopardy.
Is lack of jurisdiction over a subject matter a question of law?
● Yes. SC ruled that tack of jurisdiction over the subject matter is question of law. Rule 45 can
be applied. However, there are varying SC decisions.
○ Another SC decision: Dismissed for Lack of jurisdiction = the remedy is to refile it (If
we apply Rule 41).
○ Some SC decision: Dismissed for Lack of jurisdiction = dumiretso ng Rule 45 to the SC
instead of refiling and it was allowed. Kasi on a pure question of law.
Dismissal without prejudice, lack of jurisdiction, remedy generally is to REFILE or if not, Certiorari
under Rule 65 if there is abuse of discretion.

EXP: Case Law

Where the issue is: WON an action is a real action. Basis for computation of docket fees will
be different kasi if real or not. P says real, D says not. RTC said real action iyan. Trial Court
dismissed (without prejudice, cos kulang ng docket fees, remedy would have been to refile it
and to pay docket fees) since kulang payment sa docket fees. The aggrieved party inakyat nya
by rule 45 before SC on a pure Q of law. SC took cognizance of that appeal from a dismissal
without prejudice and the SC said that, that is a pure question of law that it can take
cognizance of.

So honestly, like you naguluhan din ako dun, pero tinandaan ko na lang na iyan yung eksaktong case
where the SC allowed from a dismissal for lack of jurisdiction without prejudice to go up to the SC by
Rule 45 on a question of law.

So kapag ganun na lang exactong facts, pwede mong gamitin yun. You can mention that “as a rule if
it is a dismissal without prejudice, remedy is to refile it or certiorari, if there is GAD. However, in
this case, in a case decided by the SC on exactly the same factual milieu, the SC took cognizance of
Rule 45 petition to determine a pure question of law on WON the RTC had jurisdiction”. Usually if
there are conflicting views, it is always best for you to know both views. Sabi ng iba, you choose the
view that you can argue the most or the best, but I would recommend that you know both views and
then you just mention it. “In this case ito yung sinabi, however there is another ruling na ganito”,
bahala na sila mamili basta alam mo pareho diba. But normally in the bar they will not ask you yung
mga controversial na ganyan.

DPWH expropriated land. A portion thereof is claimed by several parties A, B, C, and D. All of
them claimed for just compensation. The Republic of the Philippines filed an interpleader
against them to settle the payment of just compensation.

A presented to the court a compromise agreement for the allocation of just compensation
among the defendants, but it was only A and B who agreed on this allocation. RTC rendered
partial judgment on compromise and ordered partial execution of judgment. CA affirmed the
RTC’s orders.

Was the CA correct in affirming the RTC?

● NO. The allocation of the remaining balance was determined without the participation of
all other claimants who likewise stand as parties to the Interpleader. This defeats the very
purpose for which the Republic's Interpleader had been filed, as it opens the portals to
protracted litigation not only among the opposing claimants, but also between said
claimants and the Republic. (Republic v. Heirs of Cruz, G.R. No. 208956, October 17, 2018,
J. Caguioa)
Action for interpleader may be invoked when there are several parties claiming against one who has
no interest over the same subject matter. The government has no interest with the payment. Hence,
interpleader is proper here.

During the pendency of the interpleader, parties entered into a compromise agreement, only A and B
out of four. Approved by the court, and there was judgment on a compromise. Can there be a
judgment on a compromise in interpleader?
● Yes. However, it has to be with the participation of all the conflicting claimants.
● In this case, only 2 agreed on the compromise agreement.
○ SC said, compromise agreement should not have been approved for a judgment on a
compromise, when not all of the conflicting claimants are parties to that compromise
agreement. Why?
○ Since, the purpose of interpleader is to prevent duplicity of suits, so that there will be
no double vexation. If the court approves a compromise agreement, only of the 2
conflicting claimants, there will remain 2 other claimants, that will defeat the very
purpose of the interpleader, which is to prevent protracted litigation.
○ In this case, by approving the judgment on a compromise agreement, only of some but
not all of the conflicting claimants, conflicting claims will still continue, there will be
protracted litigation. So, it was incorrect to approve a judgment on a compromise
agreement in interpleader when not all the conflicting claimants are parties to the
compromise agreement.

A filed a complaint against B before the Ombudsman for violation of the GSIS Act. The
Ombudsman issued an order of preventive suspension against B to last until the administrative
adjudication is completed but not to exceed 6 months. The propriety of the order of
suspension was assailed by B before the Court of Appeals but the CA affirmed the preventive
suspension.

B filed with the RTC a petition for declaratory relief with prayer for TRO, praying that the RTC
make a definite judicial declaration on the rights and obligations of the parties asserting
adverse legal interests with respect to the implementation of the suspension order issued by
the Ombudsman. Should the petition prosper?

● No. Court orders or decisions cannot be the subject matter of a petition for declaratory
relief. They are not included within the purview of the words “other written instrument” In
Rule 63. The same principle applies to orders, resolutions, or decisions of quasi-judicial
bodies, and this is anchored on the principle of res judicata. (Erice v. Sison, A.M. No.
RTJ-15-2407, November 22, 2017, J. Caguioa)

There was a complaint before the Ombudsman for an administrative disciplinary case. There was an
order of preventive suspension which was assailed in the CA. After the CA affirmed the order of
preventive suspension, they filed a petition for declaratory relief with prayer for TRO praying the
RTC make a declaration on the rights and obligations of the parties on the suspension order of the
Ombudsman. Should the declaratory relief prosper?
 ● No. Court orders or decisions cannot be the subject matter of a petition for declaratory
relief. The list of what can be the subject of declaratory relief in Rule 63 is exclusive. That
decision of the Ombudsman that may be of an administrative or quasi-judicial bodies is also
not in that list. That decision is not just limited to judicial but also to even quasi-judicial
bodies. So, it is not the proper subject of a declaratory relief.

The COMELEC issued Resolution No. 1005 on the rules and regulations on the ban of carrying
firearms during the election period. The Resolution was assailed before the Supreme Court
under Rule 65, and the petition was filed within the 60-day period provided under Rule 65.
The OSG counters that the 30-day period under Rule 64 for filing the petition should have been
followed. Is this correct?

● No. The 30-day reglementary period under Rule 64 does not apply. The review under Rule 64
pertains to final orders, rulings and decisions of the COMELEC en banc rendered in the
exercise of its adjudicatory or quasi-judicial powers.
● The petition herein assails the validity of a COMELEC Resolution which was issued under its
rule-making power, to implement the provisions of The BP 881 an RA 7166. (Philippine
Association of Detective and Protective Agency Operators v. Commission on Elections, G.R.
No. 223505, October 3, 2017)

The Commission on Election issued Resolution No. 1005 or its rules regarding the gun ban during the
election period. This resolution was assailed before the Supreme Court on a Rule 65 petition. It is
filed 60 days from the issuance of the resolution. It is being assailed that it was filed out of time,
because rule 64 covers the reviews of decisions of the COMELEC and COA.

Rule 64 is the review of decisions and the COA. Rule 64 makes reference to rule 65. But period to file
your petition under Rule 64 is 30 days. But in this case, what they applied is the 60-day period under
rule 65. Is the petition filed on time?
● The petition is filed on time. Why?
○ That 30-day reglementary period under rule 64 does not apply. The petition for review
under rule 64 only pertains to rulings and orders of the COMELEC and the COA that are
rendered in the exercise of their adjudicatory or quasi-judicial powers.
● What is the ruling subject of review here?
○ It is a resolution on the rules of gun ban during the election period.
● Is that a ruling of the COMELEC in exercise of its quasi-judicial powers?
○ No. It is pursuant to the rule-making power of the COMELEC to implement the
provisions of the Omnibus Election Code.

So, if you are going to assail the COMELEC or the COA ruling pursuant to rule-making power, you do
not abuse Rule 64, you use Rule 65. So that 60-day period will apply, provided there is grave abuse.
But if it is pursuant to their adjudicatory or quasi- judicial power, then it is rule 64 that is when the
30-day period will apply.
 A filed a Custody case over minor M, against B, with the RTC. The RTC ruled in favor of B,
granting B custody over M, in a Decision dated 5 August 2010. A timely filed a motion for
reconsideration, which was denied in an Order dated 31 August 2010.

A filed a notice of appeal (which satisfies the requirements under Rule 41) and paid the appeal
and other docket fees on 8 September 2010, within 15 days from notice of the order denying
A’s motion for reconsideration.

On the same day of 8 September 2010, B timely filed a motion for partial reconsideration of
the Decision. The RTC denied to give due course to A’s appeal due to the pendency of B’s
motion for partial reconsideration. It was reasoned that there was no final ruling that disposes
of the case to appeal yet since there is a pending motion for partial reconsideration filed by B.
The RTC instead ordered A to file a comment on B’s motion for partial reconsideration.

A filed a comment on B’s motion. The RTC granted B’s motion in an Order dated 22 October
2010. A timely filed a motion for reconsideration to assail said order granting B’s motion,
which was denied in an Order dated 31 January 2011. A then filed a petition for Certiorari.
Will it prosper?

● No. The writ of certiorari is an extraordinary writ that will not be issued to cure mere
errors in proceedings or errors in conclusions of law or fact. The RTC’s denial to give due
course is a procedural error.
● A could have also filed an appeal from notice of the Order dated 31 January 2011, the order
that denied A’s motion for reconsideration against the Order dated 22 October 2010, which
granted B’s motion for partial reconsideration. (Bernardo v. Soriano, G.R. No. 200104, June
19, 2019, J. Caguioa)
● The Court of Appeals rendered a decision, and appellant received a copy thereof on 30
September 2013. Appellant filed a motion for reconsideration on 6 December 2013. The CA
denied outright the motion for reconsideration.
● No. There is no grave abuse of discretion on the part of the CA in denying the motion for
reconsideration because it was filed out of time, beyond the 15-day period. It was proper
for the judgment to be entered by the clerk of court in the book of entries of judgments.
(Heirs of Francisco v. Court of Appeals, G.R. No. 215599, November 28, 2018, J. Caguioa)

There is a case for custody over the minor. There is a decision and there is a timely filing of a motion
for reconsideration by the plaintiff which was denied. The plaintiff files a notice of appeals and then
payment of docket fees on time from the denial of a Motion for Reconsideration. But on the same
day, the defendant filed his Motion for Reconsideration. So, the court denied due course to the order
to the appeal.

As discussed earlier, the order denying appeal is not appealable but reviewable by certiorari because
here, there is grave abuse of discretion. Because the RTC can only rule on two (2) grounds to deny:
1. if it is filed out of time
2. if there is no payment of docket fees.
 May the court treat a petition for certiorari under Rule 65, which assails a decision of a lower
court, as an appeal?
● Yes. By exception, the petition for certiorari may be treated as an appeal, in the interest of
justice, provided that the:
(1) petition for certiorari was filed within the reglementary period within which to file an
appeal;
(2) when errors of judgment are averred; and
(3) when there is sufficient reason to justify the relaxation of the rules. Thus, a Rule 65
petition may be treated as one for Rule 45. (Privatization and Management Office v.
Quesada, G.R. No. 224507, September 20, 2017, J. Caguioa)

Can the Court treat a petition for certiorari under Rule 65, as an appeal?
● If you are meant to file an appeal, but you treated it as Rule 65, you filed it as Rule 65.
Example kanina, it should have been rule 45 pero ginawa mong rule 65. The court can in
exercise of its power to relax the rules treat your 65 as a 45, but note that yung 65 petition
mo is to be filed in 60 days; 45 - 15 days.
● If your 65 will be treated as a 45, dapat nafile mo yung 65 within 15 days, for it to be treated
as an appeal that certiorari should have been filed within the period to appeal.
● Pag lumagpas na ng 15 days within 60 days, it cannot be treated as an appeal anymore,
because the period to appeal has lapsed, the decision becomes final and executory. There is
nothing left for the court to review on appeal.

May you assail the decision of the CSC by petition under Rule 65 with the CA?

● No. Rule 65 petition may only be availed of when there is no appeal, or any other plain
speedy adequate remedy. An available against the CSC decision, is appeal by Rule 43,
petition for review with the Court of Appeals. (Cerilles v. Civil Service Commission, G.R.
No. 180845, November 22, 2017, J. Caguioa)

Can you assail the decision of the Civil Service Commission by Rule 65 petition with the CA?
● No. Rule 65 can only be availed of when there is no appeal or any plain speedy adequate
remedy.

What is the remedy against the CSC?

● It is rule 43 with the Court of Appeals. 65 is not a substitute for an appeal, and if you failed to
appeal on time, 65 is also not a substitute for a lost appeal.
 What is a mandamus writ?

● Mandamus is employed to compel the performance of a ministerial duty by a tribunal,

board, officer, or person. The petitioner should have a right to the thing demanded and
that it must be the imperative duty of the respondent to perform the act required
(Valmores v. Achacoso, G.R. No. 217453, [July 19, 2017, J. Caguioa)

What is a ministerial duty?

● A duty is considered ministerial where an officer is required to perform an act not requiring
the exercise of official discretion or judgment in a given state of facts. (Valmores v.
Achacoso, G.R. No. 217453, [July 19, 2017, J. Caguioa)

Your mandamus is a writ to compel the performance of what kind of duty?

● It has to be ministerial or it is an act that is enjoyed by law.
● If it is discretionary, it cannot be the subject of a mandamus.

What do you mean by ministerial?

● “Di ka binabayarang mag-isip, gawin mo na lang ganun oh diba”. Ministerial is when you are
required to perform an act that does not require discretion.

Is the mayor’s authority to issue licenses and permits ministerial?

● No. The authority of the mayor to issue licenses and permits is not ministerial, it is
discretionary.
● The power to issue license and permits is a manifestation of the delegated police power of
a municipal corporation. (Lacap v. Sandiganbayan, G.R. No. 198162, June 21, 2017, J.
Caguioa)

The authority of the mayor to issue licenses and permits, is this ministerial?
● No. The authority of the mayor to issue those licenses and permits is actually discretionary
because it is a manifestation of a delegated police power of a municipal corporation. “Kaya
discretionary iyan, cannot be compelled by mandamus.”

X enrolled in Mindanao State University, College of Medicine. X is a member of the Seventh-day

Adventist Church, whose fundamental beliefs include the strict observance of the Sabbath as a
sacred day.

Exams and classes were rescheduled on Saturdays, causing X to miss the same and to fail. X
thus brought the matter before CHED, who directed the College to comply with 2010 CHED
Memorandum

May X file a petition for mandamus to compel the College to comply with said Memorandum?
 ● Yes. The CHED memorandum reveals the ministerial nature of the duty imposed upon HEIs.
The CHED imposed a positive duty on all HEIs to exempt students, as well as faculty
members, from academic activities in case such activities interfere with their religious
obligations. (Valmores v. Achacoso, G.R. No. 217453, July 19, 2017, J. Caguioa)

Merong isang estudyente, nag enroll sya sa isang eskwelahan but that student is a member of the
7th-day Adventist Church. So based on their fundamental beliefs, they have to observe Sabbath as a
sacred day. So bawal siya magklase on that day. So maaga pa lang, he’s been informing the school of
his religion and asking kung pwedeng wag siyang ilagay ng schedule ng Saturday. Pero shempre dedma
yung school, nilagay pa rin sya sa Saturday classes na hindi nya napasukan because of his religious
beliefs. He brought the matter to the CHED.

Notably, the CHED issued a memorandum and the CHED in that memorandum says that the student’s
rights to religion must be respected and if they are exercising that religious right it must not be
taken against them. Dedma pa rin yung school. So, what is the remedy of that student? The remedy
of that student, can he file a petition for mandamus to compel the school to comply with that CHED
memorandum?
● Yes. Because that CHED memorandum is a duty imposed on the higher educational institution.
The CHED imposed that positive duty on all colleges to exempt students and faculty members
from academic activities that interfere with their religious obligations that is compellable by
mandamus to comply with the CHED memorandum.

The expropriating authority, a public utility corporation endowed with the power of eminent
domain, took the property of the landowner for public use without any negotiated sale and
without instituting an expropriation case for such taking.

This constrained the landowner to file an ejectment suit against the expropriating authority,
although the works on the property were already done. Should the ejectment suit prosper?

● NO. The ejectment case would not prosper because of: (1) equitable estoppel; (2) public
policy and public necessity. (National Transmission Corporation v. Bermuda Development
Corporation, G.R. No. 214782, 3 April 2019, J. Caguioa)

What should the trial court do?

● The trial court may:

(1) dismiss the case without prejudice to the landowner filing the proper action for recovery of
just compensation and consequential damages;
(2) dismiss the case and direct the public utility corporation to institute the proper
expropriation or condemnation proceedings and to pay the just compensation and
consequential damages assessed therein; or
(3) continue with the case as if it were an expropriation case and determine the just
compensation and consequential damages pursuant to Rule 67, if the ejectment court has
 jurisdiction over the value of the subject land (National Transmission Corporation v.
Bermuda Development Corporation, G.R. No. 214782, 3 April 2019, J. Caguioa)

What is the difference between expropriation and eminent domain?

● Eminent domain is the inherent power of the State.
● Expropriation is the procedure.

So, there is a public utility corporation and it has the power of eminent domain. They took the
property of the landowner for public use but they did not offer any negotiated sale. And they also did
not institute any expropriation case for such taking. So, the landowner was constrained to file an
action for ejectment, sabi nya lumayas kayo dito sa lupa ko mga hayop. At this point in time,
kumpleto na yung government project, kumpleto na yung works. Should the ejectment suit prosper?
● The SC said no. The ejectment case cannot prosper for two (2) reasons:
1. equitable estoppel (bakit naman kasi parang syang t*ng* inintay nya matapos,bago nya
in-eject, so estopped na sya); and
2. public policy and public necessity – it requires that we should not interfere with public
service. So dahil complete nayung project, it is being used for public service, we
should not interfere with that.

So what is the remedy?

Sabi ng Supreme Court, the trial court in that case for ejectment has two (2) options:
1. the inferior court can or the first level court or MTC can dismiss the case but it is without
prejudice to the landowner filing the action for recovery of just compensation. This is what
we call inverse condemnation.

In inverse condemnation, the government takes your property and already builds structures
thereon, but they do not institute the action for expropriation. So, because of the public
policy we cannot interfere with public service, especially pag nagawa na yung structures, the
landowner cannot eject the government but the landowner has a remedy to claim for just
compensation. So the landowner will file an action to claim just compensation and damages if
ever.

2. the RTC or the first level court can dismiss the case and direct the expropriating authority to
file an expropriation action

3. If the first level court has jurisdiction over the case, then the first level court can continue
and treat it as if it is one for inverse condemnation to determine just compensation.
So, it means, the court will not treat it as an ejectment case but one as inverse condemnation. But
the first level court can only do this if the first level court has jurisdiction over your action. This
brings us now to the topic of which court has jurisdiction over expropriation proceedings.
● SC held that it is incapable of pecuniary estimation, so it is the RTC that has jurisdiction.

However, please note that we have two (2) phases in expropriation proceedings.
 ● The 1st phase is to determine whether expropriation is proper, in that instance, that is
incapable of pecuniary estimation and so, it is the RTC that has exclusive original jurisdiction.
● However, if the action will start in the 2nd phase, the 2nd phase of expropriation is for the
determination of just compensation. Like in inverse condemnation.
○ Again in inverse condemnation, you will not anymore question the propriety of the
government to take your property. Because of estoppel and because of public public
policy that we do not interfere anymore with public service when the structure has
been built. So in inverse condemnation tapos na yung structure, hindi nagfile ng
expropriation case yung govt, but you are still entitled to just compensation. So you
file your action for inverse condemnation. In that instance you start on the 2nd phase.
So if it is on the 2nd phase, then it is on the title, possession, or interest over real
property if real property ang ineexpropriate natin, the basis of jurisdiction if it starts
in the 2nd phase or in inverse condemnation for determination of just compensation, is
the assessed value of the real property.

A complaint for expropriation was filed. After proceedings, the RTC issued an order of
expropriation. Should the order be assailed by petition for certiorari?

● No. Remedy is appeal, and not to file a certiorari. (PNOC Alternative Fuels Corp. v.
National Grid Corporation of the Philippines, G.R. No. 224936, September 4, 2019, J.
Caguioa)

Will your answer be the same if it is an order of dismissal?

● Yes, the remedy is still appeal, and not to file a certiorari. (PNOC Alternative Fuels Corp. v.
National Grid Corporation of the Philippines, G.R. No. 224936, September 4, 2019, J.
Caguioa)

In the first phase, it either ends with an order of expropriation, if the court says that expropriation is
proper or the court denies the complaint for expropriation.

The RTC issues an order of expropriation. Can it be assailed by a petition for certiorari?
● NO. The remedy is appeal.
● Note that in the 1st and 2nd phase in expropriation, these orders are appealable, they are final
orders record on appeal, because multiple appeals are allowed. So, whether expropriation is
found to be proper or not proper in the first phase, remedy is appeal. And as to the
determination of just compensation, again appeal, mode of appeal? Record on appeal.

Will your answer be the same if it is an order of dismissal?

● Yes, kasi nga appeal pa rin iyan. It is not reviewable by certiorari if appeal is available.

Will the appeal of the order of expropriation suspend the expropriation proceedings?
 ● No. Such appeal shall not prevent the court from determining the just compensation to be
paid (PNOC Alternative Fuels Corp. v. National Grid Corporation of the Philippines, G.R.
No. 224936, September 4, 2019, J. Caguioa)

What is the effect if the order of expropriation is not appealed?

● If no appeal is taken, the order becomes final, the authority to expropriate and the public
use of the property can no longer be questioned.(PNOC Alternative Fuels Corp. v. National
Grid Corporation of the Philippines, G.R. No. 224936, September 4, 2019, J. Caguioa)

If there is an order of expropriation in the first phase or if there is an order of expropriation in the 1st
phase or if the expropriation is denied in the first phase, and you appealed it, will it suspend the
expropriation proceedings?
● Hindi. Matutuloy iyan. It will not prevent the court from determining just compensation.

What about if it is partition?

● If partition, there are two phases again. 1st to determine the issue of co-ownership, whether
partition is proper, whether the co-ownership exists; and 2nd the project partition. If
partition, both of them those orders again are appealable by record on appeal. However, sa
partition po in the first phase, if there is an order of the court for the partition and it is
appealed, you cannot proceed in the 2nd phase until there is a final determination of whether
partition is proper. Because we can only have a project of partition, if the property is found
to be co-owned; and if that issue is pending in court, then pending appeal, then there is no
determination yet whether co-ownership is proper, you cannot proceed to the 2nd phase yet.

What about for judicial foreclosure in real estate mortgage?

● In judicial foreclosure of real estate mortgage, meron naman tayong three (3) stages/phases:

1st phase = whether foreclosure is proper, meron bang mortgagor, mortgagee, may mortgage ba, may
utang ba talaga and is due and demandable?
● If sagot yes, then that is your order in the 1st phase.
● If sagot no, order pa rin iyan in the first phase. Remedy? Appeal na naman. Multiple appeals.

During the pendency of the order of the first phase in your judicial foreclosure, pwede na ba
magproceed sa foreclosure sale?
● No. Because there is equity of redemption in judicial foreclosure of REM. And the counting of
equity of redemption period is from the entry of judgment in the first phase. Only when there
is no payment during the equity of redemption period, saka ka lang pwede magforeclosure
sale by motion. So, if the first phase is not yet final, if there is no finding yet whether
foreclosure is proper because it is pending appeal the equity of redemption period will not
run. If it will not run, then you cannot say that foreclosure sale will be proper later on.
 What is the effect if the order of expropriation is not appealed?

● If no appeal is taken, the order becomes final, the authority to expropriate and the public
use of the property can no longer be questioned.(PNOC Alternative Fuels Corp. v. National
Grid Corporation of the Philippines, G.R. No. 224936, September 4, 2019, J. Caguioa)

What is the effect if the order of expropriation is not appealed?

● Malamang it becomes final. Di mo na pwedeng ireklamo iyan.

28:10 - 51:27

The RTC issued an order of expropriation. The landowner wants to question the order on the
ground that the National Grid Corporation of the Philippines had no authority to exercise the
power of eminent domain and therefore the expropriation is invalid. What is the proper
remedy?
● Appeal the Ruling by Rule 45 to the SC,
● Legal in nature
● SC to decide by looking at the applicable law and jurisprudence on eminent domain, law
granting respondent NGCP the right of eminent domain, ie. RA 9511. (PNOC Alternative
Fuels Corp., v. National Grid Corporation of the Philippines, GR No. 224936, September 4,
2019, J. Caguioa).

So ang tanong, from the RTC Order of Expropriation, pede ba mag-Rule 45 tayo to the Supreme
Court on a pure question of law?
● Sabi ng SC, YES. Why? It is purely legal in nature. The SC will not look at the facts, it will only
look at the law. And whether the law grants the National Grid Corporation the power of
eminent domain. So it is a pure question of law reviewable by Rule 45 to the Supreme Court
in that instance.

Consequential damages in expropriation

● If, as a result of the expropriation, the remaining portion not so expropriated suffers from
an impairment or decrease in value.
● If the entire property is taken, consequential damages are not proper. (Republic v. Spouses
Bunsay, GR No. 205473, December 10, 2019, J. Caguioa)

Ano po ang consequential damages natin in expropriation?

● Consequential damages do not apply all the time in expropriation. It will only apply if NOT
the entire property is taken. If the entire property is taken, wala kang consequential
damages. If only a portion of the property is taken and the remaining portion is damaged,
diyan ka lang magkakaroon ng consequential damages.
If the remainder suffers damage, is it correct to say that as long as there is a remainder, there
will be consequential damages?
● NO, if there is a portion lang taken and there is a remainder, you still need to establish that
the remainder suffered damages for you to be entitled to consequential damages.

Capital Gains Tax cannot be awarded to the landowner in expropriation proceedings, in the
form of consequential damages
● CGT paid by seller, tax on passive income
● May be considered in determining just compensation (Republic v. Spouses Bunsay, GR No.
2015473, December 10, 2019, J. Caguioa)

What about Capital Gains Tax? Can Capital Gains Tax be part of the consequential damages?
● NO. Kasi ang Capital Gains Tax, that is your passive income from the sale or transfer or
exchange of your real property. And the one who pays the Capital Gains Tax is the seller. So
even if there is a forced sale, that is to be paid by the landowner Capital Gains Tax.
● It is a tax on passive income. It is not in the nature of consequential damages. Kasi nga, by
definition, the consequential damage is the damage that is suffered by the remaining portion
of your property when only part of your property is taken by the government. So it cannot be
part of the computation of consequential damages.
● However, the SC ruled that although capital gains tax is not part of consequential damages, it
is among the factors that the Court may consider in determining just compensation.

Now, in your syllabus it makes mention of RA 8974, but that is already amended by RA 10752. So
huwag nyong ipilit na 8974 yan, hindi talaga kasi 10752 categorically states na repealed na yang
8974. But we can just apply the corresponding provision in 8974 to 10752. Dami kong numero na
sinabi, ano ba yan kase. Yan yung National Infrastructure Projects na Expropriation.

RA 8974 (now RA 10752) provides for a standard of assessment of value of land. Does it mean
that just compensation in expropriation for national infrastructure projects ceased to be a
judicial determination?
● No. Determination of just compensation is a judicial function. The Standard for Assessment
of Value of Land under RA 8974 is merely a standard which the court may consider to
facilitate the determination of just compensation. (Republic v. Decena, G.R. No. 212786,
July 30, 2018, J. Caguioa)

Under RA 10752, it provides for the standard assessment of the value of land. So does it mean that
just compensation for expropriation if it is a national infrastructure project, it is no longer a
judicial determination?
● Sabi ng Case penned by Justice Caguioa, no. That just compensation remains to be a judicial
function.
 ● The standards of assessment of the value of land in the law are only those factors or
guidelines that the Court may consider. But at the end of the day, it is still the Court that
determines just compensation. It is a judicial function.

VD SEÑGA JOKE: “Alam nyo ba yung asawa ko, noong nag-Bar sya dati. So nakikinig din sya sa
lectures ko dun sa review center na inattendan nya and kinekwneto nya saken na sa ibang
lectures, fina-fast forward nya. Sa lectures ko, naghahanap sya ng slow motion button. Hahahah.
Pano ba daw i-slow motion, hindi daw makahabol ang utak nya. Sana nakakahabol po kayo, pero
bagalan ko. Kaya natin to guys.”

“Sabi nga ng the great Ruffa Mae Quinto, ‘ENERGY GO GO GO!' Kaya natin yan. Sandale, hinga
ako.”

X obtained a loan from Y, and to secure the loan, X executed a real estate mortgage. When the
loan fell due, X was unable to pay despite demand. May Y file against X an complaint for sum of
money and an action for judicial foreclosure of real estate mortgage?
● No. A creditor-mortgagee cannot split up his single cause of action by filing a complaint for
payment of the debt, and thereafter another complaint for foreclosure of the mortgage.
The filing of one, bars the other. (Pineda v. De Vega, G.R. No. 233774, 10 April 2019, J.
Caguioa)

Merong loan. The loan is secured by a real estate mortgage, ok. Obviously, para may issue dito,
noong kailangan nang mag-bayad, and despite demand, the debtor was unable to pay. Syempre, para
panalo, galit pa. Sya na may utang, sya pa yung galit. “Bat mo ko sinisingil, alam mo namang wala
akong budget ngayon.” Yan ang style, pag ikaw may kasalanan ikaw pa yung galit. Para ung biktima,
maguguluhan. Hindi yun makaka-file ng Redress ng remedy kasi na-confuse sya. “Bakit sya pa yung
galit?” Style yan ng mga taong may kasalanan. Anyway. As a consequence, because of the breach of
contract of loan, the plaintiff files an action against the defendant for sum of money.

Ang tanong: pwede bang dalawang actions ang i-file ni plaintiff? One for sum of money and one
for judicial foreclosure of real estate mortgage? Kasi magkaiba naman daw pati spelling. Complaint
for Sum of Money, ordinary action. Judicial Foreclosure of Real estate Mortgage, real action quasi in
rem. Ang Complaint for Sum of Money, in personam personal action. Magkaiba.
● Sabi ng SC, no. That would result in splitting of cause of action. Ultimately, there is only one
breach here. The breach is the non-payment of the loan. You cannot split your causes of
action. You can only choose one remedy. And the option is deemed chosen upon the filing. In
the judicial foreclosure of real estate mortgage, the ultimate goal there is for you to be paid
based on the security. So it is the same as the cause of action for collection of sum of money.
Hindi pedeng dalawa, isa lang. Otherwise, splitting ka.
● Pede ring litis pendentia yan, yung ground mo to dismiss.
 May a TRO or Writ of Preliminary injunction be issued against the extrajudicial or judicial
foreclosure of real estate mortgage?
● Yes, provided that there is compliance with the requirements under Rule 57 and
additionally, with the following rules in A.M. No. 99-10-05-0, as amended:

1. No TRO or WPI against the extrajudicial foreclosure of real estate mortgage shall be issued
on the allegation that the loan secured by the mortgage has been paid or is not delinquent
unless the application is verified and supported by evidence of payment.

2. No TRO or WPI against the extrajudicial foreclosure of real estate mortgage shall be issued
on the allegation that the interest on the loan is unconscionable, unless debtor pays
mortgagee at least the legal rate of interest percent per annum interest on the principal
obligation as stated in the application for foreclosure sale, which shall be updated monthly
while the case is pending.

● Legal Rate of Interest

● 12% before effectivity of Circular No. 799, Series of 2013 on 1 July 2013,
● 6% after the effectivity

3. Where a WPI has been issued against a foreclosure of mortgage, the disposition of the case
shall be speedily resolved. To this end, the court concerned shall submit to the Supreme
Court, through the Office of the Court Administrator, quarterly reports on the progress of
the cases involving ten million pesos and above.

4. All requirements and restrictions prescribed for the issuance of a TRO or WPI, such as the
posting of a bond, which shall be equal to the amount of the outstanding debt, and the
time limitation for its effectivity, shall apply as well to a status quo order. (Spouses Tumon
v. Radiowealth Finance Co., Inc., G.R. No. 243999, March 18, 2021, J. Caguioa)

Can a TRO or Writ of Preliminary Injunction be issued against an extrajudicial or judicial

foreclosure of real estate mortgage?
● YES. But there are certain conditions that must be met before a TRO or Writ of Preliminary
Injunction can be issued against the foreclosure of real estate mortgage. Whether it is judicial
or extrajudicial.

What are these requirements?

● If the ground for you to ask for the TRO or Injunction is the fact that the loan has already
been paid, for you to obtain that TRO or Writ of Preliminary INjunction, your application must
 be verified and you have to support it with the proof of payment. Hindi enough na sinabi
mong bayad na, you have to show evidence of full payment of the loan.
● If the ground for stopping again the foreclosure is the fact that the interest is unconscionable,
you have to show that at least the legal rate of interest has been paid. Bakit? Wil the fact
that the interest is unconscionable stop foreclosure of mortgage? Yes. If the interest imposed
on you per month is 100% per month, nakakaloka yun, ang laki non. Why? Based on
jurisprudence nga, ang 5% per month was struck down for being unconscionable. Ano pa kaya
ang 100% per month? 100% per month is an unconscionable interest rate, it must be struck
down.
● If the interest is struck down for being unconscionable, you cannot foreclose the mortgage
already because you cannot say whether the loan is already due or the amount is due for
foreclosure of mortgage. Why? You still to need determine the total amount, kasi baka naman
yung mga nabayaran na is enough to cover the principal and the loan subject to a legal rate of
interest. Remember if it is unconscionable, that interest rate will be struck down and will be
replaced by legal interest. It is 6%, the prevailing rule.
● SC said, if it is found to be unconscionable, the foreclosure of mortgage will not follow yet
kasi nga you need to determine first if the loan is paid already with those you have previously
paid.
● Nevertheless, you cannot get a TRO without showing you have at least paid that legal rate of
interest. What is the legal rate of interest? As I mentioned, it is 6% presently. But that is
pursuant to BSP Circular No. 799. It became effective on July 1, 2013. Before July 1, 2013,
12% yan. So sa Civil Law nyo, you need to remember that date. Baka yung computation nyo,
part of it is 12% and part of it is 6%.
● The Court will resolve speedily that injunction and they must report that pending injunction
to the Supreme Court.

X obtained a loan from Y, subject to interest of 50% per month, and to secure the loan, X
executed a real estate mortgage. When the loan fell due, X was unable to pay despite demand.
In an action filed by X, the RTC found that the interest rate of the loan obligation was
iniquitous and unconscionable, and therefore void. What is the effect of this ruling on the
foreclosure?
● Since the obligation of making interest payments in the instant case is illegal and thus
non-demandable, the payment of the principal loan obligation was likewise not yet
demandable.
● Foreclosure should not proceed, or if already done, should be invalidated (Bulatao v.
Estonactoc, G.R. No. 235020, December 10, 2019, J. Caguioa)

There is a loan. Ito na nga yung sinabi ko na unconscionable interest.

● So, if the interest is unconscionable and the Court strikes down that interest for being
unconscionable, being illegal, therefore hindi pa demandable yung interest payment na yan.
Kasi nga illegal yung interest payment. So hindi pa sya demandable. Since the interest is not
yet demandable, because the interest was illegal, then the SC said that the principal loan will
not yet be demandable. And therefore, the foreclosure should not proceed.
 ● Or if natapos na yung foreclosure but the interest was found to be unconscionable then the
foreclosure will be invalidated.

A donated to B and C a parcel of land, which they accepted. There was no provision in the
donation, preventing B and C to partition. May B, upon acceptance of the donation, bring an
action for partition?
● Yes. The law does not make a distinction as to how the co-owner derived his/her title, may
it be through gratuity or through onerous consideration. A person who derived his title and
was granted co-ownership rights through gratuity may compel partition (Logrosa v. Spouses
Azares, G.R. No. 217611, March 27, 2019, J. Caguioa)

There is a donation of a parcel of land. Now, two persons were donated a parcel of land, they
became co-owners and there is a provision that prevents them from partitioning. There was no,
sorry, there was no provision that prevents them from partitioning. Can they bring an action for
partition?
● It is argued that they cannot. Because they only acquired the property by means of donation.
Sabi ng SC, ano ba? Basta co-owned yung property, pede mong i-partition yan.
● The law does not distinguish how you acquired co-ownership over the property. As long as
there is a property owned in common, and anyone of them wants to leave that co-ownership,
partition is a proper remedy.

Petitioners are Carless People of the Philippines, parents, representing their children, who in
turn represent Children of the Future, and Car-owners who would rather not have cars if good
public transportation were safe, convenient, accessible, available, and reliable.

They claim that they are entitled to the issuance of the extraordinary writ of kalikasan due to
the alleged failure and refusal of respondents to perform an act mandated by environmental
laws, and violation of environmental laws resulting in environmental damage of such
magnitude as to prejudice the life, health and property of all Filipinos.

Respondents argue that the petitioners failed to show that they have the requisite standing to
file the petition, being representatives of a rather amorphous sector of society and without a
concrete interest or injury. Are respondents correct?

Writ of Kalikasan
● The Rules of Procedure for Environmental Cases liberalized the requirements on standing,
allowing the filing of citizen’s suit for the enforcement of rights and obligations under
environmental laws. In a petition for writ of kalikasan, it is sufficient that the person filing
represents the inhabitants prejudiced by the environmental damage subject of the writ.
(Segovia v. Climate Change Commission, G.R. No. 211010, March 7, 2017, J. Caguioa)
Petitioners are Carless People of the Philippines. Nag-file sila ng Writ of Kalikasan. Remember in Writ
of Kalikasan, this is in the nature of a Citizen’s Suit. When you say that it is a Citizen’s Suit, it is an
action that is filed in representation of others for the enforcement of those person’s rights and
obligations under environmental laws. So by its nature, ang writ of kalikasan, being that it is a
Citizen’s Suit, is filed in a representative capacity and that is why we have a more relaxed rule on
legal standing in kalikasan cases. Kasi by its nature nga, citizen’s suit sya in representation of others
sya.
● So pede yan. The sine qua non requirement is that it affects the magnitude of inhabitants of
two or more cities or provinces. So it can just be five of those residents who will file the
petition on behalf of the other residents.

Is there also a liberalized rule on legal standing in petitions for writs of continuing mandamus?
● No. A petition for the issuance of a writ of continuing mandamus is only available to one
who is personally aggrieved by the unlawful act or omission. (Segovia v. Climate Change
Commission, G.R. No. 211010, March 7, 2017, J. Caguioa)

Is there also a liberalized rule on legal standing in petitions for writs of continuing mandamus?
● No. Writ of continuing mandamus is only available to one who is personally aggrieved by the
unlawful act or omission. (Segovia v. Climate Change Commission, G.R. No. 211010, March
7, 2017, J. Caguioa)

In Petitions for Writs of Continuing Mandamus

● But with respect to continuing mandamus, that liberalized rule on legal standing will not
apply. For continuing mandamus, it is required, just like in mandamus, that the person is
aggrieved by the unlawful act or omission. It cannot be in a representative capacity if it is
continuing mandamus.

A petition for writ of kalikasan was filed with the SC. Respondents opposed this on the ground
that the direct filing of the petition with the SC violated the hierarchy of courts. Is the
opposition correct?
● No. Magnitude of the ecological problems contemplated under the rules satisfies at least
one of the exceptions to the rule on hierarchy of courts, as when direct resort is allowed
where it is dictated by public welfare.
● Given that the rules allow direct resort to the Supreme Court, it is ultimately within the
Court's discretion whether or not to accept petitions brought directly before it. (Segovia v.
Climate Change Commission, G.R. No. 211010, March 7, 2017, J. Caguioa)

Can you file directly your Writ of Kalikasan with the Supreme Court?
● Yes, you can file your Writ of Kalikasan directly with the Supreme Court because the
Jurisdiction for Kalikasan is the SC and the CA. And pano kung direct resort ka to the SC, sabi
 ng SC, well it falls under exceptional circumstances where it is exempted from the hierarchy
of courts because of the magnitude of the ecological problems contemplated under the rule.
● What is that sine qua non requirement? The magnitude is that it affects the life, the property,
of those that are inhabitants of two or more cities or provinces.
● Sabi ng SC, since the rules allow direct resort to the SC in kalikasan, in the end, ultimately, it
is up to the Supreme Court whether it will accept the petition brought directly to it.

What are the Requisites that must be established for the issuance of a Writ of Kalikasan?
1. there is an actual or threatened violation of the constitutional right to a balanced and
healthful ecology;
2. the actual or threatened violation arises from an unlawful act or omission of a public
official or employee, or private individual or entity; and
3. the actual or threatened violation involves or will lead to an environmental damage of such
magnitude as to prejudice the life, health or property of inhabitants in two or more cities
or provinces. (Segovia v. Climate Change Commission, G.R. No. 211010, March 7, 2017, J.
Caguioa)

Requisites of Writ of Kalikasan. Is it required that there must be an actual violation of

constitutional right to a balanced and healthful ecology?
● No, to some ang threatened. Pero that violation must arise from an unlawful act or omission.
So kung wala silang unlawful act or omission, cannot be kalikasan.
● And the sine qua non requirement is that it leads to environmental damage of such magnitude
as to affect the life, health, or property of inhabitants in two or more cities or provinces.
Kung isang city lang yan, dismissed yan. Kung sa RTC mo finile yan, dismissed din yan because
CA and SC ang may jurisdiction.

X filed a petition for writ of kalikasan against respondents government officials, invoking the
right to a balanced and healthful ecology, without stating any rule or regulation violated or
that would be violated. Will the petition prosper?
● No. A party claiming the privilege for the issuance of a writ of kalikasan has to show that a
law, rule or regulation was violated or would be violated. (Segovia v. Climate Change
Commission, G.R. No. 211010, March 7, 2017, J. Caguioa)

There is a petition for kalikasan against government officials. And they are claiming that there is a
violation of their right to a balanced and healthful ecology but they did not state any rule that is
violated or that would be violated. Will the petition prosper?
● No, because as I told you there has to be an act or omission that violates. Without that
violation, your kalikasan will not prosper.

Petitioners are Carless People of the Philippine, representing their children, who in turn
represent Children of the Future, and Car-owners who would rather not have cars if good
 public transportation were safe, convenient, accessible, available, and reliable.

They filed a petition for writ of continuing mandamus against respondents public officials,
claiming that they failed to implement the road sharing principle that would divide roads,
allowing the use thereof by carless people or bikers, to reduce air pollution.

The basis of the petition is the failure to implement rules and issuances that would prevent or
reduce air quality degradation. Respondents showed they implemented projects but not in
accordance with that provided in the petition, there being no law requiring the same. Will the
petition prosper?
● No. Petitioners failed to prove direct or personal injury arising from acts attributable to the
respondents to be entitled to the writ.
● Road Sharing Principle is precisely as it is denominated — a principle. There is no rule or law
that requires the respondents to implement the bifurcation of roads to implement the Road
Sharing Principle in the manner provided in the petition. (Segovia v. Climate Change
Commission, G.R. No. 211010, March 7, 2017, J. Caguioa)

Itong Carless People of the Philippines iniinsist nila na gumawa ng road sharing principle. So sabi nila
dapat gumawa ng bike lane so that it will lessen air pollution and dapat dun sa bike lane mas
magkakabikers tayo so that mabawasan ang gumagamit ng cars and reduce air pollution. This was
also penned by Justice Caguioa.
● The SC ruled that petition for kalikasan will not prosper, because sabi ng SC, that road-sharing
principle is precisely as it is denominated. It is only a principle. There is no law nor rule that
requires respondents to divide the road to create that bike lane. In fact, what the law
provides is that it is subject to the discretion of the government agency on what projects they
will implement to protect the environment. So the Writ of Kalikasan will not prosper, there
being no showing of any law or rule violated.

QUESTIONS:
Is the expanded certiorari jurisdiction under the constitution exercised only by the SC?
● NO, the Expanded Certiorari Jurisdiction is not only exercised by the SC. It is also exercised
by lower courts.
● Example: With respect to a criminal case for a preliminary investigation, from the ruling in a
preliminary investigation in a criminal case of a prosecutor, what is your remedy? From the
City of Prosecutor, you can file an MR or you can file a Petition for Review with the Secretary
of Justice. You can go straight to the Secretary of Justice or you file an MR then from denial
you file it to the Secretary of Justice, PetRev (Petition for Review).
○ The difference of availing MR and PetRev (Petition for Review) is that the MR will not
suspend arraignment, the PetRev with the Secretary of Justice will suspend
arraignment for a period of 60 days counted from the time of filing of the petition for
review. From the Ruling of the Secretary of Justice of that PetRev, you can file a
Motion for Reconsideration. From Denial of the MR of the Secretary of Justice, the NPS
Rule on Appeals no longer provides any appeal from that ruling so if the ruling of the
 Secretary of Justice is tainted with grave abuse of discretion, there is no more appeal
or plain, speedy, adequate remedy, then the remedy is Certiorari. In that case, where
do you file it? Court of Appeals.
○ And note, what is the exercise of power of the Secretary of Justice and the
Prosecutors in determination of probable cause? It is merely executive, it is not
judicial, it is not quasi-judicial. Why is it only executive? Because it is only
inquisitorial, only to determine probable cause of whether a crime was probably
committed and whether respondent probably committed it is enough for us to know
whether an information should be charged in court. So that does not fall under Rule 65
on those bodies or tribunals that exercise judicial or quasi-judicial.
○ Nevertheless, you can assail it by Certiorari if there is grave abuse of discretion
pursuant to the expanded certiorari jurisdiction provided in the Constitution when
there is grave abuse of discretion on any instrumentality of the government, here it is
the executive exercise of powers of the Secretary of Justice under the Executive
branch.
○ Where do you file it? Is it only with the SC? No, you file it in the CA.

In expropriation cases where there are conflicting claims?

● If there are conflicting claims in expropriation, the proper remedy is that…actually, yan din
ang tanong ko sa sarili ko. Bakit nagkaroon ng kaso na interpleader? Because the proper
remedy here for the payment of just compensation is in the second phase. If there is a
dispute as to who is the true owner of the property, all of those claiming a right to the
property will be impleaded.
● Pano kung di sila inimplead? Magi-intervene sila. And so, it is in the second phase that the
Court determines the issue of ownership but only provisionally for the purpose of determining
to whom just compensation will be paid.

The one who asked the question is asking bakit dun sa isang case for the payment of just
compensation, interpleader ang nangyari?
● Kasi dun, hindi nag-file ng expropriation case. It was for a negotiated sale. Pero nagtatalo
sila, who is entitled to the proceeds of that sale. Kaya hindi sya napasok sa second phase ng
expropriation.
● But the rule is, that if there are conflicting claimants to the ownership of the property or the
one entitled to just compensation, it should be determined by the Court in that expropriation
case specifically in the second phase when there is determination of the Court of just
compensation.
● For purposes of the Court determining to whom just compensation will be paid, the Court will
determine provisionally ownership.
 CRIMINAL PROCEDURE

Allegedly there was a previous final decree of nullity declaring void the marriage between And
Y, before Y married X. The trial court granted the motion to quash. X appealed and the CA
sustained the dismissal. The private complainant filed a petition for review on certiorari with
the Supreme Court. Should the petition be given due course?

Okay, alright. Baka tanungin niyo ako bakit puwede mag-appeal dito. Kasi naman hindi lahat ng
dismissal sa criminal case ay bawal mag-appeal. Okay. Kasi. One that you cannot have an appeal is an
acquittal and for that to apply, you need to test it against the requirements of double jeopardy.

What are the requirements for double jeopardy to apply?

You have a court of competent jurisdiction. There is a valid plea. Yan. Kung nag-motion to quash, ibig
sabihin, wala pang valid plea ‘yan. Kaya the first jeopardy did not yet attach. Puwede pang
ma-appeal yung dismissal niyan, you get it?

So, the prohibition on appeal will only apply if the first jeopardy attach, meaning, requisites are
there is a court that has jurisdiction, there is a valid plea, and then, there is that judgement, ‘di ba.
Okay, alright.

So nag-file ng petition, sino ang nag-assail ng dismissal?

➢ No. X has no legal personality to assail the dismissal of the criminal case. Section 5, Rule
110, provides that all criminal actions commenced by complaint or by information shall be
prosecuted under the direction and control of a public prosecutor.

The one who assailed the dismissal is the private complainant.

Does the private complainant have the legal personality to assail the dismissal of the criminal
case?

No. As a rule, it is the State who should assail the criminal aspect of a case.

Okay. So who should it be?

Well, if your appeal is with the RTC, then it is the prosecutor. But if it is in the CA or in the SC, it is
OSG who will assail that. Basta it pertains to the criminal aspect, denial of evidence, yung mga ‘yan,
the one who will assail it should be the State. The private complainants’ interest is only as to the
damages, so they should not be the one to assail the criminal aspect of the case. Okay. But this rule
is not absolute, it is subject to exceptions.
A, B, and C were charged with rape with homicide. During the trial, the prosecutor filed a motion
to discharge accused A to be utilized as a state witness. The prosecutor argued that there was no
need to present evidence to discharge A as a state witness, since A was already admitted into the
Witness Protection Program of the DOJ.

Eto yung exception. Alright. The accused were charged with rape wiith homicide So yung biktima,
dead na, okay. Alright. During the trial, the prosecutor filed a motion to discharge one of the accused
as a state witness. Now, you know that if you want to move to discharge an accused as a state
witness, there needs to be presentation of evidence, to show that the testimony is necessary, right,
and that it can be corroborated in its material points and that the accused is not the most guilty,
right, among others. So there needs to be a trial or a hearing on the discharge of an accused to be a
state witness. When the court told the prosecutor to present evidence for the discharge of the state
witness, ayaw ng prosecutor. Sabi niya, ayoko nga. Basta, pwede na ‘yan, ganun. So, syempre, hindi
siya nag-present ng evidence on the prayer for the discharge of a state witness, it was denied, okay.
Alright.

The RTC denied the motion for failure of the prosecution to present evidence in support of the
prayer to discharge A as state witness, who was the only eye witness to the crime. The prosecution
filed a petition for certiorari to assail the denial of the motion, but without any prayer for
injunctive relief to restrain further proceedings in the trial court.

And then, during the trial, the prosecutor asked for postponements and then, the fact there was a
witness present there, and the court act as the prosecutor: “Oh, magpi-present ka pa ba ng witness?
Sabi ng prosecutor: “Hindi na, okay na ‘yan.” O, so wala siyang prinesent na witness, nakakaloka. So
obviously, because of this, the accused was acquitted pursuant to a demurrer to evidence.

M, the mother of the victim, assailed before the CA the order granting demurrer to evidence,
which the CA denied. A motion for reconsideration was filed but later denied. M appealed to the
SC. The case was set for oral arguments where the OSG appeared, and manifested it was joining
M’s cause to prevent a miscarriage of justice. Does M, the private complainant, have the legal
standing to assail the acquittal?

Alright, now, that acquittal is assailed by the mother of the victim before the CA, on certiorari. Okay.
This one certiorari na ’yan, acquittal na ‘yan kasi jeopardy attached na. There is valid plea, may
presentation of evidence, etcetera. Okay, now, the issue here is whether the mother has the standin,
kasi ‘di ba, we said earlier, the rule is, the one who can only assail the criminal aspect, the acquittal,
mga orders in relation to the criminal case not relating to the right to damages, or the civil aspect, it
should be the State through the prosecutor, up to the RTC or SolGen in the CA or SC. But in this
case, notably, when the mother filed her certiorari, the OSG entered its appearance and manifested
that it was joining the petition. That won’t cure any problem because, by the OSG joining the
mother, the private complainant, it is as if the Solicitor General is the one who is also assailing the
criminal aspect but nevertheless, sabi ng Supreme Court, even without the OSG joining the mother,
the mother by exception had legal standing to assail that acquittal, okay.

The right of offended parties to appeal on order of the trial court which deprives them of due
process has always been recognized, the only limitation being that they cannot appeal any adverse
ruling if to do so would place the accused in double jeopardy

Why?
● Because of violation of due process. When there is violation of due process, by exception, the
private complainant has legal standing to assail the criminal aspect.

What is the violation of due process here?

● Obviously, the prosecutor bungled the case, ‘di ba. Bungled not bundled. Bungled the case.
The prosecutor did not present evidence even if the witness was there and on the discharge
of the state witness. The prosecutor chose not to present evidence, there were repeated
postponements, right. Sabi ng Supreme Court, even the court is guilty of violation of due
process because the court just watched the prosecutor do all of those things, without
intervening, okay. So, here, the acquittal is void because of violation of due process, and so,
the first jeopardy did not attach.

W2 executed a complaint-affidavit against H for bigamy, claiming that when they married, H was
still married to W1. An information for bigamy was filed against H, who, before arraignment,
moved toquash the same on the ground that the facts charged do not constitute an offense.

There is a complaint affidavit against the husband. The second wife files complaint-affidavit against
the husband for bigamy, okay. The second wife is claiming that when they married, the husband was
still married to the first wife. An information for bigamy against the husband was filed. In that
complaint information, it alleges that during the existence of the marriage with wife 1, husband
contracted a marriage with wife 2, without nullifying the first marriage. The accused husband moves
to quash the information, on the ground that the facts charged do not constitute an offense.
According to him, in a separate case recently, mga few days before filing the information, the RTC
declared the marriage with wife 2, null and void. And as support of his motion to quash for, on the
ground of failing to allege an offense, he presented a decree of nullity of marriage as proved.
Alright. But according to the prosecutor, nevertheless, at the time when the husband married wife 2,
the marriage with wife 1 was still subsisting and so, the information sufficiently alleges an offense.
Alright. So according to the prosecutor, all elements of bigamy are alleged in the information.

So the question now is, was it correct for the trial court to quash the information? Because
here, the trial court quashed the information.
 ● NO, that was not correct. It was grave abuse on the part of the RTC, the trial court, to quash
the information. Because the basis of the quashal is, what is the basis? Eto. That the facts
charged do not constitute an offense.
○ If your ground is that the facts charged do not constitute the offense, you are limited,
or the court is only limited to looking at the allegations in the information. The court
should not go beyond that.
○ But what did the court do here? The court considered the decree of nullity of marriage
that the husband submitted. The court went beyond the allegations in the information
and considered evidence, in quashing the information, and so, the Supreme Court said,
that evidence was not yet even proven, right. And so, it was an error for the court to
grant a quashal on that ground by going beyond the information.
○ Also, in the information, it sufficiently alleges an offense because all the elements of
bigamy are present, so,it was incorrect for the trial court to quash that information.

What are the exceptions to the rule that facts not stated in the information will not be
appreciated in a motion to quash?

(1) When the new allegations are admitted by the prosecution;

(2) When the Rules so permit, such as upon the grounds of extinction of criminal liability and
double jeopardy; and
(3) When facts have been established by evidence presented by both parties which destroyed
the prima facie truth of the allegation in the information during the hearing on a motion to
quash based on the ground that the facts charged do not constitute an offense, and it would
be pure technicality for the court to close its eyes to said facts and still give due course to
the prosecution of the case already shown to be weak even to support possible conviction (
Antone vs. Beronilla, G.R. No. 183824, December 8, 2010 )

Okay. So, we said that the rule is that the court should only be limited to the facts and allegations in
the information in a motion to quash, on the ground that the facts stated there do not constitute an
offense. But this rule is subject to exceptions. There are some instances that although not stated in
the information, the court can appreciate it in ruling the motion to quash.

What are these exceptions?

1. When the new allegations are admitted by the prosecution. So, you know that this is a judicial
admission and no further proof is required there. So although not alleged in the information,
as a judicial admission, right, if it is read upon by the prosecutor, then that can be considered
by the court, although not in the information.
2. If the ground is extinction of criminal liability and double jeopardy. Obviously, wala sa
information mo na previously convicted ka. So, the court can consider those in ruling a motion
to quash, although not mentioned in the information.
3. Another one is when the facts have been established by evidence presented by parties that
destroyed the prima facie truth of the allegations in the information and it would be a pure
technicality for the court to close its eyes to that fact. Alright.
Was H’s right against double jeopardy violated?

➢ No. There was no valid arraignment or plea to the charge and the accused was not
convicted or acquitted or the case otherwise dismissed or terminated without his express
consent, since H moved for the dismissal (Antone vs. Beronilla, G.R. No. 183824, December
8, 2010)

The motion to quash was granted but the motion to quash that was granted was reversed. Is there
violation of the right against double jeopardy?

● No. Because there is no valid arraignment or plea yet. Remember, the motion to quash is filed
before arraignment. So, the first jeopardy did not yet attach.

➢ General Rule: An order sustaining the motion to quash is not a bar to another prosecution
for the same offense.

➢ Exception: (1) criminal action or liability has been extinguished; and (2) accused previously
acquitted or convicted of the offense charged, or the case against him was dismissed or
otherwise terminated without his express consent ( Rules of Court, Rule 117, Sec. 6 )

As a general rule, if there is a motion to quash granted, it will not bar another prosecution for the
same offense. If your motion to quash information is granted, aba, i-refile mo ‘yan.

Is this rule absolute?

● No.There are two grounds. If the ground is the extinction of criminal liability or action, and
the second one is, double jeopardy. In those instances, if there is quashal, you cannot
anymore refile the case. But for all other grounds, you can still refile the case.

An information was filed against X for acts of lasciviousness. During trial, it was proven that he
raped the victim. The information was never amended. May X be convicted of rape?
➢ No. X can only be convicted of the crime charged,a cts of lasciviousness, and not the crime
proven, rape. ( Variance Doctrine )

➢ The offense charged, acts of lasciviousness, is included in the offense proved, rape. X may
only be convicted of the offense charged, acts of lasciviousness ( Rules of Court, Rule 120,
Sec. 4; People vs. Bongbonga y Nalos, G.R. No. 214771, August 9, 2017, J. Caguioa )
Can the accused be convicted of rape?
● No. Okay. He can only be convicted of acts of lasciviousness.
● This is the variance doctrine. If there is a variance between the crime charged and the crime
proven, then, the accused can only be convicted of what is necessarily included. If the charge
is included in what is proven, then, dun ka lang sa charge mako-convict. If the crime proven is
included in the crime charged, dun ka sa crime proven, in other words, the lesser one.
 EVIDENCE

May a court take judicial notice of the publication of the notice of initial hearing for Case No. 123
in the issue of the Official Gazette on October 23, 2021, Volume 62, Number 42, page 8044?
● Yes. Given that the Official Gazette is the official publication of the government, the court
can take judicial notice thereof pursuant to Section 2 of Rule 129, ( Padayhag vs. Director
of Lands, G.R. Nos. 202872 & 206062, November 22, 2017, J. Caguioa )

Judicial notice. There is a publication in the Official Gazette. Okay. Can the court take judicial
notice of that publication of notice of an initial hearing of a case of the court in the Official Gazette?
● Yes. Because the Official Gazette is an official publication of the government and so the court
can take judicial notice of that official publication in the Official Gazette. Okay. Alright.
Sandali lang, inom lang ako.

Original document rule?

➢ It provides that the original document be produced whenever its contents are the subject of
inquiry ( Spouses Tapayan vs. Martinez, G.R. Nos. 207786, January 30, 2017, J. Caguioa )

What is the original document rule?

● Eto yung dating best evidence rule pero wala nang ganun ngayon.
● The rule provides that basta there is documentary evidence and its contents are the subject
of inquiry, it should be the original document that should be produced, otherwise, it would be
inadmissible but subject to exceptions under the rule, okay, a copy of the deed of undertaking
was presented during trial. So it’s only, not the original.

A copy of the Deed of Undertaking was presented during trial. When it is the time to object to the
admissibility thereof for violating the original document rule?
➢ Objection to evidence must be made at the time it is formally offered. In case of
documentary evidence, the offer is made after all the witnesses of the party making the
offer have testified, specifying the purpose for which the evidence is being offered. It is
only at this time, and not at any other, that objection to the documentary evidence may be
made (Spouses Tapayan vs. Martinez, G.R. Nos. 207786, January 30, 2017, J. Caguioa)

Okay, now, if during trial, a witness is confronted with that deed of undertaking, and it is only a
photocopy, should you already object to the admissibility of that document during the testimony
of the witness, for violating the original document rule?
● No. Because the objection is made at the time it is formally offered. Remember, I told you
kanina, you have to distinguish, whether it is testimonial, object, or documentary evidence.
 Testimonial, the time to make an offer is while the witness is called to testify. Object and
documentary is offered after the last witness testifies. So, in this case, the witness was still
testifying but the witness was just confronted with a photocopied Deed of Sale. It is not the
time for you to object to the admissibility of that Deed of Undertaking because at that point
of time, that deed is not being offered as evidence. So, it is premature to make an objection.
Right, okay.

Offer of evidence - court shall consider evidence which has not been formally offered
➢ Purpose for which evidence is offered must be specified
➢ All evidence must be offered orally (Rules of Court, Rule 132, Sec. 34-35)

So, we already discussed offer of evidence. Now, if you made an offer of evidence, and it is objected
by the other party, and after the other party objects to your offer of evidence, ay gusto mo namang
ipasok pa rin yung ebidensya na ‘yan.

Tender of excluded evidence

➢ Object / Documentary Evidence - have the same attached or made part of the record
➢ Oral Evidence - state for the record the name and other personal circumstances of witness
and substance of proposed testimony (Rules of Court, Rule 132, Sec. 40)

Ano ang tawag mo sa remedy?

● The remedy is tender of excluded evidence. Okay, so what is the remedy? You have that
document attached or made part of the record if it is object or documentary evidence. But if
it is oral evidence, you need to state for the record, the name and personal circumstances of
the witness and the substance of the proposed testimony.

When is the time for you to make a tender of excluded evidence?

● At the time that your evidence is denied. Okay, so it depends.

○ If it is testimonial, from the time that you offered it, and then it is objected to end
the court rules that it should not be admitted, you already tender the testimonial or
oral evidence. After oral presentation of evidence, testimonial, when you make your
offer of object or documentary, and then, it is objected to, and the court rules, it will
not be admitted, you make your tender of excluded object or documentary evidence.

What's the reason why you want to make it part of the record?

● Even if the RTC or trial court will not consider that excluded evidence in ruling on the case,
you still want it to be part of the records, so that it will be the on-appeal. It is among those
that you can raise or point out during appeal. Okay, alright.
A copy of the Deed of Undertaking was presented during trial. During its formal offer, the opposing
party did not raise its inadmissibility for violating the original document rule. May the opposing
party raise such ground on appeal?

A copy of the Deed of Undertaking, so a photocopy was presented during trial and then, when it was
formally offered, the opposing party did not raise its inadmissibility for violating the original
document rule.

No. When a party failed to interpose a timely objection to evidence at the time they were offered
in evidence, such objection shall be considered as waived, even if by its nature the evidence is
inadmissible and would have surely been rejected if it had been challenged at the proper time.
(Spouses Tapayan vs. Martinez, G.R. Nos. 207786, January 30, 2017, J. Caguioa)

On appeal, can the opposing party raise the inadmissibility of the Deed of Undertaking?
● No. If you failed to timely object on the admissibility of evidence, that is considered as a
waiver. Remember, even if an evidence is inadmissible by nature but there is failure to object
to the same, the evidence becomes admissible. It is a waiver on your part to object to that
evidence.
● But note, that although inadmissible evidence but the objection is waived, it becomes
admissible, it doesn’t follow that it is credible evidence.

What do you mean by credible evidence?

● When it is credible, it is believable. It doesn’t follow, it will be given weight.
● Example, hearsay. Hearsay is inadmissible, if it does not fall under the exceptions, you object
to its admissibility. But if you failed to object to its admissibility, that is a waiver on your
part, it will be admitted. But, it doesn’t follow that it carries much weight because hearsay is
quite weak.

Accused X was in a detention cell when he voluntarily confessed to the commission of the crime
before members of the media. Is this an inadmissible extrajudicial confession?
● No. X was in a custodial investigation when he made a confession. An extrajudicial
confession made before news reporters, absent any showing of undue influence from police
authorities, as in this case, is admissible (People vs. Dacanay y Tumalabcab, G.R. Nos.
216064 , 2016, J. Caguioa )

The accused is in a detention cell. While he is in a detention cell, nabuang na siya doon, nabaliw na
siya kasi mag-isa lang siya doon, kausap niya lang ang mga lamok at ipis doon. So, bored na bored na
siya, naghanap siya ng kausap. Tinawag niya ang media. Sabi niya, “media, come here, may sasabihin
ako.” And the accused voluntarily confessed to the commission of the crime, before the members of
the media, while he was in a detention cell. Question, is that confession inadmissible extrajudicial
confession? Is it inadmissible?
 ● Of course not, that is admissible: 1) There was no custodial investigation made there.
Remember, the requirement that extrajudicial confession must be in writing and in the
presence of counsels is only required if it is an extrajudicial confession during a custodial
investigation.

When is there a custodial investigation?

● Dumating yung mga pulis sa’yo, sabi ahh, may nabalitaan ka bang mga crimes na nangyayari
sa paligid mo. That is not a custodial investigation. But if you, under detention, or asks
specifically for your participation in a specific offense “Binebenta mo ba ‘tong mga drugs na
to”? That is now a custodial investigation. Right. In that instance, you can make an
extra-judicial confession that is valid. Don’t think that you can never make a valid
extrajudicial confession. You can. But while you are in custodial investigation, extrajudicial
confession must be in writing, with the assistance of counsel. If you wanna waive the
assistance of counsel, you need a counsel to assist you in waiving the right to counsel but
still, you must make that extrajudicial confession in the presence of your family members,
etcetera.
● That confession made before the news reporters is not a custodial investigation because the
news reporters are not part of the law enforcement officials. Okay. The custodial
investigation is done before law enforcement officials such as the PNP, yan. Okay, alright. So,
before the media, this is just a spontaneous statement and that statement is admissible
against you. Kaya ‘pag may kliyente kayo in the future, ‘wag kayong pa-interview nang
pa-interview ha, kasi that can be used against you. Alright.

Who has the burden of proof in criminal cases?

● In all criminal prosecutions, the prosecution bears the burden to establish the guilt of the
accused beyond reasonable doubt. (Maamo v. People, G.R. No. 201917, December 1, 2016,
J. Caguioa)

● It is the prosecution who has the burden to establish the guilt beyond reasonable doubt.

Proof beyond reasonable doubt?

● Only moral certainty is required, or that degree of proof which produces conviction in an
unprejudiced mind.
● Burden of proof on prosecution because of presumption of innocence. (People v. Gerola y
Amar, G.R. No. 217973, July 19, 2017, J. Caguioa)

Why is there such a burden of proof?

● The accused enjoys the right to be presumed innocent.
Does the accused have the burden of proof to prove his innocence?
● No. Prosecution must rely on the strength of its own evidence, and not anchor its success
upon the weakness of the evidence of the accused. (Maamo v. People, G.R. No. 201917,
December 1, 2016, J. Caguioa)

● Again, the prosecution must rely on the strength of its own evidence and not on the weakness
of the defense of the accused.

May the guilt of the accused be established through circumstantial evidence?

⮚ Yes. Establishing guilt through circumstantial evidence is akin to weaving a tapestry of
events that culminate in a vivid depiction of the crime of which the accused is the author.
(People v Pentecostes y Cronico, G.R. No. 226158, November 8, 2017, J. Caguioa)

VD SEÑGA JOKE: “Wala nang iba pa. Siya na yun!”

● Even if you did not directly see it, you may still establish the guilt by indirect evidence or
circumstantial evidence.

HOWEVER, Circumstantial evidence is sufficient for conviction if:

● There is more than 1 circumstance;
● The facts from which the inference is derived, are proven; and
● The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt. (Rules of Court, Rule 133, Sec. 4)

What is the probative value of alibi?

● The defense of alibi is inherently weak and unreliable due to the ease by which they may be
fabricated or concocted. (People v Pentecostes y Cronico, G.R. No. 226158, November 8,
2017, J. Caguioa)

● It is admissible but inherently weak and unreliable. It is easily fabricated.

VD SEÑGA JOKE: “Ikaw pumatay kay X!” “Wala ah, dun ako sa bahay nun/Jumejebs kaya ako nun”

What is required to establish the defense of alibi?

● Alibi must be established by positive, clear and satisfactory proof that accused was actually
in another place at the time of the perpetration of the crime, and that it was physically
 impossible for the accused to have been at the locus criminis at the time of the
commission, and not merely that he was somewhere else.

● To establish an alibi, it must be proven that at the time of the commission of the crime, he
was at a place other than the crime and there was physical impossibility of the accused to
have been at the scene of the crime.

VD SEÑGA JOKE: “Kung nasa Pasig yung crime, nasa Quezon city daw siya” – not an impossibility
kasi pwede mag Angkas.

● Physical impossibility refers to the distance between the place where the accused was when
the crime transpired and the place where the crime was committed, as well as to the
facility of access between the two places. (People v Pentecostes y Cronico, G.R. No.
226158, November 8, 2017, J. Caguioa; People v. Mayingque, G.R. NO. 179709, July 6,
2010)

● It must be impossible for you to travel the distance.

Material Date rule?

● To show the timeliness of the filing the petition/appeal:
o The date when notice of the judgment or final order or resolution was received;
o The date when a motion for new trial or for reconsideration was filed; and
o The date when notice of the denial thereof was received. (Mercado v. Lopena, G.R.
No. 230170, June 6, 2018, J. Caguioa)

● This is always required in our appeals and petitions. The purpose of such is to show the
timeliness of the filing of the petition/appeal.
○ The date of when the judgment was received must be shown. Receipt of the
judgment, not the date of the judgment.
■ Why? From the time of receiving the judgment, the 15-day period will start to
run, whether it is to appeal or file an MR.
○ If you file an MR, you must state the date when the MR was filed as to show if you
timely filed it.
○ If your MR is denied, from the time you received notice of the denial of the motion.
■ From such receipt of denial of MR, the fresh period rule will start to run.

What is a Strategic Lawsuit Against Public Participation (SLAPP)?

 ● Action (civil, criminal, or administrative), brought against any person, institution, or any
government agency or local government unit or its officials and employees.
● With intent to harass, vex, exert undue pressure or stifle any legal recourse that such
person has taken or may take in the enforcement of environmental laws, protection of the
environment or assertion of environmental rights.

● If you are a person who wants to bring an action against a government agency, to enforce
environmental rights.
○ In turn, this government agency files a case against you. It can be civil, criminal, or
administrative. This case brought against you is only for the purpose of harassing or
vexing or so they can assert undue pressure to stifle you from availing of a legal
recourse to enforce environmental laws.
○ This harassment case was filed to stop you from availing the remedy or enforcement of
environmental laws.
● You’re saying that the action filed against you is a SLAPP suit since it was only filed to harass
or vex, to stop you from taking action to enforce environmental laws.

● The allegation of SLAPP is set up as a defense in those cases claimed to have been filed
merely as a harassment suit against environmental actions. (Mercado v. Lopena, G.R. No.
230170, June 6, 2018, J. Caguioa)

● This is used as a defense so the SLAPP suit can be dismissed.

How is SLAPP raised as a defense?

● Defendant may file an answer interposing as a defense that the case is a SLAPP and shall
be supported by documents, affidavits, papers, and other evidence;
● May, by way of counterclaim, pray for damages, attorney’s fees and costs of suit.
● In a criminal case, upon filing of information in court and before arraignment, the accused
may file a motion to dismiss on the ground that the criminal action is a SLAPP. (Mercado v.
Lopena, G.R. No. 230170, June 6, 2018, J. Caguioa)

How to raise it as a defense? - It depends on whether it is a civil or criminal action.

● If it is civil case, you assert it in your answer.

● If it is criminal case, you assert it in a motion to dismiss before arraignment.

X was charged with murder. X filed a petition for bail and after hearing thereon, the court
denied bail on the ground that the evidence of guilt was strong. Trial on the merits ensued and
the prosecution rested its case. X filed a demurrer to evidence, which was denied.
X filed a motion to fix bail, alleging that the prosecution was able to show that the crime
charged should be homicide only and not murder, relying on People v. Rivera, a case with
substantially the same facts, where the victim was killed during a heated argument, the crime
was only homicide due to the absence of treachery because there was no preparation made in
a manner to ensure the killing of the victim.

The RTC denied the motion on the ground that the evidence of guilt for the death of the victim
was strong and it was incumbent on the accused to take the witness stand, to show otherwise.
X moved for reconsideration which was denied. X filed a petition for certiorari with the CA.
Was the denial of the motion to fix bail proper?

● People v. Rivera is substantially the same as the case at bar.

● In Rivera, the victim was killed only due to a heated argument. According to People v. Rivera,
if there is killing during a heated argument, that is not murder.
○ It is not evident premeditation because it was in a heated argument. Further, there is
no showing of treachery. There was no preparation and no manner shown to ensure the
killing of the victim.
● Hence, it should be homicide.
● Although the charge is murder, the accused is asking for a motion for bail on the ground that
the prosecution only established the elements of Homicide, not murder. Homicide is reclusion
temporal.
● Before conviction in the RTC, bail is a matter of right.

The RTC denied the motion on the ground that the evidence of guilt for the death of the victim
was strong and it was incumbent on the accused to take the witness stand, to show otherwise.
X moved for reconsideration which was denied. X filed a petition for certiorari with the CA.
Was the denial of the motion to fix bail proper?

● No. The RTC committed grave of abuse of discretion in denying the motion to fix bail
because the prosecution could at best, only convict X of homicide and not murder.
Treachery is not present when the killing was preceded by a heated argument.

● The RTC stated that the evidence of death is strong but the basis for bail is the evidence of
guilt for the crime charged is strong or not strong.
● The charge here is murder. Murder is punishable by reclusion perpetua.
● Bail is not a matter of right until it is shown that the evidence of guilt is not strong.
○ The determination of evidence of guilt, whether strong or not strong, is on the crime
charged.
 ● The Supreme Court stated, here, the evidence of guilt for murder is not strong. It is shown,
by evidence, that homicide was committed, not murder because the killing was made during a
heated argument.
● It is an error for the RTC to state that the evidence of killing is strong since homicide is
different from murder. Treachery was not present as well as it preceded a heated argument.

● The RTC should only have determined whether the evidence of guilt is strong for Murder
(the crime charged), as opposed to simply determining if the evidence that he was
responsible for the victim’s death was strong.
● The evidence of X’s guilt for murder was not strong. (Recto v People, G.R. No. 236461,
December 5, 2018, J. Caguioa)

● Since the evidence only showed Homicide, the evidence of guilt for Murder is not strong so
bail should be allowed.

When may a TRO be issued ex parte by a trial court?

● To preserve the status quo until the hearing of the application for preliminary injunction,
which cannot be issued ex parte.
● 72 hour-TRO, if the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury.
● A summary hearing, separate from the application of the preliminary injunction, is required
only to determine if a 72-hour TRO should be extended.

Can a TRO be issued by the trial court ex parte?

● Yes.
● The TRO ex parte can be issued if there is extreme urgency, and the applicant will suffer
grave injustice and irreparable injury.
○ If it is issued by the trial court, the TRO is for 72-hours first.
■ That 72-hours, a hearing is to be conducted in determining if the 72-hours
should be extended to 20 days.
■ The court should rule if ever the extension of the 72-hour TRO shall be up to 20
days.
○ If the 72-hours has lapsed without a ruling on its extension, it is deemed functus
oficio.
■ Either conduct a hearing on writ of preliminary injunction.
○ If the court has decided to extend the 72-hours to 20 days, the 72-hours are deemed
inclusive of the 20 days.
 ● 20 day -TRO, if it shall appear from facts shown by affidavits or by the verified application
that great or irreparable injury would result to the applicant before the matter can be
heard on notice.
● Trial court has 20 days from its issuance to resolve the application for preliminary
injunction. (Philippine Investment Two (SPV-AMC), Inc. v. Mendoza, AM RTJ-18-2538,
November 21, 2018, J. Caguioa)

● If there is a 20 day -TRO, during the 20 days there will be a hearing on a writ of preliminary
injunction.
o Note: You cannot have a writ of preliminary injunction without a hearing.
o But you can have a denial of preliminary injunction without hearing.
● If that 20 day – TRO lapses without a ruling on the writ of preliminary injunction, the 20-day
TRO becomes functus oficio and you cannot extend it anymore.

What is accion publiciana?

The issue in an accion publiciana is the “better right of possession” of real property independently
of title. This “better right of possession” may or may not proceed from a Torrens title. (Miranda v.
Spouses Mallari, G.R. 218343, November 28, 2018, J. Caguioa)

May there be a provisional determination of ownership in accion publiciana?

⮚ Yes. Where the parties raise the issue of ownership, the courts may pass upon the issue to
determine who between the parties has the right to possess the property.
⮚ It will not trigger a collateral attack on the plaintiff’s certificate of title. (Miranda v.
Spouses Mallari, G.R. 218343, November 28, 2018, J. Caguioa)

What may be the subject of levy for purposes of execution sale?

⮚ Property inconvertibly or unquestionably belonging to the judgment obligor may be subject
of a levy on execution.
⮚ If the property of third person is mistakenly levied open to answer another man’s
indebtedness, he has all the right to challenge the levy through remedies provided for
under the rules.(Miranda v. Spouses Mallari, G.R. 218343, November 28, 2018, J. Caguioa)

Note: what can only be the subject of levy in an execution sale is the property of the judgment
obligor. It cannot be the property of a 3rd person.

● If it turns out the property belongs to a 3rd person, that cannot be a subject of a levy.
 o EXAMPLE: if the judgment debtor, prior to the pending case against him, already sold
the land to Mr. X. Mr. X already acquired ownership when he possessed the land.
▪ Note: Delivery or traditio is a way of which you transfer ownership).
o However, Mr. X did not transfer the title from the debtor to himself, Mr. X. The title
remained in the name of the debtor but Mr. X is the new owner because of the transfer
of ownership.
▪ Note: Title will not affect ownership. Title is only proof of ownership. The
transfer or the delivery already transferred ownership to Mr. X.
o Because the title remained in the name of the debtor, the same was attached to the
civil case filed against the debtor. The highest bidder in the case was the creditor.
o ISSUE: Whether the creditor has a better right to the property because Mr. X was not
able to transfer title in his name.
o NO. The SC stated that the rules mentioned on what is subject to levy is the property
of the judgment obligor. Here the judgment obligor previously transferred ownership
of the property to a different person before the execution sale. So the highest bidder
cannot have a higher interest over the judgment obligor.

Plaintiff files a civil action against defendant, who moved to dismiss on the ground of res
judicata. The trial court granted the motion and dismissed on the ground of res judicata.
Plaintiff filed a motion for reconsideration which was denied. Plaintiff filed a petition for
certiorari with the CA, alleging that the order dismissing the case on the ground of red judicata
was interlocutory and not appealable. Is the plaintiff correct?
● No. The dismissal on the ground of res judicata is a final order and not an interlocutory
order because it terminated the proceedings and left nothing to be done.
● Under Sec. 1, Rule 41, an appeal may be taken from a judgment or final order that
completely disposes of the case, as in the case. Certiorari cannot be availing when appeal is
available.

● Dismissal on res judicata is not interlocutory but a final order that is a dismissal with
prejudice.
● The remedy is appeal, not certiorari.

Which grounds for dismissal whether in a motion to dismiss or answer as an affirmative defense
would have the effect of dismissal with prejudice?
● The cause of action is barred by prior judgment (res judicata);
● The cause of action is barred by statute of limitations;
● The claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned
or otherwise extinguished; or
● The claim on which the action is founded is unenforceable under the provisions of the
statute of frauds. (Rules of Court, Rule 15, Sec 13)
 ● These are the instances. If it is dismissed it is with prejudice.

VD SEÑGA JOKE: “Napaaga na yan. Nasa book ko kanina. It is Section 13, Rule 15”

What is the effect of a dismissal with prejudice?

● It bars the refiling of the same action or claim, but it may be subject of the right of appeal.
(Rules of Court, Rule 15, Sec. 13)

● You cannot refile the action, you must appeal it.

X, in seeking for the issuance of injunctive relief, claims that unless restrained, the
pre-termination of the lease would cause them to lose such business with the opposing party. Is
this an irreparable injury?

● No. The act sought to be enjoined will only lead to the reduction of its revenues, a loss that
may be measured with reasonable accuracy, and therefore quantifiable or susceptible to
mathematical computation. (SM Investments Corp. v. Mac Graphics Carranz International
Corp., GR 224131-32 & 224337-38, June 25, 2018, J. Caguioa)

Reparable Injury

● The plaintiff is claiming that unless restrained, he will lose his business with his client, the
defendant. Is it an irreparable injury?
o NO. The SC stated that losing a client is compensable since you are only losing profits.
It wasn’t stated that you will lose your entire livelihood but only profits.

What are the rules on venue in relation to a criminal charge for libel under the RPC?
1. Whether the offended party is a public official or private person, the criminal action may
be filed in the RTC of the province or city where the libelous article is printed and first
published.
2. If the offended party is a private individual, the criminal action may also be filed in the RTC
of the province where he actually resided at the time of the commission of the offense.
3. If the offended party is a public officer whose office is in Manila at the time of the
commission of the offense, the action may be filed in the RTC of Manila.
4. If the offended party is a public officer holding office outside of Manila, the action may be
filed in the RTC of the province or city where he held office at the time of the commission
of the offense or at the time first published. (People v. Macasaet, GR 196094,196720,
197324, March 5, 2018, J. Caguioa)
VD SEÑGA JOKE: “Under the RPC, kakaibae yung rules on venue.”

What should be alleged in the information as to venue if the basis of venue of the libel criminal
action is the place where the libel was printed and first published:

The information must allege with particularity where the defamatory article was printed and first
published, as evidenced or supported by, for instance, the address of their editorial or business
offices in the case of newspapers, magazines, or serial publications. (People v. Macasaet, GR
196094,196720, 197324, March 5, 2018, J. Caguioa)

Example Information:

“That on April 21, 1999, In Manila City, and within the jurisdiction of his Honorable Court, the
above-named accused, as publisher/writer, executive editor, and editor, respectively of Malaya
with address at Port area, Manila City defamed private complainant Narciso Y. Santiago, Jr., did
then and there, knowingly, willfully. Unlawfully, and feloniously by writing and publishing an article
in the Malaya xxx”

The accused did not file a motion to quash information for lack of territorial jurisdiction. Are the
allegations in the information as to libel venue sufficient?

● YES. That the information did not expressly state “first published” is of no moment because
the word “published” does not exclude the first publication.
● The accused does not deny that Port area, Manila is the editorial and business offices of
Malaya. He did not raise the ground of lack of jurisdiction to dismiss the case.
● The information alleges with particularity Port area, Manila as the place where the alleged
defamatory article was printed and first published.
● Information need not parrot the provisions of Art. 360 of the RPC and expressly use the
phrase “Printed and first published.” (People v. Macasaet, GR 196094,196720, 197324,
March 5, 2018, J. Caguioa)

● Although it did not say the word “first published”, it did mention where it was published. It
was in the Port area in Manila, so it is a sufficient allegation of territorial jurisdiction of the
court.
 MERCANTILE LAW I
Atty. Timoteo B. Aquino
October 8, 2022

ACADS SCRIBES TEAM: SAMANTHA ALVAREZ | ANDREA DE GUZMAN | PAMELA DELA CRUZ | SHERRY PAGAY |
LANCE PUNZALAN | QUIMBERLYN RANCHEZ
CHECKED BY: HANNAH KEZIAH MORALES (Chairperson for Academics) | ADRIAN MACASAQUIT (Deputy for
Academics)| ANDREA JOSES TAN (Deputy for Academics)

TABLE OF CONTENTS

LAW ON INSURANCE 3
RULE 1: Principal object and purpose test 3
RULE 2: An insurance contract is CONSENSUAL 4
RULE 3: Generally REVOCABLE 7
RULE 4: Insurable interest 7
RULE 5: Cancellation of the Policy (Sec. 64) 10
Concealment, Representation, and Warranties 12

TRANSPORTATION LAW 15
Common carriage (art. 1732) 15
Defenses 17

CORPORATION LAW 18
Revised Corporation Code 18
Limited Liability Rule 19
Doctrine of Piercing The Veil of Corporate Fiction 22
Nationality of The Corporation 23
Control Test 24
Incorporation Stage 25
Articles of Incorporation 26
Term 27
Revival of Corporation 28
Substantial Compliance 29
Contracts before Incorporation 30
Board of Directors 31
Corporate Officers 34
Powers of the Corporation 37
Shares 40
Special Type of Corporation - One Person Corporation (OPC) 43

LAW ON INTELLECTUAL PROPERTY 44

Focus of the Lecture on Commercial Law:
● Recent cases subject of the Bar Exam
● Topics are recurring (seldom there are new topics)
● Major laws included in the coverage of the bar examinations

Recommended Book: Reviewer on Commercial Law by Atty. Aquino and Dean Sundiang. Latest was
released last month (September 2022)

LAW ON INSURANCE

Remember the definitions of

● Insurance contract - From the definition, it is aleatory; it is a contract of indemnity
● Doing of insurance business
● Common carrier
● Corporation

BAR TIP: Remember all the basic definitions. You can trace the attributes, elements and
characteristics from definitions. Memorize the basics of foundational concepts that are important
for Bar Examination purposes. For Jurisprudence, one important rule that we should remember is
the text to determine the contract is an insurance contract.

RULE 1: Principal object and purpose test (on whether or not it is an insurance contract)

Philippine Health Care Providers, Inc. v. CIR (2009). Whether the assumption of risk and
indemnification of loss (which are elements of an insurance business) are the principal object and
purpose of the organization or whether they are merely incidental to its business.
If these are the principal objectives, the business is that of insurance. But if they are merely
incidental and service is the principal purpose, then the business is not insurance.
Health Card agreements

It is not insurance with assumption of risks but extension of medical services at affordable
costs. This is a contract for services. You pay in advance to avail of medical services

Q: When is it considered insurance?

● A: It depends on the circumstances. Additional facts that will indicate that there is an
assumption of risks.

Exceptional Cases: That a health card agreement is an insurance. Like health insurance or life
insurance. It would depend on the circumstances that there should be additional facts that indicate
assumption of risks. But if it is just an ordinary health card, then your answer should not be an
insurance contract under the principal object and purpose test.

RULE 2: An insurance contract is CONSENSUAL

Compared to contracts that are real and solemn. Since it is consensual, you don't need a policy
to perfect the contract.
If the question is whether or not the policy should be issued, or whether or not the insured
policy holder is entitled as a matter of right in the policy, the answer is yes. The insurance company is
required to issue an insurance policy.
The requirement of policy does not mean it is necessary for the perfection of the contract
because the rule is an insurance contract is consensual.
● EXAMPLE: Steamship mutual underwriting association of Bermuda v. Sulpicio Lines also
decided in 2017.

COGNITION THEORY applies in the perfection of contract.

There is an offer and acceptance. In civil law, it is perfected right there and then.
If there was perfection by correspondence — Meaning, you are not in the same place and
therefore, it is good to know when there is a meeting of the minds between the parties. At what point
is there a perfection of the contract and this is where a cognition theory comes in.
 By signing the application and submitting it to the insurance company, the insured is making an
offer. It is the insurer that accepts the offer by approving the application.

Q: If the application is approved, Is it already perfected?

● A: No. Under the Cognition Theory, The offeror must be informed of his acceptance of
the offeror. Must come to the knowledge of the offeror.

Q: Whether or not the designated beneficiary can recover?

● A: No. because insurance contracts are governed by the cognition theory. Acceptance
must come to the knowledge of the offeror.

Bar Exam Question

Q: Application was approved by the insurance company. But it’s either that the letter approving the
application was never sent, or it was sent but it was never received by the insured. In the meantime,
the insured died (with life insurance), the question is usually whether or not the beneficiary can
recover.
● A: No. Because insurance contracts are governed by what is known as cognition theory. The
acceptance must come to the knowledge of the offeror. And in that given case, while the
application, which is the offer, was already accepted by the approval of the application, that
acceptance did not reach the offeror or the applicant because he died before he was informed
of the application which was approved. Therefore, there was no perfected contract of
insurance.

BAR TIP: Determine the applicable doctrine and apply it to the given problem and apply your
solution. If you can answer in 4 sentences, then better. But make the strongest and direct statement
that you can make.

Parties in the insurance contract

Next rule is about the parties in the insurance contract, there are times especially in life
insurance where the insured is also the applicant — he is insuring himself.
 There are times too, when there is an insured and somebody else is applying — he is insuring
the life of another person. This other person who is insuring the life of another must have an
insurable interest in the life of the person. (Refer to Section 10, Republic Act No. 10607)

Q: Can you insure your own life and designate your friend as a beneficiary? There was a
question in the past involving live-in partners.
● A: One argument is that no you cannot because hindi naman married pero it’s really
immaterial because if you insure your own life, you can designate any beneficiary even
if they do not have any insurable interest. Insure mo sarili mo kahit sino pwedeng
beneficiary basta hindi disqualified. On the other hand, if a person will insure the life
of another, and he will designate himself as a beneficiary, he must have insurable
interest.

Heirs of Maramag v. Maramag (2009). A legally married man had a common law spouse that
bore 3 children. He took insurance policy on his life and designated his common law spouse and the 3
illegitimate children. When he died, their rights were questioned for lack of insurable interest and
disqualified.
Any person who is forbidden from receiving any donation under Article 739 cannot be named
beneficiary of a life insurance policy of the person who cannot make any donation to him. If a
concubine is made the beneficiary, it is believed that the insurance contract will still remain valid,
but the indemnity must go to the legal heirs and not to the concubine, for evidently, what is
prohibited under Art. 2012 is the naming of the improper beneficiary.
The ruling is that the common law spouse is disqualified but there is no prohibition on the
designation of illegitimate children as beneficiaries. Lack of insurable interest does not matter
because the man himself insured his own life.

Q: If you have four beneficiaries, one is disqualified, what happens to the share of the
disqualified beneficiary? Will the estate get it?
● A: No, it will go to the co-beneficiaries. So ang mangyayari ay instead of ¼, magiging
⅓ na ang share ng children — this is the new rule under RA no. 10607. ‘Pag may
co-beneficiaries, sa kanila mapupunta ang share ng disqualified.
When else will the estate get the proceeds?
● No designated beneficiaries
● Beneficiary is disqualified no co-beneficiaries and no provision in the contract
● If the policy itself designates the estate as the beneficiary
● Other cases: the beneficiary’s designation is subject to a contingency and the event did not
materialize, then the proceeds will go to the estate.

Creditor as a beneficiary
There are two types:
(1) Designated as a person who is not a creditor. You will designate him whether he is a creditor
or not)
(2) Designated in his capacity as creditor. Then the creditors’ right to recover will depend on the
amount of credit

EXAMPLE: A owes 1M to the creditor, hence can recover 1M. But if the 1M or 50% has been claimed,
then the rest will go to the estate. Pero be careful with the wording of the problem. If he was
designated not as a creditor, then the extent of recovery will not depend on his credit)

Endowment Policy
● Dependent on the death of the insured.
● EXAMPLE: Within 15 years, the insured dies, the beneficiary can get the proceeds. If he does
not die, he can get the proceeds on its face value.

RULE 3: Generally REVOCABLE

● If you want it (insurance contract) to be irrevocable, then expressly stipulate

● EXCEPTION: In the instance of legal separation, even if the designation is irrevocable but the
beneficiary is the spouse in bad faith, it is revocable by law.
○ BAR TIP: it is not usually asked in mercantile law, but asked in civil law. It is worth
remembering
● Refer to Section 12, RA no 10607 - whether policy or beneficiary will prevail
 RULE 4: Insurable interest

BAR TIP: If it is an insurable interest in life insurance, then there is no alternative to Section 10 but
to memorize all those persons. For example, the question is how to determine if there is insurable
interest in the life of a particular person? Look if it is mentioned in Section 10.

Test by Exclusion
● Memorize section 10. It is excluded if it is not under Section 10.
● Blood relatives by themselves will not by blood itself establish insurable interest.

Insurable Interest in Persons

● There is an insurable interest in the life of a person you depend wholly or in part for education
and support.
○ Education and support need not be based on the provisions of law. There need not be
an obligation to provide education or support under the law
○ EXAMPLE: A friend supports you for your education, then you can insure the life of your
friend even if he is not legally required to support you
● Insurable interest in persons with pecuniary interest
○ EXAMPLE: Employees and managers. Employers have pecuniary interest over the lives
of their employees.
● Insurable interest on life of debtor - when there is delayed performance; not the other way
around where debtor will insure the creditor (unless another paragraph is applicable)
○ EXAMPLE: Do you have an insurable interest by being grandparents alone? No. but if
they’re supporting, as legally required, the insurable interest may exist.
● Insurable interest in person not found in section 10
○ EXAMPLE: Heirs do not have insurable interests over the properties of their ancestors or
predecessors. How do you know if one has an insurable interest over the property? The
test is actually always pecuniary in property insurance.

BAR TIP: Just because one person is not covered by one paragraph in section 10, does not mean there
is no applicable provision. Memorize section 10. Take note of the question being presented.
Test to Determine Insurable Interest
● Will the insured be “damnified” for the loss or damage of the property?
○ If the answer is yes, then there will be insurable interest.
● What kind of right or interest? When will it be damnified?
(1) Interest by ownership
(2) Interest by virtue of contract (i.e. possessor, borrower in commodatum,
usufructuary, lease if for a fee)
● Why do they have the interest? APPLY THE TEST.

Interest by possession of property

● Interest by virtue of contract; damnified by the loss of the property.
● Responsibility over the property
○ They can be made liable due to their responsibility over the property
○ EXAMPLE: warehouseman, common carrier.
● Inchoate Right
○ It is founded in an existing contract.
○ EXAMPLE: in a contract to sell, subject to suspensive conditions (i.e. full payment of
the purchase price). Here, even if the buyer is not the owner, he can insure the
property because he can still be damnified with the loss.
● Properties in transit but not yet received
○ The consignee and the unpaid seller have insurable interests.
● Those with security interests
○ ownership, possession, responsibility over the thing, depositary, mortgagee, and the
secured creditor under the PPSA.

One property involved, but two insurance policies that are both valid and binding.
● Is there double insurance? No, because the two insurable interests are different.
○ EXAMPLE: The mortgagor and the mortgagee have separate insurable interests and the
extent of recovery.
● If the mortgagee is the creditor, his recovery is dependent on the amount of the credit. If
already paid, he can no longer recover.
 ● Can the mortgagor recover if the credit is already paid? No. Unless he is designated as the
beneficiary. If the mortgagee insured the property and designated himself as beneficiary, the
mortgagor cannot recover because it's a separate contract.
● Paramount v. Castro (2016) - can mortgagee be enjoined as a party because the
mortgagor/ee have interest over the property? Yes, because both of them have insurable
interests.

RULE 5: Cancellation of the Policy (Sec. 64)

BAR TIP: Memorize the grounds for cancellation and requirements.

Notice of Cancellation (Grounds found in Section 64, RA No. 10607)

● NEW GROUND under the Amended Insurance Code: Discovery of other insurance coverage
that makes the total insurance in excess of the value of the property insured — Double
insurance
● Double insurance by itself is not a ground but if not disclosed and there is overinsurance, the
policy may be canceled.
● There is a case decided in February 2021 where the Court held that stipulated in policy that
there must be disclosure of another insurance in the same property.
● Failure to disclose will entitle the insurer to revoke the insurance. In other countries, there is
an outright condition.
● Treatment is usually by law and not by policy.

Premium Payment (5 Stars. An important topic)

Remember: general rule, exemption, period, etc.

Sec. 77. CASH and CARRY RULE: Insurance policy is not valid and binding until there is no
payment of premium.
Here, the contract is already perfected but the liability of the insurer is subject to payment of
premium. Not necessary for the perfection of the contract but to make the insurance liable
EXAMPLE: Kung hindi pa bayad ang premium kasi ayaw tanggapin ng insurer tapos nagkaroon ng loss,
liable na ang insurer.
Q:If the insurer approved the policy, there is a perfected contract but the insured did not pay
premium and the insurer filed an action for the recovery of the premium. Will it prosper?
A: No, because the payment of premium is not actionable. The effect of non-payment will only
bar the insured to recover should there be loss.

Liability of the insurer to be subject to the whole payment for the premium

If the premium is already paid, liability of the insurer already attaches. However, the parties
can agree that the liability of the insurer can be attached even if there is no payment of premium
yet.
● Attached by agreement of the parties - can file a case. The credit terms have already passed
whether or not loss occurred. Insured will be liable subject to the condition of the insurer
(EXAMPLE: may credit pero naghihirap)
● Not paid within credit term - insurer can file an action

Exceptions to the rule when premium payment must be made for policy to be valid and binding

5 exceptions in UPCB v. Masagana (2001)

1. The first exception is provided by Section 77 itself, and that is, in case of a life or industrial
life policy whenever the grace period provision applies.
2. The second is that covered by Section 78 of the Insurance Code
3. A third exception was laid down in Makati Tuscany Condominium Corporation vs. Court of
Appeals, wherein it was held that Section 77 may not apply if the parties have agreed to the
payment in installments of the premium and partial payment has been made at the time of
loss.
4. Tuscany has provided a fourth exception to Section 77, namely, that the insurer may grant
credit extension for the payment of the premium. This simply means that if the insurer has
granted the insured a credit term for the payment of the premium and loss occurs before the
expiration of the term, recovery on the policy should be allowed even though the premium is
paid after the loss but within the credit term.
5. Estoppel is the fifth exception to Section 77
 Gaisano v Development Insurance (2017) - premium was made through a check after the
loss. The court said that there is no liability but had there been a credit agreement, the answer would
be different.

A rule which is no longer controlling is if payment is made through installments, at least one
must be paid. Now, the Supreme Court recognizes that the pure credit term is valid and binding.

Concealment, Representation, and Warranties

RULE 1: Test of Materiality

Will the matter concealed affect the decision by the party to enter into a contract? Or to fix terms
and conditions?
● EXAMPLE: illnesses - Pag alam na may sakit sa puso, baka itaas ang premium or hindi iinsure.
Hence, pag hindi dinidisclose, concealment yan.

RULE 2: Matter concealed need not be the cause of the loss

Good faith is not a defense, because concealment may be intentional or unintentional.
● EXAMPLE: The matter is concealed and died in an accident.

Concealment v. Misrepresentation
Discussed in the case of Insurance Life Assurance Co., Ltd v. Heirs of Alvarez (2018) where
the age of insured disclosed was allegedly fraudulent. The Court held that it is more of a
representation. It is an inducement to enter into a contract

Since it is a case of representation, the rule is that the representation must be fraudulent or in
bad faith. In this case, wala namang proof of fraud. Nagkamali lang ng date na linagay pero kita
naman sa documents yung totoong date.

Good faith is a defense in representation. Pero pareho lang na test of materiality ang gamit.
 Concealment Misrepresentation

A concealment whether intentional or A representation is to be deemed false when the facts

unintentional entitles the injured party to fail to correspond with its assertions or stipulations.
rescind a contract of insurance (Sec. 27) (Sec. 44)

If a representation is false in a material point, whether

affirmative or promissory, the injured party is entitled
to rescind the contract from the time when the
representation becomes false. (Sec. 45)

Dispenses with proof of fraudulent intent Rescission under Section 45 remains subject to the
in cases of rescission due to concealment. basic precept of fraud having to be proven by clear and
Good faith is no defense in concealment. convincing evidence.

WARRANTY

TEST: Is it really expressly warranted? If not, then there is no breach.

What is otherwise immaterial becomes material when it is expressly warranted. Kapag hindi
mo sinunod, may breach ka and therefore the contract can be rescinded.

Incontestability Clause
Still problematic until now because of the case of Sun Life v. Sibya (2016) case where the
insured died within the 2 year period but the court held that it is already incontestable (BAR TIP: If
asked, just say that there are two views on the matter).
Two Requirements:
1. It must be a life insurance policy; and
2. It must be reinforced 2 years from insurance or from last reinstatement
● Parang fresh period, hindi icoconsider yung original period. Should investigate
within the 2 year period, otherwise can no longer question.
● Died within 2 years - contestable bc there is no time to investigate.
● It can be shortened by agreement - the view is that it cannot be extended by
stipulation. Pwedeng 1 year pero hindi pwedeng 3 years
Right Of Subrogation
Insurer is subrogated to all the rights of the insured. The effect is automatic in property
insurance upon payment. In property insurance, it is still a practice to sign assignment of right
contracts. But the law does not require it so long as there is already payment.

Henson Jr. v UPCB (2019) with respect to prescriptive period not for insurance claim but for
the filing of a case against a third party. Following the principles of subrogation, the insurer only steps
into the shoes of the insured and therefore, for purposes of prescription, inherits only the remaining
period within which the insured may file an action against the wrongdoer.
To be sure, the prescriptive period of the action that the insured may file against the
wrongdoer begins at the time that the tort was committed and the loss/injury occurred against the
insured. The indemnification of the insured by the insurer only allows it to be subrogated to the
former's rights, and does not create a new reckoning point for the cause of action that the insured
originally has against the wrongdoer.

EXAMPLE: In quasi delict, the injured party is insured and has 4 years to file, and it took the insurer 1
year to pay. When the victim files a case, it will take 4 years. If insurance will pay, then the remaining
period lang.

Alpha Plus v Philippine Chapter Insurance (2021) provides for the prescriptive period for
filing an insurance claim.
Case law teaches that the prescriptive period for the insured's action for indemnity should be
reckoned from the "final rejection" of the claim. The rejection referred to should be construed as the
rejection in the first instance.
The prescriptive period should be reckoned from petitioner's receipt of the notice of rejection.
One (1) year or 365 days from January 24, 2009 would show that petitioner's prescriptive period to
file its insurance claim ends on January 24, 2010.

Q: General rule is that the prescription period is 10 years. Pwede ba ireduce?

A: Yes but not less than 1 year otherwise it’s void.
 TRANSPORTATION LAW

Common carriage (art. 1732)

● Memorize the definition. It provides the test to determine if it is one of common carrier
● Does the entity hold itself out to the public as transporting goods or passengers? For a fee?
Intent is continuity of dealings

Limited clientele is not important

EXAMPLE: school bus, sidelines (ancillary to main business), hotels that provide transport from them
to the islands is a common carrier kahit walang franchise from LTFRB

De Guzman v. CA (1988) - yung may junk dealer. The court held that there was no distinction
between one whose principal business activity is the carrying of persons or goods or both, and one
who does such carrying only as an ancillary activity or as a mere “sideline”. It makes no distinction
between a person or enterprise offering transportation service on a regular or scheduled basis and
one offering such service on an occasional, episodic or unscheduled basis. Neither it distinguishes
between a carrier offering its services to the “general public,

Extraordinary diligence
● Negligence is presumed
● Take note of void provisions in common carriage that are valid in private carriage (Eg: in an
agreement, “we are not responsible for these goods. The shipper is invalid for all the goods.)
● Service provider outsourced by a drug company, pero yung tracking company walang ibang
buyer and is dedicated to the manufacturer. SC held its private carriage.

Liabilities
Q: What if there’s an agreement that the carrier will be liable for the goods?
A: No
 Q: When talking about a shipowner’s responsibility where it is not a common carrier, is it also
possible to use it as a common carrier? Paano yun?
A: Charter who is using the vessel can be a common carrier

● Torres Madrid v. Feb Mitsui (2016)- Paano kung nisubcontract yung carriage? Pwede ka bang
common carrier pero wala kang vehicle, vessel or airplane? In this case it’s a tracking service.
Kaso na-hijack. There is no privity of contract between subcontractor and shipper. The fact
that A, original contractor, is not the one operating will not change the conclusion.
Subcontractor will be liable for quasi delict.
● Orient assurance v. Ong (2017) - Arrastre operator - not common carriers but public utilities.
It is questionable.
○ Diligence is higher than that of diligence of a good father of a family. It is akin to a
warehouseman (sa
○ Eg: an alien filed against the arrastre operator under COGSA. 1 year period is not
applicable with orient assurance.
● Stevedores - diligence of a good father of a family
● Registered owner - person who appears on the certificate of registration
○ Seller is liable under the registered owner rule. If the victim knows na binenta na sa
buyer na hindi registered owner. Solidary liabiilty for seller and buyer

Common carriers v private carriers

● Ordinary diligence must be exercised - invoke diligence in selection and supervision of
employees? Sa quasi-delict lang hindi sa contract of common carriage.
● Is the common carrier liable?
○ If you suffer injuries, negligence is presumed and hence the common carrier shall be
liable (Bar Tip: you don’t need to explain it. Merely state the presumption. It’s already
a matter of defense for the common carrier and not a matter to prove by the
prosecution).
● Gratuitous passengers - diligence can be lessened

Duration of the duty to exercise extraordinary diligence

● On bard, in process of embarking or disembarking - merong common carriage na may liability
○ Famous case na tinabi na niya yung family pero bumalik tapos nasagasaan yung family
 ○ Aboitiz Shipping Corp v. CA (1990) - nakababa na sa barko, pero bumalik tapos
natamaan
● Continuing offer rule - eg: kapag tumigil yung jeep tapos pwede ka nang sumakoy
○ LRTA v. Natividad (2003) - nasa platform pero hindi nakasakay sa train; already in the
place designated for boarding and hence treated as passenger,

Defenses

● Art 1734 - Memorize kasi may iba ibang tanong

● Natural disaster or calamity, kasama na yan. Need not be a natural disaster. Apply rule on
oblicon, whether acts of god or acts of men (theft or grave irresistible force)(Refer to Torres
Madrid case)
● Acts of public enemy in ward - need not be international war. Also includes internal conflicts
and high seas *by international law)
○ Mayor is not competent authority
○ Coast guard or bureau of customs prevented carrier from leaving - that isa case too
○ Bus stopped and allowed 3 passengers and one shot. Common carrier is not liable for
acts of other passengers if it can be established who could not have prevented it with
diligence of a good father ofa family. Hindi naman reasonable kapag kakapkapan lahat
● Sa airlines -
○ Rule on baggage - notify the carrier (Refer to Sulpicio lines v. Sesante)
● Single act or omission can give rise to different kinds of obligations
○ The passenger got into an accident - they can sue based on quasi contract or quasi
delict
○ The liabilities can be based on delict, quasi-delict (driver and operator) or contract
(Only common carrier)
● Common carrier can be made liable
○ Quasi delict if it’s the driver and operator
○ Liability is vicarious under 2180 of Civil Code
○ On breach of contract, it’s only the operator who can be sued
○ Contract, quasi-delict, delict, subject to 2177 of NCC, on proscription on double
recovery
 CORPORATION LAW

Revised Corporation Code

Pay particular attention to new provisions which were not part of the old Corporation Code.

Number one for Corporation Law, although it seems basic, they always ask questions where the
answer will be based on doctrine of separate personality. Okay, now, of course, as I remind you again
and again before, memorize yung definition, so, memorize the definition of corporation. And it’s also
important here because the definition of a corporation under Section 2 of the RCCP, provides us to the
different attributes of corporation:

It’s an artificial being, created by operation of law, that’s the right of succession, it has the
powers, attributes and properties that are expressly provided by law or incident to its
existence.

Now, for the first one, that embodies what is known as the doctrine of separate personality.
It’s an artificial being. It’s a being, it’s a person. As a person, it has a personality separate and
distinct from its stockholders, members. Now, as I said, every now and then, they ask questions, na
yun lang naman ang sagot

Q: For example, merong property yung corporation, somebody took it, who can file the case?
Can the stockholders file the case?
A: No. They are not real parties in interest. It is the corporation itself.

Q: The Corporation is indebted to A. Can A sue the stockholders?

A: Again, the general rule is No. Why? Because of this separate personality. Under the doctrine
of separate personality, the corporation has a personality separate and distinct from its
stockholders, directors, officers, and therefore, the properties of the corporation are not the
properties of these components. The obligations of the corporation are not the obligations of
these components, vice versa.
There are many cases on this, too. One of the cases, for instance, involves the case filed by the
Private Hospitals Association of the Philippines Inc. (Phapi) v. Hon. Medialdea (2018). The
Supreme Court dismissed the case, kasi sabi nila, since this is about the imposition on the hospitals,
yung hospitals dapat ang mag-file, hindi yung association. The real party in interest of these
hospitals, they have the separate personality, so if it is a case involving the property of the
corporation; therefore, it should be the corporation that should sue.

But one interesting case that can be involved in Bar question is Alvarado vs. Ayala Land ( 2017 ). It
was decided in 2017 but the case is really about an action to annul a sale, tax sale, for non-payment
of taxes, binenta yung part of the golf course. Okay, so ang question pwede ba sumali yung mga
members magfa-file an action to annul the sale? The court said yes. So now, of course, ordinarily,
kung property ng corporation ‘yan, yung corporation lang dapat. But what makes this different is that
their allegation is that they have interest over the land, yung golf course. And, in fact, as members,
they will be deprived of use and enjoyment of the golf club. Kasi yung binenta, parang nahati yung
golf course, hindi na talaga, they will not be able to completely make use of the golf club. And that’s
their interest. They also therefore, have the interest to protect, their use and enjoyment of the golf
club. So,they are also real parties in interest, in a sense. So, what I’m saying is that there seems not
of an exception. Kasi nga, meron rin silang cause of action. Their rights are also violated.

So, in other words, even if the property of the corporation is involved, pwede pa ring mag-file
ng case if they also have rights that were violated, independent of the interest of the corporation

Limited Liability Rule

Okay, related to separate personality, is the limited liability rule. Okay, so under the doctrine
of separate personality, obligations of the corporation are not obligations of stockholders. Okay. Hindi
pwedeng pagbayarin ang stockholders. Now, however, under the limited liability rule, the corporation
creditors can actually make the stockholders liable but their liability is limited, it’s limited to their
investment.
What is their investment?
It’s referring to unpaid subscription, okay, yung price to pay for acquiring shares under the
subscription agreement. So they are liable. The stockholders are liable, only up to that unpaid
subscription, which means that, if they are already fully paid, hindi na sila liable. Kung kalahati ang
binayaran nila, yung balance. They can be made to pay corporate creditors. Okay, so that’s reiterated
on Donina Hailey vs. Printwell. It's in 2011.

Trust Fund Doctrine viz-a-viz Limited Liability Rule

But I think the limited liability rule, and the trust fund doctrine are important for Bar exam
purposes because there are two recent cases where these doctrines were reiterated. So, isa ung 2020
case, well, the other one is March, 2021, while the other is November, 2020. Both involving trust fund
doctrine and the limited liability rule.

Q: Okay, so the question is this. So let’s just say, we’re talking about, ano ba ‘yung mga big
companies. So, let’s just say, San Miguel Corporation. Maraming stockholders ‘yan. Let’s say,
Mr. A is one of the stockholders ng San Miguel. Pero ‘di pa sya fully paid ng subscription price.
Let’s say, he has shares worth Php100,000.00, Php50,000.00 lang ‘yung nababayad niya for his
subscription. So, there is this, the creditor, may utang ‘yung San Miguel Corporation,
question, etong creditor, pwede nya bang kasuhan na kaagad ‘yung si Mr. A, who is the
unpaid subscriber, unpaid stockholder?

A: The answer is actually No. Okay. What I’m saying is this, under the doctrine, kahit na dun sa
Donina Hailey vs. Printwell, kaya lang na-file ng case, kaya lang na-implead ‘yung ano, unpaid
subscriber, is because the corporation whose already closed. I mean, ceased operating, so,
hindi na sila nag-ooperate, sarado na ‘yung company. That is why the limited liability rule was
applied. They were made to pay, up to their unpaid subscription. Okay. But, what is clear is
that these shareholders cannot be made liable immediately. Ang general rule pa rin is ‘yung
separate personality, yung doctrine of separate personality. In other words, kung may utang is
corporation, again in our example, San Miguel, San Miguel ang pagbayarin mo.
You will invoke the limited liability rule and make the stockholders liable in exceptional cases only. So
number 1, sa Donina Hailey, hindi na nag-ooperate, closed na ‘yung operations, they ceased
operating.

The other case is, if the debtor corporation is insolvent, okay, or dissolved, kung insolvent or
dissolved, pwede mo nang habulin ‘yung unpaid subscribers. Kung wala, walang proof, corporation pa
rin ang habulin mo. In other words, dapat ‘yung corporation is incapable of paying its obligation,
either because it’s already closed, is insolvent, or it is already dissolved. ‘Yung insolvency naman,
does not mean to be formal insolvency proceeding, but in these two recent cases, there’s another
one, sabi ng Supreme Court, ‘pag ni-release mo ‘yung mga subscriber from paying, you can still run
after them. Because release of the subscriber from the obligation to pay the unpaid subscription, it’s
actually a violation of the Trust Fund doctrine. Okay, so therefore, pwede mo pa rin silang habulin.
Okay. So, release in whole or in part, will actually prejudice corporate creditors and it will then be
considered as a violation of the Trust Fund doctrine. You can still recover from them under the limited
liability rule. What is limited is up to the unpaid subscription.

Q: Okay. So, in this March 18, 2021 case of Salido Jr., ang tanong diyan, pwede ba yung
Directors will issue a resolution na either i-rereduce ‘yung kanilang subscription or i-rerelease
‘yung subscription, babawasan or totally i-rerelease. Okay.

Is that allowed?

A: Sabi ng Court, No. Kasi violation nga ’yan ng Trust Fund doctrine. ‘Yung subscription
agreement, it binds everybody. You cannot even rescind them. You cannot release the
stockholders from their liability. Release will be in contravention of the trust fund doctrine.

Okay, but can you actually reduce the capital stock?

A: Yes, but in the reduction of the capital stock, dapat di mapi-prejudice ‘yung creditors. That
is actually one of the requirements. Because, necessarily, it will reduce the capital stock,
pwedeng merong ma-release na subscription. Okay, but by express provision of law, there
should be no prejudice for creditors.
 Doctrine of Piercing The Veil of Corporate Fiction

Now, of course, one situation where stockholders, directors, and officers, can be made liable
is if the doctrine of piercing the veil of corporate fiction applies. You pierce the veil, you’re a
creditor, you pierce the veil so that you will make the stockholders, directors, and officers liable. It
should have been the corporation who will pay, but kung hindi makabayad, you pierce the veil. And
you can do this if there is fraud, a public convenience may be defeated. But of course, the test that is
applied in many cases, recent cases is what the Supreme Court calls in one case, as the 3-pronged
control test, so control, but this is really an alter-ego case. Control, but it’s not ordinary control
because in another recent case, the question is:

What if one shareholder owns almost all the shares? Can you already pierce the veil of
corporate fiction?

A: No. You cannot. There should be other circumstances. In fact, by express provision of law,
kahit one-person corporation, who, obviously, is in control of that one-person corporation, you
still need to prove the presence of circumstances to justify piercing. So the doctrine of
piercing the veil of corporate fiction serve limited liability rule, they all apply to OPCs -
one-person corporations. Okay.

So, control is not just ownership of the majority of shares, it should be complete domination.
Okay. The way I put it is that you actually do not consider the corporation as a separate entity. You do
not respect the sacredness of the personality.

For example, you mix things up, so ‘yung sa bahay mo, corporation, mix mo ‘yung mga employees,
mix mo rin ‘yung finances, halo-halo na sila doon, same office, same employees, you do not treat the
funds of the corporation as separate, you use one for the funds for your personal use, for your other
corporation. So all those circumstances should be considered.

One circumstance that will make an OPC liable, for instance, the director, shareholder liable is in the
sufficiently capitalized. So, manufacturing corporation OPC, pero ang funds mo naman
Php100,000.00, and so that’s the reason why ‘di makabayad. In that particular case, you can make the
shareholder liable. Okay. But in all other cases, you need to prove what is known as “probative
factors,” which are basically circumstances that will indicate complete domination. On top of that,
you need to prove the commission of a fraud for a wrong, including violation of statute or dishonesty.
So, it is a wrong, in other words. In this, wrong is the proximate cause of the loss or injury to the
director. Okay.

Take note that when you pierce the veil of corporate fiction, you are actually not destroying
the personality, you are not abrogating personality of the corporation. What happens only, is that you
will be allowed to go beyond the veil so that you can make persons with separate personality liable
for the obligations of the corporation. So, ‘pag reverse piercing naman, it’s the liability of
stockholders directors, you will try to make the corporation liable. So, that’s reverse.

Nationality of The Corporation

Okay, for the nationality of the corporation, the important case is:

Roy III vs Herbosa. Okay. Just take note of that. So take note that the test that the case
merely affirms the circular of the SEC. So, if you are a foreigner, you want to know how many shares
can you acquire in partly nationalized corporation, so let’s say, limited sa 40%, public utility:

Paano mo i-compute ‘yung 40%?

A: So, dalawa ‘yung computation. You determine the 40% on the basis of the total outstanding
capital stock, entitled to vote. So, of course, there will be no problem kung lahat common and
voting. Kasi kung lahat common and voting, isa lang computation nyan, just get the 40% of all
outstanding shares. Eto naman, nagkakaroon lang ng problema, kung merong voting shares at
merong non-voting shares. But to put it simply, kung i-compute mo ‘yung 40% foreign
ownership, i-compute mo ‘yan 40% ng voting, and 40% ng total voting plus non-voting. So, two
separate computations.

So for example, one million ‘yung shares, okay, ilan ba ang 40% nyan?
A: 400k.
 If you are a foreigner, let’s say, it’s a public utility, can you acquire shares?
A: Yes

Up to how many shares?

A: Up to 400k. That’s voting. Okay.

But, there is a requirement too. There should be separate computations for the total outstanding
shares too.

So, for instance, you were able to acquire, let’s say, 300k shares, okay, non-voting, can
you still acquire voting shares?

A: Yes, you can. Pupunuin mo lang sa 40%, okay. Because it’s a twin requirement. Anyways, so
just check the circular of the SEC. Just know, that is the prevailing test.

Control Test

Now, you also have the control test. In the control test, actually, you can find this in your
Foreign Investment Act. So, this one, actually determines the nationality of the stockholder.

EXAMPLE: So, like in the same public utility, X Corporation, owns 50k shares, so ang tanong diyan:

‘Yun bang 50k shares na ‘yan, owned by X, is Filipino owned or foreign owned? Or is it
partly Filipino or foreign? Si X ung shareholder, ang problema usually is ‘yung stockholder
na corporation, partly owned din ng foreigners. Let us 30% of the outstanding capital stock
in X Corporation are owned by foreigners, will you consider that 30% in determining if the
shares owned by X is foreign owned or Filipino owned?

A: Not anymore. Kasi the moment na umabot sa 60% ‘yung Filipino ownership dun sa
stockholders who own the shares in that corporation, owned by that corporation, are Filipino
owned. So that is what the control test means.
 Incorporation Stage

Moving on, let’s talk about, well, not exactly changes. For the incorporation stage. You know,
of course, that before, ‘di pwede ung juridical persons. Now, it is allowed. Okay.

Corporations now can be incorporators. Unlike before, only natural persons can be incorporators. Pero
pagdating sa directors, ganun pa rin, natural persons pa rin. Okay. Hindi pwedeng corporation as
director.

Another change with respect to incorporators:

● There’s no more minimum. Before, five and minimum, now, pwede na isa, but SEC
clarified na when you say one, sa OPC lang yan.
● Pero kung hindi OPC, kelangan, at least, two. Okay. Now, this rule, actually, in
practice, ina-apply din ng SEC ‘yan, dun sa directors. There’s no circular on this pero
now, for corporations that are not OPC, ina-allow nila ‘yung two incorporators and two
directors. So, dalawa rin ‘yung nagiging directors for corporations other than OPC.
● Pero kung isa lang, dapat OPC, specially, if it is, when it comes to incorporators.
● Now, if it is not an OPC, pwede rin ang juridical persons

Pag OPC, pwede ba ‘yung juridical person?

A: No. Kasi ung OPC, kelangan natural person, trust, and estate of a deceased person. Hindi
pwede ‘yung corporation. If it is not an OPC, so pwedeng corporation as incorporator.

What is the required vote?

A: Kelangan ‘yung incorporator corporation, the decision to be an incorporator should be
approved by the majority of the directors, and ⅔ - stockholders should be representing ⅔ of
the outstanding capital stock, or ⅔ of the members.

● Okay, so, these are the special rules. Unlike before, wala na ring residency
requirement, which basically means, pwedeng non-residents ‘yung mga incorporators.
Pati directors ganun din.
BAR TIP: Just take note of these new rules because there’s a tendency na magtanong dun sa mga
changes brought about by the Revised Corporation Code of the Philippines, which is fairly recent
development

Articles of Incorporation

Rule On Corporation Name

Okay now, for Articles of Incorporation itself, some of the changes include the rule on corporate
name.
What applies now is what is known as the distinguishability test.

Okay ano ba ang dating rule?

A: Ang dating rule, hindi pwede if it is identical or confusingly similar. So, ang nangyayari dyan
is, the moment na gumamit ka ng same word, nirereject nung system ng SEC. So this is the
example - Dream Cable, may nag-apply ng Dream Hospital. Kung dati ‘yan, marereject kaagad,
‘pag nagpa-reserve ka ng name, kasi pareho ng may Dream. But now, under distinguishability
test, since you used the term hospital, it is actually distinguishable from Dream Cable. Okay,
now, it is acceptable to use Dream Hospital, even if there is a corporation with the name,
Dream Cable company. So, that is our example.

EXAMPLE: Once recent case on Corporate Name is Change Corporate name. Okay, well, when you
change the corporate name, it’s like changing your name, our names. Hindi naman nagbabago ‘yung
tao, it’s the same person.

So, in a 2018 case, for example, nanalo ng bidding ‘yung corporation, tapos nagpalit ng pangalan,
sabi niya, ay hindi na ‘yan ang nanalo kasi iba na ‘yung corporation. That’s not the case. When the
corporation changes its name, it is in no sense a new corporation. It is not a successor of the original
corporation. It is the same entity. Okay, same right, same liability. Kung nanalo siya ng bidding before,
siya pa rin ‘yung tao na nanalo, same person, so there is no change.

Term
 Now, another change of course, is the term. It used to be limited to 50. Remember that one of
the attributes of a corporation, is that it is, well, the right of succession, which basically means,
continuity of the life of the corporation. Continuity of existence.

But before, there’s a right of succession but it’s actually limited - 50 years. In theory, pwede namang
tuluy-tuloy. Indefinite, but indefinite only in the sense that you can renew. Okay. You can re-extend
the corporate term.

Now, the problem of course, is that, nakakalimutan. So, syempre, 50 years ‘yan, baka ‘yung original
stockholders, wala nag lahat ‘yan, original officers. So, sometimes, they forget.

The problem is if there’s a fixed term, automatic na madi-dissolve. Okay, so the solution of Congress
is to make all the terms perpetual. Okay, perpetual na ‘yung term of all existing corporation, at the
time of effectivity of the Revised Corporation Code of the Philippines.

Pwede bang sabi nila: ayaw ko ng perpetual term. Gusto ko fixed term. So, ang term ko,
let's say, is 50 years, gusto ko 50 years. Pwede ba ‘yun?
A: Pwede but not anymore. Lagpas na ‘yung period, 2019 pa ‘yun. Merong period to notify the
SEC. So, kung gusto mong i-retain ‘yung period, dapat i-notify mo ‘yung SEC.

Can you notify today?

A: Not anymore. Okay, but it could have retained the term.

But note that, the perpetual term is effective for all corporations, without doing anything. So,
meaning, self-executory ‘yung rule. You don’t need to amend the articles, you don’t need to give
notice to the SEC when all you want is a perpetual term. Because by operation of law, all corporations
have perpetual terms. As I said, ang pwede lang, is to retain the fixed term by notifying the SEC.
Okay.

Can there still be corporations with fixed terms?

 A: Yes. One, ‘yung mga nag-notify, nare-retain nila ‘yung fixed term. Second, ‘yung mga
corporations, nabago. ‘Pag mag-apply ka ng certificate of incorporation, you can actually - you
are allowed to fix the term. So, kung gusto mo 50 years, pwede naman ‘yan, 50 years.
Pwedeng perpetual, pwede ring fixed.

So, now, this actually is an issue, in relation to another rule. So, under the Corporation Code, as I
said, ‘pag may fixed term, well, even now, ‘yan naman ‘yung rule.

‘Pag may term, like 50 years, nag-expire ‘yung term, ano ang effect niyan?
A: Dissolved na ‘yung corporation. Automatic. Okay. Wala nang applications sa SEC. Pag
nag-expire the following day, wala na ‘yung corporation - dissolved. Of course, subject to
liquidation. Okay. So that is the rule. That’s the rule before, that’s the rule now.

Revival of Corporation

Eto lang ang kaibahan: Before, sa Corporation Code, wala ka nang magagawa, you can’t do
anything about it. Ang pwede mo lang gawin, mag-file ng panibagong application for incorporation.
Same name, kaya lang, ‘di na ‘yan same corporation. It will be a new corporation. Okay. Kasi patay na
‘yung dati. ‘Di mo na mabubuhay ‘yun. So, ‘pag may bago, i-aasign mo pa ‘yung mga properties,
transfer mo ‘yung mga properties kasi it’s a new corporation.

Now, what is good about the present provision is that there’s already a remedy, which is an
application for revival of the corporate term. Okay. But, take note, under SEC rules, hindi lang
‘yung expiration ng term ang covered niyan, pati ‘yung mga na-revoke for non-filing of minor
violations, like filing for GIS, filing of financial statements.

So na-revoke. So, pwede bang i-revive ‘yung term?

A: Yes. Pwede pa rin. Okay. So, that is the new remedy. This is what make sit different kasi as I
said, ‘yung dati, ‘yung remedy is to incorporate the new corporation under the same name.
Pero magkaiba na ‘yun. New corporation talaga ‘yun, separate entity. But if it is revival,
parang binubuhay mo ‘yung namatay. Namatay na ‘yung corporation. Bubuhayin mo ngayon,
ire-revive mo. Pag ni-revive, in effect, parang nagre-retroact, parang walang nangyari.
 Nagco-continue na ‘yung corporation. Oka. So meaning, it will not lose anything. Hindi
kailangan mag-liquidate because it’s the same corporation. Na-continue ‘yung corporation,
retroactive when the term expired. There will be no break in the continuity of the life of the
corporation. So that is the revival, it is a new remedy, which is an important thing to consider
to.

Substantial Compliance

Now, but for being a corporation, you can either strictly comply with the requirements but its’
not even the only compliance. Ang sabi, substantially complied, pwede na ‘yun.

So, kung substantial compliance, ano ‘yung resulting corporation?

A: De Jure. ‘Pag strict compliance as a rule, so lahat ng provisions sa Corporation Code, lahat
ng contents ng Articles, andyan lahat. Strict compliance. So, anong resulting corporation? De
Jure Corporation

Eh, pano kung kulang-kulang ‘yung Articles mo? Mga important requisite?
A: That will be colorable compliance.

Ano ‘yung resulting corporation?

A: De Facto Corporation

Okay, but let me emphasize this, whether De Jure or De Facto, kelangan merong certificate of
incorporation. You need to apply it to the SEC.

Sisters of Lady of Fatima v. Alzona (2018)

Okay, so the 2018 case of the Missionary Sisters of Our Lady of Fatima vs. Alzona, so yan
‘yung leading case diyan, more recent one. So, I’m sure, you studied this in your law school. So,
merong Sisters, they have this association, wala pa silang corporation. They took care of an old lady
who donated a parcel of land in favor of the Missionary Sisters of Our Lady of Fatima. Ang problema,
at the time of the donation, wala pa ‘yung corporation, nag-aapply pa lang sila sa SEC. It was only
later that the certificate was issued. Now, it is important because it is from the time of the issuance
of the certificate of incorporation that the life of the corporation starts. So, pag wala pang certificate
of incorporation, there will even be no De Facto corporation. Walang De Jure, walang De Facto.
Because, remember, a De Facto corporation is like any De Jure corporation, pareho lang ‘yan halos,
with all attributes of the corporation - separate personality, separate obligations, separate
properties, rights, etcetera.

Ang kaibahan lang, the only difference is that the personality of the De Facto corporation is subject
to attack by the State. Pwedeng mag-file ng quo-warranto proceeding, which means that, nasa State
iyan, kung ayaw mag-file, it will continue. Okay, so that is the only difference.

Pero ‘dun sa mga features, attributes, pareho lang ung De Facto and De Jure corporation, but for you
to be able to apply, dapat may certificate of incorporation.

Contracts before Incorporation

But in the Missionary Sisters of Our Lady of Fatima, hindi naman na-cancel ‘yung donation. Ang
ginamit, the rule on corporation by estoppel. So that is an important rule. But let me connect this to
contracts before incorporation.

Ano ba ‘yung rule dyan?

A: Now this was asked in connection with promoters. So, ‘yung promoters, they bring investors
together, will then agree to form a corporation. ‘Yun naman ang role nila, to promote the
organization or a corporation. So, since that is what they are supposed to do, they cannot bind
the corporation. Because in the first place, wala kang corporation. There’s nobody to be
bound. No personality yet.

So therefore, if a promoter will enter into a contract for the corporation:

● Hindi automatically binding ‘yun.
● Does not bind the corporation
● Subject to ratification. Pwedeng i-ratify ng corporation
● But without ratification, the contracts of promoters are not binding.
 ● Ratification therefore, may bind corporation for pre-incorporation contracts
● But some contracts imply ratification. For instance, nag-enter into a contract of
lease, wala pang corporation, pero nang na-incorporate, ginamit nila as office,
that’s already deemed ratified too. Either ratification or estoppel, both will
work to prevent any question regarding contracts. Okay. Even if it is a contract
before incorporation.

Subscription Contract

Pero ‘pag subscription contract, walang issue, kasi even before incorporation, pwedeng
mag-enter into subscription agreements, which are even binding for a period of six months.

Board of Directors

Now, Board of Directors. Maraming cases paulit-ulit. A recent case involves the business
judgment rule.

Business Judgment Rule — Ano ba ‘yung business judgment rule? So, judgements of
resolutions, judgements of the Board on any business matter binds the corporation. And, this
business judgments cannot be questioned. You cannot appeal it. The stockholders cannot
reverse the business judgment. Not even the courts can question it. Okay.

What if the argument of a shareholder is ‘di dapat i-implement and Board Resolution na
‘yan kasi merong loss ang corporation. Is that tenable?
A: Still No. Not even a possibility of loss will result in the validity of the judgment of the
directors. Subject to the director’s liability under Section 30.

So, anu-ano ba ‘yun?

 A: Gross negligence, patently unlawful acts. Okay, so all those grounds but it will not
necessarily result in the defect in the contract. The effect is that, it will make directors
liable.

Okay. But the business judgment is binding. Even particular actions that are part of the special powers
of the corporation, like declaration of dividends.

In a recent case, although the recent case, hindi na covered ng coverage ng Bar exam this year, pero
important pa rin. ‘Yung increase or decrease of capital stock, ang sabi ng Supreme Court, basta lahat
ng requirements complied with, aaprubahan ‘yan ng SEC. Business judgment na ‘yun. So kailangan
lang, andyan ‘yung mga requirements pero ‘yung merit, ‘yung business merit nung decision to reduce,
to declare dividends, that cannot be questioned, that is part of the business judgment rule. Okay.
Now, that is the rule because it is the Board who acts for corporation, who does all the business of the
corporation. So, ‘yung Board ang masusunod sa corporation - hindi ‘yung officer, hindi ‘yung
President, hindi ‘yung Chairman, the Board. Okay.

Elections and Term of Office

Now, for stock corporation, the term is 1 year.

Can it be 2 years?
A: No. Hindi pwede. Kahit ilagay mo sa by-laws ‘yun, invalid ‘yan kasi 1 year lang.

Now, because the term is 1 year, once the 1 year period expires, meron nang vacancy. Okay. This
problem came up because of one case and previous Bar examination too. So, for the replacement of
directors to fill vacancies.

FOR EXAMPLE: While the rule is, if it is thru removal or expiration of term, dapat stockholders ‘yung
mag-elect ng replacement. Pero kung resignation or death, the remaining directors constituting a
quorum can elect the replacement.
 Ang question before is, paano kung namatay siya after the expiration of the term?
● A: So after the expiration of the term, ang tawag diyan - hold-over nung mga
directors, they are serving the hold-over capacity. So, while doing so in a hold-over
capacity, the director died, can the directors replace the deceased director? No. Not
anymore kasi nag-expire na ‘yung term. Basta lumampas na ‘yung 1 year term,
stockholders na kasi there’s already a vacancy and the reason is the expiration of the
term. So, technically, hindi ‘yung death ang nag-cause ng vacancy, ‘yung expiration ng
term.

Okay. Now, but actually, if you will look at the RCCP, ayaw nila ‘yang hold-over. Okay. Ayaw nila. You
can see that from the provisions kasi for one, ‘pag walang election, kelangan i-reset mo ‘yung annual
stockholders pitch, ‘yung resetting. And then, i-report mo pa sa SEC kaagad. Dapat mag-meeting pa
within 60 days.

Now, if the problem before is paano kung ‘di naman sinasadya? Wala lang umattend, so
walang quorum, ayaw ring magbigay ng proxy, walang pakialam ‘yung mga stockholders. It
happens in corporations. So, laging walang quorum kaya hindi nagkakaroon ng election. So,
reset nang reset. So, what’s the remedy?
● A: Well, in those cases, specially kung talagang ayaw tumawag ng meeting, a
shareholder can file an application with SEC. So, SEC ‘yung tatawag ng meeting and use
the important rule there. Iba na ‘yung quorum ‘pag SEC ang tumawag.

Ang usual quorum is 50% plus 1 of the outstanding capital stock pero kung the directors refuse to call
a meeting, laging walang annual meeting, tapos nag-apply sa SEC, and the SEC called for a meeting,
whoever attends is the quorum.

So, halimbawa, 40% ang andun, hindi 50% plus 1, pwede ba mag-elect na sila?
● A: Yes. Kasi the moment na tumawag ‘yung SEC, those who will attend will be the
quorum. That is an important change under the Revised Corporation Code of the
Philippines.

Let us suppose, nagkakaroon naman ng election, except that the director before the
election was removed, tinanggal siya. Let’s say tinanggal siya pero ang tumawag ng
 meeting is one of the directors. Isang director lang, nagkaroon ng meeting, inaya niya
‘yung iba pero ng ni-remove nila ‘yung isang director, would that be valid?
● A: No. Kasi specific ‘yung sa removal. Kailangan the meeting will be called by
Corporate Secretary upon the request of the President or the stockholders.

So, in one case, Cinco vs. Bernas, ang tumawag ng meeting is a committee, so, invalid ‘yung
removal. The problem, of course is, pag magkakaso ka diyan, tatanda ka hindi matatapos ‘yung case.
So, certainly, ‘di matatapos ‘yung case, normally, for one year, lalo na kung aabot ka hanggang
Supreme Court. The problem is, ‘pag nag-expire ‘yung one year, tapos na ‘yung term mo. Let’s say,
okay, kaso ka, tinanggal ka illegally,nag-file ka ng case sa RTC, commercial court, nanalo ka dun,
appeal sa CA, panalo ka na naman. Pumunta ka sa Supreme Court, panalo na naman, hanggang
Supreme Court panalo ka. Oh di bumalik ka na ngayon sa corporation. Okay, balik na ako as director
kasi panalo ako, final and executory.

Can you return?

● A: No. Hindi na. Kasi expired na ‘yung term mo. Kung merong election every year, in
one meeting, ‘di ka na pwedeng bumalik. You cannot return. Para rin ‘yang national
elections. So, may mga congressmen, nanalo nga sila sa protest pero expired na, hindi
na sila makakabalik kasi magkakaroon na ng election. So, same principle. That is well
settled to. Okay

Note: If there is an issue regarding election of directors, ang remedy mo is to file an election contest,
pero may period, 15 days from the election

Removal is under Section 28

 Corporate Officers

Who is a corporate officer? Why is it important to determine if an officer is a corporate

officer or not a corporate officer?

● For one, kapag hindi corporate officer, and may dismissal, he was dismissed, ang punta
mo Labor, as an employee, kahit ang tawag pa sa iyo officer
● Kapag hindi ka nireelect, you can complain that there is illegal dismissal.
● But you are a corporate officer and you are not re-elected, technically, that is not
dismissal, non-reelection lang ‘yun. But if you have reason to complain, sa commercial
court ka pupunta. Sa RTC, hindi sa Labor.
● So, it’s important then to determine who is a corporate officer

The rule now is check the by-laws. Tingnan mo sa by-laws kung ‘yung office mo andun. Like,
for instance, general manager. Kung general manager ka ba, officer ka na rin automatically, not
necessarily. Kung sa by-laws, walang position na general manager, hindi ka corporate officer. Okay, so
the Supreme Court said that the office must be created in the charter, by-laws and he must be
elected either by the Board or the stockholders. So, ‘yun ‘yung rule for one to be considered a
corporate officer.

In one case, for instance, the claim is that the position is a corporate office because sabi nila, eh,
elected by the Board. That alone is not enough. Kung ‘yung position mismo is not in the charter or in
the by-laws.

Doctrine of Apparent Authority

Okay, another rule that is always being cited in recent cases, is the doctrine of apparent
authority. It starts from the premise na, for actions to be binding, dapat approved ng Board.

How do you prove?

A: Sabi ng Supreme Court then, you can prove that secretary certificate, pwede ‘yan.
 Ano pa ba pwede?
A: Director’s certificate, minutes of meetings with Board, pwede.

So ‘pag walang resolution, that’s not an authorized act. It can even be unenforceable for lack of
authority of the agent but subject to the Doctrine of Apparent Authority. So, ang contents naman
niyan, just apply the rules on agency, ganun din. Same.

Liability of Directors

Next is the liability of directors. So, marami ring cases diyan, paulit-ulit. There are many cases
where the Supreme Court ruled that, well, cited Section 30 on the liability of corporate officers, and
directors, and trustees, and officers.

So, voting on patently unlawful acts, acting in bad faith, gross negligence, conflict of interest
situation, etcetera. So, just take note of the cases when directors are liable. Pwede ring itanong
‘yan.
But one recent question is this, so kung meron ka bang violation nung Section 30 cases
when directors are liable, does it mean that they are criminally liable? Before, under the
Corporation Code, ‘yung penalty clause ng Corporation Code before, Section 144. Okay.
‘Yung criminal liability for violation of the provisions of the Corporation Code. So kung
meron kang violation that cites Section 30 ( 31 before sa Corporation Code ), criminally
liable ka na ba under the penal clause ng the Revised Corporation Code
A: No. It does not follow. Because the rule is, the penal clause, under the Corporation Code,
can also, of course, same principle, under the Revised Corporation Code, applicable lang ;yan
kung may specific provision that makes it criminal.

Okay, ano ba ang example niyan?

A: Prohibiting a stockholder to inspect, ’yung inspection, oh meron ‘yang penal sanction
because the clause says so. Pero kung ibang violation, hindi naman sinasabing criminal ‘yung
penalty, hindi ‘yan applicable, ‘yung penal sanction under Section 144, na ngayon 170 ng RCCP.
So, just to put it simply, para ka ma-penalize under the penal clause, Section 170 now, before 144,
kailangan may specific provision in the Code itself that says that you are criminally liable. Otherwise,
walang criminal liability.

For example, ‘yung Corporate Secretary, kailangang mag-submit ng GIS ( General Information Sheet )
sa SEC, mag-report sa SEC. Hindi niya ginawa.
Pwede ba siyang file-an ng case for violation of the Revised Corporation Code?
A: No. Hindi. Kasi hindi naman sinabi dun na ‘pag hindi ka nag-file, eh criminally liable ka.

Powers of the Corporation

For powers of the corporation, let’s go back to the definition of corporation. Mahalaga talaga
‘yan kasi nakalagay dun sa definition

● It has the powers, properties, and attributes that are created, that are conferred by law, or
incident to its existence. Okay, which basically means that a corporation has - the powers of
the corporation are those that are expressly provided by law. So, express powers or incident to
its existence. Pero kung meron kang express power, and incidental powers, it follows na meron
kang implied powers. You imply it from the express powers. So, express powers provided by
law. When you say law, kasama na ‘yung Articles of Incorporation.

Saan ba makikita iyan?

A: It’s always included sa purpose ng corporation. The purpose clause in the Articles of
Incorporation confers an express power, which can also be a source of an implied power. Power
to manufacture goods, express kasi andun sa purpose, to manufacture goods. Eh silent ‘yan,
hindi naman nakalagay, can you sell the goods? Oh yes, implied na ‘yun. Implied na ‘yung
ibebenta mo ‘yung minanufacture mo na goods

There are also express powers provided by law. Like, to sue and be sued. You can sue, implied na
‘yung pag-hahire mo ng lawyers, preparations in entering into transactions, in preparation for filing of
cases. So, ‘yun namang incidental, incidental to its existence. Don’t confuse implied from incidental.
Incidental, the way we put it is this: the power that is incidental exist, because it is a person, it is a
juridical entity.

So, kung juridical entity ka, ano pa ‘yung kasama na dun?

A: To attack a name. If you are a person, it follows that because you are a person, you can
have a name. If you are a person, you can have properties. You can sue and be sued. So it
follows. Kasama na ’yan. Incidental to the existence.

‘Yun namang implied, normally, implied from an express power. Okay, but to my mind, you can imply
it to from an incidental power. Okay. So that’s the first important rule. Now,

Ultra Vires Act

If the power you will exercise is not included in the express power, not included in the implied
power, not included in the incidental power, but you’re still doing it.

Okay, ano ba ‘yun?

A: Ultra vires ‘yun.

Ultra vires act. And there are, well, a couple of cases on ultra vires acts, one, it’s just to reiterate na
‘pag ultra vires ‘yung contract, voidable. But this is a different kind of voidable contract. Ang ibig
sabihin lang ng voidable dito, it can be ratified, ‘yung ultra vires. So, let’s leave it at that, yan na
‘yung rule.

I have opinions on the contrary but don’t follow my opinion, with respect to that kasi eto ‘yung
Supreme Court ruling. It’s voidable, it can be ratified, if it is an ultra vires act. Okay.

Who will act? Who will approve the act?

A: The Board. Pero depende na yan. Kung mga special powers, check the provisions because
even ‘yung business judgment rule, kailangang sumunod dun sa procedural requirements. So,
kung kailangan ng concurrence ng Board, and stockholders, you need the approval of the
stockholders too. Like, in increase and decrease of capital stock, may decision diyan, more
recent, pero procedural lang, ano ‘yung mga requirements.
So, unfortunately, lahat naman ng provisions ng Corporation Code before, now the Revised
Corporation Code, at least up to dun sa mga powers of corporation, lahat ‘yan pinanggalingan na ng
Bar questions. So,lahat ng provisions dun sa Articles of Incorporation, sa by-laws, tinatanong din. The
Board, powers of the Board. ‘Yung mga interlocking directorship, kasama din ‘yan. Okay. So,
unfortunately, you need to take care of all those rules on the Board. Okay. Cases when the Board is
liable, conflict of interest situation, doctrine of corporate opportunity.

In fact, dahil sa recent case, hindi kasama dun sa coverage, pero ang problema, ‘yung principle
kasama. ‘Yun naman ang sinasabi nila, so ang ibig sabihin, I’m talking about doctrine of corporate
opportunity. Okay.

You’re taking an opportunity that belongs to the corporation. Okay.

Paano mo malalaman na dapat sa corporation iyan? Okay. How do you know that it really
belongs to the corporation, that it’s an opportunity belonging to the corporation?
A: Now, if it is not within the power of the corporation kasi ultra vires is not part of the
express power, or implied power, or incidental power, ‘di covered iyan, ‘di iyan kasama doon
sa corporate opportunity. Okay.
What if the corporation is no longer operating? Bankrupt na, insolvent
A: O hindi pa rin covered iyan kasi dapat opportunity that belongs to the corporation, that can
be undertaken by the corporation

O pero paano kung may funds naman talaga ‘yung corporation? Paano mo malalaman na
‘yung business you pursued should have been the business of the corporation?
A: So, you will know that by checking if the business competes with the business of the
corporation. So, kung competing ‘yung business, applicable ‘yung doctrine of corporate
opportunity. Okay.

BAR TIP: So, that is worth remembering. Unfortunately, as I said, other rules regarding this are
memory work, kailangang i-memorize natin ‘yung rules sa interlocking directorship, kailan voidable,
kailan mara-ratify, anong requirements. All these are material, so, I cannot help you there, but I’m
telling you lahat ‘yang provisions na ‘yan sa Board of Directors, lahat ng provisions, powers of the
corporation, eh tinatanong paulit-ulit, recurring. Iba-iba nga lang pero hindi. History of the Bar
examinations napagtanungan na ‘yan. Okay. ‘Yung bandang ruling, hindi gaano. Specially, mga special
types of corporations, specific rules lang dun, pero etong hanggang at least sa powers, lahat ‘yan
mahalaga. Okay.

So, let’s just make the most out of this. We cannot really discuss all of it.

Shares

Shares, marami ring questions dun, I mean, problems and cases involving shares. Now, the
shares, of course, is intangible. It is represented if this is evidenced by the stock certificate.

Stock certificate is:

● A quasi-negotiable document.
● It’s not negotiable, it’s quasi-negotiable because it can be negotiated.
● It can actually be transferred by indorsing it to somebody else

How can you acquire shares in a corporation?

A: For issued shares, contract is subscription contract. Okay. Pre-incorporation is also a
subscription contract. We mentioned these two na, well, it’s peculiar kasi ang parties sa
subscription contract are the corporation and the subscriber. Okay. Pero principle of
corporation subscription, wala pa ‘yung isang party - ‘yung corporation, but it’s still
binding. It cannot even be rescinded for period of 6 months, unless, everybody agrees.
Okay.

But once the application is already filed, wala nang bawian ‘yan. Okay. What I call this, a Locked-in
Rule. Naka-locked in na ‘yung investment mo.
● Kung hindi ka pa nagbabayad, magbabayad ka - limited liability rule. Hindi pwedeng i-release.
Hindi na pwedeng “ayawan na,” “ayawan na,” “ayoko na.” Mababawi mo lang iyan,
investment mo, ‘pag mag-liquidate.
 ● Or, in some exceptional cases, like reducing the capital stock, or where the corporation is
allowed to acquire its own shares. Pero, other than that, your investment will stay with the
corporation.
● You cannot take it back. You cannot even say “ay, nagva-violate ‘tong corporation na ‘to, hindi
na kumikita rito, iab ‘yung promise nila, niloko ako.” But even then, you cannot rescind it.
That will be in violation of the trust fund doctrine.

Now, moreso, hindi mo na maka-cancel ‘yan, kung meron nang corporation. So, violation na nga ‘yung
trust fund doctrine.

So, when will you be considered the shareholder?

A: ‘Pag pre-incorporation subscription, from the time of the issuance of the certificate of
incorporation. You are a shareholder whether you are already fully paid for the shares or not

Pagka naman, after incorporation, the moment ma-perfect ‘yung subscription agreement, the
subscriber becomes a shareholder, whether fully paid or not. Okay.

Anong rights mo?

A: Lahat ng rights, except, kung hindi ka fully paid, merong isang right na hindi available sa
iyo.

Ano ba iyon?
A: ‘Yung the right to get your Stock Certificate. Dapat diyan, fully paid ka. Pero ‘yung
attending meetings, votings, dividend, lahat iyan, you’re entitled to it, unless, you are
delinquent. Pero ‘yung delinquency, kailangan merong call

So, kailan ka magbabayad ng subscription mo?

A: If there is a period agreed upon in the subscription agreement, you have to pay that period.
Pero kung wala, maski na sampung taon na ‘yang company na ‘yan, hindi ka pa delinquent.
Because you need to pay only, if there is a call from the Board, which is basically a resolution,
issued by the Board, requiring payment to subscriptions.
 So, in other words, without the call, you can choose not to pay. Your subscription first. ‘Pag
naging insolvent, liable ka sa corporate creditors. Pag nagsara ‘yung company, liable ka rin,
limited liability rule. But other than that, you don’t need to pay. Okay.

Can you transfer your subscription?

A: Yes. It’s transferrable. That is confirmed by inter-Board security.

But now, if you transfer your share, can you still unpay?
A: Hindi ‘yan binding sa corporation. Hindi pwedeng i-register. Okay. Because remember,
for the transfer of shares, you have basically three requirements:
➔ Indorsement of the stock certificate,
➔ Delivery of the stock certificate, and then,
➔ Recording of the transfer

RELEVANT CASES:

1) Tee Ling Kiat Vs. Ayala (2018)

Even if you already delivered or indorsed your certificate, if it is not registered, it’s not binding on
the corporation. It is also not binding on third persons. Eto rin ang mahalaga, I mean, kung ako ang
magtatanong, tatanungin ko to, ‘yung sa Kiat vs. Ayala Corporation, 2018 yan. Halimbawa, may
creditor ‘yung shareholder, inatttach niya ngayon ‘yung share, sabi niya, hindi na ako may-ari niyan
kasi binenta ko na ‘yan. Okay. Hindi lang na-report sa stock and transfer book.

Who will prevail?

A: The creditor. Kahit na totoo pang nabenta na ‘yang share na ‘yan, the one whose name
appears in the books of the corporation is still the shareholder. So, ‘yung seller kahit na totoong
binenta niya ‘yung share niya, basta hindi na-report dun sa stock and transfer book, hindi ‘yan binding
sa third persons. So, ‘yung creditor ni seller, pwede pang habulin ‘yung share. Okay. It’s not binding
on the corporation too. So, meaning, even if there is a transfer of shares, if it’s unrecorded, ‘yung
new shareholder, hindi pwedeng umattend ng meetings, rights ng shareholder, hindi available sa
kanya. It should be registered. Okay.
2) Andaya vs. Rural Bank

But one clarification, the Supreme Court in Andaya vs. Rural Bank, sabi ng Supreme Court, pwedeng
mag-file ng mandamus, kung ayaw namang i-register. So iba namang situation ito. Ini-reregister, ayaw
i-register ng corporate secretary. Sabi ng Supreme Court, pwede kang mag-file ng mandamus to
compel the registration. Okay. But a side issue in Andaya vs. Rural Bank, a case is cited, sabi nga eh,
“dapat may SPA kasi wala pa namang stock certificate, so walang indorsement, so hindi pwedeng
ma-transfer, kung mata-transfer, dapat ‘yung registered stockholder ang mag-request, dapat may
SPA.” Sabi ng Court: “hindi na kailangan ‘yan, basta ma-prove mo na may transfer right.” Meron, in
this case, may deed of assignment, may clearance from BIR, so, there’s really no doubt that there’s a
transfer. In those cases, mandamus is available Okay.

Note: Regarding stockholders too, know the different rights. Tinatanong din ‘yung appraisal right,
requisites, pre-emptive right, right to inspect, we’re running out of time so I’m just mentioning these
rules, kasi tinatanong din ‘yung right to inspect. Just check that, kasi maraming cases din on the right
to inspect. And they may ask questions regarding that.

For example, sabi ng Supreme Court, kahit na meron nang resolution, meron pang right to inspect
during the liquidation period. So, available pa ‘yun. Pending liquidation, eh, may right to inspect.
Meron pang criminal liability. You will prevent it. So it is also clear under the present law, pwede kang
mag-appoint ng auditor, lawyer - to inspect. Pwede kang kumuha ng copies.

What are the rights?

A: Derivative suit - it’s a right of the shareholder but it’s not his case, it’s the corporation’s
case. Kaya dapat ang plaintiff, ‘yung corporation. Representative lang ‘yung stockholder.

Kailangan ba madami shares niyan?

A: No. Kahit isa ang share mo, pwede kang mag-file ng derivative action.

Kailangan ng Board Resolution?

A: No. Kasi nga, may Board Resolution, hindi na ‘yan derivative action. It should be, the cause
of action of the corporation. So, that’s it then.
 Special Type of Corporation - One Person Corporation (OPC)

So, for the special types of corporation, just look into OPCs. So, na-mention nama natin ‘yung
importance.
● So, laging stock corporation ‘yung OPC.
● Kailangan natural person, trust and estate
● Single shareholder can be a Director, President, and Treasurer
● But you cannot be a Corporate Secretary

LAW ON INTELLECTUAL PROPERTY

RELEVANT CASES: There are two leading cases na it’s important for me to mention.

1) Kolin Electronics Co. Inc. v. Kolin Philippines International Inc. (2015) - Siguro naman ‘yung
nagle-lecture sa Intellectual Property is also emphasizing this. Wala na ‘yung holistic test. Ang
meron na lang is dominant feature, because that is what is contemplated under the Intellectual
Property Law. So the dominancy test is the only test, according to the Court. Kay ano yata to, kay
Justice Caguioa na decision.

2) Zuneca Pharmaceuticals vs. Natrapharm (2020) - I think, this was also Justice Caguioa’s
decision.
● So, remember, ‘yung sa trademark, first to file rule. ‘Yung registration right; which is, of
course, from the filing of the application, meron ka nang right. Okay. Hindi naman kailangang
makakuha ka ng certificate.
So the problem is, what if meron nang gumagamit niyan sa Philippines?
A: Remember, prior use is not necessary for the registration of the trademark.

Pero, what if, hindi ikaw ang unang gumamit, ikaw lang ang unang nag-register?
A: So, ‘yun ‘yung issue diyan. Okay. Here's the rule under Zuneca vs. Natrapharm: If
you will file the application, knowing that somebody else is using it, meaning,
registration is in bad faith, ‘yung registration mo is void. It can be questioned. Okay.
Pero kung hindi ikaw ang unang gumamit, somebody else used it, pero good faith ka,
 nag-apply ka ng trademark, valid ‘yung registration. And you have the right over the
mark. But here’s the other qualification: ‘yung unang gumamit, good faith din naman
‘yun, hindi mo pwedeng pigilan sa paggamit. Okay. You cannot even make him liable for
damages. He is protected too. So, that is Zuneca vs. Natrapharm.

So, those are the two leading cases that have important doctrines, new doctrines under the
Intellectual Property Law. Okay. And since, may involvement si Justice Caguioa diyan, so, its’ worth
remembering. I think that’s about it but you have to - for Intellectual Property, kailangang alam niyo
kung ano ba ‘yung trademark, ano ‘yung copyright, ano ‘yung patent.

Kailan nagkakaroon ng right?

A: From the creation, from the registration, ‘yan ang basic rule

Who owns it? Who has been given the right?

A: The author, the registrant, etcetera.

So, ‘yung author naman, paano kung joint creation ang work? Sa copyright, paano kung
commissioned work? Paano kung employee mo? So all these questions are important. Duration din.

How long din ‘yung right mo?

A: 50 years and then, during the lifetime of 50 years, pagka after the death of creator

SPECIAL BAR TIPS: And so, as I said, hindi ko na possibly discussed everything. But I think, we gave you
substantial notes on the more important one. So, ‘yun namang Intellectual Property, although
kailangan nating aralin din, the reality is konti lang ang tinatanong dun
● Okay. So, ‘yung concentration natin ngayon: RCCP and Insurance - yan marami. Tinatanong
iyan, specially sa RCCP. But of course, it’s really better to cover all subjects. So, let the
coverage provided by the Supreme Court be your guide.
● There’s still time to go over them. Don’t neglect some doctrines or rules that you find na hindi
na importante kasi sayang din if you miss one question, sayang. That might determine if you
will pass or fail. So, we will end on that note.

— — — END — — —
 POLITICAL LAW
Commissioner Rene V. Sarmiento
October 10, 2022

SCRIBES: Hannah Morales | Eros Cabauatan | Sherry Jane Pagay | Chanelle Mae Ann Abagat | Jose Francisco Milo | Abby Aquino
CHECKED BY: HANNAH KEZIAH MORALES (Chairperson for Academics) | ADRIAN MACASAQUIT (Deputy for Academics)

FOREWORDS

NOTE: Please refer to the presentation shared and provided by Comm. Sarmiento for Political Law
Bar Lecture

● To our future lawyers, you claim that you will be a lawyer and you will be. It’s a matter
of time. Magandang hapon sa kanilang lahat and we hope that we will have a fruitful
review this afternoon.
● First, I’d like to thank Dean Ulan for this bar review for being so fatherly to our student
and to our students. You have a very supportive dean. Thank you to Atty. Jun who has
been very helpful for facilitating this bar review. Maraming maraming salamat Atty. Jun.

I. INTRODUCTION
● Nature of 2022 Bar Examinations
○ What is the nature? I’m sure by this time, handang handa na kayo. You are
well-prepared. After all, this months of preparation and years of study in the college
of law. So what will be the nature of the bar examinations? Ito po ay balik sa dati. The
pre-bar, the pre-2022 meaning February 2022.
○ It was a limited bar examinations. Now we are back to normal.
○ So the law on state which is in relation to the citizens which is the captions for the
political law had a 30% that covered taxation and labor law. Today, labor law is
separated from political law. At balik po sa dati, 15% po ang bibigay sa political law.
○ And the same digital examinations.

● Prognosis
○ Now, what will be my prognosis for this 2022 bar examinations.
■ Before the Feb. 2022 bar examinations my prognosis was and I was proven correct,
that the bar examiner at the time, Dean Marvic Leonen who became a justice of
the Supreme Court. I was saying that he would be very liberal in the bar exams
and that many, many would pass the bar exams considering the nature at the time
which was at the height of the pandemic and then knowing also the examiner
himself, I was telling myself maraming papasa and true enough maraming pumasa
po sa nakaraan examinations.
■ More than 8,000 pass the bar examinations.
■ No regrets, no regrets (for not taking the bar earlier). So I think this is the best
time, every time is always the best time for all of you. And you are given the
chance to review for this forthcoming bar examination
○ It will not be a return to the Feb. 2022 liberality. I’m sure, I’m certain, the chairman
will be more strict this time.

● Preparation, A Must
○ Preparation is a must. But more important than attending bar lectures, is your stock
knowledge and the preparations you have made during our political review class year
ago. And your preparations as a freshmen, as a sophomore, as a junior in the San Beda
College of Law.
● What to Expect from the Lecture
○ Survey and Analysis of Judicial Doctrines in Political Law and International Law
■ A survey and analysis of judicial doctrines in political and international law. I did
not include taxation. Though I saw taxation in the syllabus because number one it
is not normally part of our political review, it separates from political law and
international law. And honestly, I have to be very honest, taxation is not my line of
expertise. If you are a professor who taught constitutional law, you will read and
read the lectures and the lessons and the knowledge from attending classes and
from this lectures.
○ Flashback: Bar Examination Questions Through the Years
■ I will not mention specifically all the questions or discuss them but give you what
were these questions that was asked through the years. And many of this questions
could be found in the book of Nachura.
■ I hope class all of you use the book of Nachura as your textbook. Through the years,
I have discovered teaching political law review, teaching students including bar
reviewees.
■ This book of Nachura is very very useful.
■ I’m sure our bar examiners will use one of the sources or references, this book of
Nachura and finally we go to the bar pointers.
○ Bar Pointers
■ I’ll give you five pointers that will be very useful to you, as bar examinees and as
future lawyer
 POLITICAL AND INTERNATIONAL LAW

II. DUE PROCESS, BILL OF RIGHTS, CONSTITUTIONAL COMMISSIONS, PARTY LIST SYSTEM

1. COMMISSIONER OF INTERNAL REVENUE VS. MCDONALD'S PHILIPPINES REALTY CORP.,

G.R. NO. 242670, MAY 10, 2021
● The issuance of a letter of Authority issued by the BIR prior to examination and
assessment is requirement of due process. The revenue officer should properly secure
an LOA before examination and assessment of the petition. No LOA is nullity of the
examination and assessment and violation of the taxpayers right to due process.
○ The item is on the due process of law and the bill of rights.
○ Now, in this case there was an examination and assessment conducted by the
BIR of Mcdo for purposes of tax assessment.
○ Now, there was a change in the person of the examiner. Nagbago po ang
examiner. The new examiner conducted the examination without a letter of
authority issued by the BIR.
○ Mcdonalds question the authority of that BIR examiner and the Supreme court
has shown that you are correct.
○ The petition granted because the issuance of a letter of authority by the BIR
before the examination and the assessment is a requirement of due process of
law.
 ○ The revenue officer should properly secure an LOA before an examination and
the assessment of the petition. No LOA is a nullity of the examination and the
assessment and violation of the taxpayer’s right to due process

2. MARK JALANDONI VS. THE OFFICE OF THE OMBUDSMAN, GR. NUMBER 211751, MAY
10, 2021
● A factual and evidentiary matter that must be threshed out in a full-blown trial. The
probative value of the verbal and documentary evidence of Jalandoni's authority and
his claim of good faith can be best passed upon in a trial on the merits and there is no
violation of Jalandoni's right to due process.
● When petitioners were given a copy of the Complaint and its annexes during
preliminary investigation, his right to examine the documents was respected. While
his motion for the production and inspection of the documents had initially been
denied, he was later allowed to do so on two occasions. Thus, there was no violation
of his right to due process.
○ Mark Jalandoni was the Deputy Ombudsman for Luzon. At that time the
Ombudsman was Gutierrez. Now, the ombudsman delegated an authority to
Mark Jalandoni to review cases pending before the ombudsman but soon
thereafter they resigned. Both of them resigned.
○ If I recall, there was an impeachment complaint that was filed against
Gutierrez. But before it pushed through, she resigned and together with Mark
Jalandoni. So the active ombudsman noticed that there were patches of paper
superimposed on Ombudsman resolutions and the decisions.
○ The Ombudsman noticed that this was done by Mark Jalandoni superimposed on
the original copies of the resolutions and decisions. He complained and filed a
complaint for falsification.
○ Now, Mark Jalandoni is saying that though there were patches of paper, the
content of the decision was never affected and he acted based on the authority
of then Ombudsman Gutierrez.
○ Now, his complaining that there was a violation of his due process of law.
○ When petitioners were given a copy of the Complaint and its annexes to
preliminary investigation, though initially he was not allowed to do so, but
subsequently he was allowed to examine the documents. The Supreme Court
has ruled that there was no violation of his right to due process of law.
○ And this allegation that he was authorized by then Ombudsman Gutierrez is a
matter for the Court to press out in a full blown trial.
■ If that is his defense is to prove it during the trial of the case.
○ Here again, the Supreme Court has shown that the probative value of the
verbal and documentary evidence of Jalandon’s authority and claim of good
faith can be passed upon on the trial of the merits. And there was no violation
of Jalandoni’s right to due process of law.
3. VIRGILIO A. BOTE, VS. SAN PEDRO CINEPLEX PROPERTIES, INC., G.R. NO. 203471,
SEPTEMBER 14, 2020
● This Petition stemmed from an administrative complaint filed by San Pedro Cineplex
Properties, Inc. (SPCPI) against Bote, then incumbent mayor of General Tinio, Nueva
Ecija, for Violation of Republic Act No. (R.A.) 7160, abuse of authority, and culpable
violation of the Constitution (Sec. 1, Article III, 1987 Constitution)
● The Supreme Court ruled that the Bill of Rights cannot be invoked against private
individuals, or in cases where there is no participation by the State either through its
instrumentalities or persons acting on its behalf. There is no dispute that Bote, at the
time of the incident, was a municipal mayor. However, the records are bereft of any
indication that, during the incident, he was acting as such, or on behalf of or upon
authority of the State. Bote was acting as a private individual or in his personal
capacity, making the Bill of Rights inapplicable.
● SPCPI cannot invoke Section 1, Article III of the 1987 Constitution to sustain an
administrative case against Bote under R.A. 7160. It may find redress through a civil
or criminal suit.
○ There was a property located in San Pedro, Laguna. I’m sure many of you are
from San Pedro, Laguna. So, there was a petition for the quieting of title.
 While the case was pending, Mr. Bote who was then there municipal mayor
General Tinio, Nueva Ecija went to the place because he was entrusted by the
owners of the place to overseek.
○ So, he went to the place together with armed body guards. This was according
to the San Pedro Cineplex properties. Because of what he has done, there was
an administrative complaint against then mayor Bote.
○ Now, question is can he be the subject of an administrative complaint on the
basis of the Bill of Rights Sec. 1, Art. III of the 1987 Constitution. When we say
administrative complaint, it is in connection with your authority or position in
government.
○ So, the Supreme Court has showed that the Bill of Rights cannot be invoked
against Mr. Bote because at the time he was not acting on behalf or authority
of the State. Bote was acting as a private individual or in his personal capacity,
making the Bill of Rights inapplicable.
○ But the SC has stated also if you want to file a criminal case against him for the
violation of constitutional rights.
■ A civil or criminal suit, a civil suit for damages, then you can do so.
■ But never, never an administrative complaining which has something to
do with an authority of an individual connected with the State or upon
authority of the State.
 III. SEARCHES AND SEIZURES

1. PEOPLE OF THE PHILIPPINES VS. JERRY SAPLA, G.R. NO. 244045, JUNE 16, 2020
● A warrantless search conducted by the police inside a passenger jeepney is not a valid
search of a moving vehicle where the vehicle is not the target but a specific person
who matched the description given by an anonymous caller.
○ Now, this is a dangerous drugs act case.
○ A complaint was filed against Jerry Sapla for violation of that law. For bringing
with him 6 bricks of marijuana leaves.
○ Now, a warrantless search was conducted by the police inside a passenger
jeepney where at that time, Sapla was board. Now, the search was conducted
because of a tip from an anonymous caller.
○ The Supreme Court has held that if there was a warrantless search meaning
without a search warrant conducted by the police inside a passenger jeepney.
It is not a valid search of a moving vehicle where the vehicle is not the target
but a specific person who matched the description given by an anonymous
caller.
 ○ Now, one of the exceptions to a search with warrant meaning a warrantless
arrest is a search of a moving vehicle among several others.
○ So, if it is a warrantless search of a moving vehicle, the target should be the
moving vehicle and not the specific person on board that moving vehicle.

2. DELFIN R. PILAPIL, JR. VS. LYDIA Y. CU, G.R. NO. 228608 (AUGUST 27, 2020) AND
PEOPLE OF THE PHILIPPINES VS. LYDIA Y. CU, G.R. NO. 228589, AUGUST 27, 2020
● The Court said that the warrantless ocular inspection of the mining site that preceded
the seizure and which allowed Mayor Delfin Pilapil, Jr. and his team of police officers
and barangay officials to catch a view of the subject explosives finds no authority
under any provision of law and the established circumstances suggest that the
incriminating nature of the subject explosives could not have been immediately
apparent to Mayor Delfin Pilapil, Jr. and his inspection teams.
○ Now, this is in connection with a warrantless ocular inspection of the mining
site by a municipal mayor in Camarines Norte and the mayor was Mayor Delfin
Pilapil.
○ Now they conducted a warrantless ocular inspection of the mining site with
Mayor Pilapil as the head of the ocular inspection team assisted by a team of
police officers and barangay officials to catch a view of the subject explosives.
○ So, they found the explosives. Now, they are saying that it was a plain view,
the applicability of the plain view doctrine.
○ They saw it so it can be seized legally but the Supreme Court has said that the
view of the explosives at the time was not apparent. It was hidden inside bags
and placed in a storage room though the storage was open but the explosives
were placed in several bags.
○ The Supreme Court said that it was not a plain view seizure of the evidence
and therefore, it not being a plain view, there must be a warrant that should
be secured by Mayor Delfin and his team of officers.
○ Since, there is no applicability of the plainview doctrine, the warrantless
search conducted or ocular inspection conducted by Mayor Delfin and his team
is invalid and unconstitutional.
3. VIRGILIO L. EVARDO VS. PEOPLE OF THE PHILIPPINES, G.R. NO. 234317, MAY 10, 2021
● A warrantless search of a moving vehicle (a tricycle in this case) cannot be premised
solely on an initial tip. It must be founded on probable cause where there must be a
confluence of several suspicions occurrences. Each such circumstance must occur
before the search is commenced. Further, they must each be independently
suspicious.
○ Again here the police acted on a tip given by an anonymous caller. It was also a
warrantless search of a moving vehicle and also involving drugs.
○ The moving vehicle is a tricycle in this case and the Supreme Court showed
that the police must not solely rely on a tip.
○ There must be other suspicious circumstances that must be considered by the
police officers and not simply on a tip. For instance, the actuation of the
subject person inside the vehicle and not rely solely on a tip given by a caller.
○ There should be a confluence of several suspicious occurrences and each must
be indendeptly be suspicious according to the Supreme Court if it involves a
warrantless search of a moving vehicle
 IV. BAIL

1. IN THE MATTER OF THE URGENT PETITION FOR THE RELEASE OF PRISONERS ON

HUMANITARIAN GROUNDS IN THE MIDST OF THE COVID-19 PANDEMIC, DIONISIO S.
ALMONTE, ET. AL. VS. PEOPLE OF THE PHILIPPINES, EDUARDO AÑO, ET. AL., G.R. NO.
252117, JULY 28, 2020
● Petitioners (members of the CPP, NPA, NDF) charged with offenses punishable by
"reclusion perpetua", are not entitled to bail as a matter of right.
● Petitioners allege that they are prisoners and are among the elderly, sick, and
pregnant population of inmates exposed to the danger of contracting COVID-19 where
social distancing and self-isolation measures are purportedly impossible. They are
invoking the Court’s power of “equity jurisdiction” and are seeking “temporary liberty
on humanitarian grounds” either on recognizance or on bail.
● Summary hearings need to be conducted for the purpose of weighing the strength of
the prosecution's evidence as to petitioners’ guilt. The trial courts are competent to
handle the reception of an evaluation of evidence.
○ The petitioners are members of the CPP, NPA, and NDF and they are charged
with offenses punishable by reclusion perpetua.
○ Persons charged with such offenses which are punishable with reclusion
perpetua are not entitled to bail as a matter of right, especially when the
evidence against them is strong.
○ The petitioners allege that they are part of the elderly, sick and pregnant
populations of inmates who are exposed to contracting COVID-19 and that
social distancing and self-isolation is impossible in the prisons.
○ They invoke the Supreme Court’s equity jurisdiction and seek temporary liberty
on humanitarian grounds, either on bail or on recognizance.
■ Recognizance is a mechanism that is new in the 1987 Constitution
○ Will that petition be suffice invoking the Court’s power of equity and
jurisdiction and the offense is punishable by reclusion perpetua?
■ The Supreme Court held that summary hearings need to be conducted
for the purpose of weighing the strength of the prosecution’s evidence as
to the accused’s guilt. The trial courts have the competence to
reception and evaluate the evidence.
○ If the judge, presiding over a criminal case where the imposable penalty is
reclusion perpetua, acted on a mere motion for bail, they may be held
administratively liable for ignorance of the law.
○ He should conduct summary hearing for prosecution to present its evidence and
for the Court to determine whether or not the evidence is strong as to warrant
the granting the motion for bail
■ Here, the Supreme Court ruled, as in its previous rulings, that summary
hearings have to be conducted for the purpose of weighing the strength
of the prosecution’s evidence for the petitioner’s guilt.
 V. EQUAL PROTECTION CLAUSE

1. DEPARTMENT OF TRADE AND INDUSTRY AND ITS BUREAU OF PRODUCT STANDARDS VS.
STEELASIA MANUFACTURING CORPORATION, G.R. NO. 238263, NOVEMBER 16, 2020
● The Department of Trade and Industry’s (DTI) regulation allowing the conditional
release of imported steel merchandise from the Bureau of Customs’ premises prior to
compliance with the required testing, inspection and clearance, but not of the local
steel, is not a violation of the equal protection clause.
● The Supreme Court ruled that the DTI Regulations do not violate the equal protection
clause because there exists a valid classification between local producers and
importers even though they produce the same goods and commodities.
○ DTI’s regulations, in this case, allowed the conditional release of imported
steel products from the Bureau of Customs’ premises prior to compliance with
the required testing, inspection, and clearance but did not afford this privilege
to local steel products.
○ Steel Asia assailed these regulations as violating the equal protection clause.
○ The Supreme Court held that the regulations did not violate the equal
protection clause since there is a valid classification between local producers
and importers, even when they produce the same products.
■ In this case, at the time of the case’s pendency, the warehouses at the
Bureau of Custom’s premises were already congested and there was no
more room to store the imported steel products.
○ The imported steel products would still have to be examine and are not
exempted from the examination before they can be released from the Bureau’s
premises.
■ The transfer or conditional release of the imported steel was for a
purpose because of the absence of warehouse or place to store these
imported steel merchandise
○ Hence, there is no violation of the Equal Protection Clause
 VI. DOUBLE JEOPARDY, RIGHT OF THE ACCUSED TO A SPEEDY TRIAL

1. PEOPLE VS. SANDIGANBAYAN AND THADEO Z. ONANO, G.R. NO. 185503, ETC., MAY 3,
2021
● An exception to the rule against double jeopardy is that the State may challenge an
acquittal where there has been grave abuse of discretion. Here, the cases were
dismissed with grave abuse of discretion because the Sandiganbayan abdicated its
duty to make an independent assessment of the merits of the cases against the
petitioners.
● There is no violation of the rights of the accused to a speedy trial where there is no
showing that any delay attended the proceedings and how they delays were
vexatious, capricious, and oppressive.
○ We know that we have a basic rule in Criminal Procedure and Constitutional
Law, the right against double jeopardy — there should be no double injury to a
person
■ General Rule: State may not assail an acquittal of the accused, for this
would place the latter in danger of double jeopardy.
 ■ Exception: State may challenge an acquittal if it was tainted with grave
abuse of discretion.
○ The Sandiganbayan’s dismissal of the cases against the accused was done with
grave abuse of discretion since the Sandiganbayan abdicated its duty to make
an independent assessment of the merits of the cases against the accused.
○ Two grounds exist for the non-application of the rule on double jeopardy in this
instance.
■ First, when there is grave abuse of discretion.
■ Second, when there is mistrial or violation of the prosecution’s right to
due process of law where the latter was not given the chance to present
its side.
○ An example of mistrial is the Galman case, where the Supreme Court, on the
basis of mistrial and on the basis of violation of due process of law, re-opened
Galman’s criminal case.
■ There, the Supreme Court, on the basis of mis-trial and violation of right
to due process of law, reopened the case of Mr. Galman, the supposed
assassin of Ninoy Aquino.
○ There is no violation of the right of the accused to speedy trial where there is
no showing of any delay that attended the proceedings and no showing that any
delays that were attendant were vexatious, capricious, or oppressive.
○ The rule on double jeopardy is not iron-clad and admits exceptions.
 VII. RIGHT TO TRAVEL

1. PROSPERO A. PICHAY, JR. VS. SANDIGANBAYAN, ETC., G.R. NOS. 241742 AND
241753-59, MAY 12, 2021
● The right to travel is a fundamental right guaranteed by the 1987 Constitution and the
Universal Declaration of Human Rights to which the Philippines is a signatory.
However, the exigencies of one's right to travel is not absolute. There are
constitutional, statutory, and inherent limitations regulating the right to travel.
○ The right to travel is a fundamental right and is guaranteed by the 1987
Constitution and the Universal Declaration of Human Rights, to which the
Philippines is a signatory.
○ Pichay was charged with violations of the Anti-Graft and Corrupt Practices Act,
with the complaint filed before the Sandiganbayan. While the case was
pending, Pichay wanted to travel but the Sandiganbayan did not allow him to
travel. Pichay filed a petition before the Supreme Court and invoked his right
to travel.
○ BUT The exigencies of one’s right to travel is not absolute.
■ There are constitutional limitations, like national security, public health,
and public safety.
■ There are statutory limitations, like the Human Security Act, the Passport
Act, and other statutes that place a limit to one’s right to travel.
● If you are a terrorist, as defined by the Human Security Act, your
right to travel will be restricted.
■ There is also an inherent limitation, where the court has the right to
preserve its jurisdiction and to maintain its dignity and decorum and the
courts may restrict a person’s right to travel if the exercise of that right
would result in the eroding of the court’s dignity and in the eroding of
respect to court processes.
 VIII. JUST COMPENSATION

1. NATIONAL TRANSMISSION CORPORATION, AS TRANSFEREE-IN-INTEREST OF THE

NATIONAL POWER CORPORATION VS. SPOUSES MARIANO S. TAGLAO AND CORAZON M.
TAGLAO, G.R. 223195, JANUARY 29, 2020
● While market value may be one of the basis in the determination of just
compensation, the same cannot be arbitrarily arrived at without considering the
factors to be appreciated in arriving at the fair market value of like property, its size,
shape, location, as well as the tax declaration thereon. And just compensation should
be computed based on the fair value of the property at the time of its taking or the
filing of the complaint, whichever comes first.
● Moreover, an easement of a right of way, although it transmits no rights except the
easement itself, the limitations on the use of the property taken for an indefinite
period would deprive its owner of the normal use thereof and the owner is entitled to
payment of just compensation.
○ While market value may be one of the bases for determination of just
compensation, the same cannot be arbitrarily arrived at without considering
 the factors to be appreciated in arriving at the fair market value like property,
its size, shape, location, and the tax declaration thereon.
○ Just compensation should be computed based on the fair value of the property
at the time of its taking or the filing of the complaint, whichever is earlier.
○ What about easement of right of way? Should it be compensated?
■ Although an easement of right of way transmits no other rights except
the easement itself, the limitations on the use of the property taken for
an indefinite period would deprive the owner of the normal use thereof
and the owner is entitled to payment of just compensation.
■ The definition of just compensation can be found in Nachura’s book.
2. REPUBLIC VS. JULIANA SAN MIGUEL VDA. DE RAMOS, G.R. NO. 211576, FEBRUARY 19,
2020
● This an action for expropriation (Expropriation Complaint) filed by the Republic
before the Regional Trial Court of Valenzuela City.
● Here, the Supreme Court ruled that the RTC erred in ordering petitioner Republic to
pay legal interest of 6% on the amount of just compensation because the respondents
had acknowledged the receipt of the full amount of just compensation even prior to
the time of taking.
○ An action for expropriation was filed before the RTC of Valenzuela City.
○ In this case, the Supreme Court held that the RTC erred in ordering the
Republic to pay legal interest at 6% on the amount of just compensation
because the respondents had already acknowledged the receipt of the full
amount of just compensation even prior to the time of the taking.
○ This shows that there was no delay in the payment of just compensation.
○ Legal interest at 6% may only be imposed if there was a delay in the payment
of just compensation.
 IX. PARTY-LIST SYSTEM

1. ANG PARTIDO NG MGA PILIPINONG MARINO, INC., (ANGKLA) AND SERBISYO SA BAYAN
PARTY (SBP) VS. COMELEC, ET. AL., G.R. NO. 246816, SEPTEMBER 15, 2020
● Recalibrating the formula for the party-list system (allocation of additional seats -
[BANAT Formula]) could not be the subject of judicial review because it is a question
of wisdom which the legislature alone may determine for itself. The Supreme Court
does not write policies.
○ The recalibration of the formula for the allocation of additional seats cannot
be the subject of judicial review since it is a question of wisdom which only
Congress can resolve for itself. The Supreme Court does not write policies.
■ Political Law beyond the domain of judicial review.
○ When the question involves the wisdom of a law, the courts leave it to the
executive and legislative branches.
○ However, this is not absolute. The 2nd paragraph of Section 1, Art VIII of the
1987 Constitution, which defines judicial power, greatly restricted the
application of the political question doctrine.
 X. NATIONAL ECONOMY AND PATRIMONY

1. ABS-CBN CORPORATION VS. NATIONAL TELECOMMUNICATIONS COMMISSION, G.R. NO.

252119, AUGUST 25, 2020
● It cannot be inferred from our Constitution and our present statutes that temporary
statutory privileges may be accorded to a franchise applicant pending deliberation of
a franchise grant or renewal. Only upon the completion of the full law-making
procedure in accordance with the parameters prescribed by the Constitution can it be
said that Congress has granted a broadcasting entity the statutory privilege to so
broadcast its programs through its television and radio stations.
○ ABS-CBN’s franchise had already expired and it had to stop its broadcasts.
However, the DOJ granted provisional authority to ABS-CBN on the basis of
equity, allowing the latter to provisionally operate while Congress deliberated
on the renewal of ABS-CBN’s franchise.
○ Supreme Court held that it cannot be inferred from our Constitution and our
present statutes that temporary statutory privileges may be accorded to a
franchise applicant pending deliberation of a franchise grant or renewal.
○ Only upon the completion of the full law-making procedure, in accordance with
the parameters prescribed by the Constitution, can it be said that Congress has
granted a broadcasting entity the statutory privilege to broadcast its programs
through television and radio stations.
■ What is required is a law granting a franchise allowing a broadcasting
entity to operate its stations.
■ The temporary grant of privileges will not suffice. What is needed is a
law granting radio and television networks to operate.
 XI. CIVIL SERVICE COMMISSIONS (DOUBLE COMPENSATION)

1. PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA), ET. AL. VS. COMMISSION

ON AUDIT, G.R. NO. 210905, NOVEMBER 17, 2020
● The law is that no elective or appointive public officer or employee shall receive
additional or double compensation unless specifically authorized by law.
● The Supreme Court ruled that the collection of OWWA dues is within the statutory
mandate of POEA and is part and parcel of the job description of its employees. Under
the applicable statutes and the basic law, any and all compensation or benefits
received by the employees of the POEA for the discharge of such function should be
deemed integrated into their basic salaries, unless a law or executive issuance
specifically states that they be given additional compensation therefor.
● POEA and OWWA have failed to demonstrate that the Incentive Allowance is
authorized by any statute or executive. pronouncement. It is therefore clear that the
payment of the Incentive Allowance violated the rule on double compensation. The
incentive allowance payments must be returned.
○ The rule is found in the Constitution in the Article related to the Civil Service
Commission.
 ■ The law is that no elective or appointive public officer or employee shall
receive additional or double compensation, unless specifically
authorized by law to do so.
○ Here in this case, there was a collection of OWWA dues and it is within POEA’s
statutory mandate and is part and parcel of the job description of its
employees.
■ Under the applicable statutes and the basic law, any and all
compensation or benefits received by POEA’s employees for the
discharge of such function should be deemed integrated into their basic
salaries, unless a law or executive issuance specifically states that they
be given additional compensation therefor.
○ On top of the basic salaries, POEA made an initiative to grant an Incentive
Allowance to its employees who were in charge of collecting the OWWA dues.
■ The incentive allowance are in addition to the basic salaries that the
employees are receiving from the government.
○ The Supreme Court held that absent to a Statute or Executive Pronouncement,
there can be no giving of incentive allowance because it will violate the rule on
double compensation.
■ The incentive allowance received by employees must be returned
 XII. IMMORALITY AND DISHONESTY IN THE SALN

1. IN RE: INCIDENT REPORT OF THE SECURITY DIVISION AND ALLEGED VARIOUS

INFRACTIONS COMMITTED BY MR. CLOYD D. GARRA, JUDICIAL STAFF EMPLOYEE II,
MEDIATION, PLANNING AND RESEARCH DIVISION, PHILIPPINE MEDIATION CENTER
OFFICE, PHILIPPINE JUDICIAL ACADEMY, A.M. NO. 2019-14-SC, FEBRUARY 10, 2020
● Respondent Garra is guilty of Disgraceful and Immoral Conduct as defined under Civil
Service Commission (CSC) Memorandum Circular (MC) No. 15, Series of 2010, stating
that public office is a public trust. Garra's lack of honesty in his SALNs by deliberately
placing "N/A" in his SALNs from 2007 to 2011, and SALNs beginning 2013, despite
knowledge that he is married to Ms. Melissa M. Osbual Garra (Osbual) is simple
dishonesty since the act did not cause damage or prejudice to the government and
had no direct relation to or did not involve the duties and responsibilities of Garra as
staff driver.
○ Garra was a staff driver of the Philippine Judicial Academy.
○ Garra was charged with Disgraceful and Immoral Conduct, as defined in CSC
Memorandum Circular No. 15, series of 2010, stating that public office is a
public trust.
○ Why?
 ■ All employees are required to submit SALN every year
○ In his SALN’s, Garra placed “N/A” in the item regarding his marital status.
○ According to the Supreme Court, Garra’s lack of honesty in his SALN’s by
deliberately placing “N/A” in his SALN’s from 2007 to 2011 and his SALN’s
beginning from 2013, despite knowledge that he is married to Ms. Melissa M.
Osbual Garra is simple dishonesty since the act did not cause damage or
prejudice to the government and had no direct relation to or did not involve
the duties and responsibilities of Garra as staff driver
 ELECTION LAW, PUBLIC OFFICERS, ADMINISTRATIVE LAW AND LOCAL GOV'T

I. ABANDONMENT OF THE AGUINALDO DOCTRINE

1. HERRERA VS. MOGO, ET. AL., G.R. NO. 23110, JANUARY 15, 2020
● The condonation doctrine was good law since then until November 10, 2015 when the
Supreme Court promulgated Carpio Morales vs. Court of Appeals et. al., G.R. Nos.
217126-27, November 10, 2015. In this jurisdiction, there is no legal basis to conclude
that an election automatically implies condonation. If condonation of an elective
official’s administrative liability would be allowed in this jurisdiction, the same should
have been provided by law under our governing mechanisms.
○ Before 2015, the case of Carpio-Morales vs. Court of Appeals. Let’s say 2016,
we were charged with an administrative offense. Administrative offense kasi
public officer and then was found liable for committing that offense.
■ Come 2019, you were elected for the same position of mayor. Now,
under the Aguinaldo doctrine, that finding of a liability for committing
that offense is condoned. Wala na, mabubura na po. Okay, that has been
continued for a long long time.
○ Now, here comes the Supreme Court in the Case of Carpio Morales vs. Court of
Appeals.
■ This is a case involving Jejomar Binay Junior. Who at the time was the
City Mayor of Makati.
○ Now, the Supreme Court in this case, through Justice Perlas-Bernabe ruled that
in this jurisdiction, there is no more legal basis to conclude that an election
automatically implies condonation.
○ If condonation of elective official’s administrative liability would be allowed in
this jurisdiction, the same should have been provided by law under our
governing mechanisms.
○ Now, there is no law that should provide for condonation.
■ At the case of Carpio Morales vs. Court of Appeals, the Supreme Court
thus ruled that, conceding the provisions of the constitution regarding
public office is a public trust. Giving emphasis, importance to public
office as a public trust, Code of Ethical Conduct of Public Officials that
this old doctrine, Aguinaldo doctrine, has no more place in our
jurisprudence.
○ Is this retroactive?
■ No, it will only be after the effectivity of that doctrine in Carpio-Morales
vs Court of Appeals. Meaning, after 2015, after the decision was
rendered will this doctrine be operative, be applicable.
 II. GUN BAN DURING ELECTION PERIOD

1. ARTURO SULLANO VS. PEOPLE OF THE PHILIPPINES, G.R. NO. 232147, JUNE 8, 2020
● Petitioner is charged with violation of the gun ban during the 2010 election period
pursuant to B.P. Blg. 881 in relation to COMELEC Resolution No. 8714. He also said
that the checkpoint was improperly done since no signage was up.
● The checkpoints, ruled the Supreme Court, are warranted by the exigencies of public
order, and were conducted in a way least intrusive to motorists, were allowed since
the COMELEC would be hard put to implement the ban if its deputized agents are
limited to visual search of pedestrians.
○ During election period, the authority to regulate the issuance of licenses is
given to the COMELEC to ensure a peaceful and orderly and honest election.
○ So herein petitioners charged with violation of the Gun ban during the 2020
election period pursuant to B.P. Blg. 881 which is the Omnibus Election Code, in
relation to COMELEC Resolution No. 8714. He was saying that the checkpoint
was improperly done. There was no signage. And in this checkpoint that the
gun was taken from him, the officers saying, he violated this Gun Ban under
these two laws.
○ The Supreme Court thus ruled that checkpoints are warranted by the
exigencies of public order, and were conducted in a way least intrusive to
motorists, and were allowed since the COMELEC would be hard put to
implement the ban if its deputized agents are limited to visual search of
pedestrians.
 III. FINDINGS OF ADMINISTRATIVE AGENCIES ARE CONTROLLING TO THE RECEIVING COURT

1. CIVIL SERVICE COMMISSION VS. HILARIO J. DAMPILOG, G.R. NO. 238774, JUNE 10,
2020
● The Civil Service Commission Cordillera Administrative Region (CSC-CAR), after
conducting a preliminary investigation, issued a Resolution charging Hilario J.
Dampilog with Serious Dishonesty, Falsification of Official Documents and Grave
Misconduct for allowing somebody to apply and take in his behalf the Career Service
Professional Examination (CSPE) and reflected a rating of 81.89% in his Personal Data
Sheet, thereby misleading the appointing authority to appoint him as Special
Investigator I of the Department of Environment and Natural Resources (DENR-CAR).
● The CSC-CAR found him guilty of the offenses charged. The CSC affirmed the findings
of the CSC-CAR.
● The Supreme Court ruled that findings of facts of administrative agencies, such as the
CSC, if based on subsisting evidence, are controlling on the receiving court. The CSC
are better equipped in handling cases involving the employment status of employees
in the Civil Service since it is within their field of expertise.
○ The Civil Service Commission Cordillera Administrative Region, this is in Luzon
North, after conducting a preliminary investigation, issued a resolution
charging Hilario Dampilag with Serious Dishonesty, Falsification of Official
Documents and Grave Misconduct for allowing somebody to apply and take in
his behalf the Career Service Professional Examination.
■ Just imagine class, you will allow somebody to take in your behalf the
bar examination, and then passing it?
○ Of course, the person who acted on behalf of Dampilag passed it, obtaining a
rating of 81.89%, and Mr. Dampilag reflected this rating in his personal Data
Sheet, misleading the appointing authority to appoint him as Special
Investigator I of the Department of Environment and Natural Resources.
○ Now, the Civil Service Commission-CAR found him guilty of the offenses
charged. The Civil Service Commission affirmed the findings of the Civil Service
Commission-CAR, the CSC Main Office in Quezon City.
○ The Supreme Court has ruled that findings of facts of administrative agencies,
such as the Civil Service Commission, if based on substantial. It should be
substantial. Based on substantial evidence, are controlling on the receiving
court.
○ The Civil Service Commission are better equipped in handling cases involving
the employment status of employees in the Civil Service since it is within their
field of expertise.
 IV. THE CHIEF EXECUTIVE AND LOCAL GOVERNMENT

1. PROVINCE OF CAMARINES SUR, REPRESENTED BY GOVERNOR MIGUEL LUIS R.

VILLAFUERTE VS. THE COMMISSION ON AUDIT, G.R. NO. 227926, MARCH 10 2020
● The Chief Executive wielded no more authority than that of checking whether local
governments or their officials were performing their duties as provided by the
fundamental law and by statutes. He cannot interfere with local governments, so long
as they are within the scope of their authority. Supervisory power, when contrasted
with control, is the power of mere oversight over an inferior body and it does not
include any restraining authority over such body.
○ There is a distinction between supervisory power and control power by the
President, by The Chief Executive.
○ The role of the President or the Chief Executive, as far as the Local
Government is concerned, is simply supervisory. Not the power of control which
means to alter or substitute or change the decision of the local government
units.
○ The role of the Chief Executive is simply supervise, to oversee the local
governments that they are performing their functions.
○ So, the chief executive wielded no more authority than that of checking
whether the local governments or their officials were performing their duties
as provided by the fundamental law and by statutes.
■ He cannot interfere with local governments, so long as they are within
the scope of their authority.
■ Supervisory power, when contrasted with control, is the power of mere
oversight over an inferior body and it does not include any restraining
authority over such body.
● In other words, purely supervisory power, unless, the local
governments acted beyond the scope of their authority. And
supervisory power, when contrasted with control, is the power of
mere oversight over an inferior body and it does not include any
restraining authority over such body.

V. THE CHIEF EXECUTIVE AND LOCAL GOVERNMENT

1. MARCOS VS. ROBREDO, P.E.T. CASE NO. 005, FEBRUARY 16, 2021
● Protestant Marcos and protestee Robredo were two of six candidates for
Vice-President during the May 9, 2016 elections. Protestee garnered 14,418,817 votes,
while protestant received 14,155,344 votes, a slim margin of only 263,473. Congress
proclaimed protestee as the Vice-President of the Philippines.
● The Supreme Court sitting as P.E.T. ruled that failing to forward a "detailed
specification of the acts or omissions complained of makes the protest insufficient in
form and substance, warranting its summary dismissal. Sweeping allegations of
wrongdoing and submitted incomplete and incorrect data leaves the Tribunal with no
other recourse but to dismiss the Protest.
■ The case of Marcos vs. Robredo, the personalities are very familiar to
all us, I recall in my previous classes last semester, many were
saddened, many were affected and because sir we cannot study, we
have difficulty of moving on and I totally moved on. Face the challenges
head on. That should be the attitude of every bar candidate. Facing the
challenges head on, and never giving up. I’m sure na marami sa inyo na
pagod na pagod na. I’m sure na marami sa inyo na bored na bored na.
But you have to pass through these tests, in this trial and reap the
harvest later on. Enjoy the Crowning Glory months from now. And it will
happen. It will happen. All of us, our professors has undergone the same
test of course, with sacrifice, boredom, etc., etc. That’s why
preparation and prayer count come a lot in our preparation.
○ Now, we all know what this case is all about, was the contest for the
presidency, aahh, the vice-presidency at that time, between Marcos vs.
Robredo. Between BBM and Lenlen Robredo.
○ At that time, there were 6 candidates for Vice Presidency during the May 9,
2016 elections. Protestee, Robredo, garnered 14,418,817 votes, while
protestant BBM received 14,155,344 votes, a slim margin of only 263,473.
○ Of course, Congress proclaimed protestee as the Vice-President of the
Philippines.
○ Sir, why congress? Why not COMELEC?
■ Because Congress serves as the canvassing board for the President and
the Vice-President. Whereas senators, partylists, they proclaimed by the
Commission on elections. So, that is the key points.
○ So there is the bar question saying Comelec proclaimed the president and
vice president. Did the COMELEC act correctly?
■ No, because for president and vice president, the only authorized
canvassing board under the constitution is the congress of the
Philippines.
○ The Supreme Court sitting as P.E.T., meaning, Presidential Electoral Tribunal,
ruled that failing to forward a "detailed specification of the acts or omissions
complained of makes the protest insufficient in form and substance, warranting
its summary dismissal.
○ Sweeping allegations of wrongdoing and submitted incomplete and incorrect
data leaves the Tribunal with no other recourse but to dismiss the Protest.
■ So class, when you become election lawyers, this doctrine in this case
will be very very instructive.
 FLASHBACK: BAR EXAMINATION QUESTIONS IN THE PAST

Now we go to the bar question flashbacks. What will be the bar questions in the past.
● Companeros and Companeras I realized that before 2022, last bar examination, almost every
bar exam, almost, has a question of 2, relating to election law. For this, last bar examinations
were not, because 18 questions were allotted for Political Law, Labor Law and Taxation. But
with the restoration of 15 % of Political Law separate from Labor Law.
● So I’m sure an examiner would delve on Election law.
● Considering that there are talks about postponing the election of congress is inclined to pass a
law to postpone the barangay election, where election of presidency is still fresh to all of us.

1.01. ELECTION LAW

● COMMISSION ON ELECTIONS (APPOINTMENT, POWERS, JURISDICTION, PARDON)

○ Class, there are bar questions relating to COMELEC, the Commission on Elections.
○ One will be appointed.
■ Who are the members of the COMELEC? How many are they?
● So there is one Chairman and 6 commissioners.
 ■ What are the qualifications?
1. Natural-Born Citizen of the Philippines
2. At least 35 years old
3. A college-degree holder
4. And should have not run in the preceding elections.
○ Natural-Born Citizen
■ In the US, the US Constitution has been very liberal, you can be a congressman and
a senator even if you are a naturalized citizen.
■ But sa atin, to be a congressman, to be a senator, to be a justice of the Supreme
Court, to be a member of the Comelec, and other constitutional body, should be a
natural-born citizen of the Philippines.
● In the US, it is only the Presidency and the Vice-Presidency where
natural-born citizenship is required for candidates.
■ Can an outsider be appointed, or can the President appoint a member of the
comelec, sitting commissioners to be an acting chairman?
● In the case of Brillantes vs. Yorac, cannot be. Only among themselves
can they designate an acting chairperson. Because according to the
Supreme Court in Brillantes vs. Yorac, that would be interfering in the
independence of the Constitutional Commission, which is the
Commission on Elections.
■ What if someone who has retired or who has died because of illness?
● The newly-appointed commissioner will only serve for the unexpired
term of the person who has died while in office. And can serve the term
of office only for the unexpired portion of the term of that deceased.
○ Now, the powers are mentioned in the Constitution.
■ There are nine powers and in the Omnibus Election Code, there are twelve
powers.
○ What are these important powers of the Commission on Elections?
1. To enforce and administer all laws and regulations related to election, recon,
referendum, plebiscite, etcetera, etcetera.
● This is also the source of residual power of the Commission on Elections.
● There are situations that contemplated before, not foreseen before, the
Comelec can rely on this provision, as if it is the President exercising
residual powers.
2. Exercise exclusive of original jurisdiction over all contests relating to election
returns qualifications of regional, provincial, and city elective positions.
Exclusive of original jurisdiction.
● (Number 2 which is important, which is a Bar question in 2018, so take note
of this class. )
3. Appellate jurisdiction for all contest involving municipal positions and
appellate jurisdictions over all contest involving barangay positions.
● So what does this mean? So because this was a Bar question in 2019.
○ Let’s say Mr. Miguel Lim ran for the position of Governor of a province in
the Philippines, and let’s say he won and somebody protested, protesting
his election.
○ The losing candidate filed his protest with Regional Trial Court. That is
Question A.
○ Question B, now, Ms. Mary Monique Hechanova ran for Municipal mayor
of a Municipality in Romblon, she won and the losing candidate filed a
protest with the Comelec.
○ The question, did the losing candidates act correctly?
■ Now, for Gubernatorial position, which is a provincial position, you
file it with the Commission on Elections, you don’t file it with the
RTC because the protest will be dismissed.
 ■ For the position of Mayor, the losing candidate should file the protest
not with the Commission on Elections but with the Regional Trial
Court.
● What about Barangay officials?
○ Somebody ran for the position of the Barangay Chair and lost. He or she
can file his or her protest with the Municipal Trial Court or Metropolitan
Trial Court.
○ Okay, so kindly take note of the fine distinctions because that might be
asked in the Bar exam question.
■ You know class, these Bar examiners may refer to past Bar
examination questions. Tinitingnan din nila, that’s why there are
questions which are repeats, nauulit po tho framed differently.
■ So there are questions that are the favorites of Bar examiners.
■ I made a ranking class of Bar examination questions in relation to
the different rights found in the Article in the Bill of Rights, then
you will note the favorite Constitutional rights that have been the
subject of Bar examination questions, through the years, through
the years. Okay, so those are the two important powers of the
Commission on Elections.
○ Pardon
■ This was a Bar question years ago. Let’s say the President, exercising his power to
pardon. Okay, the amnesty or suspension of sentence, wanted pardon or amnesty
or suspension of the service or parole, to someone who was convicted for offense
involving violation of the Omnibus Elections Code.
■ Now, did the President act correctly?
● No. Because there should be a favorable recommendation from the Commission
on Elections.
○ Now, related to Election Law, a Civil Service employee, or officer, an employee of
DENR, of DAR, of Bureau of Customs, Department of Justice, his father or mother is
running for a public position, or relative, or friend, can he or she campaign actively
for that candidate?
■ No. Okay, that will be electioneering and that will be a violation of Civil Service
rules.
 ○ What if the campaigner is a member of the Cabinet?
○ That would be an exception.
○ He will be allowed or she will be allowed to campaign because he is the alter ego of
the President, so pwede. If you are a member of the Cabinet.

● OMNIBUS ELECTION CODE (SEC. 68, SEC. 78)

○ Now, Omnibus Election Code, Section 68 vs Section 78. This was a Bar question.
○ Section 68 class is about disqualification. Meaning, you were elected and then
disqualified. It was defined by a Court of Law or even by Comelec, that you have:
1) Committed terrorism, or
2) Given money or consideration to one managing elections, or
3) You exceeded amount allowed by law, to spend for your campaign.
○ Now, what is the penalty in case found guilty for these various, or any of these
offenses?
■ Disqualification. Panalo ka na but you are disqualified.
● Di ho ba we have these recent reports about the Governor of Albay and the
Mayor of Albay being disqualified by the Comelec. So the case is now on
appeal, this, by way of certiorari to the Supreme Court. Now, we have one
classic example of this, if you all know the case of then Governor Ejercito of
Laguna. He was disqualified because he spent beyond the limit required by law.
● So, in case that happens, who will now de-proclaim? Who will not sit as the
Governor?
● For disqualification cases, we follow the rule on succession under the Local
Government Code. Meaning, it is the Vice-Governor. For Mayor, it is the
Vice-Mayor. Okay, that is for Section 68.
○ We go to Section 78. Now, the petition is not for disqualification but petition to deny
due course, a Certificate of Candidacy, or petition to cancel Certificate of Candidacy.
When do you file this?
■ If there is a material misrepresentation, in relation to your residence, to your age,
in relation to your citizenship, in relation to your status, you placed this in your
COC, but this is the truth.
 ■ So a petition to cancel due course filed against you before the Comelec, before
the elections.
■ Now let’s say, after the elections, panalo ka, meaning, the one na, who was the
subject of this petition, meaning the respondent won as the winning candidate but
its COC is cancelled by the Commission on Elections, or denied due course by the
Commission on Elections, who will now take over? Is it the same on the rule on
succession under the Local Government Code? Or is it the second placer rule
that will be followed?
● Now, the Supreme Court in several cases has ruled that it is the second placer
rule that will be followed and so far as Section 78 is concerned. Why? Because
of that misrepresentation.
● Your COC is void and therefore, the candidate who obtained the second highest
vote for the position of Mayor or Governor, will be declared as the winning
candidate or will be considered as the duly elected Mayor, or duly elected
Governor. Okay.

● RULE ON SUCCESSION (SECOND PLACER RULE)

○ So this will class a Bar question. Rule on succession, well, related to second placer
rule. Let us give instances of the second placer rule. You have the case of Maquiling
vs. Comelec. You have the case of Lonzanida vs. Comelec.
○ Now in the case of Lonzanida, when he ran for 2009 elections for Mayor in San
Antonio, Zambalez, after he filed his COC, he was convicted for the offense involving
ten counts of falsification. So, because the penalty for falsification is you cannot run
for public office.
■ So, he won because he was very popular. Before 2009, he run successively and won
in the elections. So, for three terms, he won, though in one election he won but
lost in a protest but he was a winning candidate, he was a Doctor, and I suppose,
much loved by his constituents. As a matter of fact, the incumbent Mayor now of
San Felipe, Zambalez, is the son of this former Mayor Lonzanida.
 ■ Now, who will now be the sitting Mayor, or considered as the Mayor of that
municipality?
● We now follow the second placer rule. Because the COC is void ab initio,
because of that prohibition, that conviction, which includes that accessory
penalty of disqualification to hold public office, it was the second placer who
was declared as the Mayor of that municipality. Okay.
○ The second case, the case of Maquiling vs. Comelec. Here, Mr. Arnado was a
naturalized American citizen. Now, he decided to run for the position of Municipal
Mayor in one of the towns in Lanao, Lanao del Norte or Lanao del Sur. Now, being a
naturalized citizen, and thereafter agreeably of dual-citizenship under RA 9225, he
decided to become a dual citizen, and even made a renunciation of that foreign
citizenship, to be able to run for Municipal Mayor.
■ He filed his candidacy and won. But after filing his Certificate of Candidacy, Mr.
Arnado continued to use his American passport a number of times.
● And the Supreme Court, thru, then Chief Justice Sereno, said the continued use
of that American passport, despite his renunciation of his foreign citizenship
under RA 9225, is a recantation, a renunciation of his former renunciation of
his foreign citizenship. It is as if he is still an American citizen. Now, with that,
his COC is void. It is as if there was no candidate for that position.
● So who was declared as the winning candidate? It was Mr. Maquiling, who
obtained the second highest vote. Okay, that’s the second placer rule.

● ADJUDICATION OF ELECTION CONTESTS (REGULAR COURTS, COMELEC, HRET, SET)

○ We have studied, for provincial contest - Comelec; regional contest, though we have
double regional position, but in the past, we have regional positions - you file with
the Comelec; for city positions - Mayor, Vice Mayor of the City of Manila, that’s why
we handled case at the time of Atienza and Lim, so the filing is direct with the
Commision on Elections. For municipal officials, Mayor, Vice Mayor, Councilor - with
the Regional Trial Court.
○ For barangay officials, ( SK ) Sangguniang Kabataan, then you file the complaint with
the protest, not with the Comelec but with the Municipal or Metropolitan Trial Courts.
● QUESTION: If there’s no proclamation yet, but a frontrunner candidate was
disqualified under Section 68 of the Omnibus Election Code? As rule on succession,
who would succeed?
○ Commissioner Sarmiento: Under Section 68, if there is disqualification, so wala pang
proclaimed ha, wala pang proclaimed, but there is a frontrunner you said, the
frontrunning candidate, also for the position of Mayor? Or another position?
● QUESTION: For position of Mayor
○ Commissioner Sarmiento: So, it will be the Vice-Mayor, it will be the Vice-mayor, for
Section Section 68, for Section 78, it is not the Vice-Mayor, or the Vice-Governor, but
the other candidate for the position of Mayor who obtained the highest number of
votes after that Mayor who was, whose COC was cancelled. Hindi po yung Vice, hindi
po yung Vice-Mayor, Vice-Governor, pero yung kalaban niya na mataas din ang nakuha
for that position of Mayor.

● TERM LIMITS
○ Di ho ba nag term limits natin for the position of Mayor, tatlong taon. Okay, and run
successively for three times, okay, yun ang term limits.
■ So for Governor and other official, except for the President, yung one term,
consisting of six years.
■ Now, let’s present a situation. Mr. A won for the position of Mayor of a
Municipality, let’s say in 1992, okay, three years after, he ran again for Mayor, so
meaning, 1995, now, he lost, he filed a protest but won in the protest. Okay, now,
1998, he ran for third time, he won, panalo siya. Fourth time, he ran again and
won, but there was a petition before the holding of the election, naka-three terms
na ‘yan, hindi na pwedeng tumakbo for the fourth term?
● But no, said the Supreme Court. In the second election, 1995, he lost but won
in the protest, he was not able to fully serve his term. There was an
interruption of his term.
● Okay. So, pwede siya tumakbo for the fourth time. This is Abundo vs. Comelec.
○ Now, here is another situation. 1992, won; 1995, won, but a protest was filed against
him, he lost in the protest, and was not able to serve his term; 1998, ran, he won;
and decided to run for the fourth term. Okay, now, a petition was filed against him for
the cancellation of his COC, for misrepresentation, “hindi na pwede yan, naka-three
terms na ‘yan, bakit tatakbo pa ‘yan?”
■ The Supreme Court on the case of Lonzanida vs. Comelec has ruled, yes, in the
second elections, he won, but lost in the protest, and therefore, he was not able
to fully serve his term, there was an interruption in his service, and therefore, he
could run for the fourth term. The case is Lonzanida vs. Commission on Elections
○ What if the Provincial Board Member is simply preventively suspended by
Sandiganbayan or by the Ombudsman?
■ These are two bodies which can suspend, okay, for, let’s say, three months. Now,
after serving for three terms, he now runs for the fourth term, saying “I was not
able to fully serve my term, during my third term, because of my preventive
suspension, okay, there was an interruption, so therefore, I can run.
■ Supreme Court said hindi pwede ‘yan, because preventive suspension is temporary,
you continue to act, you continue your position as Board Member, and thereafter
the suspension, bumalik ka rin sa position mo, so preventive suspension is not
considered an interruption of your service.
○ Ms. Almira Mariño, is serving for the third term as a Governor of Quezon City.
Pang-third term na ni Ms. Mariño. But before completing her term, sabi niya “pagod
na pagod na ako, ayoko nang mag-serve, pupunta na ako sa Ukraine, to be with my
relatives in Ukraine, and my friends,” so she was not able to complete her term
because she resigned. Now, upon the prodding of her friends, “takbo ka ulit Almira,
we need people like you, we need Bedans in government, so she decided for the
fourth term, arguing “ eh, nag-resign naman ako eh, I did not fully serve my term.”
Can she be allowed for the fourth term?
■ No more. So, that is not an interruption, it was your decision, your volition to
resign. So therefore, you cannot run for the fourth term. So, if you are in the
public service, don’t resign ha, completely fulfill your mandate up to the very end
of your term of office.
● R.A. 9225
○ Again, that has been asked repeatedly in the Bar exam.
○ This is the Citizenship Retention and Re-acquisition Act, which allows dual citizen.
○ Now, if you apply for dual citizenship, you are an American, and at the same time, a
Filipino, and you decide to run for the position of a Mayor of Municipality. So, if you
intend to run, you need to renounce your foreign citizenship. So, dapat isang
citizenship lang.
○ How do you renounce?
■ You should be a sworn renunciation and should be attached to your Certificate of
Candidacy
○ Now, what if you fail to renounce after availing of the benefits of RA 9225? What is
the implication?
■ If you failed to renounce your citizenship, that could mean cancellation of your
COC, denial of your COC, so sayang naman.
■ Here is a good, here’s a classic example of a candidate who was a naturalized
American. He ran for the position of the Vice-Mayor in one municipality in Nueva
Ecija, the case is De Guzman vs. Comelec. Now, in the election, he lost. Now, in
the protest, he won, so meaning, he spent a lot of money for campaign purposes
during the election. Natalo siya, he has to spend again, to support, to finance his
election protest.
● He won in the protest, but his COC was cancelled, declared void ab initio,
because he failed to renounce his foreign citizenship.

○ Now, the latest Bar question was in 2019 about renunciations, on renunciation. How
do we distinguish this from the case of Mercado vs. Manzano? Si Edu Manzano.
■ Now, Edu Manzano, his parents were Filipinos, or are Filipinos, still alive pa naman
si Edu. But he was born in the US. Mr. Manzano has dual citizenship, not because of
RA 9225 but because of the confluence of two laws: jus sanguinis and jus soli.
Okay, it was involuntary on his part to have this two citizenship, so he ran for the
position of, at the time, Vice-Mayor of Makati. A petition was filed against him by
Mr. Mercado, the case is Mercado vs. Manzano.
 ■ Now, what will happen to his petition? Will it be cancelled for failure to
renounce his foreign citizenship?
● The Supreme Court, No. No need to resign, it was not his fault, it was
involuntary on his part. It is simply the confluence of two conflicting laws, jus
sanguinis and jus soli. It is enough that he filed his Certificate of Candidacy
which contains an Oath of Allegiance to the Republic. That will suffice.
○ Tandaan niyo ha, the distinction between one who has two citizenship due to
confluence of two laws, jus sanguinis and jus soli; and the other situation, where one
availed voluntarily with full volition to become a citizen of a foreign country

● QUESTION: In relation to Section 86 of the Omnibus Code, where the Vice-Mayor

succeeded the Mayor. What will happen to the position of the Vice Mayor in case of
succession? Will it be vacant or will there be a need of re-election for the
Vice-mayor position?
○ Commissioner Sarmiento: This is a very good question which has not yet happened in
the past. This is a case of first impression.
○ Kung may vacancy sa Vice Mayor, my opinion is that it will not be the councilors, there
are 9 councilors who will take over but I think, because of the vacancy of the position
of Vice Mayor, there should be a special election for the position of Vice Mayor.
○ Now this is a case of first impression. You have no case or even experience by the
COMELEC that has been done or encountered but I think there should be an election.

● QUESTION: In the case of Secretary Remulla who became the DOJ Secretary. He was
part of the Congress before his appointment. Will there be a need for re-election for
his congressional position?
○ Commissioner Sarmiento: If he won during the last Presidential election as a
Congressman. Kung nanalo nga siya at tinanggap nya yung position as Secretary of
Justice, he has to renounce. He has to abdicate the congressional position because he
accepted a conflicting decision which is appointive
○ Example: Mark Villar, he was appointed as DPWH Secretary but was elected before his
appointment as congressman of Las Pinas. Another one was the Budget Secretary from
 Camarines Sur appointed as the Budget Secretary by GMA, he has to renounce his
congressional position because he has chosen the position of a Cabinet Secretary. So
di pwedeng pagsabayin. Dapat isa lang
○ Now, who will fill up the post?
■ There should be a special election. There can be no appointment for that position
BUT pending the election of a new congressman, usually the district congressman
nearest to that district will be responsible to oversee the other district.
■ So that is the arrangement but that is on temporary basis because there should be
a special elections that should be conducted.

● QUESTION: Are Local Government Units allowed to declare certain person as persona
non grata?
○ Commissioner Sarmiento: As persona non grata? Bakit did he commit a crime? Ano
bang ginawa ng taong ito?
○ QUESTION: This is in relation to the Davao City case where certain people where
declared persona non grata due to comments online?
○ Commissioner Sarmiento: So that is the prerogative of the local government. A
resolution will be passed declared that person persona non grata.
■ But of course to me, that will be a subject of a petition. If you make comments
online in the exercise of freedom of expression and freedom of speech, why be
declared persona non grata?
■ You file with the Supreme Court a petition for certiorari saying that it is a grave
abuse of discretion on the part of that local government.
○ But the local government can do so kung gusto nila but to me that will be a violation
of your freedoms under the Constitution like freedom of expression, freedom of
speech, and freedom of press.
■ Speaking of freedom of press, speech, and expression, what if you placed
tarpaulins inside your backyard endorsing a candidate and the COMELEC forbids
the posting of those tarpaulins and campaign materials in your backyards and
outside of your homes? Can the COMELEC do so?
● If you recall, this is a controversial issue in the last presidential elections.
 ● Invoking the decisions of the Supreme Court in Diocese of Bacolod v COMELEC,
the placing of posters inside your backyards is an exercise of your freedom of
expression, freedom of speech, right to property, and even due process of law.
● Hindi pwedeng baklasin without your consent.

● AD INTERIM APPOINTMENT
○ This is also a bar question. Ad Interim Appointment is any appointment before
Congress convenes, we call the appointment Ad Interim Appointment, not regular
appointment.
○ When Congress convened after giving an ad interim appointment by the President, and
you were bypassed. Let’s say because the calendar of the Commission of
Appointments was so full, you were not included in the agenda that would was
bypassed. That’s why we have several cabinet members accept two or three who were
confirmed, but the rest was bypassed.
○ If we recall, Mr Calida was bypassed and he resigned
○ So would that be the end of your service for the Government? Or can you still be
given an ad interim appointment if the President so wishes dahil si Mr. Villamor ay
mahusay at magaling na public servant
■ Yes. How many times ad interim appointment? Ad infinitum. Without limit so long
as the President gives you ad interim appointment which is a permanent
appointment
○ What if the ad interim appointment is rejected? There was an opposition so it was
rejected?
■ If there is a rejection, that will be the end of your ad interim appointment. You
can no longer be issued another ad interim appointment
● And this has happened in the COMELEC a number of times. I have colleagues
class who was given ad interim appointment but were not confirmed and that is
the end of their service in the government for that position
● PARTY-LIST SYSTEM (PARAMETERS)
○ There was a bar examination year where this was asked, the following year it was not
asked, the succeeding year, it was asked!
○ So the parameters were found in the case of Atong Paglaum v COMELEC.
■ Where one parameter is that national organizations, regional organizations,or
parties secular organizations, or national, regional secular organizations can fill
candidates for the partylist system
■ Now they did not bid, form, or organized along sectoral lines, this national or
regional organizations.
■ Let say an organization of Bedan lawyers was formed and it sought accreditation
and it was granted
■ Can you question the organization and that it has complied with all the
requirements for accreditation?
● No that will be recognized
○ This is different from the decision of the Supreme Court in Ang Bagong Bayani v
COMELEC.
■ Because in Ang Bagong Bayani which was decided years before Atong Paglaum the
Supreme Court has ruled that you should represent the marginalized and the
vulnerables
■ In that decision, the Supreme Court has ruled that the party list system is a social
justice vehicle, as according to the words of Justice Panganiban.
● Using the Parameter of Atong Paglaum that national party or regional organization will be
accredited though not representing the marginalized and vulnerables.
○ And the nominees did not belong to the marginalized and vulnerables.
● Whereas using the Parameter of Ang Bagong Bayani, the organizers or the members of
that organization must represent marginalized and the nominees must belong to the
marginalized and vulnerables.
● FOR THE PURPOSES OF THE BAR: We use the parameters of Atong Paglaum v COMELEC
as the prevailing doctrine and not Ang Bagong Bayani
○ But if you ask me ano ang mas tama sa dalawa, consistent with the 1987 Constitution
to me is Ang Bagong Bayani because the party list system is a social justice vehicle in
order to give the marginalized a chance to veritable lawmakers themselves and to
represent those who have less in life for them to have more in law
● QUESTION: Can the appointee rejected by the Commission on Appointments be
appointed to another position?
○ Commissioner Sarmiento: Ay pwede! Halimbawa sya ay nominee an appointee for
COMELEC or CIvil Service Commission pero narejected sya. And then sabi ng
Presidente, sigi appoint ko to sa ganitong position - undersecretary or another position
in a Constitutional Commission, pwede yun.
○ But not in the particular position where he was rejected by the Commission on
Appointments.

● QUESTION: Is the President required to all cabinet positions like the DOH Secretary?
○ Commissioner Sarmiento: Ay Ok! Walang timeframe or time limit but wisdom dictates
and demands our country dictates that the President should now appoint a regular
Secretary of Health
○ Walang limit kung kailan, nasa kanya yun but if you ask me, wisdom and the demands
our country dictates especially that we are in the middle of the pandemic though it
has declined, the appointment should be made by the President.
○ The one acting as the one acting as the Secretary of Health is very competent to act
as the Secretary of Health so why not appoint this person?
● IPSO FACTO RESIGNATION
○ Basahin nyo na lang po what are these six parameters
○ Before the advent of the Fair Elections Act and the advent of several decisions of the
Supreme Court like the case of Quinto v COMELEC, the latest ruling of the Ipso Facto
Resignation.
■ If a mayor runs for governor, he is ipso facto resigned
■ If the governor runs for congressman, automatically resigned when you file your
COC
■ EXCEPT those who were running for president.
● If you recall Lacson ran for presidency but he did not resign
● Rocco ran for presidency but he did not resign
○ In Quinto v COMELEC the Supreme Court has ruled that if an elective official, let’s say
a mayor runs for another position, he is not deemed resigned because he has a
mandate to fulfill. A commitment which he has to fulfill and honor. No more ipso
facto resignation
■ BUT if an appointive official, let’s secretary or undersecretary, director, military
official etc files a COC for an elective position, his filing of his COC is deemed ipso
facto resignation
■ Rationale of Quinto v COMELEC: For the appointee to not avail the resources of his
office to support or boost his or her candidacy and avoid disparity of resource and
to be fair
○ If partylist nominee, when does he cease to be an appointive official, when is he
considered ipso facto resigned?
■ When his or her name is include in the nominees and submitted to the COMELEC
● PROTEST VS. QUO WARRANTO
○ Any difference from the two? Yes!
■ Protest - is for election irregularities or fraud in the elections, you file a
protection within 10 days from the proclamation of the winning candidate.
● Who can file? Any of the losing candidates can file a protest
■ Quo Warranto - the candidate is ineligible or was shown to be disloyal to the
Republic. Also within 10 days from the proclamation
● Who can file? Any of registered voter can file a petition for quo warranto

● PROSECUTION ON ELECTION OFFENSES

○ Who can prosecute?
■ Under the Omnibus Election Code circa 1965, it solely is the COMELEC that can
prosecute
■ Today under RA 9369 (Automated Elections Law), it is enjoyed concurrently by the
DOJ and the COMELEC, by the other prosecuting arms of the Government

● RECALL
○ When do you recall a sitting public officer?
■ Only on one ground - loss of confidence
○ Now there is limitations:
■ You cannot file a recall within one year from the assumption of duty by the public
officer or
■ You cannot file a recall within 1 year before the next succeeding election
○ Anyone who was being recalled, if he is incumbent, he cannot resign because he has
to face that recall petition and participate in that recall election
● DETAINEE VOTING (SYLLABUS TOPIC)
○ What is detainee voting?
■ Any detainee whose registration record has not been canceled or has not been
removed from the registration record will qualify for the detainee voting
○ Who are detainee qualified to vote? Tatlo po sila
1. One who was facing a criminal charge before a court of law, and is awaiting or
facing trial, so wala pang finding of guilt
2. If he was convicted and is suffering a sentence of less than a year
imprisonment
3. If he was convicted for committing an offense against national security,
disloyalty to the Republic, or any other crime BUT the case is on appeal
● So there is no finding of guilt, so you can vote
○ During our time, you can vote either in premises of the detention center or you can
request for escorted voting where you go to a precinct where you resided and through
escorted voting, the court will grant or deny, you can vote in that polling station.

● QUESTION: Is there a legal basis for President Marcos’ self appointment as Secretary
of Department of Agriculture?
○ Commissioner Sarmiento: DA? He can do so because there is no Constitutional
prohibition to be acting in a concurrent capacity as President and as a Cabinet
Secretary of the Department of Agriculture BUT wisdom dictates that the President
cannot discharge two sensitive positions.
○ The position of the President is a very exacting position. You are the dynamo of the
government, you shape your government based on your personality and your decisions
and you give it full time of your very best
○ To serve concurrently to me is a big question mark if he is qualified or has background
to run that department
 1.02. PUBLIC OFFICERS

1.02. PUBLIC OFFICERS

● Kinds Of Appointment
● Rights Of Public Officers
● Termination of Official Relations
● Disabilities. and Inhibitions of Public Offices
● Immunity of Public Officer
● Nepotism
● De Facto vs. De Jure
 1.03. ADMINISTRATIVE LAW

1.03. ADMINISTRATIVE LAW

● Doctrine Of Exhaustion Of Administrative Remedies; Exceptions
● Administrative Due Process and Requisites
● Rights Against Self Incrimination
● Necessity of Notice and Hearing
● Security of Tenure
● Holdover Principle
● Theory of Benevolent Neutrality or Accommodation
 1.04. BILL OF RIGHTS

1.04. BILL OF RIGHTS

● Custodial Investigation
● Criminal Due Process/Rights of Accused
● Freedom of Speech and Expression
● Fundamental Powers of the State
● Freedom of Religion
● Right Against Self-Incrimination
● Due Process
● Searches and Seizures
 1.05. EXECUTIVE DEPARTMENT

1.05. EXECUTIVE DEPARTMENT

● Military Power
● Executive Privilege
● Residual Powers,

1.06. LEGISLATIVE DEPARTMENT

1.06. LEGISLATIVE DEPARTMENT

● Powers of Congress
● Legislative Privileges, Inhibition and Disqualification
● Electoral Tribunals and Commission on Appointments
● Party-List System
 1.07. JUDICIAL DEPARTMENT

1.07. JUDICIAL DEPARTMENT

● Judicial Power and Judicial Review
● Safeguards of Judicial Independence
● Original and Appellate Jurisdiction
● Appointments to the Judiciary
● Deliberative Process Privilege
● Amparo, Habeas Dita
 1.08. CITIZENSHIP

1.08. CITIZENSHIP
● Who Are Filipino Citizens
● Natural-Born Citizens and Public Office
 1.09. PUBLIC INTERNATIONAL LAW

1.09. PUBLIC INTERNATIONAL LAW

● Archipelagic Doctrine
● UNCLOS
● Law of the Sea
● Sovereign Immunity
● International Court of Justice
● Charter of the United Nations
● Vienna Convention on Consular Relations
● Vienna Convention on Diplomatic Relations
● Vienna Convention on Law of Treaties
● Definition of Terms
 BAR POINTERS

C. BAR POINTERS
1. Answering Bar Examination Questions
2. Spelling and Grammar
3. Composure Inside the Room
4. After completion of the First Bar Subject
5. Prayer, Physical and Mental Wellness
 TRANSPORTATION LAW
Vice Dean Carlo Busmente
October 15, 2022

ACADS SCRIBES TEAM: SAMANTHA ALVAREZ | ANDREA DE GUZMAN | PAMELA DELA CRUZ | SHERRY PAGAY | LANCE
PUNZALAN | QUIMBERLYN RANCHEZ
CHECKED BY: HANNAH KEZIAH MORALES (Chairperson for Academics) | ANDREA JOSES TAN (Deputy for Academics)

TABLE OF CONTENTS

DEFINITION OF A COMMON CARRIER 2

EXTRAORDINARY DILIGENCE 6
WHEN A COMMON CARRIER IS NOT RESPONSIBLE 7
DURATION OF EXTRAORDINARY DILIGENCE 11
STIPULATIONS REGARDING EXTRAORDINARY DILIGENCE 12
VALID STIPULATIONS UNDER THE CIVIL CODE 14
WHEN STIPULATIONS CANNOT LIMIT LIABILITY 15
WHEN STIPULATION LIMITING LIABILITY CANNOT BE AVAILED 16
RULES ON BAGGAGES 17

CARRIAGE OF PERSONS 19
NEGLIGENCE UPON TRANSPORT OF PASSENGERS 23
RELEVANT JURISPRUDENCE 26
RESPONSIBILITY OF PASSENGERS 29

DAMAGES 32
RELEVANT JURISPRUDENCE 33

DOCTRINE OF LAST CLEAR CHANCE (SPECIFICALLY IN THE BAR SYLLABUS) 36

KABIT SYSTEM 36

BOUNDARY SYSTEM 37

BILL OF LADING 38

DOCTRINE OF LIMITED LIABILITY IN MARITIME LAW 38

CHARTER PARTY 40

BOTTOMRY 41

STEVEDORING COMPANY AND ARRASTRE OPERATOR 42

WARSAW CONVENTION 43
LIMIT OF LIABILITY OF CARRIER 45
JURISDICTION/VENUE UNDER WARSAW CONVENTION 46
RELEVANT JURISPRUDENCE (Penned by J. Caguioa) 47

FINAL MESSAGE 51

OPEN FORUM 52
 DEFINITION OF A COMMON CARRIER

Article 1732. Common carriers are persons, corporations, firms or associations engaged in the business
of carrying or transporting passengers or goods or both, by land, water, or air, for compensation, offering
their services to the public.

Take note of highlighted portions.

First Highlighted Portion: “corporations, firms or associations engaged in the business”

Q: What if yung corporation hindi siya registered with SEC then engaged with transporting passengers for
compensation? Is it considered a common carrier?
A: NO, if it is not SEC registered, then there is no juridical entity. However the persons behind it will be
liable for damages.

Corporation estoppel — persons who represent themselves as a corporation even without any authority to
do so are liable as general partners (up to their personal property).

Second Highlighted Portion: “engaged in the business”

The above article makes no distinction between one whose principal business activity is the carrying of
persons or goods or both, and one who does such carrying only as an ancillary activity (in local Idiom as
"a sideline"). Article 1732 also carefully avoids making any distinction between a person or enterprise
offering transportation service on a regular or scheduled basis and one offering such service on an
occasional, episodic or unscheduled basis. (De Guzman v. Court of Appeals, G.R. No. L-47822
(December 22, 1988))
Q: If the person or entity was Issued a business permit, mayor's permit, etc. before, are they considered a
common carrier?
A: No

Illustration:
Q: A Bedan student living in Manila was provided by his parents with a vehicle (Toyota Innova) to go to SBCA.
There are times when he lacked budget, so on the way back to Manila, he puts a sign on his car stating
“Manila”, inviting passengers for a ride to Manila for compensation. He doesn’t do it regularly, but only
when he is on a tight budget. What if something happens?
A: The Bedan student is liable as a common carrier. The Supreme Court held that even if the service is not
done on a regular basis but only as a sideline, then it is still considered as a common carrier.

Third Highlighted Portion: “land, water or air”

By water, it means marine vessels. By air, it means marine companies.

The Civil Code makes no distinction as to the means of transporting, as long as it is by land, water or air. It
does not provide that the transportation of the passengers or goods should be by motor vehicle. In fact, in
the United States, oil pipeline operators are considered common carriers. (First Philippine Industrial
Corp. v. Court of Appeals, G.R. No. 125948 (December 29, 1998))

Notice how all are motorized vehicles. So does it mean all should be motorized? May sagot ang
Supreme Court diyan. In this case, the fuel or oil was being transported through a pipeline.

In the case at bar, the petitioner admitted that it is engaged in the business of shipping and lighterage,
offering its barges to the public, despite its limited clientele for carrying or transporting goods by water
for compensation. (Asia Lighterage and Shipping Inc. v. Court of Appeals, G.R. No. 147246 (August 19,
2003))

Q: Is lighterage considered as a common carrier?

A: YES. Lighterage is the transport of goods from vessel to port area (eg: unload goods from a massive
vessel to a lighter or barge, then transport the cargo or goods to the port).
 TRAVEL AGENCY IS NOT A COMMON CARRIER — Respondent did not undertake to transport petitioner
from one place to another since its covenant with its customers is simply to make travel arrangements
in their behalf. Respondent’s services as a travel agency include procuring tickets and facilitating travel
permits or visas as well as booking customers for tours. While petitioner concededly bought her plane
ticket through the efforts of respondent company, this does not mean that the latter ipso facto is a
common carrier. At most, respondent acted merely as an agent of the airline, with whom petitioner
ultimately contracted for her carriage to Europe. (Crisostomo v. Court of Appeals, G.R. No. 138334
(August 25, 2003))

Q: Is a travel agency a common carrier?

A: No, it is not a common carrier. Basically common sense. They simply make travel arrangements. They do
not transport goods or persons.

In this case. while the petitioner bought tickets from the respondent company. This does not mean
that the latter is ipso facto a common carrier.

SCHOOL BUS OPERATOR IS A COMMON CARRIER — school bus service were: (a) engaged in transporting
passengers generally as a business, not just as a casual occupation; (b) undertaking to carry passengers
over established roads by the method by which the business was conducted; and (c) transporting students
for a fee. (Spouses Pereno v. Spouses Zarate, G.R. No. 157917, (August 23, 2012))

Q: Is a school bus operator a common carrier?

A: Yes. Refer to the case of Sps. Perena v. Sps. Zarate.

In earlier precedents, authors do not consider it as a common carrier because you cannot just ride it.
You need to enter into a contract with the bus operator. But now, they find that there is more reason that
the operator should be extra careful because they are transporting children.
BAR TIP: This was asked previously and may be asked again

CUSTOMS BROKER MAY BE A COMMON CARRIER — petitioner is a common carrier because the
transportation of goods is an integral part of her business. (Calvo v. UCPB General Insurance Co. Inc, G.R.
 No. 148496 (March 19, 2002))

Q: Is a customs broker a common carrier?

A: Its primary role is to facilitate goods from customs authority. It may be a common carrier, when from the
port area to consignee, it is bound to exercise extraordinary diligence.

BAR TIP: If it’s asked in the bar, answer with “IT DEPENDS” consider that aside from the release of cargo
from customs, when the transport of goods is integral part of its business

Fourth Highlighted Portion: “public”

Q: Does it have to be the general public?

A: No

Neither does Article 1732 distinguish between a carrier offering its services to the "general public," i.e.,
the general community or population, and one who offers services or solicits business only from a narrow
segment of the general population. (De Guzman v. Court of Appeals, G.R. No. L-47822 (December 22,
1988))

EXAMPLE: The phrase “not the entire Manila” is still within the term general public. Pasok pa din sa term na
common carrier.

EXTRAORDINARY DILIGENCE

Article 1733. 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.

In some books, Extraordinary Diligence is not defined. There was an opportunity to define
Extraordinary Diligence in the Nedlloyd case.
 Extraordinary diligence is that extreme care and caution which persons of unusual prudence and
circumspection use for securing or preserving their own property or rights. (Nedlloyd Lijnen B.V.
Rotterdam v. Glow Laks Enterprises, Ltd., G.R. No. 156330 (November 19, 2014))

BAR TIP: If you can memorize this, the better.

The mindset is that it is as if you're transporting your own goods and safekeeping your own rights.
Kung paano mo alagaan at ingatan ang sarili mong cargo or goods, ganun din ang pangangalaga at pag-iingat
mo sa cargo or goods ng client mo.

Article 1735. PRESUMPTION OF FAULT OR NEGLIGENCE — In all cases other than those mentioned in Nos.
1, 2, 3, 4, and 5 of the preceding article, if the goods are lost, destroyed or deteriorated, common
carriers are presumed to have been at fault or to have acted negligently, unless they prove that they
observed extraordinary diligence as required in article 1733.

2 things to establish by plaintiff in his cause of action

1) Contract of carriage
2) Injury or loss

Unless the presumption is rebutted, the court need not even make an express finding of fault or
negligence on the part of the common carrier. This statutory presumption may only be overcome by
evidence that the carrier exercised extraordinary diligence. (Victory Liner, Inc. v. Rosalito Gammad, Et Al
(G.R. No. 159636 (November 25, 2004))

The burden is now shifted to the common carrier to prove that they exercised Extraordinary
Diligence.

WHEN A COMMON CARRIER IS NOT RESPONSIBLE

FOR LOSS, DESTRUCTION OR DETERIORATION OF GOODS

Article 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods,
 unless the same is due to any of the following causes only: F A A C O
1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;
2) Act of the public enemy in war, whether international or civil;
3) Act or omission of the shipper or owner of the goods;
4) The character of the goods or defects in the packing or in the containers;
5) Order or act of competent public authority.

Please take note that the Supreme Court held that this is a close list (exclusive). Otherwise, the
carrier is definitely liable.

First Circumstance: “Flood, storm, earthquake, lightning, or other natural disaster or calamity”

Mechanical failure is not a fortuitous event

● Crack in the steering knuckle
● Tires exploded
● Defect in the brakes

REQUIREMENTS FOR PARAGRAPH 1 - Fortuitous Event

A common carrier is not liable for loss only when (1) the fortuitous event was the only and proximate
cause of the loss and (2) it exercised due diligence to prevent or minimize the loss. The second element is
absence here. As a common carrier, petitioner should have been more vigilant in monitoring the weather
disturbances within the country and their (possible) effect in its routes and destination (Fortune Se
Carrier, Inc. v. BPI/MS Insurance Corp., G.R. No. 209118 (Notice), (November 24, 2014))

The word “only” means that there is no human or other fault that contributed to the loss or
accident. It is not enough to prove a fortuitous event but also to prove that Extraordinary Diligence was
exercised.
 The Supreme Court held that dapat minonitor yung weather disturbances. Kung alam niyong may
bagyo, dapat hindi na kayo tumuloy. The second element is absent here. Hence, the defense of fortuitous
event was not successful.

Third Requisite

Article 1740. If the common carrier negligently incurs in delay in transporting the goods, a natural
disaster shall not free such carrier from responsibility.

Not only delay, but it must be negligent

● If the delay is caused by circumstances beyond control, this provision not applicable

Fire
● GR: Fire is not a fortuitous event because it is always traceable to human negligence
● Exception would be if it was caused by lightning or there is a stipulation voluntarily entered into by
the parties

Second Circumstance: “Act of the public enemy in war, whether international or civil”

REQUIREMENTS FOR PARAGRAPH 2 - PUBLIC ENEMY IN WAR

1) It should be the proximate and only cause of the loss.

2) The common carrier must exercise due diligence to prevent or minimize loss (Article 1739)

What is a public enemy?

It is a nation with whom the Philippines is at war with, and it includes every citizen or subject of the
nation

Third Circumstance: “Act or omission of the shipper or owner of the goods”

 REQUIREMENTS FOR PARAGRAPH 3 - ACT OF SHIPPER OR OWNER OF GOODS

a) Sole and proximate cause: Absolute defense

b) Contributory: Partial defense (Art. 1741)

Fourth Circumstance: “The character of the goods or defects in the packing or in the containers”

REQUIREMENTS FOR PARAGRAPH 4 - DEFECT IN PACKING

Even if the loss, destruction, or deterioration of the goods should be caused by the character of the goods,
or the faulty nature of the packing or of the containers, the common carrier must exercise due diligence
to forestall or lessen the loss. (Art. 1742)

The carrier which, knowing the fact of improper packing upon ordinary observation, but still accepts the
goods notwithstanding such condition, it is not relieved of liability for loss or injury resulting therefrom
(Southern Lines, Inc. v. CA, 4 SCRA 258

Defense in the packing

Refer to the case of Southern Lines v. CA. In this case, they already knew that there is a defect in the
packing of goods but they still accepted it. The Supreme Court held that they are not relieved from liability,
UNLESS they exercised Extraordinary Diligence to forestall or lessen the loss. Dapat nilessen or nisafeguard
na on the account of improper packing.

Fifth Circumstance: “Order or act of competent public authority”

REQUIREMENTS FOR PARAGRAPH 5 - ORDER OR ACT OF COMPETENT PUBLIC AUTHORITY

1) Order was issued by Public Authority

2) The Public Authority had the power to issue the Order (Article 1743)
3) The Order was lawful
Illustration: Refer to the case of Ganzon v. CA. Pinatapon yung cargo on the instruction of acting mayor
basilio. The Supreme Court established the 3 requisites and held that definitely the acting mayor has no
authority to order na ipatapon yun. May court order sana, legal process of authority.

It must be shown that Acting Mayor Basilio Rub had the power to issue the disputed order, or that it was
lawful, or that it was issued under legal process of authority. The appellee failed to establish this. Indeed,
no authority or power of the acting mayor to issue such an order was given in evidence (Ganzon v. Court
of Appeals, G.R. No. L-48757 (May 30, 1988))

Other Circumstances: “Hijacking, Piracy or Robbery”

Hijacking or Piracy or Robbery

They do not fall among the five categories. Therefore, if goods are lost by reason thereof, the
presumption still applies but the common carrier can still prove that it exercised extraordinary diligence

● Despite the cause of the loss is attributable to grave or irresistible threat, violence or force
● Common carriers are not made absolute insurers

In these circumstances, we hold that the occurrence of the loss must reasonably be regarded as quite
beyond the control of the common carrier and properly regarded as a fortuitous event. It is necessary to
recall that even common carriers are not made absolute insurers against all risks of travel and of
transport of goods, and are not held liable for acts or events which cannot be foreseen or are
inevitable, provided that they shall have complied with the rigorous standard of extraordinary
diligence. (De Guzman v. Court of Appeals, G.R. No. L-47822 (December 22, 1988))

DURATION OF EXTRAORDINARY DILIGENCE

Article 1736. The extraordinary responsibility of the common carrier lasts from the time the goods are
unconditionally placed in the possession of, and received by the carrier for transportation until the
 same are delivered, actually or constructively, by the carrier to the consignee, or to the person who
has a right to receive them, without prejudice to the provisions of article 1738.

Q: What if nagkaroon ng misdelivery? Nadeliver sa ibang tao?

A: The Supreme Court held that it still subsists.

In this case, there is no dispute that the custody of the goods was never turned over to the consignee or
his agents but was lost into the hands of unauthorized persons who secured possession thereof on the
strength of falsified documents. The loss or the misdelivery of the goods in the instant case gave rise to
the presumption that the common carrier is at fault or negligent.

To the mind of this Court, the contract of carriage remains in full force and effect even after the delivery
of the goods to the port authorities; the only delivery that releases it from their obligation to observe
extraordinary care is the delivery to the consignee or his agents. Even more telling of petitioners’
continuing liability for the goods transported to the fact that the original bills of lading up to this time,
remains in the possession of the notify party or consignee. (Nedlloyd Lijnen B.V. Rotterdam v. Glow Laks
Enterprises, Ltd., G.R. No. 156330 (November 19, 2014))

Take note that if there is a bill of lading (hawak ng consignee) and once it’s delivered, the bill of
lading should be delivered. In this case, nasa consignee pa proving na hindi pa nadedeliver.

If there is notice of the arrival of the goods, and the consignee fails to claim the goods, after the lapse of
a reasonable period, there will be constructive delivery (Article 1738)

If the consignee still fails to take delivery, from that point on, the contract between the carrier and the
consignee will no longer be a contract of carriage but a contract of deposit. Therefore, the carrier is no
longer required to exercise extraordinary diligence, but only the due diligence required of a good father
of a family.

Therefore, it will end the Extraordinary Responsibility of the common carrier. Ordinary diligence
nalang
 Article 1737. The common carrier’s duty to observe extraordinary diligence over the goods remains in full
force and effect even when they are temporarily unloaded or stored in transit, unless the shipper or
owner has made use of the right of stoppage in transitu.

Now, this is another important provision. A common carrier’s duty is in effect even if they are
temporarily unloaded. If you temporarily unload the goods or store it in transit, extraordinary responsibility
is there.

● Basically common sense kasi hindi pa nga nadedeliver sa consignee.

● Take note of the exception “UNLESS shipper/owner made use of right of stoppage in transitu
● right of stoppage in transitu - remedy of unpaid seller / right to resume possession of goods while in
transit. Hence, Extraordinary Responsibility will end.

BAR TIP: baka lumabas sa civil law. No recall that this was previously asked in the bar.

STIPULATIONS REGARDING EXTRAORDINARY DILIGENCE

Article 1744. A stipulation between the common carrier and the shipper or owner limiting the liability of
the former for the loss, destruction, or deterioration of the goods to a degree less than extraordinary
diligence shall be valid, provided it be:

1) In writing, signed by the shipper or owner;

2) Supported by a valuable consideration other than the service rendered by the common carrier; and
3) Reasonable, just and not contrary to public policy.

Article 1745. Any of the following or similar stipulations shall be considered unreasonable, unjust and
contrary to public policy:

1) That the goods are transported at the risk of the owner or shipper;
2) That the common carrier will not be liable for any loss, destruction, or deterioration of the goods;
3) That the common carrier need not observe any diligence in the custody of the goods;
 4) That the common carrier shall exercise a degree of diligence less than that of a good father of a
family, or of a man of ordinary prudence in the vigilance over the movables transported;
5) That the common carrier shall not be responsible for the acts or omission of his or its employees;

“Respondeat superior” (Latin for “Let the superior answer”), an employer is legally responsible
for the actions of its employees. However, this rule applies only if the employee is acting within
the course and scope of employment.

6) That the common carrier’s liability for acts committed by thieves, or of robbers who do not act
with grave or irresistible threat, violence or force, is dispensed with or diminished;
7) That the common carrier is not responsible for the loss, destruction, or deterioration of goods on
account of the defective condition of the car, vehicle, ship, airplane or other equipment used in
the contract of carriage.

VALID STIPULATIONS UNDER THE CIVIL CODE

Valid Stipulations
1) An agreement limiting the common carrier’s liability for delay on account of strikes or riots is
valid. (Art. 1748)
2) A stipulation that the common carrier’s liability is limited to the value of the goods appearing in
the bill of lading, unless the shipper or owner declares a greater value, is binding. (Art. 1749)
3) A contract fixing the sum that may be recovered. by the owner or shipper for the loss, destruction,
or deterioration of the goods is valid, if it is reasonable and just under the circumstances, and has
been fairly and freely agreed upon. (Art. 1750)

Undervaluing of goods on the bill of lading

Normally, if you are an importer of goods, ang linalagay mo sa bill of lading ay undervalued para
makatipid sa customs. if you are the lawyer, you have to advise him that in case of loss or destruction, yun
lang ang makukuha niya, kung ano yung linagay niya sa bill of lading, the value appearing on bill of lading
Not only reasonable, but also freely and fairly agreed upon. So ano meaning niyan?

A stipulation in the bill of lading limiting the common carrier's liability for loss or destruction of a cargo to
a certain sum, unless the shipper or owner declares a greater value, is sanctioned by law, particularly
Articles 1749 and 1750 of the Civil Code. Such a limited-liability clause has also been consistently upheld
by this Court in a number of cases. (Everett Steamship Corp. v, Court of Appeals, G.R. No. 122494
(October 8, 1998))

EXAMPLE: This clause in a bill of lading limiting the liability of the carrier to only P300.00 for “any single
package of silk or other valuable cargo” is not fair and reasonable under the circumstances (Juan Ysmael
& Co., Inc. v. Limgengco, G.R. No. L-28028 (November 25, 1927))

WHEN STIPULATIONS CANNOT LIMIT LIABILITY

WHEN CANNOT LIMIT ITS LIABILITY – By the weight of modern authority, the carrier cannot limit its
liability for injury to or loss of goods shipped, where such injury or loss is caused by its own negligence.
(Juan Ysmael & Co., Inc. v. Limgengco, G.R. No. L-28028 (November 25, 1927))

This is an old case but it still very much applicable. Once negligence is established, not merely
relying on presumption. The stipulation is considered nugatory, and hence cannot invoke the stipulations
limiting its liability

The fact that the conditions are printed at the back of the ticket stub in letters so small that they are
hard to read would not warrant the presumption that the appellee was aware of those conditions such
that he had "fairly and freely agreed" to those conditions. Appellee. Therefore, is not and cannot be
bound, by the conditions of carriage found at the back of a ticket sub issued to him when he made the
flight on appellant’s plane on November 23, 1959." (Shewaram v. Philippine Airlines, G.R. No. L-20099
(July 7, 1966))
 Remember the requirement that the stipulation limiting liability should be fairly and freely agreed
upon. Dito sa ticket na inissue ng PAL, maliit and very hard to read yung stipulation. Hence, the Supreme
Court held that it is not fairly and freely agreed upon, and cannot bind passenger

While it may be true that petitioner had not signed the plane ticket (Exh. "12"), he is nevertheless bound
by the provisions thereof. "Such provisions have been held to be a part of the contract of carriage, and
valid and binding upon the passenger regardless of the latter's lack of knowledge or assent to the
regulation". It is what is known as a contract of "adhesion", in regards which it has been said that contracts
of adhesion wherein one party imposes a ready made form of contract on the other, as the plane ticket in
the case at bar, are contracts not entirely prohibited. (Ong YIu v. Court of Appeals , G.R. No. L-40597
(June 29, 1979))

Shewaram case viz-a-viz Ong Yiu case

In Ong Yiu case, the passenger was bound by the stipulation. What is the difference? Linakihan na ng
PAL yung stipulation. Moreover, Ong Yiu was an attorney and definitely aware of the stipulation. It is
actually a contract of adhesion

When a passenger is carried gratuitously, a stipulation limiting the common carrier’s liability for
negligence is valid, but not for willful acts or gross negligence.

The reduction of fare does not justify any limitation of the common carrier’s liability. (Art. 1758)

Requisites:
1) Passenger is carried gratuitously
2) Stipulation limiting liability
3) Injury was not due to willful acts or gross negligence of the carrier

WHEN STIPULATION LIMITING LIABILITY CANNOT BE AVAILED

Article 1747. If the common carrier, without just cause, delays the transportation of the goods or
changes the stipulated or usual route, the contract limiting the common carrier’s liability cannot be
 availed of in case of the loss, destruction, or deterioration of the goods.

Take note that the delay here should be without cause. Hence, if the delay is due to the fault of the
government of 3rd persons, or beyond the control of the carrier, the provision shall not apply.

Article 1752. Even when there is an agreement limiting the liability of the common carrier in the
vigilance over the goods, the common carrier is disputably presumed to have been negligent in case of
their loss, destruction or deterioration.

Hindi nawawala ang presumption of negligence. As long as the passenger or victim can prove
contract of carriage or injury or loss, he already established his cause of action against the common carrier

Article 1753. The law of the country to which the goods are to be transported shall govern the liability of
the common carrier for their loss, destruction or deterioration.

This provision is self-explanatory.

Article 1752. Even when there is an agreement limiting the liability of the common carrier in the
vigilance over the goods, the common carrier is disputably presumed to have been negligent in case of
their loss, destruction or deterioration.

Since the passenger's destination in this case was the Philippines, Philippine law governs the liability of the
carrier for the loss of the passenger's luggage.

In this case, the petitioner failed to overcome, not only the presumption, but more importantly, the
private respondent's evidence, proving that the carrier's negligence was the proximate cause of the loss of
his baggage. Furthermore, the petitioner acted in bad faith in faking a retrieval receipt to bail itself out
of having to pay Co's claim. (Philippine Air Lines v. Court of Appeals, G.R. No. 92501 (March 6, 1992))

RULES ON BAGGAGES
 Article 1754. The provisions of articles 1733 to 1753 shall apply to the passenger’s baggage which is not
in his personal custody or in that of his employee. As to other baggage, the rules in articles 1998 and
2000 to 2003 concerning the responsibility of hotel-keepers shall be applicable.

Determine if the baggage is checked in or hand carry

Magkaiba ang application of law as to loss, destruction or deterioration
● Check-in baggage - Refer to Arts. 1733 - 1753
● Hand carry baggage - Refer to Rule on Deposit, or Articles 1998

Hand carried baggage of a passenger, the common carrier is required only to observe the diligence of a
good father of a family (Necessary Deposit), BUT for check-in luggage, the carrier will have to exercise
extraordinary diligence.

Where the common carrier accepted its passenger's baggage for transportation and even had it placed in
the vehicle by its own employee, its failure to collect the freight charge is the common carrier's own
lookout, and cannot be used to exempt the common carrier from liability for the consequent loss of the
baggage. (Sarkies Tours Philippines, Inc. v. Court of Appeals, G.R. No. 108897 (October 2, 1997))

Q: Paano kung hindi ka nagbayad ng freight charges like in this case?

A: It will not exempt the Common Carrier from liability. It is the Common Carrier’s own fault for
overlooking.

Article 1998. The deposit of effects made by travellers in hotels or inns shall also be regarded as
necessary. The keepers of hotels or inns shall be responsible for them as depositaries, provided that
notice was given to them, or to their employees, of the effects brought by the guests and that, on the
part of the latter, they take the precautions which said hotel-keepers or their substitutes advised relative
to the care and vigilance of their effects.

Requisites to hold Common Carrier liable for hand carry baggage

It is a contract of deposit, not a common carrier
1) Notice was given to them or to their employees of the effects brought by the guests.
2) Required diligence is that of a good father of a family, and no extraordinary diligence.
REQUISITES FOR LIABILITY
1) They (common carrier) have been previously informed about the baggage or effects brought by the
passengers
2) Passengers have taken the precautions prescribed regarding their safekeeping

EXTENT OF LIABILITY

The liability is not limited to effects lost or damaged in the hotel rooms which come under the term
“baggage” or articles such as clothing as are ordinarily used by travelers but include those lost or
damaged in hotel annexes such as vehicles in the hotel’s garage.

WHEN HOTEL-KEEPER (COMMON CARRIER) LIABLE

1) The loss or injury is caused by his servants or employees as well as by strangers provided that
notice has been given and proper precautions taken
2) The loss is caused by the act of the thief or robber done without the use of arms and irresistible
force for in this case, the hotel-keeper (common carrier) is apparently negligent.

WHEN HOTEL-KEEPER (COMMON CARRIER) IS NOT LIABLE

1) The loss or injury is caused by force majeure, theft or robbery by a stranger with the use of arms
or irresistible force, unless he is guilty of fault or negligence;
2) The loss is due to the acts of the guests, his family, servants or visitors;
3) The loss arises from the character of the things brought into the hotel (carrier).

Article 2003. The hotel-keeper cannot free himself from responsibility by posting notices to the effect
that he is not liable for the articles brought by the guest. Any stipulation between the hotel-keeper and
the guest whereby the responsibility of the former as set forth in articles 1998 to 2001 is suppressed or
diminished shall be void.
 CARRIAGE OF PERSONS

Article 1755. A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the
circumstances.

We believe that the behaviour of the captain of the "Don Juan" in tills instance — playing mahjong
"before and up to the time of collision — constitutes behaviour that is simply unacceptable on the
part of the master of a vessel to whose hands the lives and welfare of at least seven hundred fifty
(750) passengers had been entrusted. Whether or not Capt. Santisteban was "off-duty" or "on-duty" at or
around the time of actual collision is quite immaterial; there is, both realistically speaking and in
contemplation of law, no such thing as "off-duty" hours for the master of a vessel at sea that is a
common carrier upon whom the law imposes the duty of extraordinary diligence (Mecenas v. Court of
Appeals, G.R. No. 88052 (December 14, 1989))

This is an illustration of the requirement to exercise utmost diligence. There is no such thing as
off-duty. As the master of the vessel, he must exercise extraordinary diligence at all times. In this case, the
ship captain was playing mahjong kasi off duty daw siya up to the time of the collision. The Supreme Court
held that it is not an acceptable behavior.

San Diego v. Transit MD

(CA) 61 O.G. 3416

The bus stopped when an old man signaled that he wanted to ride. AS soon as the old man stepped on the
platform of the bus, the bus driver recklessly started to accelerate the bus. The old man slipped and was
ran over, causing his death.

Held: There was a perfected contract of carriage; as soon as the old man placed his foot on the platform,
he was already a passenger.

Extraordinary DIligence already started

 So when it comes to land transportation, specially bus companies, taxi, jeepney operators, once
passenger places his foot on the platform of the common carrier, he is already considered as a passenger,
responsibility already started for the common carrier, therefore, entitled to all the rights pertaining to
common carriage

Dangwa Transpo. Co. v. Court of Appeals

202 SCRA 574 (1991)

The victim herein, by stepping and standing on the platform of the bus, is already considered a passenger
and is entitled to all the rights and protection pertaining to a contract of carriage.

A public utility bus, once it stops, is in effect making a continuous offer to bus riders.

When it comes to land transportation

Pag huminto ang bus jeep o taxi in effect he is making an offer so much so as passenger opens the
door or steps on the platform, he is already considered a passenger

Such duty of a common carrier to provide safety to its passengers so obligates it not only during the course
of the trip but for so long as the passengers are within its premises and where they ought to be in
pursuance to the contract of carriage (Light Rail Transit Authoirty v. Natividad, G.R. No. 145804
(February 6, 2003))

Buying a token will not make you a passenger right away

Sa mga trains, iba ang rules sa trains. LRTA vs. Navidad. Hindi kailangan tumapak sa platform ng
train, it is enough that you are already within the premises of the LRT, and that circumstance, according to
the Supreme Court will make you a passenger.

Passenger: Buy the token > enter the premises of LRT > go the place where the train is supposed to arrive.

Light Rail Transit AUthority v. Navidad

G.R. NO. 145804 (February 6, 2003)
 Nicanor Navidad, then drunk, entered the EDSA LRT station after purchasing a “token”. The security guard
assigned to the area approached Navidad. A misunderstanding or altercation between the two apparently
ensued that led to a fist fight. At the exact moment that Navidad fell, an LRT train, was coming in,
Navidad was struck by the moving train, and he was killed instantaneously.

Held: Such duty of a common carrier to provide safety to its passengers so obligates it not only during the
course of the trip but for so long as the passengers are within its premises and where they ought to be in
pursuance to the contract of carriage.

Ang nangyari kay Navidad ay he entered drunk, and altercation before Navidad and the security
guard ensued, Navidad fell, and the train was coming in which struck Navidad. The Supreme Court held that
not only during the course of the trip that the carrier is responsible.

British Airways v. Court of Appeals

218 SCRA 699 (1993)

A contract of carriage of passengers has two aspects, namely:

1) Contract to carry (at some future time), which contract is consensual and is necessarily perfected
by mere consent under Art. 1356 of Civil Code, and
2) Contract of “common carriage” itself should be considered as a real contract, for not until the
carrier is actually used can the carrier be said to have already assumed obligations of a carrier.

A carrier can be held liable for damages for failure to comply with the contract to carry that is consensual
in nature.

Like sa MRT or LRT, the mere fact you bought a ticket is not enough. There should be an intention to
make use of services of common carrier

La Mallorca v. Court of Appeals

17 SCRA 793 (1966)
 A married couple and their child were passengers in a La Mallorca bus which was proceeding to its
terminal. When the bus reached the terminal safely, the family went down the bus safely, but while
waiting for their baggage, the child went in front of another bus, was run over and killed.

Held: The child was still a passenger at the time of the accident, hence, the carrier was still liable. The
contract of carriage ends only after a reasonable time within which to get out of the bus terminal.

Doctrine: Contract of Carriage ends only after a reasonable time within which to get out of the bus
terminal. The passenger should be given sufficient time to get out of the terminal for the contract to end.

Aboitiz Shipping v. Court of Appeals

179 SCRA 95 (1989)

Once created, relation of carrier and passenger continues and will not terminate until passenger has
been landed at the port of destination safely alighted from carrier’s conveyance and had a reasonable
opportunity to leave carrier’s premises — he remains a passenger within the reasonable time he remains
in the premises. What is a reasonable time is determined from all the circumstances, and includes a
reasonable time to see after his baggage and prepare for departure.

NEGLIGENCE UPON TRANSPORT OF PASSENGERS

Article 1756. In case of death of or injuries to passengers, common carriers are presumed to have been
at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as
prescribed in articles 1733 and 1755.

The best evidence of a contract of carriage of passenger is the ticket; nonetheless, there may still be a
contract of carriage even without a ticket, since the Statute of Fraud does not cover contracts of
carriage, which means that a contract of carriage may be oral.

The Statute of frauds do not cover contracts of carriage. Which means it may be oral, parang sasakay
ka sa bus bibili ka lang ng ticket. It can be proven by testimonial or circumstantial evidence
 The carrier is not an insurer of the safety of the passengers. If the death or injury was due to a cause
beyond the control of the carrier, it will not be liable to the passenger. However, it must do everything in
its power to prevent any passengers from getting hurt. It must take precautionary measures.

The Supreme Court held that when JAL was prevented from resuming its flight to Manila due to the effects
of the Mt. Pinatubo eruption, whatever losses or damages in the form of hotel and meal expenses, the
stranded passengers incurred, it cannot be charged to JAL (Japan Airlines v. Court of Appeals, G.R. No.
1185564 (August 7, 1998))

This is a good example when Common Carrier is exculpated from liability due to a fortuitous event.

Article 1757. The responsibility of a common carrier for the safety of passengers as required in articles
1733 and 1755 cannot be dispensed with or lessened by stipulation, by the posting of notices, by
statements on tickets, or otherwise.

In transport of passengers, diligence cannot be dispensed or lessened by stipulation

Take note of Art. 1757. Kanina we discussed stipulations limiting liability, that is only applicable to
transportation of goods. If its transportation of passengers, it cannot be dispensed with. The exception is at
the next article.

BAR TIP: It is a good question for the Bar.

Article 1758. When a passenger is carried gratuitously, a stipulation limiting the common carrier’s liability
for negligence is valid, but not for willful acts or gross negligence.

The reduction of fare does not justify any limitation of the common carrier’s liability.

If may discount (reduction of fair) do not justify any limitation

For a waiver to be valid and effective, it must not be contrary to law, morals, public policy or good
 customs. To uphold a supposed waiver of any right to claim damages by an injured passenger, under
circumstances like those exhibited in this case, would be to dilute and weaken the standard of
extraordinary diligence exacted by the law from common carriers and hence to render that standard
unenforceable. We believe such a purported waiver is offensive to public policy. (Gatchalian v. Delim,
G.R. NO. 54687 (Octover 21, 1991))

Commonly, kapag ang bus nahulog sa ravine, they will pay for hospital expenses and the victims will
sign the waiver or quitclaim. Yung mga waiver na pinapapirma sa mga victims, sabi ng Supreme Court ay it
is offensive to public policy, therefore, void. Because that would render the law nugatory.

For it to be valid, it must not be contrary to law, morals, public policy, or good customs.
● If offensive to public policy then void
● Otherwise, it would weaken the standard of diligence required by law

Article 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former’s employees, although such employees may have acted beyond
the scope of their authority or in violation of the orders of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of a
good father of a family in the selection and supervision of their employees.

Article 1759 provides for negligence or willful acts of CC’s employees

Significance: Liability is quite absolute. Common carrier cannot interpose the defense that the employee
acted beyond the scope of his authority or acted in violation of the orders of the common carrier or that it
exercised all the diligence of a good father of family in the selection and supervision of the employees

GR: Common carriers are liable to the death or injuries to passengers through the negligence or willful acts
of the former’s employees, although such employees may have acted beyond the scope of their authority or
in violation of the orders of the common careers
XPN: Off-duty ang employee
 RELEVANT JURISPRUDENCE

Maranan v. Perez
20 SCRA 413 (1967)

A taxi driver held-up his passenger, who resisted and was killed. His heirs sued based on culpa contractual
against the taxi company, which denied liability on the ground that the driver acted beyond the scope of
his authority.

Held: It may be true that the taxi driver was acting beyond the scope of his authority but Art. 1759 of the
Civil Code expressly provides that the owner is liable for negligence of the employees even if such acts are
beyond the scope of his authority. The taxi company was held liable on culpa contractual.

R Transport Corp. v. Pante

599 SCRA (2009)

A bus hit a tree and a house due to the fast and reckless driving of the bus driver. Passenger sustained
physical injuries as a result of the vehicular accident. Bus company denied liability since they exercised
required diligence in the selection of the employees.

Held: Common carriers cannot avail of the defense that exercised all the diligence of a good father of a
family in the selection and supervision of their employees. Liability is based on contract, and diligence
in the selection is a defense for quasi-delict, not for breach of contract.

ILLUSTRATION

A, inc. — Bus company

B — Bus driver, recklessly driving
C — Passenger injured
 a. CULPA CONTRACTUAL (Breach of Contract) — An action based on culpa contractual will be captioned
“Passenger C v. A, Inc.” since the contract is between them, and the cause of action is breach of contract.
Driver B is not to be included as a party, since there is no privity as to him

Pwede sya magfile ng case based on culpa contractual. You do not include the driver because he is
not party to the contract, he is merely an employee, you only implead the bus operator, in this case
company A. If you want to include the driver, contributory negligence is partial, ikaso mo is quasi-delict and
not breach of contract, because if its quasi-delict, you are filing for damages, Mr. C vs. A Incorporated and
Driver C, pwede na dalawa kasuhan and once found guilty, defendants will be considered solidary liable as
tortfeasors

Defenses In Culpa Contractual

a) Exercise of extraordinary due diligence;

b) Injury or death caused by fortuitous event; or
c) Contributory negligence of the passenger under Arts. 1762 and 2179 of the Civil Code

BAR TIP: Take note of defenses kasi kasama sa syllabus

b. CULPA AQUILIANA (Quasi-delict) — Damage caused to another due to negligence. The case will be
entitled “Passenger C v. A, Inc. and Driver C”, and the defendants will be solidarily liable as joint
tortfeasors.

If you want to file a case against the driver, cause of action is based on quasi-delict

Philtranco Service Enterprises v. Court of Appeals

273 SCRA 562 (1998)

Under quasi-delict the liability of the registered owner of a public service vehicle for damages arising from
the tortious act of driver is primary, direct and solidary with the driver, pursuant to Art. 2194 of the Civil
Code. The only recourse of such owner if the judgment is satisfied by him is to recover what it has paid
 from its employee who committed the fault or negligence which gave rise to the action based on
quasi-delict pursuant to Art. 2181.

Unde quasi-delict, the registered owner is liable primary, direct and solidary with driver

C. CULPA CRIMINAL — Driver B’s negligence may amount to a crimeL reckless imprudence, resulting in
physical injuries. The case will be entitled “People v. Driver B,” and if the latter is convicted but is
insolvent, an action can be pursued by Passenger C against A, Inc. to enforce the latter’s subsidiary
liability.

● Criminal Case Title - People (plaintiff) v. B (reckless driver)(defendant)

● There is no need to include the bus company
● Note: People v. reckless driver ; reckless imprudence resulting to physical negligence; an action can
be enforced against the bus company even if it was not impleaded as a party in the criminal case

Pajarito v. Seneris
87 SCRA 275 (1978)

Conviction of employee is conclusive upon employer as to his subsidiary liability, although the latter may
not in the strict sense be a party to the criminal case brought against the employee. Enforcement of
employer’s subsidiary liability may be conveniently litigated within the same criminal proceedings because
the execution of the judgment is a logical and integral part thereof. Employer will have the right to
present evidence of the employee’s solvency to avoid liability.

Remedy of employer is to present evidence that employee is not insolvent

Applicable lang ang subsidiary liability kung insolvent ang employee. Thus, if employee is solvent,
then you cannot hold the employer subsidiarily liable

EXAMPLE: Sir experienced a case where he was with the accused. The case is reckless imprudence which
resulted in the death of a person and the client was convicted. Since the case was for reckless imprudence,
sir applied for probation which was granted. Plaintiff filed for motion for execution to recover civil liability
from the driver for the death of the victim but it appeared that driver has no money. Buti nalang, hindi alam
ng kalaban namin na pwedeng ienforce ang civil liability sa company based on the doctrine in Pajarito v
Seneris (1978). They did not pursue an action to invoke subsidiary liability against the employer.

This is a good lesson for you future lawyers. If you are counsel for the victim and the driver was convicted
but he was held as insolvent, then you can pursue the subsidiary liability of the common carrier or employer
based on Pajarito v Seneris (1978)

In this case, even if the common carrier is not impleaded, the common carrier can still be held liable. If you
are the lawyer for the victim, once you have secured conviction and there is civil liability and accused is
insolvent, you can file a motion for execution holding Common Carrier liable under subsidiary liability and
Court will hear it

The employer will have the opportunity to prove 2 things

1) That the employee is solvent; and
2) There is no ee-er relationship
Otherwise, if the employer cannot prove these things, then the motion for execution will be granted by the
court

TIP: Remember this because even lawyers forget it

RESPONSIBILITY OF PASSENGERS

Article 1761. The passenger must observe the diligence of a good father of a family to avoid injury to
himself.

He had first hand knowledge that the ticket in question would expire on March 27, 1990 and that to secure
an extension, he would have to file a written request for extension at the PAL’s office in the Philippines.
Despite this knowledge, appellant persisted to use the ticket in question (Cervantes v. Court of Appeals,
G.R. No. 125138 (March 2, 1999))

In this case, his ticket expired for the trip on the way back and he did not file for a letter of
extension. It was not granted. He should have exercised diligence.
 Article 1762. The contributory negligence of the passenger does not bar recovery of damages for his
death or injuries, if the proximate cause thereof is the negligence of the common carrier, but the amount
of damages shall be equitably reduced.

● Amount of damages is equitably reduced

● What if it’s the proximate cause of the loss?

Isaac v. Ammen Transportation

101 Phil 1046 (1957)

The road on which the bus was passing was wide enough for two buses only. A passenger placed his elbow
outside the window railing of the bus. An incoming bus hit the passenger’s elbow, injuring it in such a
manner that it had to be amputated.

Held: Carrier is not liable. The proximate cause of the injury was the passenger’s own contributory
negligence a complete defense to the carrier and absolves it from liability. When the injured passenger is
guilty of the contributory negligence, his contributory negligence will only serve to diminish the liability of
the carrier and not extinguish it, except if it is the proximate cause of the injury, in which case it serves
to absolve the carrier from any liability.

BAR TIP: There is a problem on contributory negligence on part of passenger, determine if it is the
proximate cause of the loss or accident

Proximate cause was passenger’s own contributory negligence

What happened here ay nung pabalik siya yung ticket was expired na, he was not allowed to board
the plane. It was a good example to show that a passenger should also exercise the diligence of a good
father of a family.

Q: What if the contributory negligence was the proximate cause of the loss?
A: In the case of Isaac vs. Ammen Transportation, which involved a road which was big enough for two buses
and a passenger who stuck his elbow out of the bus railing causing him to get hit by another bus, in a
manner that he needed to get amputated.
 According to the Supreme Court, the carrier is not liable, because the proximate cause of the injury
was the passenger’s own contributory negligence which is a complete defense of the carrier to be absolved
from liability. In the bar, when there is a question in which you notice that there is contributory negligence
on the part of the passenger, then you need to determine and check what is the proximate cause of the
accident or loss.

Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the
willful acts or negligence of other passengers or of strangers, if the common carrier’s employees through
the exercise of the diligence of a good father of a family could have prevented or stopped the act or
omission.

● Take note of the qualification underlined in the provision.

● Article 1763 states now that a common carrier can also be responsible for injury suffered by
passengers caused by co-passengers.

Manila Railroad v. Ballesteros

6 SCRA 641 (1966)

The driver stopped the bus to answer a call of nature. While the driver was thus outside the bus, one of
the passengers went into the driver’s seat and drove off the bus, which met an accident, causing injury to
another passenger. Is Manila Railroad liable for the acts of the passenger?

Held: Yes, because Manila Railroad driver was guilty of negligence in leaving the key on the ignition. Had
drivert taken the key with himself, the passenger could not have driven off with the bus. The carrier is
therefore liable for injuries when the carrier’s employees could have prevented the injuries through
exercise of due diligence.

First impression, dapat hindi liable ang CC ano? However, the Supreme Court ruled that Manila
Railroad is liable for negligence for leaving the key. Kung kinuha niya yung susi nung umihi siya, hindi sana
nangyari ang aksidente.

Bachelor Express v. Court of Appeals

 188 SCRA 216 (1990)

The act of a passenger stabbing another passenger in the bus is considered as force majeure. However, to
be absolved from liability in the case of force majeure, the common carrier must still prove that it was
not negligent in causing the injuries resulting from such accident; otherwise, it would still be held liable.

Even if the situation involves force majeure, the same cannot apply because there was negligence on
the part of the driver.

Sa first impression, parang walang liability ang Contract of Carriage.What happened here is may nag
amok sa loob ng bus so pinagsasaksak niya. So sa takot ng mga ibang passenger, may mga tumalon at got
injured. Later on, those who jumped filed a case. Bachelor Express in defense claimed force majeure.

Hence, the Supreme Court held that there was negligence when the driver did not immediately stop the bus
instead of continuing then those who jumped wouldn’t have been seriously injured.

— end on provisions on common carrier —

DAMAGES

DAMAGES RECOVERABLE

In an action based on culpa contractual the damages recoverable against a common carrier are as follows:

1) Actual damages (daño emergente) - Expenses for medicine, hospitalization, etc.

2) Unrealized profits (luco cesante) - Always recoverable as compensatory damages which shall be
fixed by determining the net yearly income of the injured or deceased passenger and multiplying
the same by the number of years that he was expected to live or lead a gainful existence as
determined by mortality tables of life insurance companies of the Philippines.
3) Moral damages - Awarded in culpa contractual in the following:
○ Where mishap resulted in the death of a passenger. (Art. 1764 in relation to Art. 2206, Civil
Code; Japan Airlines v. Simangan, 552 SCRA 341 (2008)).
 ○ When carrier was guilty of fraud or bad faith, even if death did not result. (Art. 2220, Civil
Code, Sabena Belgian World Airlines v. COurt of Appeals, 171 SCRA 620 (1989) )
○ If the cause of action is culpa aquilian where passenger suffered physical injuries, there is
no need to prove that the carrier acted fraudulently or in bad faith. (Art 2210 (2), CIvil
Code)

Q: What are the damages that could be recovered when it comes to loss, destruction, injury on the
passenger.
A: If the cause of action is culpa contractual or breach of contract
Take note of the underlined portion: Unrealized profits computed by determining the net, yearly
income of the injured or the deceased employee multiplied on the life expectancy or years indicated on
mortality life table of insurance companies
Moral damages could be also awarded but only due to: mishap resulting to death of passengers,
carrier was in bad faith even if death did not result, action was culpa aquiliana, if passenger suffered injury.

RELEVANT JURISPRUDENCE

Lopez v. PAN-AM
16 SCRA 431 (1966)

Senator-Passenger and family had tickets for first class seats on PAN-AM bound for San Francisco. When
they arrived in Tokyo, the plane’s crew found out that the first class tickets had been oversold, and they
were compelled to take the economy seat. When the plane arrived at San Francisco, Filipino officials and
the Filipino community with a band waited for Senator Lopez to appear from the first class section, but he
did not as he was in the economy section. Lopez was humiliated; thus, he filed this suit to recover moral
damages.

Held: PAN-AM should have informed Lopez of possible downgrading to prevent humiliation. The Court
awarded Lopez large amounts (P300,000 in moral damages and P150,000 as attorney’s fees), in view of the
importance of the person of the passenger.

Zulueta v. PAN-AM
 43 SCRA 397 (1972)

Zulueta was on a PAN-AM flight with his family from San Francisco to Manila. On a stopover at Wake Island,
the passengers were told that the plane would leave in 30 minutes. After 30 minutes, Zulueta failed to
show up, the crew had to look for him. When he was found, the plain captain called Zulueta a “brown
monkey”. Zulueta answered back and a bitter exchange followed. Captain got angry and ordered the crew
to unload Zulueta’s baggage, and he was left behind. Zulueta filed an action in Manila to recover moral
damages.

Held: Court awarded P500,000 as moral damages and aP50,000 as attorney’s fees for the harsh treatment
of Zulueta

Philippine Airlines, Inc. v. Lao Lim

684 SCRA 224 (2012)

Although exemplary damages are not recoverable as a matter of right, nonetheless the grant of exemplary
damages was in order since respondent has been found entitled to temperate damages, especially so
when the airline acted in bad faith by not informing the passengers of the erroneous cancellation of
their bookings on the flight.

LIABILITY FOR PASSENGER’S DEATH

The common carrier, in breach of its contract of carriage that results in the death of a passenger, is liable
to pay the following:
a) Indemnity for death (P50,000);
b) Indemnity for loss of earning capacity; and
c) Moral damages

MD Transit v. Court of Appeals

90 SCRA 542 (1979)
 Modified the Villa Rey Transit and Davila rulings by holding that instead of taking the gross earning only
the net earnings per year was multiplied by the number of years of life expectancy.

● MD Transit v. CA - simple computation for earning capacity

● People v. More - formula for computing earning capacity

People v. More
321 SCRA 538 (1999)

The established formula to determine lost earnings:

NET EARNING CAPACITY: Life Expectancy x Gross Annual Income - Less living expenses

Where:
● Life expectancy =2/3 x (80 - age of the deceased)
● Gross Annual Income = Deceased’s annual income before deduction of the living expense
● Living Expenses = 50% of gross annual income

DOCTRINE OF LAST CLEAR CHANCE (SPECIFICALLY IN THE BAR SYLLABUS)

DOCTRINE OF “LAST CLEAR CHANCE” states that a person who has the last clear chance or opportunity
of avoiding an accident, notwithstanding the negligent acts of his opponent is considered in law as solely
responsible for the consequences of the accident

“Solely liable” means one and only liable. Hindi magiging liable yung other person.

Is this a good defense in the liability of a Common Carrier? The Supreme Court said that this doctrine
is applicable only in a suit between owners and drivers of colliding vehicles.. It is not applicable when action
is based on breach of contract or culpa contractual (eg: when you are the passenger). Thus, in this situation,
it is not a good defense. Only in collisions, yung nagbanggaan lang. Hindi sa culpa contractual
 Tiu v. Arriesgado
437 SCRA 426 (2004)

Doctrine of last clear chance is applicable only in a suit between the owners and drivers of colliding
vehicles (eg: in case of quasi-delicts) it does not arise where a passenger demands responsibility from
the carrier to enforce its contractual obligations (culpa contractual), for it is inequitable to exempt a
negligent driver and owner on the ground that the other driver was likewise guilty of negligence

Note that the Supreme Court made mention that, “... it is inequitable to exempt negligent driver
and owner on the ground that the other driver was likewise guilty of negligence”

KABIT SYSTEM

KABIT SYSTEM - An arrangement whereby a person who has been granted a certificate of public
convenience allows other persons who own motor vehicles to operate them under his license, sometimes
for a fee or percentage of the earnings.

Although the parties to such agreement are not outrightly penalized by the law, the kabit system is
invariably recognized as being contrary to public policy and therefore void and inexistent under Art. 1409
of the Civil Code. Lim v. Court of Appeals, 373 SCRa 394 (2002)

Villanueva v. Domingo
438 SCRA 485 (2004)

Registered owner of vehicle is directly and primarily responsible to the public while it is being operated;
and whether the driver is authorized or not by the actual owner is irrelevant to determining the liability of
the registered owner whom the law holds primarily and directly responsible for any accident, injury or
death caused by the operation of the vehicle in the streets and highways. The main purpose of vehicle
registration is the easy identification of the owner who can be held responsible for any accident, damage
or injury caused by the vehicle.
 This case partakes the registered owner rule (directly liable to the public; easy identification of
owner who can be held liable for any accident caused by the vehicle). The victim can run after the
registered owner, and then the latter will ask for reimbursement from the actual offender

BOUNDARY SYSTEM

BOUNDARY SYSTEM - An arrangement whereby the vehicle’s registered owner allows another person to
operate it as a common carrier under a lease agreement, and thereby avoiding the establishment of either
an employer-employee or a principal-agent relation.

Magboo v. Bernardo
7 SCRA 952 (1963)

An employer-employee relationship is deemed to exist between a jeepney-owner and driver under the
“boundary system”, the features which are: driver does not receive a fixed wage but gets only the excess
of the amount of fares collected by him over the amount he pays to the jeep-owner; and gasoline
consumed is for the account of the driver — are not sufficient to withdraw the relationship between them
from that of employer and employee. Jeepney-owner is subsidiarily liable as employer under Art. 103 of
the Revised Penal Code.

The relationship is basically one of employer-employee, and not lessor-lessee under the boundary
system. Therefore, jeepney operator is subsidiary liable.

BILL OF LADING

BILL OF LADING - is a written acknowledgment of receipt of the goods and an agreement to transport and
deliver them at a specific place to a person named or on his order.

FUNCTIONS
a) Best evidence of existence of contract of carriage of cargo
b) If negotiable, ownership over the goods represented may be transferred by negotiation. Art. 1636
 of the Civil Code mentions bill of lading as a document of title;
c) It serves as the receipt of the cargo
d) It defines the rights and liabilities of the parties in reference to the contract of carriage.

DOCTRINE OF LIMITED LIABILITY IN MARITIME LAW

The shipowner’s or agent’s liability is merely co-extensive with his interest in the vessel such that a total
loss thereof in its extinction. The total destruction of the vessel extinguishes maritime liens because there
is no longer any res to which it can attach. “No vessel, no liability” expresses in a nutshell the limited
liability rule.

This is quite important when it comes to marine transportation.. Basically what this doctrine says is
that If there is no vessel, there is no liability on the part of the ship owner. Thus, total loss of a vessel
results in the extinguishment of liability of the ship owner.

Take note that this doctrine is applicable only on civil liabilities which arise from (1) the conduct of
the captain; (2) collision and (3) unpaid wages

EXCEPTIONS

a) When the injury to or death of a passenger is due either to the fault of the shipowner or to the
concurring negligence of the shipowner and the captain
NOTE: If the carrier failed to overcome the presumption of negligence, the limited liability
rule does not apply (Aboitiz Shipping v. New INdia Ins. Co. Ltd., 488 SCRA 563 (2006))
b) When the vessel is insured(to the extent of the insurance proceeds);
c) In Workmen’s Compensation claims;
d) Claim for death benefits under POEA- SEC (POEA Standard Employment Contract;
e) Claim is not maritime like collision of vessels used for transportation of goods in rivers.

Take note what is required under (a), “concurring negligence”

 In other words, if it is due to the fault of the ship captain only, then doctrine of limited liability is
still applicable.
● Aboitiz Shipping - the Supreme Court said that if carrier failed to overcome the presumption of
negligence, limited liability rule will not apply

Who can invoke the Limited Liability Rule?

It is the shipowner who can invoke the limited liability rule. He is the person for whom the rule has been
conceived. The charterer cannot invoke the limited liability rule as a defense especially against the
shipowner (De La Torre v. CA, 653 SCRA 714 (2011))

Fault is on the part of the shipowner or concurring negligence of the shipowner and ship captain,
applicable ung doctrine of limited liability

CHARTER PARTY

CHARTER PARTY

A charter party is a contract by which the entire ship or some principal part thereof is let by the owner to
another person for a specified period of time or voyage.

Two types of Charter Parties

a) A Contract of Affreightment which involves the use of shipping space leased by the owner in part
or as a whole, to carry goods for others:
a) Time charter - leased for a fixed period of time; and
b) Voyage - for a single or particular voyage
b) A Charter by Demise or Bareboat - by the terms of which the whole vessel is let to the charterer
 which transfers to him its entire command and possession and consequent control over its
navigation, including the master and cre who are his servants. The charterer is treated as owner
pro hac vice of the vessel, in such case, a common carrier becomes a private carrier (Planters
Products, Inc. V. CA, et al. 226 SCRA 476)

● Bareboat - entire vessel, command, crew were in control.

○ Vessel is converted to a private carrier
○ Private carrier does not apply extraordinary diligence because carrier is converted to private
carrier
● Bar tip: may word na “charter” or “charter party”, determine what kind of charter is being indicated
● If affreightment - remains to be a CC
● If bareboat - private carrier
● If undeterminable - qualify; it depends; “if… then…”

If the charter is a Contract of Affreightment, which leaves the general owner in possession of the ship as
owner of the voyage, the rights and the responsibilities of ownership rest on the owner. The charterer is
free from liability to third persons in respect of the ship (San Miguel Corp. v. Heirs of Inguito, G.R. Nos.
141716 & 142025, (July 4, 2002))

● BUT we do not apply the provisions on common carriers; like presumption of negligence.
○ We apply the applicable provisions on damages because private carrier na siya

BOTTOMRY

Bottomry - Loan secured by the shipowner or ship agent guaranteed by the vessel itself and payable only
upon safe arrival of vessel at destination

It is a contract in the nature of a mortgage, by which the owner of the ship borrows money for the use,
equipment and repair of the vessel for a definite term, and pledges the ship as a security for its
repayment, with maritime or extraordinary interest on a account of the maritime risks to be born by the
lender, it being stipulated that if the ship be lost in the course of the specific voyage or during the limited
 time, by any of the perils enumerated in the contract, the lender shall also lose his money.

Umutang ang ship owner, and the security is the ship itself
● It is payable only upon safe arrival of the vessel. If the vessel does not arrive, then obligation to pay
is extinguished
● Loan is available only to to shipowner

Distinguished from Respondentia

Respondentia - loan secured by the owner of the cargo payable upon safe arrival of cargo at destination.
The lender must be paid his principal and interest through the ship perishes, provided that the goods are
saved.

The shipowner, ship agent or captain cannot secure his loan/

Like bottomry, if the ship or cargo did not arrive then obligation is extinguished

Distinguished From Ordinary Loan

Ordinary Loan Loan on Bottomry and Respondentia

Usury law, if applicable there is usury Usury law is inapplicable

Right to recover from debtor is not extinguished if Right to recover is extinguished if the thing put up
the thing put up as security is lost or destroyed as a security is lost or destroyed

STEVEDORING COMPANY AND ARRASTRE OPERATOR

A stevedoring company which is charged with the loading and stowing cargoes, does not operate business
that is classified as a common carrier. Consequently, it had duly exercised the required degree of
diligence in loading and stowing cargoes, which is the ordinary diligence of a good father of a family.
There is no specific provision of law that imposes a higher degree of diligence than ordinary diligence of a
 stevedoring company or one who is charged only with the loading and stowing of cargoes.

It is not a common carrier

● Function: Loading and stowing of cargoes
● It is required to exercise the Diligence of a Good Father of a Family

Distinguished from Arrastre Operator

● If stevedoring loads, arrestre unloads
●

ARRASTRE OPERATOR

Arrastre refers to a contract for the unloading of goods from a vessel. In Mercantile Law, the term has a
technical meaning as it applies to overseas trade. When a person brings in cargo from abroad, he cannot
unload and deliver the cargo by himself. This is done by the arrastre operator, which will then deliver the
cargo to the importer consignee.

ICSTI v Prudential Guarantee

320 SCRA 244 (1999)

Arrastre operator’s services are clearly not maritime in character as to both the nature of its function and
the place of their performance. The relationship between arrastre operator and consignee is akin to that
between a warehouseman and a depositor. Thus, an arrastre operator is not bound to exercise
extraordinary diligence of a common carrier.

In a claim for loss filed by a consignee, the burden of proof to show compliance with the obligation to
deliver the goods to the appropriate party devolves upon the arrastre operator, who must prove that the
losses were not due to its negligence or its employees

Arrastre Operators are not common carriers

The contract between arrastre and consignee is akin to a contract between warehouseman and
depositor - hence, the Diligence of a Good Father of a Family is required, and not extraordinary diligence.
When considered a common carrier
This is important. Aside from just unloading goods, the arrastre undertakes to take the goods to
consignee to transport from the port - This is the time they are considered a Common Carrier. This is similar
to discussion on customs broker which in itself is not a Common Carrier, UNLESS transportation of goods is
integral part of its business

WARSAW CONVENTION

The Warsaw Convention is an international convention which regulates liability for international carriage
of persons, luggage, or goods performed by aircraft. It unified certain rules in relation to international
carriage by air.

● Note that this is only applicable to international carriage by air transportation

● It regulates liability for international carriage of persons, luggage, or goods performed by aircraft,
applicable to international carriage by air
● Philippines is signatory
○ We learned in international law that once we adhere to international convention or treaty,
○ it becomes part of the law of the land. Hence, bound to observe the provisions of warsaw
convention

The Convention applies to international transportation by act. There is international transportation when:
a) The place of departure and the place of destination are within the territories of two contracting
countries regardless of whether or not there was a break in the transportation or transshipment, or
b) The place of departure and the place of destination are within territory of a single contracting
country if there is an agreed shopping place

When there is international transportation

1) Place of departure and destination are within two territories; or
a) EXAMPLE: US to PH
2) The place of departure and destination are within the territory of single contracting party pero may
stopover with another territory - it is subject to the authority and sovereignty of another (inaudible)
 a) In this situation there can only be one member country, but there is a stopover in another
territory. The provisions of the Warsaw convention will still apply.

DAMAGE OR INJURY FOR WHICH THE CARRIER IS LIABLE

a) Passenger – injury took place (1) on board the aircraft; (2) in the course of any of the operations of
embarking; (3) in the course of disembarking, or (4) when there was or because of delay (Secs. 17
and 19, WC)
b) Checked baggage or goods – damage occurred during air transportation or when there is delay
(Secs. 18 (1) and 19, WC)

These are the instance where the carrier could be held liable for damage/injury under the warsaw
convention

LIMIT OF LIABILITY OF CARRIER

a. Carrier of Passenger - 250,000 francs

Exception:
1) By special contract, the carrier and the passenger may agree to a higher limit of liability (Alitalia
v. IAC, G.R. No. 71929 (December 4, 1990))
2) The limit for passenger death or injury is $75,000 inclusive of legal fees and costs where the US is
the origin, destination or stopping place (Sec. 1 CAB Econ. Reg. (ER) No. 9 (2012)).

The warsaw convention sets the limit on the liability of the carrier:

GR: If carriage of passengers, limitation of liability is 250,000 francs.

● Francs - currency in Switzerland, France, Belgium. Exchange rate is 1 franc = 59 pesos

XPN:
 ● If there’s a special contract between the carrier and the passenger agreeing to a higher limit of
liability

b. Carriage of registered baggage and cargo – 250 francs per kilogramme

Exception: If the passenger or consignor has made, at the time when the package was handed over the
carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the
case so requires. In that case, the carrier will be liable to pay a sum not exceeding the declared sum,
unless (1) he can prove the damage or loss was due to willful misconduct; (2) the damage or loss was
due to gross negligence, (3) absence of a baggage check, (4) the carrier did not issue a ticket; and (5)
in case of waiver by the carrier.

Carriage of registered baggage and of cargo (Check-in baggage)

● 250 francs
● Take note of exceptions (In these cases, limit can be higher than 250 francs per kilogramme)

c. Objects of which the passenger takes charge himself – 5,000 francs per passenger

Objects of which the passenger takes charge himself (Hand-carry) - 5,000 francs per passenger

JURISDICTION/VENUE UNDER WARSAW CONVENTION

NOTE: if you’re a plaintiff, prefer to file in the Philippines, so long as the case falls under any of the four
instances under Article 28 (1)

JURISDICTION/VENUE

Under Article 28 (1) of the Warsaw convention, the plaintiff may bring the action for damages before:
1) The court where the carrier is domiciled;
2) The court where the carrier has its principal place of business
3) The court where the carrier has an establishment by which the contract has been made; or
 4) The court of the place of destination

NOTICE OF CLAIM

Notice of Claim/Complaint — This is MANDATORY or a CONDITION PRECEDENT. The complaint or notice of

claims must be filed with the international carrier:
1) Baggage — within 3 days from receipt
2) Baggage in case of delivery — within 14 days from the time the baggage was placed at the disposal
of the passenger; and
3) Goods — 7 days from delivery

File a notice of claim/complaint, 3 days from receipt of the baggage. In case of delay of delivery,
within 14 days from the time the baggage was placed at the disposal of the passenger. In case of goods, 7
days from delivery.

PRESCRIPTION OF ACTION

The case must be filed in court within:

1) Two (2) years from receipt in case of an action for damage to passenger baggage;
2) If the action is for tort including one for humiliation at the hands of the airline employees, the
case may be filed within four (4) years. (United Airlines v. Uy (Nov. 19, 1999); PAL v. Judge Savillo
(July 24, 2008))

1) If you have a cause of action against the airline, the case must be filed within 2 years from receipt in
case of an action for damage to passenger baggage. You have only 2 years.
2) If the action is for tort including humiliation, the prescriptive period is 4 years.
3) If the case filed involves both/combination of damage to baggage and tort for humiliation, the
Supreme Court held to still apply the 4-year prescriptive period under the Civil Code.
4) Notice of claim is mandatory and should be filed within 3 days from receipt of baggage, within 14
days in case of delay of delivery, 7 days in case of goods.
 RELEVANT JURISPRUDENCE (Penned by J. Caguioa)

There are only 2 cases penned by Justice Caguioa

1. Sanico v. Colipano
2. Unitrans v. ICNA

Sanico v. Colipano
G.R. NO. 20969 (September 27. 2017)

FACTS: A passenger filed a complaint for breach of contract of carriage and damages against the Jeepney
owner and his driver.

In her complaint, the passenger claimed that she was made to sit on an empty beer case at the edge of
the rear entrance/exit of the jeepney with her sleeping child on her lap. And, because of an uphill incline
in the road, the jeepney slid backwards because it did not have the power to reach the top.

The passenger pushed both her feet against the step board to prevent herself and her child from being
thrown out of the exit, but because the step board was wet, her left foot slipped and got crushed
between the step board and a coconut tree which the jeepney bumped, causing the jeepney to stop its
backward movement. The passenger’s leg was badly injured and eventually amputated.

ISSUES:
1) Whether or not both the jeepney and the driver breached the contract of carriage with the
passenger
2) Determination of the owner’s liabilities
3) Validity of the waiver made by the passenger

HELD:
1) Only the owner breached the contract of carriage. Since the cause of action is based on a breach
of contract of carriage, the liability of the owner is direct as the contract between him and the
passenger. The driver of the jeepney cannot be made liable as he is not a party to the contract of
carriage.
2) The operator is liable.

Being an operator and owner of a common carrier, he was required to observe extraordinary
diligence in safely transporting the passenger. When the passenger’s leg was injured while she was
a passenger, the presumption of fault or negligence on operator’s part arose and he had the burden
to prove that he exercised the extraordinary diligence required of him.

However, operator failed to rebut the presumption of fault or negligence under the Civil Code.
More than this, the evidence indubitably established the operator’s negligence when its driver
made the passenger sit on an empty beer case at the edge of the rear entrance/exit of the
jeepney with her sleeping child on her lap, which put her and her child in greater peril than the
other passengers

3) The waiver is void.

For there to be a valid waiver, the following requisites are essential:

(1) that the person making the waiver possesses the right, (2) that he has the capacity and power
to dispose of the right, (3) that the waiver must be clear and unequivocal although it may be made
expressly or impliedly, and (4) that the waiver is not contrary to law, public policy, public order,
morals, good customs or prejudicial to a third person with a right recognized by law.

While the first two requirements can be said to exist in this case, the third and fourth
requirements are, however, lacking.

For the waiver to be clear and unequivocal, the person waiving the right should understand what
she is waiving and the effect of such waiver. Both the CA and RTC made the factual
determination that Colipano was not able to understand English and that there was no proof that
the documents and their contents and effects were explained to her.

For a waiver to be valid and effective, it must not be contrary to law, morals, public policy or good
customs. To uphold waivers taken from injured passengers who have no knowledge of their
entitlement under the law and the extent of liability of common carriers would indeed dilute
the extraordinary diligence required from common carriers, and contravene a public policy
 reflected in the Civil Code.

Additional Fact: The bus company shouldered the hospital expenses and had the passenger sign a waiver
entitled “affidavit of desistance with quitclaim”.

Filed culpa contractual / breach of contract against the jeepney owner and the driver
● The person waiving the right should understand what she/he is waiving
● Colipano was not able to understand English, therefore, third requisite is absent

UNITRANS V. ICNA
G.R. No. 203865 (March 13, 2019)

FACTS: Several musical instruments were shipped from Australia to the Philippines. Upon arrival in Manila,
the container was discharged from the vessel and was received by Unitrans, a freight forwarding entity.
Unitrans then delivered the subject shipment to the consignee. After further inspection, it was found out
that two units of musical instruments were damaged and could no longer be used.

ISSUE: Whether a freight forwarder such as Unitrans can be considered as a common carrier.

HELD: YES, since Unitrans engaged itself "to handle the cargo and to make sure that it was delivered to
the consignee from the port of Manila to the consignee." As noted by the CA, "Del Rosario also admitted
that in so far as the subject shipment is concerned, Unitrans acted as a local agent of BTI Logistics, which
was duty bound to deliver the same to the right party.

Moreover, to reiterate, in its Answer with Counterclaim, Unitrans had already expressly admitted that San
Miguel also engaged its services as customs broker for the subject shipment; one of its obligations was to
pick up the shipment and then transport and deliver the same to the consignee's premises in good
condition.
Another case, Unitrans vs. ICNA. Take note, yung vessel, Unitrans, petitioner of case, hindi sya ang
nag-transport ng goods, sila lang ang nag-receive ng container, because they are freight forwarding entity.

Two units of musical instruments were damaged. Issue was whether Unitrans can be considered as common
carrier. SC said YES since Unitrans engaged itself to make sure it reach the consignee from port of Manila.
One of the contract state the pickup of the shipment and transport to consignee’s premises in good
condition. Freight forwarding, strictly speaking, is not exactly a common carrier, function tlaga is to mere
make arrangement on movement of goods from origin to consignee. But why did SC said Unitrans is a
common carrier. Because they undertook the delivery instead of merely arranging for their transportation.

● Take note: A freight forwarding company is not automatically a Common Carrier. The ruling in this
case is unique to the circumstances of the party
● Generally, it is not a Common Carrier that transports goods. it merely makes arrangement, akin to a
travel agency.

A Common Carrier is a person or company that actually transports goods or persons pursuant to Article
173 of the Civil Code.

Freight Forwarder is a person or company that organizes shipments for individuals or corporations to get
goods from origin to destination, forwarders typically contract with a carrier to move the goods

Ratio of the Supreme Court for ruling that it is a Common Carrier

Go back to Article 1732 where the Court held that even if it is only a sideline but as long as it is
engaged in the business of transport of goods, then it is a Common Carrier.

A freight forwarder’s liability is limited to damages arising from its own negligence, including negligence
in choosing the carrier; however, where the forwarder contracts/undertakes to deliver goods to their
destinations instead of merely arranging for their transportations, it becomes liable as a common
carrier for loss or damage to goods. A freight forwarder assumes the responsibility of a carrier, which
actually executes the transport, even though the forwarder does not carry the merchandise itself.

FINAL MESSAGE
 “Be faithful in studying subjects coupled with prayer. Back in my day, they said passing the bar is
40/40/20
● 40 - study
● 40 - prayer
● 20 - luck
I think it should be 60/40
● 60 - prayer
● 40 - aral
Try to convince our Boss up there that you want to be a lawyer so He can give you this blessing to
become a lawyer.

Sa instances na hindi mo talaga alam ang sagot kahit anong tumbling ang gawin mo. just close your eyes and
invoke the guidance of the holy spirit. The first thing that comes into your mind, write it down - ay type it
down. Because more often that not, it is inspired by the Holy spirit.”

OPEN FORUM

Q: Is Palawan a common carrier?

A: Generally, it is not a Common Carrier. In questions like “Is it a service carrier?” Go back to definition
under Art. 1732 (Memorize). Remember the discussion on the school bus where it is held to not be a
Common Carrier, but now in the case of Parena, it was held to be a Common Carrier. If it’s part of the
contract to offer their services to the public then it can be considered Common Carrier.

Q: Is money still considered good?

A: Since it can be sent electronically, there is no need to transport or carry it. It doesn’t fall under
definition of “goods” under definition of common carrier

Q: How about the trains for kids in malls?

A: It might be for recreation, and not within the strict definition of Common Carrier. It's similar to rides in
carnivals. However, if it goes out of the mall and engaged in the business of transporting passengers from
one department to another, for compensation, then it might be a Common Carrier.

Q: DNV?
A: LTFRB is trying to regulate bc it is considered CC
Q: Accommodation passenger in CC?
A: It depends on what manner - gratuitous passenger or as to a negotiable instrument?
● If it is gratuitous, then stipulation limiting liability is valid as to goods. If as to passengers, then it is
not valid unless there is stipulation limiting such liability.
○ EXAMPLE: A cab driver gave a ride gratuitously to his crush then met an accident - absent
stipulation to limited liability, the cab driver shall be held liable.

Q: Are Shopee and Lazada Common Carriers?

A: NO, Riders are separate from the platforms. These merely make arrangements, secure riders for the
delivery. It is the rider that is considered CC; BUT if the deliverymen are employed under them, they’re
employed under the seller and engaged in the business of transport, if it is within the definition under 1732,
then it may be considered.

Q: Actions for culpa aquiliana and culpa contractual.

A: NO, there is a prohibition against double recovery. The other will be dismissed.
1 culpa aquiliana (civil) and 1 criminal action - it may be allowed

Q: What is the nature of liability of foodpanda and grab drivers as Common Carriers since they are
considered as individual contractors?
A: Then the liability of foodpanda and grab drivers themselves (eg: ordered from pizza hut through
grabfood, then it shall be grabfood that is liable)
Always go back to definition. If the seller is merely engaged in making goods, then it is not their
liability. They can merely replace the food in case of accident

Q: Doctrine of last clear chance as a defense

A:
● Culpa aquiliana - yes allowed
● Culpa contractual - not allowed
● Criminal - not a defense; issue is different
Q: Does a Common Carrier exercise Extraordinary Diligence to a stowaway passenger?
A: Kapag patagong nakikisakay lang - there is no contract, no meeting of minds. Secretly boarded without
knowledge of operator hence there can be no perfection of contract, and hence, not liable.

Q: Ferrying people from one place to another

A: If for example, it is part of the services of the hotel to transport passengers through ferry, and it is an
integral part of business, then definitely it is Common Carrier.

Q: What if the president makes franchises that are exclusive in character?

A: If it is made by congress and it is not contrary to constitution, then it can be allowed
Q: Are towing services considered as CC?
A: If you tow, do you transport goods? No, it doesn’t fall under “goods” embraced in the definition

Q: Montreal convention 1999 v Warsaw convention

A: Montreal superseded Warsaw. Most provisions in Warsaw were carried over in Montreal. However, 2022
syllabus specifically provides ‘limitations on warsaw convention”

Q: Are E-jeeps considered Common Carriers?

A: Yes, ginawa lang namang electric. They still offer their services to the public for compensation.
 LEGAL ETHICS
Atty. Paulino Ungos III
October 24, 2022

SCRIBES TEAM: Maria Christina Arce| Abby Apasan Aquino | Sherry Jane Pagay | Maria Teresa Gemora |
Christine Huan | Pamela Caryl Dela Cruz | Quimberlyn Ranchez
CHECKED BY: Adrian Macasaquit (Deputy for Academics) | Hannah Keziah Morales (Chairperson for
Academics)

GENERAL PRINCIPLES

A. What is Legal Ethics?

● Legal ethics is the embodiment of all principles of morality and refinement that should govern
the conduct of every member of the bar. It has also been broadly defined as the “living spirit
of the profession, which limits yet uplifts it as livelihood.” (AGPALO, Legal and Judicial Ethics
(2020), p.2 [hereinafter, AGPALO, Legal and Judicial Ethics]).
○ Legal ethics shall raise the legal standards of the profession, encourage and enhance
the respect for the law, assure an effective and efficient administration of justice,
assist in the keeping and maintenance of the law and order in coordination with the
other Departments of the government
○ Legal ethics provides for the basis for weeding out the unfit and misfits in the legal
profession for the protection of the public
○ JURISPRUDENCE: Much is demanded to those who are in the practice of law because
they have duty not only to their clients but also to the Courts, to the Bar, and also to
the public.
■ The lawyer’s diligence to his work and profession not only promotes the
interest of his client, they likewise helps attain the ends of justice by
contributing the proper speedy administration of justice, bring prestige to the
Bar and maintain respect to the legal profession.
■ Thus, the most strict interpretation of ethical standards should be the guiding
stars of lawyers in their day to day conduct whether during practice of their
professions or to day to day private affairs
■ In case of doubt whether an act is ethical, lawyers should adopt the most
stringent interpretation and consider the act to be unethical.
B. Practice of Law
● Practice of law is any activity in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. Generally, to practice law is to give advice or
to render any kind of service which advice or service requires the use in any degree of legal
knowledge or skill. (Cayetano v. Monsod, G.R. No. 100113, September 3, 1991)

CHARACTERISTICS BASED ON JURISPRUDENCE

● Practice of law is a privilege burdened with conditions. There should be faithful compliance
with the rules of the legal profession, maintenance of the highest degree of morality, and
adherence to the standards of mental fitness (Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, April 7, 1983).

● Practice of law is not a money-making venture. Law advocacy is not capital that yields profits.
The returns it bears are simple rewards for a job done or service rendered.
○ It is a calling that, unlike mercantile pursuits which enjoy freedom from government
interference, is impressed with public interest for which it is subject to State
regulation.

● Practice of law is a privilege burdened with conditions. Adherence to the rigid standards of
mental fitness, maintenance of the highest degree of morality and faithful compliance with
the rules and the legal profession are the conditions required for remaining a member of good
standing of the bar and for enjoying the privilege to practice law. (Manalang v. Buendia, A. C.
No. 12079, November 10, 2020

● Practice of law is a privilege burdened with conditions as mentioned a while ago. It is

reserved only to those who are academically trained in law and possess good moral character,
not only the time to its admission to the bar, but even more so thereafter to remain in the
practice of law.

● Power of admission to the practice of law is vested by the Constitution in the Supreme Court.
The said power to admit candidates to the legal profession is a judicial function and involves
the exercise of discretion.
○ A petition to that end is filed with the Supreme Court as are other proceedings
invoking judicial action.
■ The Supreme Court, in turn, acts through a Bar Examination Committee
composed of a Bar chair and the examiners.
○ Acting as a liaison between the Courts and the Bar chairperson, on the one hand and
the individual members of the Committee on the other is the Bar Confidant who is at
the same time Deputy Clerk of the Court.
■ The acts of the Committee that involve exercise of discretion as regards
admission is subject to the final approval of the Court.
C. Who may practice?

● Any person who has been duly licensed as a member of the Bar in accordance with the statutory
requirements and who is in good and regular standing is entitled to practice law.

● Note the two (2) basic requirements to be complied with for a person to be engaged in the
practice of law:
1. Admitted to the bar - this requirement involves various phases consisting of:
a. Furnishing satisfactory proof of educational, moral and other qualifications
b. Passing the bar examinations
c. Taking the lawyer’s oath before the Supreme Court
d. Signing the roll of attorneys and receiving from the Clerk of the Supreme Court a
certificate of license to practice.

2. A lawyer must remain in good and regular standing which is a continuing requirement to the
practice of law
a. He must remain a member of the Integrated Bar of the Philippines;
b. Payment of dues - Regularly pay all Integrated Bar of the Philippines membership dues
c. Assessment - Other lawful assessment, as well as annual privilege tax
d. Ethics - Faithfully observe the rules on ethics of the legal profession
e. Subject to disciplinary control - Be continually subject to judicial disciplinary control

● The rigid requirements and conditions are designed to admit to its ranks ONLY those who are
adequately prepared mentally and morally to discharge the duties of an attorney and to exclude
therefrom those who cannot live up to its exacting standards.
○ The purpose is to protect the public, the Court, and the Bar from incompetence and
dishonesty of those who are unfit to become members of the legal profession.
○ In other words, only those who are competent, honorable, and reliable may practice law and
every lawyer must pursue only the highest standards in the practice of his calling.
D. Qualifications for admission
An applicant to admission to the practice of law must be:
1. Citizen of the Philippines
2. A resident thereof
3. At least twenty-one (21) years of age;
4. Of good moral character
5. He must also show no charges against him involving moral turpitude, have been filed or are
pending in any court in the Philippines
6. Possess the required educational qualifications
7. Pass the Bar examinations

● Regarding the requirement of Filipino citizenship and residence of the Philippines, authority speaks
that this is based on wise and sound principles of public policy, which takes into account that those
connection of the practice of law, with the administration of justice, and the other branches of the
government.

● An alien cannot well maintain allegiance to the Republic of the Philippines, which is required in the
oath of a lawyer.
○ However, a Filipino who was naturalized in another country but subsequently re-acquires
Filipino citizenship under the Citizenship Retention Reacquisition Act of 2003 or R.A. No.
9225, may be allowed to practice law once again.
○ He or she has to secure another an authority to practice from the Supreme Court after
conferring the following conditions:
1. Update and pay in full of the annual membership dues in the Integrated Bar of the
Philippines;
2. Pay professional tax;
3. Complete at least thirty-six (36) credit hours of Mandatory Continuing Legal Education;
4. Retake the lawyer’s oath
E. Age, Maturity, and Discretion

● Every applicant or admission to the Bar must be of age because maturity and discretion are required
in the practice of law.
○ A requirement of possession of good moral character aims to maintain and uphold the high
moral standard and the dignity of the legal profession.

● Jurisprudence teaches that this end is achieved by admitting to the practice of the profession only
those who are shown to be honest, and those who are shown to possess good moral character.

● Good moral character may realistically be defined in terms of acts which have been historically and
traditionally considered as ambiguity of moral turpitude.

● Jurisprudence describes moral turpitude as everything which is done contrary to justice, modesty,
and good morals.
○ An act of baseness, vileness, or depravity in the private and social duties which a man owes
his fellowman and to society in general. Contrary to justice, honesty, modesty, and good
morals.

● On Educational Qualifications, the Rules of Court requires that an applicant must pursued and
satisfactorily completed in an authorized and recognized university, college or school:
1. A four-year (4) High school course;
2. A course of study prescribed for a Bachelor’s degree in Arts or Sciences; and
3. A four-year (4) Bachelor’s degree in Law

● Such requirements are meant to adequately prepare persons for the highly technical work and
growing complexities of advocacy.

● Jurisprudence also teaches the reason that the lawyer is entrusted with the protection of life,
liberty, property or honor and to officially approve one who is not adequately prepared to dedicate
himself to such a delicate mission is to create a social danger.
○ Knowledge of and proficiency in law are among the requirements designed to avoid such
social danger.
● Furthermore, the courses of study leading to the degree of Bachelor of Laws must be taken
progressively in the usual manner.
○ If you recall the case of Caronan v. Caronan (A.C. No. 11316), the respondent whose real first
name was Richard was barred from admission to the Bar for his failure to pursue and
satisfactorily complete a pre-law course.
○ For emphasis, however, as this also relates to a requirement as discussed a few moments ago.
Although the Court did not discount the possibility that Richard may later on complete his
college education and earn a law degree under his real name, the Supreme Court nonetheless
ruled Richard’s false assumption of his brother’s name, identity, and his educational record
had rendered him unfit for admission to the Bar. The Court, therefore, emphasized that the
practice of law is a privilege limited to the citizens of good moral character.

● An applicant’s learning and proficiency in law is ascertained by requiring him to take the Bar
examinations.
○ The subjects chosen to this examination are designed to eliminate whose general intelligence,
learning, and mental capacity are inadequate to enable him to assume and discharge the
duties of an attorney.

● The Supreme Court, in the exercise of its power to admit applicants to the Bar, may likewise
prescribe such other qualifications or requirements as it may deem necessary to elevate the
standards of the legal profession.
F. Oath, Certificate, and Signing of the roll of attorneys

● Remember also the two remaining stages of admission:

1. Applicants should take their oath as provided under Section 17 Rule 138 of Rules of Court.
● The Supreme Court then admits the applicant as member of the Bar and directs that
an order be entered to that effect upon the records and that a certificate of such
record be given him by the Clerk of Court when the applicant received the certificate,

2. He/she then signs the roll of attorneys to become full-fledged member of the Philippine Bar.
● The roll is the official record containing the names and signatures of those who are
authorized to practice law
● If you recall the case Atty. Medado who misplaced there is notice to sign the roll of
attorneys and forgotten about it until he was required to provide his roll number
relating to his compliance of his Mandatory Continuing Legal Education requirement,
the Court in that case mentioned that he could not have been a full-fledged member
of the Philippine Bar when he failed to sign in the roll of attorneys. It was the act of
signing that would have made him so.

● To reiterate, a lawyer must remain in good and regular standing, which is a continuing requirement
for the practice of law.
● This means that he must remain a member of the Integrated Bar of the Philippines, regularly pay all
Integrated Bar of the Philippines membership dues and other lawful assessments, as well as the
annual privilege tax, faithfully observe the rules and ethics of the legal profession, and be
continually subject to judicial disciplinary control.
 CODE OF PROFESSIONAL RESPONSIBILITY

II. CODE OF PROFESSIONAL RESPONSIBILITY

Duties to:
→ Society (Canons 1 to 6)
→ Legal profession (Canon 7 to 9)
→ Courts (Canons 10 to 13)
→ Clients (Canons 14 to 22)

● You have learned that lawyers have duties to society, as seen in Canons 1 to 6, or the legal
profession, Canons 7 to 9 or the courts, Canons 10 to 13, and to the clients, Canons 14 to 22.

A. Canon 1 - A lawyer shall uphold the constitution, obey the laws of the land, and promote respect for
law and legal processes.

Prohibitions:
1. Engaging in unlawful, dishonest, immoral or deceitful conduct (Rule 1.01)
2. Counsel or abetting activities aimed at defiance of the law or at lessening confidence in the
legal system. (Rule 1.02)
3. Uphold the constitution
4. Obey the laws of the land
5. Promote respect for law and for legal processes
 Duties to society (Canons 1 to 6)

● Jurisprudence teaches that while the duty to uphold the Constitution and obey the law is an
obligation imposed on every citizen, a lawyer assumes responsibilities well beyond the basic
requirements of good citizenship.
○ As a servant of the law, a lawyer should moreover make himself an example for others to
emulate.

● Being a lawyer, he is supposed to be a model in the community, in so far as respect for the law is
concerned.

● As mentioned in the Code of Professional Responsibility, a lawyer should neither engage in unlawful,
dishonest, immoral, or deceitful conduct, nor counsel or abet activities aimed at defiance of the law
or at lessening confidence in the legal system.

● This is because such acts discredit the legal profession itself and creates a public impression that the
law can be used to advance one’s personal motives.

● With regard to obedience to the law and respect for the law and legal processes:
1. Whether a lawyer could draft a joint will (1951)
2. Whether a lawyer could advise strikers to ignore an order of injunction or temporary
restraining order (1972 and 2013)
3. Whether a lawyer could advise union members to stage a demonstration before a court to
press for the early resolution of their case (2003)
4. Whether a retired judge could still use his protocol plate (2010)
5. Whether a lawyer could draft documents to violate constitutional limitations relating to
ownership of lands (2016)
6. Whether lawyers could insist on marrying each other even though one of them is still married
(2018)

● Barratry and ambulance chasing (Rule 1.03)

● Lawyer who was asked by a victim to handle a case filed against the person responsible for the
accident (1994, 2011)
 ● Rule 1.03 - A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding
or delay any man’s cause.

● The reason for the rule is to prevent any barratry and ambulance chasing. Barratry is the offense of a
frequently exciting or stirring up the quarrel either at law or otherwise. It is the lawyer’s act of
forming suits among the individual and offering legal services to one of them for monetary motives
and purposes.

● On the other hand, Ambulance Chasing refers to solicitation of almost any kind of legal business by
laymen employed by an attorney for the purpose of having an attorney itself.

Barratry Ambulance Chasing

● Barratry is the offense of a frequently ● Ambulance Chasing refers to solicitation of

exciting or stirring up the quarrel either at
law or otherwise. It is the lawyer’s act of
forming suits among the individual and
offering legal services to one of them for
monetary motives and purposes.
almost any kind of legal business by laymen
employed by an attorney for the purpose of
having an attorney itself.

Previous bar questions asked about the propriety of the following actions:
1. A lawyer who represented his client in a case, urged the other person to file a case of estafa against
said client.
2. A lawyer, who, upon discovering a mining accident, personally convinced the victims to file a claim
to his law firm.
3. A lawyer, who acted in bringing an injured person to the hospital, supported the latter’s decision to
file a suit against a bus company.

Encourage clients to avoid, end, or settle controversy if it will admit of a fair settlement (Rule 1.04)
● A lawyer who approached 2 arguing strangers, introduced himself as a lawyer, offered to help settle
their quarrel amicably, then succeeded. (1966, 1979)

● Rule 1.04 - A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of
a fair settlement.
 ● By express provision of law, fair settlement of cases is also right and encouraged. Take note,
however, that a non-payment of an attorney’s fees is not a ground for the disapproval of a
compromise. The rights of lawyers to peace for services rendered cannot have a higher standing than
the rights of clients’ or the parties themselves.

Previous bar questions:

1. Acts about a propriety of the acts of a lawyer, to approach the two arguing strangers therein
produced themselves as a lawyer offered to help to settle their quarrel, and succeeded to reach an
amicable settlement for the said persons.
2. That a lawyer shall make his legal services available in an efficient and convenient manner
compatible with the independence, integrity, and effectiveness of the profession. Authorities
discussed that this canon requires the services should not only be efficient, but should also be
available and accessible to those who need them in a manner compatible in ethics and the
profession. A lawyer, who accepts professional employment, should be in a position to render
efficiently and effectively legal assistance. Otherwise, he should find another lawyer who is qualified
and able to do so and a lawyer who is qualified to provide efficient legal services should make
available to those who are in need thereof as an obligation. A lawyer suits when he takes his oath of
office.

B. Canon 2 - A lawyer shall make his legal services available in an efficient and convenient manner
compatible with the independence, integrity, and effectiveness of the profession.

● To provide efficient and convenient legal services.

● Authorities discuss that this canon requires that legal services should not only be efficient but should
also be made available and accessible to those who need them in a manner compatible with the
ethics of the profession.

● A lawyer who accepts professional employment should be in a position to render efficient and
effective legal assistance. Otherwise, he should find another lawyer who is qualified and able to do
so.
● Any lawyer who is qualified to provide efficient legal services should make available such services to
those who are in need thereof. This is an obligation a lawyer chooses when he takes his oath of
office.

● Rule 2.01 - A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the
oppressed.

Rule 2.01
● Not reject the cause of the defenseless or the oppressed
● Exceptions
○ When he is not in a position to carry out the work effectively or competently (Rule
14.03); or
○ When he is asked to handle a civil case that is groundless (Lawyer’s Oath) or
interposed for delay (Rules of Court)

Rule 2.02 - In such cases, even if the lawyer does not accept a case, he shall not refuse to render
legal advice to the person concerned if only to the extent necessary to safeguard the latter’s rights

Rule 2.02
● Notwithstanding the refusal:
○ Not refuse to render legal advice to the person concerned
○ If only to the extent necessary to safeguard the latter’s rights
■ But remember Rule 15.03 (conflict of interest)

● Lawyer (who had previously been giving legal advice to her friend) could now decline giving
advice when the latter contemplated on having an abortion (2010)

● But still, also remember Rule 15.03 - A lawyer shall refrain from giving such legal advice if the reason
for not accepting the case is that he favors under a conflict of interest between him and the
prospective client or between a present client and a prospective client because extending such legal
advice will create an established attorney-client relationship between them and may involve
violation of the rule from representing conflicting interest.

● A bar question in 2010, whether a lawyer who had previously giving legal advice for her friend could
now decline giving legal advice and the latter contemplated on having an abortion.
C. Canon 3 - A lawyer in making known his legal services shall use only true, honest, fair, dignified, and
objective information or statement of facts.
● Making legal services known
○ Ethical if:
■ Honest, fair, dignified, objective

● Remember:
○ Rule 3.01 - A lawyer shall not use or permit the use of any false, fraudulent, misleading,
deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications
or legal services.
■ Not deceptive, unfair, undignified, self-laudatory

○ Rule 3.04 - A law shall not pay or give anything of value to representatives of the mass media
in anticipation of, or in return for, publicity to attract legal business.
■ Paying media to attract legal business, prohibited

● Canon 2, Rule 2.03 - A lawyer shall not do or permit to be done any act designed primarily to solicit
legal business.
○ Prohibition on improper solicitation of business
■ Law a profession, not a trade

● It is unethical for a lawyer to advertise his talent as a merchant advertises his wares. Jurisprudence
teaches that the law is a profession and not a trade, the lawyer degrades himself and his position,
stoops to, and adopts the practice of mercantilism by advertising his business or offering them to the
public.

● To allow a lawyer to advertise his stalwart skill, is to commercialize the practice of law. Nowhere in
the provision in public confidence, and lessen his ability to render that high character service to
which every member of the Bar is called.

● Best advertising
○ Good and efficient service
 ● Advertisements when permissible
○ Compatibility with dignity of legal profession

● Some permissible advertisements

○ Reputable law lists
○ Simple signs/ professional cards
○ Modest announcements

● The best advertising possible for a lawyer is a well-merited reputation for professional capacity and
fidelity and trust which must be earned as the outcome of a character and conduct. A good and
reputable lawyer needs no artificial stimulus to generate it and magnify his success. For solicitation
to be proper, it must be compatible with the dignity of the legal profession. It may be a modest and
decorous manner and would bring no injury to the lawyer or to the Bar. An exception is the
publication in a reputable law list of a brief biographical and informative data. Simple signs stating
the name or names of the lawyers, professional cards bearing the name of the lawyers or the lawyers
and the office address or modest announcements of said data are not in proper.

Previous bar questions on solicitation:

1. Business cards (2001, 2002, 2017)
2. An ad stating that the lawyer
○ Could obtain a divorce in 2 weeks (2010)
○ Is competent on annulment of marriages (2003, 2017)
○ Is a specialist in small claims and “fastest in notarization” (2013)
3. A lawyer including her law firm in the by-line of her legal articles in a leading magazine (1989, 1993)
4. A lawyer in a TV or radio program or newspaper ad providing free legal advice to those who cannot
afford to pay for legal services (1980, 1997, 2002, 2013, 2017)
5. Newspaper publishing the opening of a new law firm with photos of business executives, government
officials, and members of the judiciary (1997)
6. Newspaper photo showing lawyer being congratulated by his client for winning the case (2002, 2017)
7. Newspaper advertisements
○ Claiming to facilitate marriage licenses and arrange marriages (1959)
○ Announcing a lawyer’s specialization in criminal law or bribery cases (1968 and 1979)
8. Calling card with an offer of financial assistance (2012)
 ● Rule 3.02 and 3.03
○ Firm names

● Rule 3.02 - In the choice of a firm name, no false, misleading or assumed name shall be used. The
continued use of the name of a deceased partner is permissible provided that the firm indicates in all
its communications that said partner is deceased.
○ No false, misleading or assumed name
● Rule 3.03 - Where a partner accepts public office, he shall withdraw from the firm and his name shall
be dropped from the firm name unless the law allows him to practice law concurrently.
○ Partner accepting public office

D. Canon 4 - A lawyer shall participate in the development of the legal system by initiating or
supporting efforts in law reform and in the improvement of the administration of justice.

● Authorities discussed that these duties know the sense of public responsibility. The lawyer must
recognize that a law must be part of a vast social network and whether he likes it or not, he has to
interact with the rest of the society. A lawyer must broaden out and continue to be required to grow
in knowledge and competence in order to be able to make the law socially responsive.

Canon 4
● To participate in the improvement of reforms in the legal system;
● Use of a name of
○ A deceased partner (1994 and 2001)
○ A partner who was appointed as Undersecretary of Justice (1980)
○ A public prosecutor who refused to represent the local government unit (2006)
○ A public prosecutor who entered his appearance but no longer appeared in subsequent
hearings (2006 and 2017)
○ A public prosecutor who disclosed to the court the fact that the real perpetrator of the crime
approached him and admitted to committing the crime (2016)
E. Canon 6 - These canons shall apply to lawyers in government service in the discharge of their official
tasks.

● Rule 6.01 - The primary duty of a lawyer engaged in public prosecution is not to convict but to see
that justice is done. The suppression of facts or the concealment of witnesses capable of establishing
the innocence of the accused is highly reprehensible and is cause for disciplinary action.

● Public prosecutor (Rule 6.01)

○ Not to convict
○ See that justice is done
○ Not suppress facts
○ Not conceal witnesses

Previous questions give the following situations:

1. Public prosecutor who refused to represent the local government unit or LGU because he did not
believe in the position taken by the local government unit for a certain past case.
2. A public prosecutor who enters his appearance, but no longer appears in subsequent hearings,
because the parties were represented by their respective counsels and his time would be better
spent in substantial prosecutorial functions.
3. A public prosecutor who disclosed to the court the fact of the real perpetrator of the crime
approached him and admitted to committing the crime.
 Duties to the legal profession (Canons 7 to 9)

F. Canon 7 - A lawyer shall at all times uphold the integrity and dignity of the legal profession and
support the activities of the integrated bar.

● Uphold the dignity and integrity of the profession

● Jurisprudence teaches that the respect of the public to the legal profession is immeasurably
enhanced by the faithful performance of the lawyer duties, the court, the society, to his brethren in
the profession, and to his client. Conversely, such respect is inexorably diminished wherenever a
member of the bar betrays his trust and confidence that was reposed in him by his client.

Previous bar question:

● The lawyers act of reporting irregularities of court personnel or the judge to the proper authorities.

G. Canon 8 - A lawyer shall conduct himself with courtesy, fairness and candor toward his professional
colleagues, and shall avoid harassing tactics against opposing counsel.

● Observe courtesy, fairness, and candor towards professional colleagues

● Lawyers of the plaintiff suing another lawyer as co-respondent in action for trespass to dwelling
(1989).
● Lawyer’s act of reporting irregularities of court personnel or the judge to the proper authorities.
(1953)

● Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is abusive, offensive
or otherwise improper.
○ Not use abusive, offensive or improper language which is abusive, offensive or otherwise
improper.

● Jurisprudence teaches that a lawyer's language should be forceful but dignified, emphatic but
respectful as being an advocate and in keeping the integrity of the profession.
Previous bar question:
1. A public prosecutor uttering sarcastic and insulting words while he was reporting the irregularity
committed by the defense counsel in open court (1949).

● Rule 8.02 - A lawyer shall not, directly or indirectly, encroach upon the professional employment of
another lawyer; however, it is the right of any lawyer, without fear or favor, to give proper advice
and assistance to those seeking relief against unfaithful or neglectful counsel.
○ Not, directly or indirectly, encroach upon the professional employment of another lawyer
○ However,
■ Allowed to give proper advice and assistance to those seeking relief against unfaithful
or neglectful counsel.
● Whether a lawyer may render professional services as collaborating counsel if he was desired by the
client, but was objected to by the present counsel (1951, 2001)

● This proscribes competition among lawyers in the matter of securing clientele. A person without a
retained lawyer is a legitimate prospective client for any lawyer. But as soon as he has retained a
lawyer and had not dismissed the same, efforts of other lawyers constitute encroachment. Take note,
however, that it is the right of any lawyer without fear or favor to give proper advice and assistance
to those seeking relief against unfaithful or neglectful counsel.

Previous Bar questions:

1. Whether a lawyer may render professional services as collaborating counsel if he was desired by the
client but was subjected to by the present counsel.
2. A public prosecutor objecting to the defense counsel’s act of interviewing his witnesses.
3. A lawyer communicating with the opposing party offers or persuades the opposing party to enter into
a compromise agreement without the knowledge of the opposing party’s counsel.
H. Canon 9 - A lawyer shall not, directly or indirectly, assist in the unauthorized practice of law.
● Not to assist in unauthorized practice of law
● The prohibition is grounded in the need of the public for integrity and competence of those who
undertake and render legal services because of the fiduciary and personal character of the
lawyer-client relationship and the inherent complex nature of our legal system. The public can
better be assured of the requisite responsibility and competence if the practice of law is confined to
those who are subject to the requirements and regulations imposed upon members of the legal
profession.

● Note also Rules 9.01 and 9.02, a lawyer shall not delegate to any unqualified person the performance
of any task which by law may only be performed by a member of the Bar in good standing. A lawyer
shall not divide or stipulate to divide a fee for the legal services with persons not licensed to practice
law, except where there is a pre-existing agreement with a partner or associate that upon the
latter’s death, money shall be paid over a reasonable period of time to his estate or to persons
specified in the agreement.

Previous bar questions:

1. The formation of a partnership composed of individuals from different professions (1938, 1975, 1988,
2014);
2. The formation of a partnership between a law graduate and a lawyer (1956);
3. A lawyer allowing his non-lawyer staff to operate his law office and conduct business during the
period of his suspension (2008);
4. A non-lawyer who assisted a party in securing the services of a lawyer with the agreement that the
non-lawyer will be paid attorney’s fees if the party wins (1948);
5. A lawyer referring clients to another lawyer with the agreement that the latter will share 10% from
his billing to referred clients (1980, 1988, 2015, 2017);
6. A lawyer asking assistance from another lawyer with the agreement that the former will share his
retainer fee with the latter (1990); and
7. A secretary of a school referring to a lawyer, students who need to notarize their affidavits of loss in
exchange for half of the earnings (2005, 2017).

● A lawyer communicating with the opposing party or persuading the opposing party to enter into a
compromise agreement without knowledge of the opposing party’s counsel (1995, 1997, 2001, 2006,
2009).
● A public prosecutor objecting to the defense counsel’s act of interviewing his witnesses (1983, 2009)

Note also:
● Rule 9.01 - A lawyer shall not delegate to any unqualified person the performance of any task which
by law may only be performed by a member of the Bar in good standing.
○ Delegation of tasks

● Rule 9.02 - A lawyer shall not divide or stipulate to divide a fee for legal services with persons not
licensed to practice law,
Except:
a. Where there is a pre-existing agreement with a partner or associate that, upon the latter’s
death, money shall be paid over a reasonable period of time to his estate or to the persons
specified in the agreement; or
b. Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or
c. Where a lawyer or law firm includes non-lawyer employees in a retirement plan, even if the
plan is based in whole or in part, on a profit-sharing arrangement.
○ Division of fees for legal services
 Duties to the courts (Canons 10 to 13)

I. Canon 10 - A lawyer owes candor, fairness, and good faith to the court.

● Observe candor, fairness, and good faith towards the courts

● A lawyer crafting his statement of facts from his theory of the case to make it appear that it was
based on the findings of fact of the Court of Appeals (1973)
● A lawyer quoting an argument of a party to the case, then stating that it reflected the ratio
decidendi of the decision of the Supreme Court (2000, 2015).
● Rule 10.02
○ Not to misquote

● It’s because a lawyer is first and foremost an officer of the court. His duties to the court are more
significant than those which he owes to his client. His first duty is not to his client but to the
administration of justice. To that end, his client’s success is wholly subordinate and his conduct
ought to and must always be scrupulously observant of the law and the ethics of the profession. For
like the court itself, a lawyer is an instrument to advance the ends of justice. His superior retainer is
with the court, which outlasts all his retainers with his clients. Accordingly, should there be a conflict
between his duty to his client and that to the court, he should resolve the conflict against the former
and in favor of the latter. His primary responsibility being to uphold the cause of justice. It has been
said that it is the lawyer’s sworn and moral duty to help build and not to destroy unnecessarily that
high esteem and regard toward the court so essential to the proper administration of justice.

● Rule 10.02 provides that a lawyer shall not knowingly misquote or misrepresent the contents of a
paper, the language, or the argument of the opposing counsel or the text of a decision or authority,
or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert
as a fact that which has not been proved.

● The significance of this provision is that if not faithfully and exactly quoted, the decisions and rulings
of the Supreme Court may lose their proper and correct meaning to the detriment of other courts,
lawyers, and the public who may be misled.
Previous bar questions:
1. A lawyer crafting his statement of facts from his theory of the case to make it appear that it was
based on the findings of fact of the Court of Appeals; and
2. A lawyer quoting an argument of a party to the case and stating it reflected the ratio decidendi of
the decision of the Supreme Court.

J. Canon 11 - A lawyer shall observe and maintain the respect due to the courts and to judicial officers
and should insist on similar conduct by others.

● Jurisprudence teaches that in criticizing a judge’s decision, the test is whether it is done in good
faith. While the court recognizes a litigant’s right to criticize judges and justices in the performance
of their functions, it is the cardinal condition of all such criticism that it shall be bonafide and shall
not spill over the walls of decency and propriety. A wide chasm exists between fair criticism on the
one hand, and abuse and slander of courts and judges or justices thereof on the other. Intemperate
and unfair criticism is a gross violation of the duty of respect to the courts.

● Respect to courts and judicial officers

Previous bar questions:

1. A lawyer’s letter to a judge, stating that the judge had lost the confidence of the public and
suggesting the propriety of his resigning from office (1927)
2. A lawyer publicly criticizing the Supreme Court for having rendered an unjust judgment and
ridiculing the members of the Court by direct insults and in comparative innuendos (1975, 1986,
1993)
3. A lawyer stating on television how the judge unfairly ruled to stop his witness from testifying (2011);
and
4. A lawyer reaping her disagreement and disgust about a decision of the Supreme Court by insulting
and blatantly cursing the individual justices and the court as an institution (2015).

● Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or behavior
before the Courts.
 ○ Abstain from scandalous, offensive, or menacing behavior before the Courts

● A lawyer alleging in his petition that a certain court attorney of the Court of Appeals drafted the
assailed decision, that he is ignorant of the law and he should be disbarred (2006)

● Rule 11.05 - A lawyer shall submit grievances against a Judge to the proper authorities only.
○ File grievances against judges before proper authorities

Previous bar questions that the require the application to this rule:
1. A lawyer advising his client to write to the Office of the Court Administrator to report the frequent
tardiness and absence of a judge (1973).
2. A public relations officer of the All Judges Association issuing press releases to criticize the decision
of a judge (1992).
3. A lawyer, who after receiving an adverse decision, lodged a criminal complaint before the Office of
the Ombudsman accusing the judge of rendering a manifestly unjust judgment (2004).
K. Canon 12 - A lawyer shall exert every effort and consider it his duty to assist in the speedy and
efficient administration of justice.

● Assist in the speedy and efficient administration of justice

● Rule 12.02 - A lawyer shall not file multiple actions arising from the same cause.
○ Not to file multiple actions arising from the same cause

Previous bar questions that require the application of this rule:

● A lawyer filing separate complaints against a common carrier for a single incident (1991, 1997)
● A lawyer who withdrew his petition before the Supreme Court praying to forestall his removal as
Chairman, only to file another petition before the Regional Trial Court seeking to prevent his removal
as Chairman (2002)
● A client filing an administrative case against his lawyer after the latter sued her for payment of
attorney’s fees (2009)
● A party filing a complaint for damages not mentioning the pendency of a criminal case he filed
earlier (2010)
● A lawyer filing a motion for reconsideration attaching an amended complaint now with the
certification against forum shopping (2006)
● A lawyer appealing a decision of the Bureau of Mines and also filing a petition for certiorari before
the Court of Appeals (2011)

● Rule 12.04 - A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse
Court processes.
○ Not to unduly delay, impede execution or misuse court processes
● A lawyer of the losing party filing a series of petitions to provide time for his client to find a rentable
place (1980)

● Rule 12.08 - A lawyer shall avoid testifying in behalf of his client, except:
○ Avoid testifying on behalf of the witness…
○ Except:
1. On formal matters, such as the mailing, authentication or custody of an instrument,
and the like; or
 2. On substantial matters, in cases where his testimony is essential to the ends of justice,
in which even he must, during his testimony, entrust the trial of the case to another
counsel.
■ The rationale for the rule lies in the difference between the respective
functions of a witness and an advocate. The function of a witness is to tell the
facts as he recalls them in answer to questions. The function of an advocate is
that of a partisan.
● A lawyer asked by his client to be his counsel and be a witness since he was also present when an
accident occurred. (1980)

L. Canon 13 - A lawyer shall rely upon the merits of his cause and refrain from any impropriety which
tends to influence, or gives the appearance of influencing the court.

● Rely on the merits of his cause

● Avoid any impropriety which tends to influence or gives the appearance of influence upon the courts

Previous bar questions in relation to the rule:

1. A lawyer engaged by a person because of the lawyer’s friendship with the judge (1925, 2001)
2. A retired justice who signs pleadings indicating that he was a justice (1987)

● Rule 13.01 - A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity
for, cultivating familiarity with Judges.
○ Not extend extraordinary attention or hospitality
○ Not seek opportunity for cultivating familiarity

● Here, the independence of judges must be protected at all times so that the administration of
justice may not be exposed to destructive suspicions before the scrutinizing eyes of litigants and the
public as a whole.
Previous bar questions:
1. A lawyer who timed his visits to a judge’s favorite coffee shop after requesting said judge to be a
principal sponsor to the wedding of his son (2000)
2. A lawyer who had a chance meeting with a judge in a golf course and had been regularly playing golf
since then (2010)
3. A lawyer asking his fraternity brod to arrange a meeting with the latter’s friend, a judge (2013).

● Rule 13.02 - A lawyer shall not make public statements in the media regarding a pending case
tending to arouse public opinion for or against a party.
○ Public statements regarding a pending case

● A lawyer sharing his thoughts with tv reporters on the bias of the judge to whom his case was
currently pending (2003).
 Duties to clients (Canons 14 to 22)

THE LAWYER AND THE CLIENT

● The essential feature of the relation of an attorney and a client is the fact of employment.
● While a written agreement for professional services is the best evidence to show the relation,
formality is not an essential element of the employment of an attorney. It is not necessary that a
retainer should have been paid, promised, or charged for.
○ Nor is it material that the attorney consulted does not, afterward undertake the case about
which he has been consulted.
● Although it is important that the confidential communication has been confided to or have been
acquired by the attorney, the absence of a written contract will not preclude a finding that there is a
professional relationship.
● Documentary formalism is not an essential element in the employment of an attorney.
○ The contract may be expressed or implied. It is sufficient to establish the professional
relation that the advice and assistance of an attorney is sought and received in any manner,
pertinent to his profession.
■ An acceptance of the relation is implied on the part of the attorney from his acting on
behalf of his client in pursuance of a request from the latter.
● If a person can respect his business, affairs, or troubles of any kind, consults with his attorney, in his
professional capacity, with the view to obtaining professional advice or assistance, and the attorney
voluntarily permits or acquiesces as such consultation.
○ As such when he listens to his client’s preliminary statement of his case, gives advice thereon,
then the professional employment is regarded as established. This is as effective as when
engrossed in his clients reading or advocates his clients’ cause in court.

Previous bar questions:

1. A lawyer seeking the disqualification of another lawyer who was previously consulted by the same
client (1982, 1983).
2. A lawyer handling the collection case of a creditor of a corporation of which he is a counsel (1984,
2012, 2017).
3. A lawyer consulted for legal advice by a business person and then approached by another person to
handle the estafa case filed by the business person against her (1997).
 ● Rule 16.03 - A lawyer shall deliver the funds and property of his client when due or upon demand.
However, he shall have a lien over the funds and may apply so much thereof as may be necessary to
satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall
also have a lien to the same extent on all judgments and executions he has secured for his client as
provided for in the Rules of Court.

● The lawyer’s failure to deliver upon demand gives rise to the presumption that he has
misappropriated the funds for his own use and to the prejudice of his client

Previous bar questions:

1. A lawyer failing to give a settlement amounts to his client (1969, 1985, 2011, 2015, 2016)
2. A lawyer convincing his client to transfer land titles to him and execute deeds of sale in his favor so
that he could sell the properties, the proceeds of which would be distributed to the creditors (2007,
2009)
3. A lawyer borrowing his client’s land title then failing to return it (2011).

● Rule 14.01 - A lawyer shall not decline to represent a person solely on account of the latter’s race,
sex, creed or status of life, or because of his own opinion regarding the guilt of said person.
○ Make service available without discrimination

● This rule is applicable only in criminal cases where a lawyer cannot decline to represent an accused
or respondent because of his opinion that the said person is guilty of the charge or charges against
him.

● In representing the accused or the respondent, the lawyer must only use means which are fair and
honorable. This is not applicable to civil cases where the lawyer has the duty to counsel or maintain
such actions or proceedings only as appeared to him as to be just and such defenses only as he
believes to be honest and debatable under the law.
Previous bar questions requiring the application relating thereto:
1. A lawyer refusing to represent a person because of the latter’s gender preference (2004)
2. A lawyer declining to continue as counsel of the accused because the latter informed him that he
committed the crime charged (1984, 1986, 1994, 2005, 2016)
3. A lawyer discovering in his interview with a prospective client that the latter is guilty of the crime
charged (1965, 1978, 1990, 1991, 1993, 1996, 2000, 2013, 2014).

● Rule 14.02 - A lawyer shall not decline, except for serious and sufficient cause, an appointment as
counsel de oficio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any
of its chapters for rendition of free legal aid.
○ Not decline appointment as counsel de oficio

Previous bar questions relating thereto:

1. A lawyer declining an appointment as counsel de oficio because he is convinced that the accused is
guilty of the crime charged (1991)
2. A lawyer claiming that he was only engaged as counsel de oficio during the proceedings before the
Regional Trial Court and no longer on appeal to the Court of Appeals (1974)
3. A lawyer appointed as counsel de oficio excusing himself from writing a brief because he believes
that the decision is correct (1968, 1972).

CANDOR, FAIRNESS, AND LOYALTY TO CLIENTS

● Rule 15.02 - A lawyer shall be bound by the rule on privilege communication in respect of matters
disclosed to him by a prospective client.
○ Privileged communication

● Rule 21.02 - A lawyer shall not, to the disadvantage of his client, use information acquired in the
course of employment, nor shall he use the same to his own advantage or that of a third person,
unless the client with full knowledge of the circumstances consents thereto.
○ Use of information acquired in the course of employment
● Rule 21.03 - A lawyer shall not, without the written consent of his client, give information from his
files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting,
data processing, or any similar purpose.
● Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners or associate thereof
unless prohibited by the client.
 ● Rule 21.05 - A lawyer shall adopt such measures as may be required to prevent those whose services
are utilized by him, from disclosing or using confidence or secrets of the client.
● Rule 21.06 - A lawyer shall avoid indiscreet conversation about a client’s affairs even with members
of his family.
● Rule 21.07 - A lawyer shall not reveal that he has been consulted about a particular case except to
avoid possible conflict of interest.

Previous bar questions:

1. A lawyer handling a case for his client, withdraws as counsel, and ends up representing the other
party in an incident of the execution proceedings (1957, 1959)
2. A lawyer, who in a drinking spree with his client, who bragged about his adventures and escapades
(2006)
3. A lawyer who was not engaged by a person/prospective client because of his fees, was later called
on to be a witness in a case against the latter (1999)
4. A lawyer sharing private information about a client to his partners in the firm (2008)
5. Counsel de oficio later told by client that he committed the crime charged (2008)
6. A lawyer told by his client of his plan to kill the lone witness in the case (1998)

● Rule 15.03 - A lawyer shall not represent conflicting interests except by written consent of all
concerned given after a full disclosure of the facts.

● There is a conflict of interest when a lawyer represents consists of interest of two or more opposing
parties. The existence of conflict of interest is determined by three tests:
1. When, in representation of one client, a lawyer is also duty bound to oppose it for another
client.
2. When the acceptance of a new retainer will require an attorney to perform an act that may
injuriously affect the first client. For when called upon in a new relation to use against the
first one any knowledge acquired through their professional connection; or
3. When the acceptance of a new relation would prevent the full discharge of an attorney’s duty
to give undivided fidelity and loyalty to the client or would invite suspicion of unfaithfulness
or double-dealing in the performance of that duty.

A question on this area has been asked many times. Expect one in your bar exam.
M. Canon 22 - A lawyer shall withdraw his services only for good cause and upon notice appropriate in
the circumstances.

Note Rule 22.01 - A lawyer may withdraw his services in any of the following cases:
a. When the client pursues an illegal or immoral course of conduct in connection with the
matter he is handling;
b. When the client insists that the lawyer pursue conduct violative of these canons and rules;
c. When his inability to work with co-counsel will not promote the best interest of the client;
d. When the mental or physical condition of the lawyer renders it difficult for him to carry out
the employment effectively;
e. When the client deliberately fails to pay the fees for the services or fails to comply with the
retainer agreement;
f. When the lawyer is elected or appointed to public office; and
g. Other similar cases.

Note the mechanics of withdrawal of a counsel for a client.

● An attorney may only retire from a case either by written consent of his client or by permission of
the Court after due notice and hearing. In which event, the attorney should see to it that the name
of the new attorney is recorded in the case. An attorney who could not get the written consent of his
client must make an application to the court for the relation must not terminate formally until there
is a withdrawal of record.

● Counsel has no right to presume that the court would grant his withdrawal and therefore must still
appear on the hearing dates. Also note the mechanics of substitution of counsel to be valid.

● Any such change or substitution must be made:

a. Upon written application
b. With a written consent of the client
c. Upon written consent of the attorney to be substituted
d. In case the consent of the attorney to be substituted cannot be obtained there must be at
least a proof of notice that motion for substitution has been served upon him in the manner
prescribed by the rules.
 ● There are two (2) concepts of attorney’s fees.
1. The ordinary concept, the first two reasonable compensation paid to a lawyer by his clients
for the legal services he has rendered to the latter.
2. The other concept is the amount of damages which the court may award to be paid by the
losing party to the prevailing party.

N. Canon 20 - A lawyer shall charge only fair and reasonable fees.

Rule 20.01 - A lawyer shall be guided by the following factors in determining his fees:
a. The time spent and the extent of the services rendered or required the novelty and difficulty
of the questions involved;
b. The novelty and difficulty of the questions involved;
c. The importance of the subject matter;
d. The skill demanded;
e. The probability of losing other employment as a result of acceptance of the proffered case;
f. The customary charges for similar services and the schedule of fees of the Integrated Bar of
the Philippines chapter to which he belongs;
g. The amount involved in the controversy and the benefits resulting to the client from the
service;
h. The contingency or certainty of compensation;
i. The character of the employment, whether occasional or established; and
j. The professional standing of the lawyer.

● In this regard, we will mention the concept of quantum meruit. It means as much as the lawyer
deserves or such amount which is a service's merit.

● Recovery of attorney’s fees on the basis of quantum meruit is authorized

1. When there is no express contract for payment of attorney’s fees
2. When, although there is a formal contract for attorney’s fees, the fees stipulated are found
unconscionable or unreasonable by the court.
3. When the contract for attorney's fees is void due to purely formal defects of execution
4. When the lawyer for justifiable cause was not able to finish the case to its conclusion
5. When the lawyer and the client disregard the contract for attorney’s fees
6. When the client dismissed his counsel before the termination of the case or the latter
withdrew therefrom for valid reasons.
● A contract for contingent fee is an agreement in writing in which the fee, usually a fixed percentage
of what may be recovered in the action, is made to depend upon the success in the effort to enforce
or defend a supposed right.

● In a contingent fee contract, the lawyer gets paid for his services only if he wins the case for the
client.

● A general or a retainer fee is paid to a lawyer to ensure and secure his future services for a particular
case or work and to remunerate him for being deprived by being retained by one party of the
opportunity of rendering services to the other party.

● Its purpose is to prevent undue hardship on the part of an attorney to obtain the legion of servants of
the rule forbidding representation of conflicting interest.

● In the absence of an agreement to the contrary the retaining fee is neither paid nor received in
consideration of the contemplated service. It is a part from or in addition to what the client has
agreed to pay him for services which he has been employed to perform. In such a case, the fee which
the client will pay his lawyer for the specific matter is called a special retainer fee, in addition to
the general or retaining fee.

● A special retainer is a fee for a specific case handled or special service rendered by the lawyer for a
client. A client may have several cases demanding special or individual attention. If, for every case,
there is a separate and independent contract for attorney’s fees, each fee is considered a special
retainer.

● Champerty is one whereby the attorney agrees to prosecute suits at his one expense without an
obligation of the client to reimburse the attorney. It could also be a suit for the recovery of things or
property belonging to or claimed by the client. The latter agreed to pay the attorney a portion of the
thing or properly recover it as compensation for legal services.
 ● Difference between champertous contracts and contingent fees
1. In champertous contracts, the attorney undertakes to bear all expenses incident to the
litigation without an obligation of the client to reimburse the attorney while this is not true in
contingent fee contracts.
2. Champertous fees are payable only in kind out of the properties recovered while contingent
fees may be paid in cash.
3. Champertous contracts are void as against public policy and in the ethics of the profession
while contingent fee contracts are valid.

Champertous contracts Contingent fee

In champertous contracts, the attorney undertakes The attorney does not undertake to bear all
to bear all expenses incident to the litigation expenses incident to the litigation without an
without an obligation of the client to reimburse the obligation of the client to reimburse the attorney.
attorney

Payable only in kind out of the properties recovered Fees may be paid in cash

Void as against public policy and in the ethics of the Valid

profession

● Rule 16.03 - A lawyer shall deliver the funds and property of his client when due or upon demand.
However, he shall have a lien over the funds and may apply so much thereof as may be necessary to
satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall
also have a lien to the same extent on all judgments and executions he has secured for his client as
provided for in the Rules of Court.

● The following are the distinctions between a retaining lien and a charging lien.

● Existence to the right or extent of the right rather. A retaining lien is the power or the right of the
lawyer to retain possession of the funds, documents and papers of his client which have lawfully
come into his possession until his lawful fees and disbursements have been paid and apply such funds
to the satisfaction thereof. While charging lien is the right of a lawyer to be paid his fees and
disbursements out of the amount collected from the repeated party by virtue of the judgment for
the payment of money and execution issued in pursuance of such judgment.
 ● With regard to the existence of the judgment. In retaining lien, there is no need for a judgment to
have been rendered by a court before it is exercised while in a charging lien, there must be a
judgment that has become final and executory to be enforced by execution.

● With regards to execution and enforcement, in retaining lien, there is no need for judicial
intervention for the exercise of the right while in charging lien, the intervention of a court is
necessary.

● As to the existence of a property, in retaining lien there must be a property of the client in the
possession of the lawyer while in a charging lien there is no need for properties of the client to come
to the possession of the lawyer.

Retaining lien Charging lien

Existence to the right
or extent of the right
A retaining lien is the power or the A charging lien is the right of a lawyer
right of the lawyer to retain to be paid his fees and disbursements
possession of the funds, documents out of the amount collected from the
and papers of his client which have repeated party by virtue of the
lawfully come into his possession until judgment for the payment of money
his lawful fees and disbursements have and execution issued in pursuance of
been paid and apply such funds to the such judgment.
satisfaction thereof.

With regard to the In retaining lien, there is no need for a In a charging lien, there must be a
existence of the judgment to have been rendered by a judgment that has become final and
judgment court before it is exercised. executory to be enforced by
execution.

With regards to In retaining lien, there is no need for In charging lien, the intervention of a
execution and judicial intervention for the exercise court is necessary.
enforcement of the right.

As to the existence of In retaining lien there must be a In a charging lien there is no need for
a property property of the client in the properties of the client to come to the
possession of the lawyer possession of the lawyer.

This is also a favorite bar topic so expect a question from this area.
 SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS (RULE 139 AND RULE 139- B)

III. Suspension, Disbarment and Discipline of Lawyers (Rule 139 and Rule 139- B)

● Membership in the Bar is a privilege burdened with conditions– adherence to the rigid standard of
mental fitness, maintenance of the highest degree of morality, and faithful compliance with the rules
of legal profession are the conditions required for the remaining member in good standing of the bar
and for enjoying the privilege to practice of law. Any breach by the lawyer of these conditions makes
him unworthy of the trust and confidence with the court and clients reposed in him or unfit to
continue the exercise of his professional privilege. His misconduct justifies disciplinary action against
him or the withdrawal of his privilege to practice law.

A. Disciplinary Power of Supreme Court

● The Supreme Court has ultimate disciplinary power over attorneys. This authority stems from the
Constitutional prerogative to regulate the practice of law and it is an inherent power incidental
for the proper administration of justice, and essential to an orderly discharge of judicial
functions.

● The Court of Appeals and Regional Trial Courts may exercise disciplinary powers over lawyers who
appear before them as counsel or litigants. However, either court can only impose suspension or a
lesser sanction after due process. These courts can recommend to the Supreme Court disbarment
of a lawyer or order in suspending him.

● When the penalty of suspension is imposed upon a lawyer, the lawyer shall not practice law until
further action by the Supreme Court.

B. Purpose of Disciplinary Proceedings

● To ascertain whether a lawyer still possesses the qualifications for the continued practice of law.
○ Disciplinary proceedings are also instituted and sanctions are imposed upon lawyers to deter
others from similar misconduct (of erring lawyers) and to make known that ethical standards
are maintained.
C. Nature of Proceedings
● Sui Generis (class of its own)

● Jurisprudence mentions the following principles:

● Neither civil nor criminal proceedings;
● Do not involve trial of an action or suit but is rather an investigation of court on the conduct
of its officers;
● No double jeopardy in the disciplinary proceedings;
● Prescription does not apply;
● Mere withdrawal of the complaint by itself is not sufficient to secure dismissal of the
administrative complaint, especially if the complaint against the lawyer can be substantiated;
● The complaint may be dismissed if there is no compelling reason to continue the proceedings.

D. Grounds for Suspension or Disbarment of Lawyers

1. Deceit;
2. Malpractice;
3. Grossly Immoral Conduct;
4. Conviction of a crime involving moral turpitude;
5. Violation of oath of office;
6. Willful disobedience of any lawful order of a superior court;
7. Corrupt or willful appearance as an attorney for a party to a case without authority to do so.

● A lawyer may be subject to discipline on a ground apart from the abovementioned grounds, for acts
done contrary to justice, honesty or good morals.
● “Conduct” is not limited to those in connection to the performance of the lawyer’s professional
duties; it includes those not connected to his professional duties which shows unfitness or
unworthiness as a member of the Bar.
● Acquittal in a criminal case does not foreclose disbarment proceedings. It has been held that the
standards of the legal profession are not satisfied by conduct which merely enables one to escape
the penalties of criminal law.
● With regard to executive pardon, absolute pardon by the President is one which operates to wipe out
conviction, as well as the offense itself, and a grantor of, in favor of a lawyer is a bar for proceeding
of disbarment against him based solely on the commission of the said offense. The reason is that the
respondent lawyer, after the absolute pardon, is as guiltless and innocent as if he never committed
the offense at all.
 ○ However, an absolute pardon subsequently granted to a lawyer who had been previously
disbarred for conviction of a crime does not automatically reinstate him to the Bar.
○ If, however, the disciplinary action is based not solely on the respondent’s commission of the
offense but on a transaction involved or related therein which culminated in his conviction,
the absolute pardon for the offense may not be an obstacle for a disciplinary action against
him for while the pardon relieves him of the penal consequences, it does not restore his
character.

● Similarly, a conditional pardon or a remission of the expired portion of his sentence does not operate
as a bar to disciplinary proceedings. The disciplinary action will be judged upon the act of conviction
without regard to the conditional pardon extended to the respondent.

E. Disciplinary Proceedings
● May be taken by the Supreme Court motu proprio upon the filing of the verified complaint of any
person before the Supreme Court or the Integrated Bar of the Philippines.
● The complaint shall state clearly the facts complained of and shall be supported by affidavits of the
persons having personal knowledge of the facts therein alleged, and/or by such documents as may
substantiate said facts.

F. Penalties
1. Warning
2. Reprimand
3. Fine
4. Suspension
5. Disbarment
6. Contempt
7. Imprisonment
G. Lifting of Suspension
● Any suspension imposed by the Supreme Court is not automatically lifted upon the lapse of the
period but only upon its order.
● The suspended lawyer should serve his or her suspension, then file a verified petition to lift the
suspension.
● The verified petition shall:
○ State the date of receipt of the order, decision, or resolution or notice of his suspension;
○ The lists of the lawyer’s engagement affected by the suspension, indicating the relevant
court, tribunal, or other government agencies, if any; and
○ Attach supporting documents.

● Petitioner should establish that he or she:

○ Has not appeared before any court, tribunal or other government agencies, whether in
respect of current or former or prospective clients;
○ Has not signed or filed any pleading to the court;
○ Has duly informed his or her clients, law firms, law school, legal clinics or other legal service
organization to which he/she is a member regarding his or her suspension; and
○ Has not performed any act, directly or indirectly, that amounts to practice of law.

● If the Supreme Court finds that the petition is compliant in form and substance, it shall order the
lifting of such the suspension.
H. Reinstatement to the Roll of Attorneys
● A disbarred lawyer may file a verified petition for judicial clemency after five (5) years from the
receipt of order, decision, or resolution of disbarment.
● The petition should allege:
1. That the verified petition was filed after 5 years from the receipt of order, decision or
resolution of disbarment;
2. That the disbarred lawyer has fully complied with the terms and conditions of all prior
disciplinary orders, including orders for restitution;
3. That he or she recognizes the wrongfulness and seriousness of his misconduct for which he or
she was disbarred by:
a. showing positive acts evidencing reformation;
b. That he or she has reconciled or attempted in good faith to reconcile with the
wronged private offended party in the disbarment case, or if the same is not possible,
an explanation as to why such an attempt of reconciliation cannot be made;
c. In cases where there is no private offended party, the plea for clemency must contain
a public apology; and
d. Notwithstanding the conduct for which he is disbarred, that he has the requisite of
good moral character and competence.

● Petition may also state that he or she has productive years that can be put to good use, if given a
chance or there is a showing of promise, such as intellectual attitude, learning, or legal acumen, or
contribution to legal scholarship and the development of the legal system, or administrative and
other relevant skills, as well as potential for public service.

● If the petition has prima facie merit, the Supreme Court shall refer the petition to the bar confident
of any fact-finding body for investigation and recommendation.

● If the petition fails to show any prima facie merit, it shall be denied outright. The Office of the Bar
Confidant, or any other fact-finding committee designated shall conduct an investigation and submit
to the Supreme Court a recommendation within 90 calendar days of receipt of the referral.

● The Supreme Court shall decide the petition on the basis of clear and convincing evidence.
 QUESTION & ANSWER AND OTHER BAR TIPS

Q1: Can you give an example of ambulance chasing.

● A: A mining accident, where a lawyer went to the place of accident to look for a client. This is an
example from the Bar exam. The key thing to be aware of in looking at the question is when a lawyer
purposely or deliberately looks for a client.

Q2: When do we raise the Lawyer's oath as the basis of our answer?
● A: Some say, if you don't know the exact rule or canon, then you can use the Lawyer’s oath. Some
have said that it is an encapsulated form of canons. But ideally cite the proper canon or rule.
○ There was one question that required at least the application of the portion of the lawyer's
oath from a question way back in supporting or handling a losing criminal case versus handling
losing civil case.
○ For criminal cases, you can still hand them because despite your opinion of the accused, you
should still render service. But with regard to losing a civil case, you can decline service
because what you should do is to support meritorious cases and not interpose for delay.

Q3: Some law officers have social media accounts. Are there any restrictions imposed for law offices posting
on their social media accounts? Are they allowed or totally prohibited?
● A: I’m giving perspective. If you encounter a question in the bar, apply the canons strictly. In other
words, you consider that as solicitation or advertising.
● But, you know social media, the internet, these are relatively new things. In other words, in the real
world, it’s debatable. Of course, some say it is prohibited or allowed. But for your Bar, apply the
rules strictly.

Q4: Since Rule 1.01 being a catch-all provision, is it possible to use this as a basis in a hypothetical problem?
● A: It should be the last resort. If you know the exact canon or rule or principle, use that. For my
mentees, I discovered that they have this answer, they will have points but they will not obtain
maximum points.

NOTE: For the purposes of the bar, apply the canons strictly even if the topic is debatable in the real
world.
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