Q: What are the rights of the children in the conjugal property of their parents who are now

deceased?
A: The property left by the parents shall be owned by their children as co-owners (Article 1078,
New Civil Code) because the said properties are part of their legitime. The children shall have a
right to claim their respective legitime in the property left by their parents as compulsory heirs.
Legitime, according to Article 886 of the New Civil Code, is the part of testator’s property which
cannot be dispose of because the law has reserved it for certain heirs who are, therefore, called
compulsory heirs.

Before partition, the children are co-owners of the inheritance. As co-owners, the children
cannot dispose the whole property without securing the consent of all of the heirs. But there is
no prohibition if an heir wishes to sell his or her share in the inheritance. This rule is in
accordance with Article 493 of the New Civil Code, which provides that “each co-owner shall
have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, even substitute another person in its enjoyment, except
when personal rights are involved. But the effect of the alienation or the mortgage shall be
limited to the portion which may be allotted to him in the division upon the termination of the co-
ownership.”

However, each one of them may demand anytime the partition of the inheritance (Article 494,
New Civil Code). Partition, in general, is the separation, division and assignment of a thing held
in common among those to whom it may belong. The thing itself may be divided or its value
(Article 1079, New Civil Code of the Philippines).

The heirs may partition the estate according to their agreement and without intervention of the
court by executing an extrajudicial settlement. In case of disagreement, they can file an action in
court for partition as already mentioned above.

But if the heirs cannot agree as to the manner of partition, either of them may file an action for
partition in the Regional Trial Court of the city or province where either of the parents resided at
the time of their death. In this case, the heirs or an heir who wishes to sell his share in the
estate should secure the approval of the court as to this matter.

QUESTION: How is the conjugal partnership of the spouses divided in case the wife
predeceased her husband?
ANSWER: When the marriage is dissolved by the death of the wife, the community property
shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or
intestate proceedings of the deceased spouse. If both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate proceedings of either (Section 2, Rule
73, Rules of Court).

If no judicial settlement proceeding was instituted and the wife did not leave a last will and
testament, the surviving spouse shall liquidate the community property either judicially or
extrajudicially within one year from the death of the deceased spouse (Article 130, Family Code
of the Philippines). Upon liquidation the profit or remainder shall be distributed in accordance
with the law on intestate succession.

If the wife left a last will and testament, her will must first be probated in court in an action for
probate of will, which shall be filed in the Regional Trial Court (RTC) of the city or province
where the wife last resided at the time of her death (Section 1, Rule 73 Rules of Court). The
RTC shall hear and approve claims against the estate of the wife, and shall order the payment
of lawful debts. Thereafter, it shall direct the delivery of the estate to those entitled thereto.

QUESTION: My wife and I have diligently collated all the requirements for my petition for a
change in my first name, but a technicality in one of the required clearances poses a problem.
The document I am referring to is the certificate from my employer indicating that I have no
administrative case. What I have is a standard certificate of employment from our company. I
am working in an engineering company in Spain and despite my appeal for the required
notations as shown in the request letter from the Office of the Civil Registry in Manila, my plea
was not granted. I am trying to make the necessary corrections in my birth certificate to keep my
job but because of this technicality, it seems like I would lose it. What can I do?

ANSWER: In your desire to change your first name, you are bound to follow the requirements,
steps and procedure provided for by Republic Act 9048, which states: “The petition shall be in
the form of an affidavit, subscribed and sworn to before any person authorized by law to
administer oaths. The affidavit shall set forth facts necessary to establish the merits of the
petition and shall show affirmatively that the petitioner is competent to testify to the matters
stated. The petitioner shall state the particular erroneous entry or entries which are sought to be
corrected and/or the change sought to be made.”

In addition, the petition shall be published at least once a week for two consecutive weeks in a
newspaper of general circulation. Furthermore, the petitioner shall submit a certification from the
appropriate law enforcement agencies that he has no pending case or no criminal record.

The petition and its supporting papers shall be filed in three copies to be distributed as follows:
first copy to the concerned city or municipal civil registrar, or the consul general; second copy to
the Office of the Civil Registrar General; and the third copy to the petitioner.”

In case of change of first name or nickname, the law requires that the petition shall be
supported with a clearance or a certification that the owner of the document has no pending
administrative, civil or criminal case, or no criminal record, which shall be obtained from (a)
employer, if employed, (b) National Bureau of Investigation and (c) Philippine National Police.

Thus, we enjoin you to request your employer to issue the appropriate clearance for your
petition. We do not see any valid justification why your employer will deny you of such
certification of no pending administrative case if indeed you have no pending case in your work.

QUESTION: My husband died last month. I would like to know how long must I wait before I can
marry again?

ANSWER: By the death of one of the parties to a marriage, the same is terminated. Therefore,
the surviving spouse is qualified to remarry. However, a widow is prohibited to remarry within a
period of 301 days from the day of her husband’s death.

If she happens to be pregnant at the time of her husband’s death, she is proscribed from
remarrying until such time that she has delivered. Otherwise, she shall be guilty of violating the
provision of the Revised Penal Code on premature marriages, which prescribes a penalty of
arresto mayor and a fine not exceeding P500.

This law is not in anyway designed to hinder the widow’s own happiness especially if she feels
that remarrying immediately after her husband’s death would ease the pain and agony of losing
a loved one. The law simply aims to avoid the confusion over the child’s paternity as the
deceased husband could have fathered the child and not the widow’s new husband.

Considering the foregoing, if ever you intend to marry again, make sure that the period above
mentioned has elapsed. If not you will be violating this penal provision.

QUESTION: I am a Filipino who acquired Danish citizenship some 20 years ago without
renouncing my citizenship. Am I still a Filipino citizen?
ANSWER: The Philippine Constitution provides that “Philippine citizenship may be lost or
reacquired in the manner provided by law.” Section 1 of the law that prescribes the manner of
losing and reacquiring Filipino citizenship is Commonwealth Act No. 63, also known as “An Act
providing for the ways in which a Philippine Citizenship may be lost or acquired,” which provides
that a Filipino citizen may lose his citizenship by naturalization in a foreign country;

Thus, under the said law, you lost your Filipino citizenship upon your naturalization in a foreign
country, which is Denmark. However, under Republic Act No. 9225 or the Citizenship Retention
and Re-acquisition Act of 2003, also known as the Dual Citizenship Law, you may re-acquire
your Filipino citizenship if you are a natural-born Filipino citizen.

For the purpose of a clear discussion, we find it prudent to define the term “natural-born citizen”.
Under the Philippine Constitution, natural-born citizens are “…those who are citizens of the
Philippines from birth without having to perform any act to acquire or perfect their Philippine
citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1
hereof shall be deemed natural-born citizens.”

R.A. No. 9225 provides among other things that natural-born Filipino citizens who have
previously acquired foreign citizenship shall re-acquire their Filipino citizenships upon taking the
oath of allegiance to the Republic of the Philippines.

As you have previously and effectively renounced your Filipino citizenship, you are not a Filipino
citizen, until and unless you take such oath of allegiance.
QUESTION: My father had an existing first valid marriage when he married my mother. Does my
father’s first family have rights to the properties of my father? What can we do to be my father’s
legal family?

ANSWER: Anent your query of whe-ther or not the first family of your father has rights over the
properties of the latter, our answer is in the affirmative. The property relation of common law
marriages or cohabitations where one or both of the parties are not capacitated to enter into a
valid marriage, like the relationship of your parents will be governed by Article 148 of the Family
Code of the Philippines

The law explicitly gives to the property regime between your father and his legal wife the share
of your father in whatever properties he acquired with your mother. Being your father’s legal
family, they are entitled to be supported by your father. Such support may come from whatever
properties your father may have.

As to your question on how you can be your father’s legal family, your father and your mother
must first be validly married in order to legitimize the relationship of your family. To be able to do
so, your father’s first marriage must be annulled or declared as null and void. If there is a ground
for annulment or for the declaration of nullity of marriage between your father and his first wife,
your father should file a Petition for Annulment or Petition for Declaration of Nullity of Marriage in
the Regional Trial Court of his place of residence. Once his marriage is annulled or declared null
and void, he will have the capacity to marry your mother. The marriage that will be entered into
between your mother and your father after the annulment or declaration of nullity of your father’s
marriage with his first wife will be considered valid for all intents and purpose of the law.

However, the subsequent valid marriage between your parents will not change you and your
siblings’ status from illegitimate to legitimate children. Under Article 177 of the Family Code, only
children conceived and born outside of wedlock of parents who, at the time of the conception of
the former, were not disqualified by any impediment to marry each other may be legitimated. It
is clear from your narration of facts that your father contracted a previous marriage before
marrying your mother. Thus, at the time that you and your siblings were conceived, your father
was not capacitated to marry your mother. To elevate you and your siblings’ status to legitimate
children, your parents should adopt you after they are validly married. Under Article 189 of the
Family Code, for civil purposes, the adopted shall be deemed to be a legitimate child of the
adopters.

QUESTION: My husband and I separated because of his affair with another woman. My
husband is now working in Iraq. In July 2009, my husband swore before the Regional Director
of the Commission on Human Rights (CHR) in Pampanga that he would not have a relationship
with another woman and would give financial support to us. We have two daughters. As a result,
the case that my father filed against my husband before the Regional Office of the CHR was
dismissed. However, on September 2009, I received an e-mail from my husband stating that I
would no longer receive monthly remittance from him. What case can I file against my husband
for withdrawing his monthly support? Can I file a concubinage case against him? How many
years will he be imprisoned?

ANSWER: Our law on support explicitly provides that you and your children are entitled to
support from your spouse. Such support may comprise everything indispensable for sustenance,
dwelling, clothing, medical attendance, education and transportation, in keeping with the
financial capacity of the family. You are also obliged by law to give support to your children. As
such, your husband will give only his share in the total amount of the needs of your children.
The other part of it will come from you as their mother. The amount of support that your
husband will give shall be in proportion to his resources or his means and the necessities of the
recipient.

You may file a civil action for support against your husband if he refuses to give support to you
and your children before the Regional Trial Court in the place where you live or the place where
your husband resides.

We regret to inform you that you can no longer file a criminal case for concubinage against him
as the case filed by your father against your husband before the Regional Director of the
Commission on Human Rights was dismissed. The agreement that was forged between you and
your husband before the commission, which also caused the dismissal of his case, was
tantamount to a pardon to the offense committed by him against you.

Article 344 (2) of the Revised Penal Code provides that the offended party in the crimes of
adultery and concubinage cannot institute criminal prosecution for such crimes if he/she shall
have pardoned the offenders. Hence, you cannot prosecute your husband for the infidelity he
committed prior to the execution of your agreement.

However, if your husband violates the agreement after its execution and had illicit relations with
other women, you may prosecute your husband for concubinage if he commits any of the
following acts:

1. Keeping a mistress in the conjugal dwelling;

2. Having sexual intercourse, under scandalous circumstances, with a woman not his wife; and

3. Cohabiting with another woman in any other place.

If your husband is found guilty beyond reasonable doubt by the court, he may suffer the penalty
of prision correccional in its minimum (6 months and 1 day to 1 year, 8 months and 20 days)
and medium (1 year, 8 months and 21 days to 2 years, 11 months and 10 days) periods.

QUESTION: I have been working for seven months now as an instructor in a language school in
Cebu. I have no salary deductions for my Social Security System (SSS) and PhilHealth
contributions, because of this my employer said that I am not entitled to 13th month pay. I am
not a regular employee and my contract does not state that I will be paid on holidays. Am I
entitled to 13th month and holiday pays?

ANSWER: Presidential Decree No. 851 requires all employers to pay their employees the 13th
month pay not later than December 24 of every year. This benefit is granted to all rank-and-file
employees regardless of the amount of basic salary that they receive in a month and regardless
of their designation or employment status, and irrespective of the method by which their wages
are paid, provided that they have worked for at least one month during a calendar year. All
employers are required to give a minimum 13th month pay of not less than one-twelfth of the
total basic salary earned by the employee within the calendar year.
Those exempted from paying this benefit are: 1) the government and any of its political
subdivisions, including government-owned and controlled corporations, except those
corporations operating essentially as private subsidiaries of the government; 2) employers
already paying their employees 13th month pay or more in a calendar year or its equivalent at
the time of this issuance; 3) employers of household helpers and persons in the personal
service of another in relation to such workers, and d) employers of those who are paid on purely
commission, boundary, or task basis, and those who are paid a fixed amount for performing a
specific work, irrespective of the time consumed in the performance thereof, except where the
workers are paid on piece-rate basis in which case, the employer shall be covered by the 13th
month pay law.

There is no showing that your employer is one of those exempted from paying 13th month
benefit to its employees.

The fact that you are not being deducted of your SSS and PhilHealth contributions is not a
justification for your employer’s nonpayment of 13th month benefit. In fact, your employer should
be reprimanded or punished for its failure to pay and remit SSS and PhilHealth contributions of
its employee as well as its compulsory contributions

Regarding holiday pay, the Labor Code of the Philippines provides that every worker shall be
paid his regular daily wage during regular holidays except 1) those of the government and any
of its political subdivisions, including government-owned and -controlled corporations; 2) those
of retail and service establishments regularly employing less than 10) workers; 3) domestic
helpers and persons in the personal service of another; 4) managerial employees as defined in
Book III of the Labor Code, and 5) field personnel and other employees whose time and
performance is unsupervised by the employer including those who are engaged on task or
contract basis, purely commission basis, or those who are paid a fixed amount for performing
work irrespective of the time consumed in the performance thereof.

Based on the above, you are not entitled to holiday pay only if you did not work on a particular
holiday. You should be paid if you have rendered service on such day. On the other hand, if
your employment does not fall in any of those five instances mentioned, your employer should
pay you on a regular holiday even if you did not work on said day and even if you are not a
regular employee because the law does not distinguish as to the status of employment.

Moreover, if the holiday in question is a special non-working day, special public holiday, special
national holiday, in addition to the three nationwide special days listed under Executive Order
No. 203, and your employment is not one of those abovementioned, you are entitled to your
daily rate plus 30 percent of your daily rate for the first eight hours of service rendered. But if
you have not rendered service on such day, you will not be entitled to receive holiday pay,
unless there is a favorable company policy, usual practice or collective bargaining agreement
granting payment on these special days even if no work is performed.

QUESTION: My son got married in Japan in 2007. The marriage was officiated by a “born
again” pastor. I am worried that my son’s marriage is a sham and will not be recognized in the
Philippines. He and his wife are both Filipinos. Will their marriage be recognized in the
Philippines?

ANSWER: If the marriage is solemnized in another country other than the Philippines, such
marriage will be considered valid in the Philippines if the same is valid in the country where the
marriage took place.

The law provides certain exceptions to this rule, such as (1) marriages contracted when either
party is below eighteen years of age; (2) bigamous or polygamous marriages; (3) subsequent
marriages where Art. 52 of the Family Code was not complied with; (4) marriages where either
of the party suffers from psychological incapacity at the time of the celebration of the marriage;
(5) incestuous marriages and (6) marriages against public policy. Hence, if the marriage
celebrated outside the Philippines falls within any of these exceptions, such will be considered
void in the Philippines even if considered valid in the country where it was celebrated.

With regard to your concern on the authority of the pastor who solemnized the marriage of your
son, Article 7 number 2 of the Family Code provides that a marriage “may be solemnized by
any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church
or religious sect and registered with the civil registrar general, acting within the limits of the
written authority granted him by his church or religious sect and provided that at least one of the
contracting parties belongs to the solemnizing officer’s church or religious sect.”

It is clear from the foregoing that a minister, such as a born again pastor, should possess written
authority from his church or sect and should be registered with the civil registrar general before
he can solemnize marriages. However, absent these, it does not necessarily mean that the
marriage solemnized is null and void. Article 35 number 2 of the Family Code states that
marriages “solemnized by any person not legally authorized to perform marriages unless such
marriages were contracted with either or both parties believing in good faith that the solemnizing
officer had the legal authority to do so.”

Therefore, the marriage will still be considered valid when at least one of the parties believed in
good faith that the solemnizing officer had authority.

The validity of the marriage of your son depends on its status under Japanese law. If Japanese
law considers their marriage as valid then Philippine law will also recognize the same as valid,
subject only to the exceptions provided under the law.

QUESTION: I am an overseas Filipino worker in Hong Kong. Last year, my wife sold our car
without my knowledge and consent. The car was registered in my name. Last month, she
mortgaged the house and lot that I bought for our daughter without my knowledge and consent.
I believe the house and lot was registered in the name of our daughter. Are these transactions
of my wife valid? What can I do? My wife is alcoholic, always violent and subjects people to
verbal abuse. Moreover, she is incapable of managing our finances.
ANSWER: We would like to apprise you that you have a remedy against the actuations of your
wife. Article 96 of the Family Code provides that if “one spouse is incapacitated or otherwise
unable to participate in the administration of the common properties, the other spouse may
assume sole powers of administration.”

The law says further: “These powers do not include disposition or encumbrance without authority
of the court or the written consent of the other spouse. In the absence of such authority or
consent, the disposition or encumbrance shall be void. x x x”

Although your wife is empowered by law to administer and enjoy the properties owned by both
of you in common, she is not permitted to dispose and encumber the same without your
knowledge and consent. Accordingly, the selling of the car and the mortgaging of the house and
lot by your wife without your knowledge and consent are void. Consequently, you can file an
action for the nullification of the contracts executed by your wife in the sale of the car and in the
mortgage of the house and lot.

It bears stressing also that the action to nullify the contract entered into by your wife will not
have any prescriptive period as the said contracts are null and void. Thus, you can file the said
action anytime that you are in the Philippines.

Furthermore, there is a big probability of obtaining back from the buyer the car sold by your wife
since the said buyer cannot be considered as a purchaser in good faith. The buyer could have
easily gleaned in the face of the Original Receipt and Certificate of Registration (OR/CR) of the
car that it is not your wife who is the registered owner. Evidently, your wife has no legal right to
sell the same.

As to the house and lot, since you mentioned that you believe that the title to the same is in the
name of your daughter, you have to prove during the trial that the property was actually acquired
by you during the marriage, thus, it became part of the community property, for you to be able to
ask the court to nullify the contract of mortgage entered into by your wife without your
knowledge and consent.

Q: My services as a sales agent were terminated in July 2009 because I used the amount I
collected from a client to pay the tuition fee of my son. However, I was able to pay back my
employer. I worked for the company for 12 years. I did not actually sign the termination papers.
Do I have the right to demand separation pay from my employer?
A: Separation pay is the amount that an employee receives at the time of his severance from
the service and is designed to provide the employee with the wherewithal during the period that
he is looking for another employment. It is also settled that separation pay may be awarded as a
measure of social justice in those instances where the employee is validly dismissed but for
causes other than serious misconduct or those involving moral turpitude.

An employee is entitled to separation pay only, although he was lawfully dismissed, in case the
employee is dismissed from the service on the basis of any of the authorized causes
enumerated in Articles 283 and 284 of the Labor Code.
Article 283 (authorized causes of employment termination):

1. Installation of labor-saving devices

2. Redundancy

3. Retrenchment to prevent losses

4. Closure or cessation of operation of the establishment or undertaking

Article 284 provides another authorized cause to terminate an employment and that is: when the
employee has been found to be suffering from any disease and whose continued employment is
prohibited by law or is prejudicial to his health as well as the health of his co-employees.

If the termination of the employment is based on a valid ground as those enumerated in Article
282 of the Labor Code, the employee is not entitled to separation pay.

“Art. 282. Termination by employer. - An employer may terminate an employment for any of the
following just causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his
employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly
authorized representative;

(d) Commission of a crime or offense by the employee against the person of his employer or
any immediate member of his family or his duly authorized representative; and

(e) Other causes analogous to the foregoing.”

Your employment was terminated on account of your failure to remit the amount you collected
from your client in due time. This constitutes a willful breach of the trust reposed upon you by
your employer. And this may have resulted in the employer’s loss of confidence in you. Thus,
your dismissal from work may be considered as valid termination and this will not entitle you to
receive separation pay from your employer.

Q: While our family was on our way home on November 5, 2009 from an out-of-town
gathering, a pick-up truck hit the rear of our car. My 3-year-old sister, my mother and I had
several bruises in our arms and legs, while my father suffered contusions in his legs. When my
father went out of the car to talk to the truck driver, he noticed that the driver was intoxicated.
There were even beer bottles in his passenger seat. Because my sister kept crying, my father,
who had taken the other driver’s license, drove us to the hospital for medical treatment. We
would like to know if we could still file a civil case against the driver of the pick-up truck.
A: We have to consider two important things when filing a civil suit: First, whether there is a
cause of action upon which the case may rest; and second, whether the action has prescribed.
A cause of action is the act or omission by which a party violates a right of another (Section 2,
Rule 2, Rules of Court). It may be a wrongful or negligent act committed by the defendant,
which injures the right of the plaintiff. In the situation you have presented before us, we can
surmise that the tortuous act of the truck driver may be the cause of action in filing a civil action
for quasi-delict. But in order for an action for tort or quasi-delict to prosper, the following
essential elements must be present: (1) there must be an act or omission constituting fault or
negligence; (2) there must be damage caused by said act or omission; (3) there must be a
causal relation between the damage and the act or omission; and (4) the absence of
contractual relations between the parties.
Applying these elements in your situation, your family has to prove that the vehicular collision
occurred because of the carelessness of the truck driver, and that in fact, he was reckless as he
was intoxicated at the time the accident happened. Additionally, you must show that the incident
caused injuries to your whole family. If you are successful in proving the existence of these
elements at the time of the accident, your family may demand payment from the truck driver for
the damage he has caused (Article 2176, New Civil Code of the Philippines). We would like to
stress that all of us must exercise due care, diligence and vigilance in our actions so that we
can avoid causing injury to others.
The next issue we need to address is whether your action has not yet prescribed, as provided
for under Article 1139, id, “Actions prescribed by the mere lapse of time fixed by law.” Thus, it is
incumbent upon the plaintiff to file his or her action within the reglamentary period fixed by law.
In your case, since the accident happened only last November 5, 2009, your action may still be
filed in court. According to Article 1146, id, “The following actions must be instituted within four
years: x x x (2) Upon a quasi-delict.” Clearly if you file the action now, it will still be within the
four-year period set under the aforementioned article.
Q: Last December was just my third month as an employee. I was not given a 13th month pay.
My boss told me that to be entitled to it, I should have served the company for at least six
months. However, some of my co-employees told me that I was entitled to a 13th month pay. Is
this true? How much should I have received?
A: Before we answer your question, let us first discuss the basic concept of the 13th month pay
and its legal basis. Under Presidential Decree 851, 13th month pay is a mandatory benefit given
to employees as an additional pay. The Rules and Regulations Implementing PD 851 defines
13th month pay as one twelfth (1/12) of the basic salary of an employee within a calendar year.
Further, under the same law, all employees in a private company covered shall pay all their
employees receiving a basic salary of not more than P1,000 a month a 13th-month pay not later
than December 24 of every year. (Section 1, PD 851) However, on August 13, 1986, this was
amended by Memorandum Order No. 28, by requiring all private employers to pay all their rank-
and-file employees the said benefit.

Article 212 (m) of the Labor Code of the Philippines provides that “(m)anagerial employee” is
one who is 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.
Supervisory employees are those who, in the interest of the employer, effectively recommend
such managerial actions if the exercise of such authority is not merely routinary or clerical in
nature but requires the use of independent judgment. All employees not falling within any of the
above definitions are considered rank-and-file employees for purposes of this Book.

The above provision is used as the basis in determining who are rank-and-file employees for
purposes of entitlement to 13th-month pay. (Revised Guidelines on the Implementation of the
13th-month Pay Law).
Anent your question on whether or not you were entitled to receive a 13th-month pay from your
employer, the law provides that to be entitled to the said benefit, an employee must have
worked for at least one (1) month during the calendar year where the same is being given.
(Memorandum Order No. 28).

Thus, since as per your narration, you have served your employer for a total of three months,
you were entitled to receive your prorated 13th month pay from your employer. As a matter of
right, you may demand payment of the same otherwise it may give rise to a labor complaint
which you may file before the National Labor Relations Commission or before the Department of
Labor and Employment, if your claim does not exceed P5,000.

Q: I am an overseas Filipino worker, a husband and father. My wife recently gave birth to our
third child. However, I sometimes find myself doubting the paternity of this child. Though I do
not want to entertain thoughts as to my wife’s possible infidelity while I was away, I cannot help
it especially after my wife had given birth. The child was carried to full term and is a healthy
baby girl. My doubts surfaced when I realized that only a period of seven months had elapsed
from the time when she told me that she was pregnant to the time she actually gave birth.
When she told me that she was pregnant, I was already abroad after a one month vacation in
the Philippines. Before then, I worked abroad for a period of one year.
What legal action should I take if I would find out with certainty that the child is not really mine?
I am scheduled to come back home soon.
A: The most prudent thing for you to do is to ascertain the veracity of your theory by talking to
your wife and confronting her about your doubts. You may also consult your wife’s attending
physician or ob-gynecologists as to the period of gestation and your wife’s last menstrual period.
The proper medical computation would erase doubts on your mind.

However, if after ascertaining the truth about the matter, you still want to pursue legal action
against her, then, you may file a criminal complaint for adultery against her and the alleged
father of the child. The penalty for the said crime is imprisonment of not less than two years and
four months and not more than six years (Article 333, Revised Penal Code). Should you wish to
do so, you also have the power to pardon your wife’s indiscretion. When you pardon your wife,
you then relinquish your right to file a criminal complaint against her. (Article 344, Revised
Penal Code)

You may also impugn the legitimacy of the child recently borne by your wife. Under the law,
“(c)hildren conceived or born during the marriage of the parents are legitimate.” (Article 164,
Family Code of the Philippines)

The law, however, also provides the grounds to impugn the legitimacy of a child (Article 166 of
the Family Code) when it was physically impossible for the husband to have sexual intercourse
with his wife within the first 120 days of the 300 days which immediately preceded the birth of
the child because of:

x x x(b) the fact that the husband and wife were living separately in such a way that sexual
intercourse was not possible; xxx.”

Should the court declare that the child is the illegitimate child of your wife, the child, hence,
loses her right over you as her father and consequently you lose your right as the father of such
child.

Q: My grandmother just passed away. Can my grandfather sell their conjugal properties without
the consent of their children?
A: Before the effectivity of the Family Code, the regime of conjugal partnership of gains governs
the property relation between the spouses in the absence of marriage settlements before the
celebration of the marriage. Hence, marriages which took place before August 03, 1988 will
have the said partnership as their property relation in the absence of marriage settlement
between the spouses. Under the conjugal partnership of gains, the husband and the wife place
in a common fund the proceeds, products, fruits and income from their separate properties and
those acquired by either or both spouses through their efforts or by chance, and, upon
dissolution of the marriage or partnership, the net gains or benefits obtained shall be divided
equally between them, unless otherwise agreed in the marriage settlements (Article 106, Family
Code of the Philippines). All the properties acquired during the marriage, whether the acquisition
appears to have been made, contracted or registered in the name of one or both of the
spouses, is presumed to be conjugal unless the contrary is proved (Article 116, Family Code of
the Philippines).

We would assume that your grandparents did not execute a marriage settlement when they
were married and that they are governed by the conjugal partnership of gains. As such, the
properties that they acquired during the subsistence of their marriage are conjugal, unless there
are proofs to the contrary. Being conjugal properties, the ownership of the said properties belong
to your grandfather and to your grandmother. When your grandmother died, their conjugal
partnership of gains was terminated (Article 126, Family Code of the Philippines). In the
absence of proof to the contrary, their share in the properties shall be deemed to be equal. Half
of the properties then will go to your grandfather as his share in the conjugal partnership and the
other half pertains to your grandmother as her share. Since your grandmother already passed
away, her share will be given to her husband and her children as her legal heirs (Article 887,
Civil Code of the Philippines). Hence, your grandfather may validly sell that part of the
properties which he owns without the consent of his children, that is, his share in the conjugal
partnership and his share as legal heir of your grandmother. As owner of said properties, he has
the right to enjoy and dispose of the same, without other limitations than those imposed by law
(Article 427, Civil Code of the Philippines).

Q: I am Rai, an Indian, 46 years old and a resident of Jaipur, India. I have a girlfriend in
Bacolod City, Philippines. She has a daughter and her marriage to her husband has already
been annulled. We have been sweethearts for a long period of time and our families want us to
be married. I have decided to marry her in the Philippines, how do we go about it?
A: A marriage is valid in the Philippines in whatever form or method it was celebrated, for as
long as the essential and formal requisites are complied with in accordance with law. The law
being referred to is the Family Code of the Philippines. This law provides the essential and
formal requisites of valid marriage as follows, to wit:

“Art. 2. No marriage shall be valid, unless these essential requisites are present
(1) Legal capacity of the contracting parties who must be a male and a female; and

(2) Consent freely given in the presence of the solemnizing officer.

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and

(3) A marriage ceremony which takes place with the appearance of the contracting parties
before the solemnizing officer and their personal declaration that they take each other as
husband and wife in the presence of not less than two witnesses of legal age.”

A marriage license issued to a couple desiring to marry each other presupposes that they have
no legal impediment to marry. In the case of a citizen of another country, before a marriage
license is issued, a Certificate of Legal Capacity to Contract Marriage, issued by his diplomatic
or consular officials, is required. (Article 21, Family Code of the Philippines).

Once a marriage license is issued, the same is valid anywhere in the Philippines and shall
expire after one hundred twenty days from the date of issue. (Article 20, Family Code of the
Philippines).

Regarding your planned marriage with your Filipina girlfriend, you just have to comply with all
the requisites mentioned above for the same to be valid. You must prove that you are qualified
or has the legal capacity to contract marriage as certified by your government.

Topic: Registered owner of car must pay damages arising from accident

Q: Last year, I sold my car to my good friend with whom I also tasked to process the necessary
papers for the transfer. Unfortunately, he figured in an accident wherein he hit another vehicle
belonging to another. The owner of the damaged vehicle is suing me for the damage caused to
his car alleging that upon checking, I am still the registered owner of the car that I sold to my
friend. I refused to pay him because I was not the one who owned and operated the car at the
time of the mishap. Do I have a valid defense?

A: in the case of MMTC v. Cuevas, G.R 167797, June 15, 2015, where it reiterated, through
Chief Justice Lucas Bersamin (then Associate Justice) its earlier decision providing that:

"Registration is required not to make said registration the operative act by which ownership in
vehicles is transferred, as in land registration cases, because the administrative proceeding of
registration does not bear any essential relation to the contract of sale between the parties
(Chinchilla vs. Rafael and Verdaguer, 39 Phil. 888), but to permit the use and operation of the
vehicle upon any public highway (section 5 [a], Act No. 3992, as amended). The main aim of
motor vehicle registration is to identify the owner so that if any accident happens, or that any
damage or injury is caused by the vehicles on the public highways, responsibility therefore can
be fixed on a definite individual, the registered owner. Instances are numerous where vehicles
running on public highways caused accidents or injuries to pedestrians or other vehicles without
positive identification of the owner or drivers, or with very scant means of identification. It is to
forestall those circumstances, so inconvenient or prejudicial to the public, that the motor vehicle
registration is primarily ordained, in the interest of the determination of persons responsible for
damages or injuries caused on public highways." (Emphasis supplied).

As provided in the aforementioned jurisprudence, in cases where a vehicle figured in an

accident resulting in damage to property or injuries to another person, it will be the registered
owner who will be held directly and primarily liable. Regardless if the vehicle was already sold to
another at the time of the accident, and even if the vehicle was being used and operated by the
buyer, as long as the registration of the vehicle is still in the name of the seller, the latter may
still be held liable. Indeed, the purpose of registration is to identify the person who would bear
the responsibility of indemnifying third persons who suffered damage by the use of the subject
vehicle.

Nonetheless, the registered owner has a recourse against the driver or operator of the vehicle.
He or she may file a cross-claim seeking reimbursement of all the amounts that it could be
required to pay as damages arising from the driver's negligence. Thus, you may still be held
liable by the victim if it is proven that your friend was negligent in operating the motor vehicle
that you sold to him considering that it is still registered under your name. However, you may
seek reimbursement from your friend as he is the one ultimately liable for any damage caused
due to his negligence or fault.

Topic: Lapse of probationary period

Q: One week after completing my probationary period, my employer informed me that he will be
extending my probationary status for three more months. Can my employer validly do so?

A: Article 281 of the Labor Code of the Philippines, which states that:

"Art. 281. Probationary employment. Probationary employment shall not exceed six (6) months
from the date the employee started working, unless it is covered by an apprenticeship
agreement stipulating a longer period. The services of an employee who has been engaged on
a probationary basis may be terminated for a just cause or when he fails to qualify as a regular
employee in accordance with reasonable standards made known by the employer to the
employee at the time of his engagement. An employee who is allowed to work after a
probationary period shall be considered a regular employee." (Emphasis supplied)

As provided under Article 281 of the said Code, a probationary employee who was allowed to
work after his probationary period will be considered a regular employee. The employee will
automatically become a regular employee starting from the very first day after the completion of
the probationary period.

Since you have mentioned that one week has lapsed since the completion of your probationary
period, then you have already attained the status of a regular employee. With that, your
employer can no longer require you to undergo another probationary period since you are
already considered as a regular employee. Well settled is the rule that there can be no
diminution of status and benefits once the same have been acquired.

Topic: Consent of co-owner needed in sale of land owned in common

Q: Tom is selling his share on a certain land which he and his brother allegedly inherited from
their parents (deceased). I am interested in buying the property because it is situated in a
commercial business district, and Tom has already showed me the boundaries of his lot as
supported by a survey which was not approved by the concerned government agency. He wants
me to sign the deed of sale to the exclusion of his brother if I can pay the price immediately. As
a prudent buyer, I would like to obtain the signature of Tom's brother in order to avoid any
problem in the future but he claims that the consent of his brother is not necessary.

A: Tom and his brother are considered co-owners of the land since they allegedly inherited the
said property from their deceased parents. In general, each co-owner may sell his proportionate
share in accordance with Article 493 of the New Civil Code of the Philippines which states that:

"Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining
thereto, and he may therefore alienate, assign or mortgage it, and even substitute another
person in its enjoyment, except when personal rights are involved. But the effect of the
alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the termination of the co-ownership."

Correlative thereto, Article 491 thereof also provides that "[n]one of the co-owners shall,
without the consent of the others, make alterations in the thing owned in common, even though
benefits for all would result therefrom. xxx"

The consent of the co-owners is necessary in the sale of a definite portion of an undivided land.
This finds support in the pronouncement of the Court in the case of Cabrera v Ysaac (GR
166790, Nov. 19, 2014), where the Supreme Court speaking through Associate Justice Marvic
M. V. F. Leonen stated that:

"If the alienation precedes the partition, the co-owner cannot sell a definite portion of the land
without consent from his or her co-owners. He or she could only sell the undivided interest of
the co-owned property. As summarized in Lopez v. Ilustre, "[i]f he is the owner of an undivided
half of a tract of land, he has a right to sell and convey an undivided half, but he has no right to
divide the lot into two parts, and convey the whole of one part by metes and bounds.

"The undivided interest of a co-owner is also referred to as the 'ideal or abstract quota' or
'proportionate share.' On the other hand, the definite portion of the land refers to specific metes
and bounds of a co-owned property. x x x
"Hence, prior to partition, a sale of a definite portion of common property requires the consent of
all co-owners because it operates to partition the land with respect to the co-owner selling his or
her share. The co-owner or seller is already marking which portion should redound to his or her
autonomous ownership upon future partition."

Applying the above-quoted decision in your situation, Tom's interest in the subject land is
referred to as ideal, abstract quota or proportionate share because he and his brother have not
yet partitioned or subdivided the land. This can be disposed of by Tom without his brother's
consent. However, it is important to emphasize that Tom is not selling his proportionate share.
Rather, he is actually disposing a definite portion of the land he owns in common with his
brother. Thus, the disposition will require the consent of his brother because the intended
transaction operates to partition the land.

Topic: The law on double sales

Q: I bought a parcel of land from Helen sometime in 2019. Because of the lockdowns due to the
pandemic, I was not able to possess it and register the sale. Recently, a friend told me that a
certain Tet, who has actual knowledge of the sale to me, was residing on my land. I went there
to confront her, but she said that she bought the subject land from Helen in 2021 and registered
its sale, so she has become the rightful owner of the same. May I know who has a superior right
to the subject property?

A: The second and third paragraphs of Article 1544 of the New Civil Code provides that if the
same immovable should have been sold to different vendees, "the ownership shall belong to the
person acquiring it who in good faith first recorded it in the Registry of Property. Should there be
no inscription, the ownership shall pertain to the person who in good faith was first in the
possession; and, in the absence thereof, to the person who presents the oldest title, provided
there is good faith."

For Article 1544 of the New Civil Code to apply, the Supreme Court discussed in Ricardo Cheng
v. Ramon B. Genato and Ernesto R. Da Jose & Socorro Da Jose (GR 129760, Dec. 29, 1998,
penned by Associate Justice Antonio Martinez) that the following must concur, to wit:

(a) The two (or more) sales transactions in issue must pertain to exactly the same subject
matter, and must be valid sales transactions

(b) The two (or more) buyers at odds over the rightful ownership of the subject matter must
each represent conflicting interests; and

(c) The two (or more) buyers at odds over the rightful ownership of the subject matter must
each have bought from the very same seller.

These elements are all present in your recital of facts, therefore, Article 1544 of the New Civil
Code applies to your situation and serves as a governing law between you and Tet.

With respect to registration, the Supreme Court, in one case, pronounced that the knowledge
gained by the second buyer of the first sale defeats his rights even if he is first to register the
second sale, since such knowledge taints his prior registration with bad faith.

"This is the price exacted by Article 1544 of the Civil Code for the second buyer being able to
displace the first buyer; that before the second buyer can obtain priority over the first buyer, he
must show that he acted in good faith throughout (i.e. ignorance of the first sale and of the first
buyer's rights) — from the time of acquisition until the title is transferred to him by registration or
failing registration, by delivery of possession. The second buyer must show continuing good faith
and innocence or lack of knowledge of the first sale until his contract ripens into full ownership
through prior registration as provided by law." (Abelardo Cruz v. Leodegaria Cabana, et al.,
June 22, 1984, penned by Chief Justice Claudio Teehankee).

Based on your brief narration of facts, Tet allegedly knew beforehand that the subject parcel of
land was already sold to you. By reason of such knowledge, her prior registration cannot be
considered to have been made in good faith. Hence, ownership of the subject land pertains to
you.

Topic: A forged deed is a nullity and conveys no title

Q: A parcel of land owned by our deceased parents was transferred to our sister. We found out
that the signature of my mother in the deed of sale was forged because she died prior to its
execution. The court dismissed our complaint for annulment of title, arguing that it is pointless to
resolve the issue of forgery because the death of our mother also terminated her property
relation with our father. Thus, regardless of whether or not her signature was forged, it is already
an irrelevant issue. Is the court correct?

A: the Supreme Court in the case of Valenzuela v. Pabilani, GR 241330, Dec.r 5, 2022,
penned by Chief Justice Alexander Gesmundo, where the Court explained:

"When Candida died, petitioners as her heirs ipso jure acquired their rights to succession to
Candida's estate. The legal implication being that the right of ownership of their share in
Candida's estate was immediately vested at the moment of her death. Thus, the subject
property was no longer solely and entirely owned by Felix to transmit to Leticia; rather, it
became now co-owned by Felix and the compulsory heirs of Candida, her children, which
include petitioners. The principle of transmission at the time of the predecessor's death is clear.
As a consequence of this fundamental rule of succession, the heirs of Candida acquired their
undivided share to the subject property from the moment of her death on March 3, 2006.
Petitioners then became co-owners of the aforesaid property, together with the other surviving
heirs, Felix, and Leticia. Due to the existence of the co-ownership, neither Felix nor Leticia could
sell the entire subject property without the consent of the other co-owners-petitioners. Nemo dat
Quod non habet. No one can give what he or she does not have.

"While it is true that a co-owner may sell his or her indefinite and undivided interest in a co-
ownership, it is also equally true that a contract of sale which purportedly sells a definite portion
of unpartitioned land owned by a co-ownership is null and void ab initio, especially when the
signatures therein are forged.

"As declared above, the DOAS is void ab initio. A forged deed is a nullity and conveys no title.
Thus, all the transactions subsequent to the alleged sale are likewise null and void. A void
contract cannot be a source of obligation by which the RD (registrar of deed) can validly issue a
new title in favor of Leticia and subsequently, spouses Pabilani. Thus, as a rule, the issuance of
new TCTs, which were sourced from a forged DOAs, are also null and void.

"In summary, all subsequent certificates of title obtained from the void sale, including private
respondent's title, are likewise void because of the legal truism that the spring cannot rise higher
than its source...
"Anent to the last issue, the Court finds that Spouses Pabilani were not buyers in good faith...
Notably, spouses Pabilani admitted to inspecting the subject property before purchasing the
same and notices that people were residing therein..."

Applying the aforesaid in your case, it is clear that the transfer of a parcel of land to your sister
is a nullity because the deed of sale from which the transfer was sourced was forged. Your
deceased father could not validly sell that whole parcel of land to your sister without securing
the consent of all his children who are co-owners. Even if your sister sells the land to a third
person, the same will also be a nullity, unless it is proved that the third person is a buyer in
good faith.

Topic: Unfair debt collection practice

Q: I was not able to pay my loan from an online lending company (OLC) because of the
pandemic. Despite my constant assurance that I will pay, the OLC harasses and threatens me
and my relatives by repeatedly texting and calling us. My suspicion is that their app was able to
remotely access my contacts list which I never authorized. This is really unfair and humiliating.
Can the officers and/or employees of the OLC be held criminally liable for their acts?

A: Due to the increasing number of reports and complaints against some online lending
companies for their unfair debt collection practices, the Department of Justice-Office of
Cybercrime issued a Public Advisory on Online Lending Companies dated April 23, 2021 which
can be accessed at cybercrime.doj.gov.ph. It guides the victims on the appropriate legal
remedies that may be availed of against the OLCs and warns the latter on the possible penalties
that they may face should they engage in the said unlawful practice.

You mentioned that you never authorized the OLC to access your contacts list. Section 3 (a) of
Republic Act (RA) 10175 or the "Cybercrime Prevention Act of 2012" defined Access as "the
instruction, communication with, storing data in, retrieving data from, or otherwise making use of
any resources of a computer system or communication network." In this regard, if your suspicion
that such OLC illegally accessed your phone book or contacts list without any right is proven to
be true, its officers and/or employees may be held liable for Illegal Access punishable under
Sections 4 (a) (1) and 8 of RA 10175 which provide:

"SECTION 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

"Offenses against the confidentiality, integrity and availability of computer data and systems:

"Illegal Access. – The access to the whole or any part of a computer system without right. x x x

"SECTION 8. Penalties. – Any person found guilty of any of the punishable acts enumerated in
Sections 4 (a) and 4 (b) of this Act shall be punishable with imprisonment of prision mayor or a
fine of at least Two hundred thousand pesos (PhP200,000.00) up to a maximum amount
commensurate to the damage incurred or both."

In addition, you alleged that the collection and use of the contact numbers of your relatives to
disclose your existing loan and to pressure you to pay are all unauthorized. These acts may fall
under Sections 25, 28 and 31 of RA 10173 or the "Data Privacy Act of 2012" which punishes
the (1) Unauthorized Processing of Personal Information and Sensitive Personal Information,
(2) Processing of Personal Information and Sensitive Personal Information for Unauthorized
Purposes, and (3) Malicious Disclosure, respectively, as follows

"SECTION 25. Unauthorized Processing of Personal Information and Sensitive Personal

Information. – (a) The unauthorized processing of personal information shall be penalized by
imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five
hundred thousand pesos (Php500,000.00) but not more than Two million pesos
(Php2,000,000.00) shall be imposed on persons who process personal information without the
consent of the data subject, or without being authorized under this Act or any existing law. (b)
The unauthorized processing of personal sensitive information shall be penalized by
imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five
hundred thousand pesos (Php500,000.00) but not more than Four million pesos
(Php4,000,000.00) shall be imposed on persons who process personal information without the
consent of the data subject, or without being authorized under this Act or any existing law. x x x

"SECTION 28. Processing of Personal Information and Sensitive Personal Information for
Unauthorized Purposes. – The processing of personal information for unauthorized purposes
shall be penalized by imprisonment ranging from one (1) year and six (6) months to five (5)
years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more
than One million pesos (Php1,000,000.00) shall be imposed on persons processing personal
information for purposes not authorized by the data subject, or otherwise authorized under this
Act or under existing laws. The processing of sensitive personal information for unauthorized
purposes shall be penalized by imprisonment ranging from two (2) years to seven (7) years
and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than
Two million pesos (Php2,000,000.00) shall be imposed on persons processing sensitive
personal information for purposes not authorized by the data subject, or otherwise authorized
under this Act or under existing laws. x x x

"SECTION 31. Malicious Disclosure. – Any personal information controller or personal

information processor or any of its officials, employees or agents, who, with malice or in bad
faith, discloses unwarranted or false information relative to any personal information or personal
sensitive information obtained by him or her, shall be subject to imprisonment ranging from one
(1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand
pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00)."

Lastly, depending on the specific threat or contents of the messages communicated to you and
your relatives, the officers and/or employees of such OLC may be held criminally liable for
Threats and Coercion under Articles 282-283, and Articles 285-287 of the Revised Penal
Code in relation to Section 6 of the Cybercrime Prevention Act of 2012 since the threat and/or
coercion was committed through sending of SMS or through the use of information and
communication technologies.

In view of the foregoing, criminal complaints for the aforementioned crimes may be filed
simultaneously with the Office of the Prosecutor. On the other hand, should the identity of the
OLC's officers and/or employees be unknown, you may seek assistance from the NBI-
Cybercrime Division or the PNP-Anti-Cybercrime Group for the conduct of an investigation. With
regard to the violation of the Data Privacy Act, this may also be reported with the National
Privacy Commission.
Kindly take note that the filing of the said criminal cases is without prejudice to other
administrative and civil cases provided by the existing laws, rules and regulations, one of which
is under the Security and Exchange Commission Memorandum Circular 18, Series of 2019 or
the "Prohibition on Unfair Debt Collection Practices of Financing Companies (FC) and Lending
Companies (LC)," which imposes a fine as well as suspension or revocation of the license to
operate, without prejudice to any other penalties that may be imposed by the SEC under RA
11232 or the "Revised Corporation Code of the Philippines."

Topic: Small claims cases

Q: A friend borrowed money amounting to P250,000. He promised to pay in three months, but
it has been a year and he hasn't paid me. I would want to file a case, but I'm afraid that I will be
spending more money in filing a case because of the attorney's fees. What should I do best?

A: Sections 1 and 18 of AM 08-8-7-SC, dated March 1, 2022, otherwise known as the Rules
on Expedited Procedures in the First Level Courts, which states that:

"Section 1. Small Claims Cases, as defined hereunder, where the claim does not exceed One
Million Pesos (P1,000,000.00), exclusive of interest and costs.

"A 'small claim' is an action that is purely civil in nature where the claim or relief raised by the
plaintiff is solely for the payment or reimbursement of a sum of money. It excludes actions
seeking other claims or reliefs aside from payment or reimbursement of a sum of money and
those coupled with provisional remedies.

"The claim or demand may be:

"(a) For money owed under any of the following:

"1. Contract of Lease;

"2. Contract of Loan and other credit accommodations;

"3. Contract of Services; or

"4. Contract of Sale of personal property, excluding the recovery of the personal property,
unless it is made the subject of a compromise agreement between the parties.

"Sec. 18. Appearance of Attorneys Not Allowed. - No attorney shall appear in behalf of or
represent a party at the hearing, unless the attorney is the plaintiff or defendant.

"If the court determines that a party cannot properly present his/her/its claim or defense and
needs assistance, the court may, in its discretion, allow another individual who is not an attorney
to assist that party upon the latter's consent."

Based on the above-stated law, claims or demand for money owed under contracts of loan and
other credit accommodations may be filed in court as a small claim without the need or
assistance of a lawyer, provided that the amount involved does not exceed the threshold
amount. Since the amount involved in your case did not exceed the threshold, you can file a
case for small claims before the first level courts. You may file the case on your own, without
the assistance of a lawyer as the rules even prohibit the appearance of a lawyer for or on behalf
of another.

Topic: No return, no exchange policy illegal

Q: I went to an appliance store to look for a rice cooker and an electric fan. When I was about
to pay the appliances, I noticed that a "No Return, No Exchange" signage was displayed at the
counter. I am worried because there might be defect/s on the appliance/s I bought. Is the "No
Return, No Exchange" policy valid?

A: The Department of Trade and Industry's Administrative Order No. 2, Series of 1993,
otherwise known as the Rules and Regulations Implementing Republic Act 7394, or the
Consumer Act of the Philippines, explicitly prohibits the "No Return, No Exchange" policy of
business establishments. Title III, Chapter I, Rule 2, Section 7 of the said order states:

"SEC. 7. Prohibition on the use of the words 'No return, no exchange.' - The words 'No return,
no exchange.' or words to such effect shall not be written into the contract of sale, receipt in a
sales transaction, in any document evidencing such sale or anywhere in a store or business
establishment." (Emphasis and underscoring supplied)

It is the policy of the State to promote and encourage fair, honest, and equitable relations
among parties in consumer transactions and protect the consumer against deceptive, unfair, and
unconscionable sales acts or practices. Under the aforesaid law, the "No Return, No Exchange"
policy is considered deceptive sales act or practice as it creates an impression that the buyer
has no remedy to return a defective product. Thus, it is prohibited.

As such, consumers should be allowed to return or exchange the goods, or avail themselves of
other remedies, in case of hidden faults or defects, or any charge the buyer was not aware of
the time of purchase. In enforcing these remedies, however, consumers should bear in mind to
at least prove the sale transaction and show an evidence such as the official receipt or any other
alternative proof.

Accordingly, the subject appliance store violated the aforesaid law, and may be punished
accordingly. Note that under the law, deceptive sales acts and practices are punishable by fine
of not less than P500 but not more than P10,000 or imprisonment of not less than 5 months
but not more than 1 year or both, upon the discretion of the court. (Art. 60, Republic Act 7394).

Topic: Revocation of donation

Q: Three years ago, I donated a parcel of land to my brother subject to a condition that a small
chapel must be built in the said area. The condition was stipulated in the Deed of Donation.
However, my brother failed to fulfill the condition since after a year from acceptance of the
donation, he already migrated abroad and decided to permanently live there. Can I revoke the
donation?

A: You may revoke the donation that you made to your brother since he failed to fulfill the
condition you set in the Deed of Donation. This is in accordance with Article 764 of the New
Civil Code of the Philippines, which states that:

"Article 764. The donation shall be revoked at the instance of the donor, when the donee fails
to comply with any of the conditions which the former imposed upon the latter.

"In this case, the property donated shall be returned to the donor, the alienations made by the
donee and the mortgages imposed thereon by him being void, with the limitations established,
with regard to third persons, by the Mortgage Law and the Land Registration laws.

"This action shall prescribe after four years from the noncompliance with the condition, may be
transmitted to the heirs of the donor, and may be exercised against the donee's heirs."

Based on the above-stated law, the donor may revoke the donation that he made if the donee
fails to comply or fulfill the condition set or imposed upon the donee in the Deed of Donation. In
your situation, your brother's failure to construct or build a small chapel in the parcel of land that
you donated to him is a ground for the revocation of the said donation.

Further, the afore-mentioned law provides that the action to revoke a donation based on the
non-compliance of the condition prescribes after four years from such non-compliance. In your
case, the action to revoke your donation based on non-compliance of the condition has not yet
prescribed as only a year has passed from the acceptance of the donation. Therefore, you may
still revoke the donation that you made to your brother.

Topic: Building structures on someone's property without consent

Q: I have inherited a parcel of land in the province from my parents. Since I am working as an
OFW, I seldom go home to our province. Just this year, I learned that my uncle built a small
house on my land without my permission. He knew that the land belongs to me. He now refuses
to vacate and told me that he will only leave if I pay the expenses he incurred in building the
house. Is he correct?

A: Article 449 of the Civil Code which states that –

"Art. 449. He who builds, plants or sows in bad faith on the land of another, loses what is built,
planted or sown without right to indemnity."

Moreover, Article 450 of the said Code will apply. It provides:

"Art. 450. The owner of the land on which anything has been built, planted or sown in bad faith
may demand the demolition of the work, or that the planting or sowing be removed, in order to
replace things in their former condition at the expense of the person who built, planted or sowed;
or he may compel the builder or planter to pay the price of the land, and the sower the proper
rent."

Furthermore, Article 451 of the same Code mandates that –

"Art. 451. In the case of the two preceding articles, the landowner is entitled to damages from
the builder, planter or sower."

Based on the above-stated law, a builder in bad faith is not entitled to indemnity for the
improvements he or she introduced on the land. As a builder in bad faith, he or she loses his or
her right to such improvements. In fact, the owner of the land even has the option to demand
demolition of the improvements at the expense of the builder in bad faith. Moreover, the owner
of the land is entitled to collect damages from the builder in bad faith.

In the case of Tan Queto v. Court of Appeals (GR L-35648, Feb. 27, 1987, Ponente: Associate
Justice Edgardo Paras), the Supreme Court held

"Please note further that the difference between a builder (or possessor) in good faith and one
in bad faith is that the former is NOT AWARE of the defect or flaw in his title or mode of
acquisition while the latter is AWARE of such defect or flaw x x x x"

Considering that your uncle knows that the land belongs to you when he introduced
improvements on your land, he can be considered as a builder in bad faith. Therefore, he loses
his right to the house he constructed on your land without any right to indemnity. You may even
demand its demolition at your uncle's expense. Alternatively, you may ask your uncle to pay the
price of the land if you so wish. In either case, you are entitled to recover damages from your
uncle arising from the unauthorized construction on your land.

Topic: Co-owner may enjoy and possess property owned in common

Q: My father has been in possession of a portion of the land that he and his brother Jake
inherited from their parents (deceased). He built a house on the land and continuously occupied
it up to the present. Last month, his brother came to our house and demanded that we vacate
the land because he allegedly owned it. He showed my father an affidavit of self-adjudication to
prove his claim. Since my father was unschooled and he has high respect for his older brother,
he begged that we be allowed to stay on the land and we will just pay rent to my uncle. But the
latter refused. I am really worried. Does my uncle own the land, and can he evict us from the
property?

A: It can be gleaned from the facts that you have provided in your letter that your father is a co-
owner of the land. He and his brother inherited the land upon the death of their parents.

This is in consonance with Articles 484 and 777 of the New Civil Code, which provide,
respectively, that

"Article 484. There is co-ownership whenever the ownership of an undivided thing or right
belongs to different persons. xxx

"Article 777. The rights to the succession are transmitted from the moment of the death of the
decedent."

Correlative thereto, Article 980 of the same law also states that: "The children of the deceased
shall always inherit from him in their own right, dividing the inheritance in equal shares." As
such, your father and his sibling clearly have equal shares on the subject land in the absence of
a will left by your grandparents.

The affidavit of self-adjudication executed by your uncle to prove sole ownership of the land is
invalid as the law itself provides that they inherit from your grandfather in equal shares. Hence,
your father remains to be a co-owner of the inherited land. One right of a co-owner is to use the
land owned in common. Given that your father has the right to use the subject land, your uncle
cannot evict him from the said property. This finds support in the case of Spouses Bangug and
Spouses Adolfo, GR 259061, Aug. 15, 2022, where the Supreme Court through Associate
Justice Alfredo Benjamin S. Caguioa, citing an earlier case, stated that:
"Being a co-owner of the property as heir of Carolina, petitioner cannot be ejected from the
subject property. In a co-ownership, the undivided thing or right belong to different persons, with
each of them holding the property pro indiviso and exercising [his] rights over the whole
property. Each co-owner may use and enjoy the property with no other limitation than that he
shall not injure the interests of his co-owners. The underlying rationale is that until a division is
actually made, the respective share of each cannot be determined, and every co-owner
exercises, together with his co-participants, joint ownership of the pro indiviso property, in
addition to his use and enjoyment of it.

"Ultimately, respondents do not have a cause of action to eject petitioner based on tolerance
because the latter is also entitled to possess and enjoy the subject property. Corollarily, neither
of the parties can assert exclusive ownership and possession of the same prior to any partition.
xxx"

Applying the above-cited decision in your situation, your father and his brother are the co-
owners of the land from the moment your grandparents died. Being a co-owner, he may
exercise, together with his sibling, joint ownership of the pro-indiviso property. They may,
therefore, use and enjoy the property owned in common with no other limitation other than that
which injure the interest of the other co-owner. Thus, your uncle cannot evict your father
because the latter is also entitled to possess and enjoy the land as a co-owner.

Topic: Inheritance by one heir

Q: I am an only child and now an orphan because both my parents died recently. My parents
left a property when they died. However, I do not have money to file an action in court to settle
their estate. Is there an easier way to transfer the said property in my name?

A: Section 1, Rule 74 of the Rules of Court which states that:

"Rule 74 – Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent

left no will and no debts and the heirs are all of age, or the minors are represented by their
judicial or legal representatives duly authorized for the purpose, the parties may without securing
letters of administration, divide the estate among themselves as they see fit by means of a
public instrument filed in the office of the register of deeds, and should they disagree, they may
do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the
entire estate by means of an affidavit filed in the office of the register of deeds. The parties to an
extrajudicial settlement, whether by public instrument or by stipulation in a pending action for
partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit
shall file, simultaneously with and as a condition precedent to the filing of the public instrument,
or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a
bond with the said register of deeds, in an amount equivalent to the value of the personal
property involved as certified to under oath by the parties concerned and conditioned upon the
payment of any just claim that may be filed under section 4 of this rule. It shall be presumed
that the decedent left no debts if no creditor files a petition for letters of administration within two
(2) years after the death of the decedent.

"The fact of the extrajudicial settlement or administration shall be published in a newspaper of

general circulation in the manner provided in the next succeeding section; but no extrajudicial
settlement shall be binding upon any person who has not participated therein or had no notice
thereof. (Emphases and underscoring supplied)"

Based on the above-stated law, if you are the only heir of the deceased and you are
adjudicating the entire inheritance to yourself, it is possible that you do not need to go to court,
and instead extrajudicially settle the estate left by your parents. However, the following
conditions must be fulfilled to avail of such remedy: 1) there should be no last will and
testament; 2) your parents must not have an outstanding debt; and 3) you must be of age. If all
three are present, you can proceed to extrajudicially settle the estate of your parents by
executing an Affidavit of Self-Adjudication and filing it in the Office of the Register of Deeds of
the place where the deceased resided, and complying with the other requirements set by the
above-quoted rule.

Topic: Consequences of the refusal of establishments to honor the senior citizen's card

Q: I am a senior citizen who ate at a local restaurant with my family. Upon paying the bill, I
presented my senior citizen card to obtain a discount. However, the management refused to
honor the same, claiming that they do not give discounts as their restaurant is a small
establishment that is trying to recuperate from the losses due to the pandemic. Is that a valid
reason to refuse to honor the senior citizen card?

A: Section 10 of Republic Act (RA) 7432, as further amended by RA 9994 or the "Expanded
Senior Citizens Act of 2010," which states that:

"SEC. 10. Penalties. – Any person who refuses to honor the senior citizen card issued by the
government or violates any provision of this Act shall suffer the following penalties:

"(a) For the first violation, imprisonment of not less than two (2) years but not more than six
(6) years and a fine of not less than Fifty thousand pesos (Php50,000.00) but not exceeding
One hundred thousand pesos (Php100,000.00);

"(b) For any subsequent violation, imprisonment of not less than two (2) years but not more
than six (6) years and a fine of not less than One Hundred thousand pesos (Php100,000.00)
but not exceeding Two hundred thousand pesos (Php200,000.00); and

"(c) Any person who abuses the privileges granted herein shall be punished with imprisonment
of not less than six (6) months and a fine of not less than Fifty thousand pesos
(Php50,000.00) but not more than One hundred thousand pesos (Php100,000.00).

"If the offender is a corporation, partnership, organization or any similar entity, the officials
thereof directly involved such as the president, general manager, managing partner, or such
other officer charged with the management of the business affairs shall be liable therefor.

"If the offender is an alien or a foreigner, he/she shall be deported immediately after service of
sentence.

"Upon filing of an appropriate complaint, and after due notice and hearing, the proper authorities
may also cause the cancellation or revocation of the business permit, permit to operate,
franchise and other similar privileges granted to any person, establishment or business entity
that fails to abide by the provisions of this Act."

As provided under Section 10 of the afore-mentioned law, a person or entity who refuses to
honor the senior citizen card issued by the government shall suffer imprisonment of not less
than two years but not more than six years and a fine of not less than P50,000 but not
exceeding P100,000 for the first offense. If such violation be repeated again, the violator shall
be punished with imprisonment of not less than two years but not more than six years and a fine
of not less than P100,000 but not exceeding P200,000.

Section 10 likewise provides that the violation of the Expanded Senior Citizens Act of 2010 may
also cause the cancellation or revocation of the business permit, permit to operate, franchise
and other similar privileges.

In your case, the reason given by the establishment in refusing to honor your senior citizens'
card is not valid. Please note that Section 4 of the law providing for the privileges for senior
citizens, which include the grant of 20 percent discount and exemption from the value-added tax
on the utilization of services in hotels and similar lodging establishments, restaurants and
recreation centers, does not provide for any qualification or condition. Neither is there any
provision in the law that exempts a company from granting such benefit on the basis of its size
or financial condition. As such, the establishment that refused to honor your senior citizen card
violated the law and this may result to imprisonment, payment of fine, and the cancellation of
permit relating to the operation of their business.

Topic: Validity of sale of land made orally

Q: I bought a land from Gina (deceased) in 1985. The agreement was made orally, and she
just delivered to me the owner's duplicate copy of the title. I have been in peaceful possession
of the said property ever since and have been religiously paying the corresponding real property
tax. When Gina died, her heirs claimed that the oral sale of her land to me was void because of
the simple reason that the transaction was not made in writing. Is the oral sale of land between
me and Gina void?

A: There is already a perfected contract of sale of land if the contracting parties have agreed as
to the object and price thereof. This is in consonance with Article 1475 of the New Civil Code of
the Philippines which states that:

"The contract of sale is perfected at the moment there is a meeting of minds upon the thing
which is the object of the contract and upon the price. xxx".

The oral sale of land is still valid because of the provision of Article 1356 of the same code
which provides that:

"Contracts shall be obligatory, in whatever form they may have been entered into, provided all
the essential requisites for their validity are present. However, when the law requires that a
contract be in some form in order that it may be valid or enforceable, or that a contract be
proved in a certain way, that requirement is absolute and indispensable. In such cases, the right
of the parties stated in the following article cannot be exercised."

The purpose of requiring a certain contract to be in writing and its effect as to its validity were
fully explained in the case of Alido v. Campano, GR 226065, July 29, 2019, where the
Supreme Court speaking through Associate Justice Jose Reyes Jr., stated that:

"The Statute Frauds embodied in Article 1403, paragraph (2), of the Civil Code requires certain
contracts enumerated therein to be evidenced by some note or memorandum in order to be
enforceable. The term "Statute of Frauds" is descriptive of statutes which require certain
classes of contracts to be in writing. The Statute does not deprive the parties of the right to
contract with respect to the matters therein involved, but merely regulates the formalities of the
contract necessary to render it enforceable. Evidence of the agreement cannot be received
without the writing or a secondary evidence of its contents.

"The Statute, however, simply provides the method by which the contracts enumerated therein
may be proved but does not declare them invalid because they are not reduced to writing. By
law, contracts are obligatory in whatever form they may have been entered into, provided all the
essential requisites for their validity are present. However, when the law requires that a contract
be in some form in order that it may be valid or enforceable, or that a contract be proved in a
certain way, that requirement is absolute and indispensable. Consequently, the effect of non-
compliance with the requirement of the Statute is simply that no action can be enforced unless
the requirement is complied with. Clearly, the form required is for evidentiary purposes only.
Hence, if the parties permit a contract to be proved, without any objection, it is then just as
binding as if the Statute has been complied with."

Applying the above-cited decision in your situation, there was a perfected sale of land between
you and Gina because there was a meeting of the minds as to the object and price. In fact, the
contract was even fully enforced and executed when you paid the selling price and Gina
delivered the title as well as possession of the property to you. As explained in the Alido case,
the requirement that the contract involving sale of land must be in writing under Article 1403 of
the New Civil Code is for evidentiary purposes only and has nothing to do with the validity of the
sale. Hence, your peaceful possession of the property will not be disturbed on the mere basis
that the transaction was made in writing.

Topic: Liability of lending company operating without authority

Q: Our family has a small carinderia business which hasn't been profitable since the start of the
pandemic. My mother resorted to borrowing money from a lending company just so we won't
have to close our business, as it is our only means of livelihood. She said that she saw a poster
of that company outside a mall and since she cannot avail of a bank loan, she decided to
secure the loan from that company. The principal amount of her loan is P90,000. While she has
been paying only the monthly minimum, it is still shocking to us that her total obligation
ballooned to almost P150,000. Can they charge that much interest, which I think is very high?
Also, we found out that the company has no authority from the SEC to operate. Can my mother
still be made liable?

A: When a person enters into a contract, he or she is bound to comply with the conditions and
obligations set therein as long as these are not contrary to law, morals, good customs, public
order, or public policy. The pertinent provisions of the New Civil Code of the Philippines provide:

"Art. 1159. Obligations arising from contracts have the force of law between the contracting
parties and should be complied with in good faith....

"Art. 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."
Since your mother entered into a contract of loan, she is bound to pay the amount that she
owes, as well as such other lawful charges incidental to said agreement. Insofar as the interest
of such loan is concerned, your mother may be held liable to pay the same provided it has been
clearly stipulated in their written contract pursuant to Article 1956 of the said Code which states
that: "No interest shall be due unless it has been expressly stipulated in writing." Such
obligation subsists even if you think that amount of interest is high. The suspension of the Usury
Law, as stated under Central Bank Circular 905 series of 1982, recognizes the capacity of the
lender and the borrower to freely agree on the amount of interest and they will be bound by
such agreement, unless the courts find the same grossly exorbitant. Hence, the courts will not
interfere with the agreement of the parties as to the interest unless it becomes excessive,
iniquitous, unconscionable, and exorbitant. In such a case, the stipulation is considered void for
being contrary to morals, if not against the law. (Rolando C. Dela Paz v. L & J Development
Company, GR 183360, Sept. 8, 2014; Ponente: Associate Justice Mariano del Castillo).

Nevertheless, it bears stressing that while your mother may be bound to pay her contractual
obligation, the person/s responsible for engaging in the lending business without proper
authority from the Securities and Exchange Commission (SEC) may be held liable as well.
Section 12 of Republic Act 9474, otherwise known as the "Lending Company Regulation Act of
2007," specifically provides:

"SEC. 12. Penalty. - A fine of not less than Ten Thousand Pesos (P10,000.00) and not more
than Fifty thousand pesos (P50,000.00) or imprisonment of not less than six months but not
more than ten (10) years or both, at the discretion of the court, shall be imposed upon:

"1. Any person who shall engage in the business of a lending company without a validly
subsisting authority to operate from the SEC.

"2. The president, treasurer and other officers of the corporation, including the managing officer
thereof, who shall knowingly and willingly:

"3. Engage in the business of a lending company without a validly subsisting authority to
operate from the SEC;

"4. Hold themselves out to be a lending company, either through advertisement in whatever
form, whether in its stationery, commercial paper, or other document, or through other
representations without authority;
"5. Make use of a trade or firm name containing the words 'lending company' or 'lending
investor' or any other designation that would give the public the impression that it is engaged in
the business of a lending company as defined in this Act without authority; x x x"

Topic: What to do when seller refuses to surrender title

Q: I purchased land from June for a certain amount and a corresponding Deed of Absolute Sale
was executed covering the transaction. After receiving the full payment, June immediately went
home to his province to get the owner's duplicate of the title which is being kept by his sister. I
contacted him after a week, and I was surprised that he refused to surrender the title without
giving any valid reason. I also obtained information that June was allegedly selling the same
land to another person. A relative suggested to me to cause the annotation of an adverse claim
in the title of June in order to protect my interest. However, a friend claims that I need to register
the deed of sale instead of annotating my claim. What should I do?

A: In general, a buyer in a perfected contract of sale needs to register the deed of sale covering
the transaction in order to bind the land against third persons. This is in accordance with Section
51 of Presidential Decree 1529, as amended, known as the "Property Registration Decree,"
which states that:

"An owner of registered land may convey, mortgage, lease, charge or otherwise deal with the
same in accordance with existing laws. He may use such forms of deeds, mortgages, leases or
other voluntary instruments as are sufficient in law. But no deed, mortgage, lease, or other
voluntary instrument, except a will purporting to convey or affect registered land shall take effect
as a conveyance or bind the land, but shall operate only as a contract between the parties and
as evidence of authority to the Register of Deeds to make registration.

"The act of registration shall be the operative act to convey or affect the land insofar as third
persons are concerned, and in all cases under this Decree, the registration shall be made in the
office of the Register of Deeds for the province or city where the land lies."
The above-mentioned provision of law may be availed of by the buyer if the owner's duplicate of
title was surrendered by the seller. In case of refusal of the seller to surrender his or her
certificate of title, the appropriate legal remedy is to file an adverse claim, as mentioned in the
case of Logarta v. Mangahis (GR 213568, July 5, 2016), where the Supreme Court speaking
through Associate Justice Estela Perlas-Bernabe, stated that

"Thus, the prevailing rule is that voluntary instruments such as contracts of sale, contracts to
sell, and conditional sales are registered by presenting the owner's duplicate copy of the title for
annotation, pursuant to Sections 51 to 53 of PD 1529. The reason for requiring the production
of the owner's duplicate certificate in the registration of a voluntary instrument is that, being a
willful act of the registered owner, it is to be presumed that he is interested in registering the
instrument and would willingly surrender, present or produce his duplicate certificate of title to
the Register of Deeds in order to accomplish such registration. The exception to this rule is
when the registered owner refuses or fails to surrender his duplicate copy of the title, in which
case the claimant may file with the Register of Deeds a statement setting forth his adverse
claim."

Applying the above-quoted decision in your situation, applying for the annotation of your adverse
claim is proper under the circumstances, pending the refusal of June to surrender his owner's
duplicate certificate of title. You cannot register the deed of sale with the Registry at the moment
because you do not have the duplicate certificate of title of June.

Topic: Sale of property acquired by unmarried couple

Q: Leslie and I have been living together since 2015. We love each other, but a wedding is not
yet included in our plan. We acquired several properties, and these were registered both in our
names except one lot which was solely registered in her name. Leslie intends to sell the lot
registered solely in her name so that she can invest the proceeds to her online selling business.
A prospective buyer is interested in buying the property, but he allegedly needs my signature in
the deed of sale. I told the buyer that Leslie may sign the deed on her own because she is the
registered owner but, he claims that my signature as a co-owner is necessary. Is my signature
really necessary in the deed of sale? If so, may I know the rationale behind such
requirement?

A: In general, a co-owner may dispose his proportionate share in the property owned in
common in accordance with Article 493 of the New Civil Code of the Philippines which states
that:

"Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining
thereto, and he may therefore alienate, assign or mortgage it, and even substitute another
person in its enjoyment, except when personal rights are involved. But the effect of the
alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the termination of the co-ownership."

The properties acquired by a man and a woman who are living together and who possess the
legal capacity to marry is specifically governed by special co-ownership under Article 147 of the
Family Code of the Philippines, which provides that:

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

"xxx Neither party can encumber or dispose by acts inter vivos of his or her share in the
property acquired during cohabitation and owned in common, without the consent of the other,
until after the termination of their cohabitation."

Based on the above and absent any legal impediment for you to marry each other, the
properties you share with Leslie are covered by a special co-ownership under Article 147 of the
Family Code of the Philippines. The registration of the subject lot in the name of Leslie only
would not eliminate it from your common or shared properties as you mentioned in your letter
that the property was acquired during your cohabitation and there is no termination of such
relationship yet. Since the lot is owned in common, your consent or signature in the intended
sale is necessary.

The rationale for this rule was elaborated in the case of Perez Jr. vs. Peres-Senerpida, GR
233365, March 24, 2021, where the Supreme Court speaking through Justice Alfredo Benjamin
S. Caguioa stated that:

"x x x If the parties are allowed to dispose of their shares in said properties like in a true co-
ownership, it will destroy their relationship. The Family Code, as already stated, would like to
encourage the parties to legalize their union some day and is just smoothing out the way until
their relationship ripens into a valid union."

Thus, in order to preserve the relationship and encourage the parties to legalize their union in
the future, the State deemed it fit to disallow the disposition of the property owned in common
by one partner during the cohabitation and without the other partner's consent.

Topic: On animal cruelty

Q: Do we have a law that protects our animals from the ill treatment of humans and punishes
those who violate it?

A: Republic Act 8485, otherwise known as the "Animal Welfare Act of 1998, as amended by
Republic Act 10631," outlaws subjecting any animal to cruelty, maltreatment, or neglect.

Under Section 6 of the said law, "[i]t shall be unlawful for any person to torture any animal, to
neglect to provide adequate care, sustenance of shelter, or maltreat any animal or to subject
any dog or horse to dogfights or horsefights, kill or cause or procure to be tortured or deprived
of adequate care, sustenance or shelter, or maltreat or use the same in research or experiments
not expressly authorized by the Committee on Animal Welfare."

The killing of any animal other than cattle, pigs, goats, sheep, poultry, rabbits, carabaos and
horses is likewise unlawful except in the following instances:

"(1) When it is done as part of the religious rituals of an established religion or sect or a ritual
required by tribal or ethnic custom of indigenous cultural communities; however, leaders shall
keep records in cooperation with the Committee on Animal Welfare;

"(2) When the pet animal is afflicted with an incurable communicable disease as determined
and certified by a duly licensed veterinarian;

"(3) When the killing is deemed necessary to put an end to the misery suffered by the animal
as determined and certified by a duly licensed veterinarian;

"(4) When it is done to prevent an imminent danger to the life or limb of a human being;

"(5) When done for the purpose of animal population control;

"(6) When the animal is killed after it has been used in authorized research or experiments; and

"(7) Any other ground analogous to the foregoing as determined and certified licensed
veterinarian."

In all the above-mentioned cases, including those of cattle, pigs, goats, sheep, poultry, rabbits,
carabaos and horses, the killing of the animals shall be done through humane procedures at all
times.

Humane procedures shall mean the use of the most scientific methods available as may be
determined and approved by the Committee on Animal Welfare. Only those procedures
approved by such committee shall be used in the killing of animals. (Sec. 6)

Under Section 9 of the same law, any person who subjects any animal to cruelty, maltreatment,
or neglect shall, upon conviction by final judgment, be punished by imprisonment for six months
up to two years, fine amounting to P30,000 up to P100,000, or both imprisonment and fine,
depending on the injury or damage sustained by the animal. However, regardless of the
resulting condition to the animal, the penalty is imprisonment up to three years and/or a fine up
to P250,000, if the offense is committed by any of the following: (1) a syndicate; (2) an
offender who makes business out of cruelty to an animal; (3) a public officer or employee; or
(4) where at least three animals are involved.

If the violation is committed by a juridical person, the officer responsible thereof shall serve the
imprisonment. If the violation is committed by an alien, he or she shall be immediately deported
after the service of sentence without any further proceeding.

Topic: Failure to disclose previous employment not a ground for dismissal

Q: I am working in a financing company for about two years now. Recently, the Human
Resources manager called my attention as she found out that I failed to disclose my previous
employment. Is the failure to disclose a previous employment a ground for dismissal?

A: the Supreme Court, in its pronouncement in Nancy Claire Pit Celis v. Bank of Makati (A
Savings Bank), Inc., GR 250776, June 15, 2022, penned by Associate Justice Henri Jean Paul
Inting, held that:

"In line with the Constitutional policy of giving protection to labor, the Civil Code and the Labor
Code provide that doubts in the interpretation of labor legislation and contracts shall be
construed in favor of labor. Likewise, the Court has consistently held that doubts in the
appreciation of evidence in labor cases shall work to the advantage of labor.

"In the case, respondent dismissed petitioner from employment as she allegedly violated its
Code of Conduct for the subject infraction. According to respondent, petitioner did not state in
her job application that she was once employed with the Bank of Placer to conceal her
implication in the embezzlement case thereat. Respondent further explained that it could not
have hired petitioner had it known about her involvement in such case. x x x

"Being faced with different interpretations of the subject provision, the Court adopts the
construction which favors petitioner in view of the Constitutional policy of giving protection to
labor and resolving doubtful labor provisions or contracts in favor of workers.

"To be liable under the subject infraction, i.e., 'knowingly giving false or misleading information
in applications for employment as a result of which employment is secured,' the employee must
have performed an overt or positive act, i.e., giving false information in the application for
employment. Considering that petitioner did not actually state any false information in her job
application but merely omitted to reflect her past employment with the Bank of Placer, she could
not have committed the alleged infraction. x x x

"From the foregoing, the labor tribunals aptly held that this is merely a case of an omission to
disclose former employment in a job application, a fault which does not justify petitioner's
suspension and eventual termination from employment. It is well settled that 'there must be a
reasonable proportionality between the offense and the penalty. The penalty must be
commensurate to the offense involved and to the degree of the infraction.' To dismiss petitioner
on account of her omission to disclose former employment is just too harsh a penalty."
(Emphasis and underscoring supplied)

Clearly, based from the foregoing, the Supreme Court has ruled that the omission to disclose
past employment per se is not a just cause to terminate an employment. Accordingly, your
failure to disclose a previous employment may not be a ground for dismissal, especially if there
is no internal policy on such matter. Even if there is such internal policy, the same must comply
with the principle that the penalty should be commensurate with the infraction committed.

Topic: When the action speaks louder than words in the crime of Grave Threats

Q: Is it possible to be charged, and eventually be convicted for the crime of grave threats even
in the absence of any direct words spoken/uttered evidencing the alleged threat?

A: Act No. 3815, otherwise known as the Revised Penal Code of the Philippines, as amended.
Succinctly, Article 282 of the said law reads:

"Art. 282. Grave threats. - Any person who shall threaten another with the infliction upon the
person, honor or property of the latter or of his family of any wrong amounting to a crime, shall
suffer:

"1. The penalty next lower in degree than that prescribed by law for the crime he threatened to
commit, if the offender shall have made the threat demanding money or imposing any other
condition, even though not unlawful, and said offender shall have attained his purpose. If the
offender shall not have attained his purpose, the penalty lower by two (2) degrees shall be
imposed.

"If the threat be made in writing or through a middleman, the penalty shall be imposed in its
maximum period.
"1. The penalty of arresto mayor and a fine not exceeding One hundred thousand pesos
(P100,000), if the threat shall not have been made subject to a condition."

Related with the above-mentioned law, the Supreme Court in the case of Calaug v. People
(G.R. No. 171511, 4 March 2009) penned by the late Honorable Associate Justice Leonardo A.
Quisumbing, held that the crime of grave threats can be committed when the action speaks
louder than words, viz:

"In grave threats, the wrong threatened amounts to a crime which may or may not be
accompanied by a condition. In light threats, the wrong threatened does not amount to a crime
but is always accompanied by a condition. In other light threats, the wrong threatened does not
amount to a crime and there is no condition.

"The records show that at around 7:30 in the evening, Julia Denido left her house to go to the
barangay hall to report the mauling of her husband which she witnessed earlier at around 4:00
o'clock in the afternoon. On her way there, petitioner confronted her and pointed a gun to her
forehead, while at the same time saying "Saan ka pupunta, gusto mo ito?" Considering what
transpired earlier between petitioner and Julia's husband, petitioner's act of pointing a gun at
Julia's forehead clearly enounces a threat to kill or to inflict serious physical injury on her
person. Actions speak louder than words. Taken in the context of the surrounding
circumstances, the uttered words do not go against the threat to kill or to inflict serious injury
evinced by petitioner's accompanying act.

"Given the surrounding circumstances, the offense committed falls under Article 282, par. 2
(grave threats) since: (1) killing or shooting someone amounts to a crime, and (2) the threat to
kill was not subject to a condition." (Emphasis and underscoring supplied)

Applying the foregoing to your query, it is clear that the crime of grave threats can still be
committed even in the absence of a direct word uttering an alleged threat amounting to a crime.
As jurisprudence puts it, "when the action speaks louder than words," a direct utterance of
threat is not necessary to prove the commission of the crime.

Topic: The truth or falsity of a malicious imputation in a libel case is not an element of the crime

Q: My ex-boyfriend, with whom I shared most of my life with for the past five years, has been
posting "paninirang puri" against me in his social media account. Can I file a cyber libel case
against him even if most of his malicious imputations against me are true?

A: Article 353 of the Revised Penal Code, or the "Definition of libel," which states:

"Art. 353. Definition of libel. – A libel is public and malicious imputation of a crime, or of a vice
or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the
memory of one who is dead."

Based on this definition, the Supreme Court has held in the case of People v Monton (GR L-
16772, Nov. 30, 1962, Ponente: Associate Justice, the late Chief Justice Querube Makalintal),
that four elements constitute the crime of libel, namely: (a) defamatory imputation tending to
cause dishonor, discredit or contempt; (b) malice, either in law or in fact; (c) publication; and
(d) identifiability of the person defamed.

The truth or falsity of the imputation is not one of the elements of the crime of libel. Instead, the
law only requires that the imputation be both defamatory and malicious. In the case of Manila
Bulletin v Domingo, GR 170341, July 5, 2017, the Supreme Court through Associate Justice
and current Ombudsman, Samuel Martires, stated:

"An allegation is considered defamatory if it ascribes to a person the commission of a crime, the
possession of a vice or defect, real or imaginary, or any act, omission, condition, status or
circumstance which tends to dishonor or discredit or put him in contempt, or which tends to
blacken the memory of one who is dead. x x x

"Malice connotes ill will or spite and speaks not in response to duty but merely to injure the
reputation of the person defamed, and implies an intention to do ulterior and unjustifiable harm.
Malice is bad faith or bad motive. It is the essence of the crime of libel."

As provided in the aforementioned cases, libel, or cyber libel if committed through a computer
system or any other similar means, is committed regardless of the truth or falsity of the
imputation as long as the same is defamatory and malicious. After all, under Article 354 of the
Revised Penal Code, every defamatory imputation is presumed to be malicious, even if it be
true, if no good intention and justifiable motive for making it is shown, except in case of 1)
private communication made by any person to another in the performance of any legal, moral or
social duty; and 2) a fair and true report of official proceedings made in good faith.

Topic: Prescription period to oppose partition of estate

Q: In 2018, my brothers partitioned the estate of my parents (deceased) without my knowledge.

I questioned the partition and demanded from them my share or my inheritance but they claimed
that the law allows only a period of two years or until 2020 to question the partition. Can I still
claim my share/ inheritance even if two years have passed from the date of partition which was
executed by my brothers?

A: The exact provision of the 1997 Revised Rules of Court, as amended, which may apply to
the given set of facts as stated in your letter is found in Section 4, Rule 74, which governs the
summary settlement of estate either by extra-judicial settlement agreement between heirs or
summary settlement of estates of small value. It provides that:

"If it shall appear at any time within two (2) years after the settlement and distribution of an
estate in accordance with the provisions of either of the first two sections of this rule, that an
heir or other person has been unduly deprived of his lawful participation in the estate, such heir
or such other person may compel the settlement of the estate in the courts in the manner
hereinafter provided for the purpose of satisfying such lawful participation. And if within the same
time of two (2) years, it shall appear that there are debts outstanding against the estate which
have not been paid, or that an heir or other person has been unduly deprived of his lawful
participation payable in money, the court having jurisdiction of the estate may, by order for that
purpose, after hearing, settle the amount of such debts or lawful participation and order how
much and in what manner each distributee shall contribute in the payment thereof, and may
issue execution, if circumstances require, against the bond provided in the preceding section or
against the real estate belonging to the deceased, or both. Such bond and such real estate shall
remain charged with a liability to creditors, heirs, or other persons for the full period of two (2)
years after such distribution, notwithstanding any transfers of real estate that may have been
made."

The correct application of the prescriptive period of two years was illustrated as early as in the
olden case of Sampilo and Salacup vs. The Court of Appeals, et al., G.R. No. L-10474,
February 28, 1958, where the Supreme Court speaking through the late Honorable Associate
Justice Alejo Labrador, stated that:

"Following the above-quoted decision of this Court in the case of Ramirez vs. Gmur, supra, we
are of the opinion and so hold that the provisions of Section 4 of Rule 74, barring distributees or
heirs from objecting to an extrajudicial partition after the expiration of two years from such
extrajudicial partition, is applicable only (1) to persons who have participated or taken part or
had notice of the extrajudicial partition, and, in addition, (2) when the provisions of Section 1 of
Rule 74 have been strictly complied with, i.e., that all the persons or heirs of the decedent have
taken part in the extrajudicial settlement or are represented by themselves or through guardians.
The case at bar fails to comply with both requirements because not all the heirs interested have
participated in the extrajudicial settlement, the Court of Appeals having found that the decedent
left aside from his widow, nephews and nieces living at the time of his death."

Applying the above-cited decision in your situation, the two-year prescriptive period to object the
extra-judicial partition made by your brothers is not applicable under the circumstances because
the requirements enumerated above were not followed. The said bar only applies to heirs who
took part in the extra-judicial settlement. It does not apply to a compulsory heir like you who
were left out and did not participate nor represented in the extra-judicial settlement. The
provisions of Section 1, Rule 74 of the said law was not strictly complied with because you were
excluded in the partition; hence, you may still claim your share from your brothers.

We hope that we were able to answer your queries. We hope that we were able to answer your
queries. This advice is based solely on the facts you have narrated and our appreciation of the
same. Our opinion may vary when other facts are changed or elaborated.

Topic: Catcalling in the streets is punishable

Q: As I was walking along the alley on my way home, I came across some construction workers.
One of them said, "Hi, Sexy. Tara, i-uwi na kita." Is there a law that protects women from these
unwanted remarks?

A: Section4 of the Republic Act 11313, otherwise called as" Safe Spaces Act" which states that:

"Section 4. Gender-Based Streets and Public Spaces Sexual Harassment. – The crimes of
gender-based streets and public spaces sexual harassment are committed through any
unwanted and uninvited sexual actions or remarks against any person regardless of the motive
for committing such action or remarks.

"Gender-based streets and public spaces sexual harassment includes catcalling, wolf-whistling,
unwanted invitations, misogynistic, transphobic, homophobic and sexist slurs, persistent
uninvited comments or gestures on a person's appearance, relentless requests for personal
details, statement of sexual comments and suggestions, public masturbation or flashing of
private parts, groping, or any advances, whether verbal or physical, that is unwanted and has
threatened one's sense of personal space and physical safety, and committed in public spaces
such as alleys, roads, sidewalks and parks. Acts constitutive of gender-based streets and public
spaces sexual harassment are those performed in buildings, schools, churches, restaurants,
malls, public washrooms, bars, internet shops, public markets, transportation terminals or public
utility vehicles."

As provided under Section 4 of the aforementioned law, a person who makes any unwanted
sexual remarks against another on account of his or her gender which invades the personal
space and physical safety of the latter, makes such person liable for gender-based sexual
harassment. The sexual harassment punished under the Safe Spaces Act may be distinguished
from RA 7877 or the "Anti-Sexual Harassment Act" in a sense that the gender-based sexual
harassment may now be committed by any person, which means that it is no longer limited
against those persons exercising authority over another. Moreover, the gender-based sexual
harassment is broader in scope since it may be committed in both private and public spaces,
and even through the cyberworld as the law covers gender-based online sexual harassment.

The unwanted and inappropriate sexual remarks made by one of the construction workers as
you were walking down an alley led to an invasion of your private space and personal safety,
which is a kind of gender-based sexual harassment that is punishable under the Safe Spaces
Act.

Topic: Marital infidelity of a husband committed abroad

Q: My husband works as an OFW in Riyadh. He has been there for three years. Recently, I
discovered that he has a mistress there and he is cohabiting with her. Could I sue my husband
for marital infidelity even if the act is committed abroad?

A: As a general rule, only crimes committed in our country are covered by our penal laws. As
such, you may not file a concubinage case under Article 334 of the Revised Penal Code against
your husband considering that his cohabitation with his alleged mistress happened abroad.
Nevertheless, if the acts of your husband caused you mental or emotional suffering, then you
may file a case for violation of Republic Act 9262, otherwise known as the "Anti-Violence
Against Women and their Children Act of 2004" (VAWC). Section 3 thereof states that:

"Section 3 – As used in this Act, xxx

"1. 'Psychological violence' refers to acts or omissions causing or likely to cause mental or
emotional suffering of the victim such as but not limited to intimidation, harassment, stalking,
damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It
includes causing or allowing the victim to witness the physical, sexual or psychological abuse of
a member of the family to which the victim belongs, or to witness pornography in any form or to
witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody
and/or visitation of common children."

Based on the above-stated law, repeated marital infidelity may be considered as a form of
psychological violence. In AAA v. BBB, GR 212448, Jan. 11, 2018, the Supreme Court held
through Associate Justice Noel Tijam for the first time that a violation of the VAWC Law by the
husband through repeated marital infidelity committed abroad may be prosecuted in the
Philippines. It reasoned that in psychological violence, what is being punished is the act of
causing mental or emotional suffering on the wife. Since the suffering of the wife happened in
the Philippines, local courts may take cognizance of the case. Thus:

"Contrary to the interpretation of the RTC, what RA No. 9262 criminalizes is not the marital
infidelity per se but the psychological violence causing mental or emotional suffering on the wife.
Otherwise stated, it is the violence inflicted under the said circumstances that the law seeks to
outlaw. Marital infidelity as cited in the law is only one of the various acts by which psychological
violence may be committed. Moreover, depending on the circumstances of the spouses and for
a myriad of reasons, the illicit relationship may or may not even be causing mental or emotional
anguish on the wife. Thus, the mental or emotional suffering of the victim is an essential and
distinct element in the commission of the offense. x x x

"It is necessary, for Philippine courts to have jurisdiction when the abusive conduct or act of
violence under Section 5(i) of RA 9262 in relation to Section 3(a), Paragraph (C) was
committed outside Philippine territory, that the victim be a resident of the place where the
complaint is filed in view of the anguish suffered being a material element of the offense."

Based on the foregoing, if you suffered psychological abuse because of your husband's
repeated marital infidelity abroad, you can sue him criminally in the Philippines under the VAWC
Law for psychological violence. If your husband does not respond to the charges against him
and the prosecutor finds probable cause during the preliminary investigation and files a case in
court, the judge may issue a warrant for your husband's arrest. In such a case, if he comes
home to the Philippines, he may be arrested. In addition, you may also request the court to
issue a hold departure order to prevent him from leaving the Philippines.

Topic: Filing an appeal

Q: I had a civil case before the Municipal Trial Court involving a parcel of land which I own.
Unfortunately, an adverse decision was rendered by the court three months ago, and I have not
done anything to question the same. I talked to a paralegal who advised me to appeal the
decision since this is my natural right. Is the right to appeal a natural right? Can I still file an
appeal on the decision rendered three months ago?

A: In general, the filing of an appeal shall be made within the reglementary period provided by
law or the rules of court. Under Section 39 of Batas Pambansa Bilang 129 (Judiciary
Reorganization Act of 1980), as amended, it provides that:

"The period for appeal from final orders, resolutions, awards, judgments, or decisions of any
court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution,
award, judgment, or decision appealed from xxx."

An appeal from the decision of the municipal/metropolitan trial court in a civil case is specifically
governed by Section 2, Rule 40 of the 1997 Rules of Civil Procedure, as amended. It states
that: "An appeal may be taken within fifteen (15) days after notice to the appellant of the
judgment or final order appealed from. Where a record on appeal is required, the appellant shall
file a notice of appeal and a record on appeal within thirty (30) days after notice of the
judgment or final order." The same period is being observed in a motion for reconsideration
(Section 1, Rule 37, Id.) as this legal remedy is appropriate prior to the filing of an appeal.

It is important to emphasize that the filing of an appeal or motion for reconsideration must be
taken within 15 days from receipt of the decision. Otherwise, the decision will be entered by the
clerk of court in the book of entries of judgment and will become final and executory. (Sec. 2,
Rule 36, Id.) Ruling on the nature of the right to appeal, the pronouncement of the Supreme
Court in the case of Ramirez vs. Elomina, GR 202661, March 17, 2021, penned by Associate
Justice Ramon Paul Hernando, is instructive, viz.:

"Time and again, the Court has declared that "the right to appeal is neither a natural right nor a
part of due process. It is merely a statutory privilege and may be exercised only in the manner
and in accordance with the provisions of law. Thus, one who seeks to avail of the right to appeal
must comply with the requirements of the Rules. Failure to do so... leads to the loss of the right
to appeal", such as the instant case."

Thus, the statement that the right to appeal is a natural right has no legal basis. The right to
appeal is neither a natural right nor part of due process, but rather a mere statutory privilege
which should be exercised in accordance with the provisions of the law and rules. Applying the
foregoing to your situation, the decision of the court in that civil case you mentioned was issued
three months ago. It also appears that you have been properly notified of such decision. Hence,
the same is already final and executory. Your failure to file the appeal or motion for
reconsideration within the period provided under Section 2, Rule 40 of the 1997 Rules of Civil
Procedure, as amended, rendered the decision final and executory.

Topic: Rape victim with mental disability can be a credible witness

Q: I saw on the news about a 30-year-old woman who was raped. The rapist, being a close
friend of the victim's family, knew that this woman is mentally disabled and with a mental age of
only 8 years. What crime should be filed against him? Will the victim's mental disability affect
her credibility and competence as a witness to the crime committed against her?

A: Pursuant to Section 1 of Republic Act 11648 which further amended Article 266-A (1)(d) of
Act 3815 or the Revised Penal Code, as amended by RA Act 8353 or the "Anti-Rape Law of
1997," rape of a victim who is under 16 years old or is demented constitutes statutory rape.
However, the accused may raise as a defense the fact that the age difference between him/her
and the victim is not more than three years and the sexual act is proven to be consensual, non-
abusive, and non-exploitative. This defense is not applicable if the victim is under 13 years old.
To be certain, the law provides:

"Article 266-A. Rape; When and How Committed. - Rape is committed:

"1) By a person who shall have carnal knowledge of another person under any of the following
circumstances:x x x

"1. d) When the offended party is under sixteen (16) years of age or is demented, even though
none of the circumstances mentioned above be present: Provided,That there shall be no
criminal liability on the part of a person having carnal knowledge of another person sixteen (16)
years of age when the age difference between the parties is not more than three (3) years, and
the sexual act in question is proven to be consensual, non-abusive, and non-exploitative:
Provided, further,That if the victim is under thirteen (13) years of age, this exception shall not
apply. x x x"

It bears emphasis that the ages mentioned under the aforementioned law does not only speak of
the actual or chronological age of the victim, but also speaks of their mental age, provided that it
is sufficiently established. Further, the crime shall be qualified if it is proven that the offender
knew of the victim's mental disability at the time of the commission of the crime, in consonance
with Article 266-B, paragraph 10 of the Revised Penal Code. As explained by our Supreme
Court through Associate Justice Alfredo Benjamin Caguioa in the case of People of the
Philippines vs. XXX (GR 242684, Feb.17, 2021):

"'Thus, although AAA was already 23 years old at the time of the rape incidents, since it was
established that AAA is a mental retardate, and her mental age is equivalent to that of an eight-
year-old child, the accused-appellant should be held liable for Statutory Rape under Article 266-
A, paragraph 1(d) of the RPC.

"Further, under Article 266-B, paragraph 10 of the RPC, the rape shall be qualified 'when the
offender knew of the mental disability, emotional disorder and/or physical handicap of the
offended party at the time of the commission of the crime.' Being in the nature of a qualifying
circumstance, this should be specifically alleged in the Information.

"In this case, the Informations filed against the accused-appellant specifically alleged this
qualifying circumstance. This, in turn, was proved by the accused-appellant's own admission in
court. Thus, the accused-appellant should be convicted of Qualified Statutory Rape under Article
266-A, paragraph 1(d) of the RPC.' x x x

"Moreover, the credibility and competence of AAA cannot be disregarded merely by reason of
her mental retardation. In the 2010 case of People v. Castillo, the Court upheld the credibility of
a person suffering from mental retardation:

"[Emphasis must be given to the fact] that the competence and credibility of mentally deficient
rape victims as witnesses have been upheld by this Court where it is shown that they can
communicate their ordeal capably and consistently. Rather than undermine the gravity of the
complainant's accusations, it even lends greater credence to her testimony, that, someone as
feeble-minded and guileless could speak so tenaciously and explicitly on the details of the rape
if she has not in fact suffered such crime at the hands of the accused. Moreover, it has been
jurisprudentially settled that when a woman says she has been raped, she says in effect all that
is necessary to show that she has been raped and her testimony alone is sufficient if it satisfies
the exacting standard of credibility needed to convict the accused." (Emphasis supplied)

Taking into consideration the tenets and jurisprudence mentioned, a complaint for qualified
statutory rape may be filed against the offender who rapes a victim knowing that the latter's
mental age is only that of an 8-year old. It is also clear based on the foregoing pronouncements
that an accused cannot discredit the victim and exculpate himself from the crime that he
committed by attacking the credibility of the victim merely on the reason of the latter's mental
disability.

Topic: Conversion to Muslim no shield vs bigamy

Q: My sister got married in 2002 but they separated in 2010. She and my brother-in-law are
both Catholics, but we later found out that he married someone else after converting to Islam.
My sister wants to pursue a bigamy case, but she is worried that the case will just be dismissed
because my brother-in-law is now a Muslim. Do you think my sister can pursue a complaint for
bigamy?

A: Under the Revised Penal Code of the Philippines, a party who contracts a second or
subsequent marriage while their first marriage is still subsisting can be held liable for the crime
of bigamy. Article 349 of the Code specifically provides:

"ARTICLE 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person who
shall contract a second or subsequent marriage before the former marriage has been legally
dissolved, or before the absent spouse has been declared presumptively dead by means of a
judgment rendered in the proper proceedings."

It bears emphasis that said law applies even if the offending party becomes a Muslim prior to
the celebration of the second or subsequent marriage. A non-Muslim who converts to Islam
cannot contract subsequent marriage/s just because he wishes to. There are conditions that
must be met pursuant to Muslim laws, such as the consent of the first/ prior wife/wives or
authority from Shari 'a Circuit Court. So, conversion to Muslim per se will not work to exempt the
offending party from criminal liability. Our courts will also not condone practices which not only
circumvent but also undermine the spirit of the law. As enunciated in the case of Francis D.
Malaki and Jacqueline Mae Salanatin-Malaki vs. People of the Philippines (GR 221075, Nov.
15, 2021, Ponente, Associate Justice Marvic M.V.F. Leonen):

"Article 27 of the Muslim Code conditionally allows the Muslim husband's subsequent marriage
in exceptional cases. The substantive requisites are:

"Notwithstanding the rule of Islamic law permitting a Muslim to have more than one wife but not
more than four at a time, no Muslim male can have more than one wife unless he can deal with
them with equal companionship and just treatment as enjoined by Islamic law and only in
exceptional cases.

"The general rule is that a married Muslim cannot marry another. However, in exceptional
cases, the male Muslim may do so if "he can deal with them with equal companionship and just
treatment as enjoined by Islamic law.

"Article 162 spells out the formal requisites for the Muslim husband's subsequent marriage:

"Any Muslim husband desiring to contract a subsequent marriage shall, before so doing, file a
written notice thereof with the Clerk of Court of the Shari 'a Circuit Court of the place where his
family resides. Upon receipt of said notice, the Clerk shall serve a copy thereof to the wife or
wives. Should any of them object, an Agama Arbitration Council shall be constituted in
accordance with the provisions of paragraph (2) of the preceding article. If the Agama
Arbitration Council fails to obtain the wife's consent to the proposed marriage, the Court shall,
subject to Article 27, decide whether or not to sustain her objection. x x x

"In other words, the consent of the wife, or the permission of the Shari 'a Circuit Court if the
wife refuses to give consent, is a condition sine qua non with respect to the subsequent
marriage. "67 Absent the wife's consent or the court's permission, the exculpatory provision of
Article 180 shall not apply, since it only exempts from the charge of bigamy a Muslim husband
who subsequently marries "in accordance with the provisions of [the Muslim Code]."

Accordingly, your sister may pursue filing a complaint for bigamy against her husband if she can
establish the elements of the crime, notwithstanding the fact that the latter has converted to
Islam.

Topic: Ownership of registered land may be lost by laches

Q: When our grandparents married, our great grandparents donated to them a registered parcel
of land evidenced in a document called "inventario matrimonio." The document was not
notarized in contrast to the requirements of the old Civil Code. Immediately thereafter, our
grandparents occupied it, and introduced improvements thereon. After 50 years, or sometime in
1993, after the death of our grandfather, the heirs of his two siblings filed a case challenging our
right of ownership, arguing that the same formed part of the estate of our great grandparents.
Hence, the same must be divided among heirs following our laws on succession. Are they
correct?

A: Under the old Civil Code, donations by reason of marriage, also known as, donations propter
nuptias, must be made in a public document. This means that it must be notarized, otherwise, it
is void. However, despite non-compliance with this formal requirements, an unnotarized
(private) document could still be a basis of a claim of ownership, if there is a clear and
convincing evidence of possession (Heirs of Maningding v. Court of Appeals, GR 121157, July
31, 1997, penned by Justice Josue Bellosillo [ret.] ).

Thus, the possession by your grandparents for 50 years, coupled with failure or neglect of other
heirs to question the validity of such possession over the same period, ripened your
grandparents' ownership over registered land by reason of laches.

This opinion finds support in the recent decision of the Supreme Court in the case of Lorenzo v.
Eustaquio, GR 209435, Aug. 10, 2022, penned by Justice Ramon Paul Hernando, where it
held:

"Laches is defined as the 'failure or neglect for an unreasonable or unexplained length of time to
do that which by exercising due diligence, could or should have been done earlier warranting a
presumption that he has abandoned his right, or declined to assert it.'

Prescription, on the other hand, refers to the failure or delay to assert a claim within the period
prescribed by law. Through prescription one acquires ownership or other real rights through the
lapse of time, in the manner and under the condition laid down by law. Likewise, rights and
actions are lost on the same ground...

"Section 47 (sic) of Act No. 496, which was enacted in 1902, already declared that a
registered land is not subject to prescription. This principle is expressly stated in Section 47 of
Presidential Decree No. 1529...

"... Petitioners and their predecessors-in-interests' inaction for a period of 50 years already
converted into a stale demand their right over the subject land as heirs of the spouses Gregorio
and Regina. Silence, delay, or neglect in asserting and enforcing one's rights for an unexplained
long period of time gives rise to a presumption that there is no merit at all to one's claim.
Moreover, to allow a party's claim of possession over the subject land despite failure to enforce
his/her right at the earliest opportune time will only result in 'an irreparable injury under the
most unfair circumstances', not justice, against the other who most likely has already invested
considerable amount of time, effort and work over the same. 'Vigilantibus, non dormientibus, jura
subveniunt. Laws must come to the assistance of the vigilant, not of the sleepy.'"

Guided by the foregoing, it is clear that the parcel of land in question no longer forms part of the
estate of your great grandparents. The inaction or neglect of the other heirs — children of your
grandparent's siblings — to challenge the possession by your grandparents for 50 years
stripped them of their rights as heirs because they slept on their rights. Thus, the possession by
your grandparents over the subject land has now ripened into ownership by reason of laches.

Topic: Unconsented voice recordings inadmissible in evidence

Q: I have a pending case against my employer before the National Labor Relations Commission.
I would like to use as evidence a voice recording of our cellphone conversation. Can I legally do
it?

A: Sections 1, 2, and 4 of Republic Act (RA) 4200 or the "Anti-Wiretapping Law," which state
that:

"Section 1. It shall be unlawful for any person, not being authorized by all the parties to any
private communication or spoken word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or
tape recorder, or however otherwise described: x x x

"Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be
done any of the acts declared to be unlawful in the preceding section or who violates the
provisions of the following section or of any order issued thereunder, or aids, permits, or causes
such violation shall, upon conviction thereof, be punished by imprisonment for not less than six
months or more than six years and with the accessory penalty of perpetual absolute
disqualification from public office if the offender be a public official at the time of the commission
of the offense, and, if the offender is an alien he shall be subject to deportation proceedings. xxx

"Section 4. Any communication or spoken word, or the existence, contents, substance, purport,
effect, or meaning of the same or any part thereof, or any information therein contained obtained
or secured by any person in violation of the preceding sections of this Act shall not be
admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or
investigation."

As provided under Section 1 of the aforementioned law, it is unlawful for any person to record a
private communication without the consent of all parties to such conversation. In Section 3, the
same law provides that such unlawful act is punishable by imprisonment for not less than six
months or more than six years. Accordingly, Section 4 mandates that such unlawfully acquired
recording is inadmissible in evidence in any judicial, quasi-judicial, legislative, or administrative
hearing or investigation.

In the case of Ramirez vs Court of Appeals (GR 93833, Sept. 28, 1995), the Supreme Court
quoted the deliberations when RA 4200 was passed where the late senator Lorenzo M. Tañada
stated, "This is a complete ban on tape recorded conversations taken without the authorization
of all the parties." Even if the Anti-Wiretapping Law was passed way before cellphones came
into being, and considering the fact that cellphones have the function to make recordings, there
is a basis to believe that RA 4200 would still be applicable on such recorded conversations.

Hence, you may not validly use as evidence in the proceedings before the National Labor
Relations Commission the voice record of your conversation with your employer, taken without
his or her consent, as such act may open you to criminal liability under RA 4200. Further, the
questioned recording may not be admissible in evidence as also provided by law..

Topic: Hospital can be held liable for doctor's negligent act

Q: Does the absence of an employer-employee relationship between a hospital and the latter's
doctors/medical professionals would, as a matter of course, absolve the former from the
negligence or liabilities of the latter?

A: Under the Doctrine of Apparent Authority, a hospital can be held vicariously liable for the
negligent acts of a physician providing care at the hospital, and regardless of whether the
physician is an independent contractor — unless the patient knows, or should have known —
that the physician is an independent contractor. As reiterated in jurisprudence, the elements for
its applicability are as follows:

"For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that:
(1) the hospital, or its agent, acted in a manner that would lead a reasonable person to
conclude that the individual who was alleged to be negligent was an employee or agent of the
hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must
also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff
acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and
prudence." (See Casumpang v. Cortejo, GR 171127, March 11, 2015, penned by Associate
Justice Arturo Brion).

Succinctly, a hospital, as a rule is not liable for the negligence of an independent contractor-
physician. There is, however, an exception to this principle, i.e., if the physician is the
"ostensible" agent of the hospital. As recently discussed, this exception is known as the
"Doctrine of Apparent Authority." (See Nogales v. Capitol Medical Center, GR 142625, Dec.
19, 2006, penned by Associate Justice Antonio Carpio).

In relation to the foregoing, the case of Nogales v. Capitol Medical Center (Ibid.), is pertinent. In
this case, the Supreme Court discussed the two-fold factors in determining hospital liability, to
wit:

"The first factor focuses on the hospital's manifestations and is sometimes described as an
inquiry whether the hospital acted in a manner which would lead a reasonable person to
conclude that the individual who was alleged to be negligent was an employee or agent of the
hospital. In this regard, the hospital need not make express representations to the patient that
the treating physician is an employee of the hospital; rather a representation may be general
and implied. x x x
"The second factor focuses on the patient's reliance. It is sometimes characterized as an inquiry
on whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent
with ordinary care and prudence." (Emphasis and underscoring supplied).

Applying the foregoing, it would be erroneous for a hospital to deny any claim of liability or
responsibility from their doctors' actions. To repeat, a hospital can be held vicariously liable for
the negligent acts of a physician (or an independent contractor) providing care at the hospital if
it can prove the following factors: first, the hospital's manifestations; and second, the patient's
reliance. (Ibid).

Topic: Benefits and Privileges provided to Persons with Disabilities

Q: was previously diagnosed with Bipolar Disorder and I recently received my Person with
Disability Identification Card (PWD ID). I went to our local drugstore to buy my usual medicine
for my condition and I tried to present my PWD ID for a discount but they said that only senior
citizens may avail of discounts. I would like to clarify if I am entitled to any discount under the
law.

A: Section 32 of Republic Act (RA) 7277, as amended by RA 9442 and RA 10754, otherwise
known as the Magna Carta for Persons with Disability, which states:

"SEC. 32. Persons with disability shall be entitled to:

"(a) At least twenty percent (20 percent) discount and exemption from the value-added tax
(VAT), if applicable, on the following sale of goods and services for the exclusive use and
enjoyment or availment of the PWD:

"(1) On the fees and charges relative to the utilization of all services in hotels and similar
lodging establishments; restaurants and recreation centers;

"(2) On admission fees charged by theaters, cinema houses, concert halls, circuses, carnivals
and other similar places of culture, leisure and amusement;

"(3) On the purchase of medicines in all drugstores;

"(4) On medical and dental services including diagnostic and laboratory fees such as, but not
limited to, x-rays, computerized tomography scans and blood tests, and professional fees of
attending doctors in all government facilities, subject to the guidelines to be issued by the
Department of Health (DoH), in coordination with the Philippine Health Insurance Corp.
(PhilHealth);

"(5) On medical and dental services including diagnostic and laboratory fees, and professional
fees of attending doctors in all private hospitals and medical facilities, in accordance with the
rules and regulations to be issued by the DOH, in coordination with the PhilHealth;

"(6) On fare for domestic air and sea travel;

"(7) On actual fare for land transportation travel such as, but not limited to, public utility buses
or jeepneys (PUBs/PUJs), taxis, asian utility vehicles (AUVs), shuttle services and public
railways, including light Rail Transit (LRT), Metro Rail Transit (MRT) and Philippine National
Railways (PNR); and

"(8) On funeral and burial services for the death of the PWD: Provided, That the beneficiary or
any person who shall shoulder the funeral and burial expenses of the deceased PWD shall claim
the discount under this rule for the deceased PWD upon presentation of the death certificate.
Such expenses shall cover the purchase of casket or urn, embalming, hospital morgue, transport
of the body to intended burial site in the place of origin, but shall exclude obituary publication
and the cost of the memorial lot. x x x

"The privileges may not be claimed if the PWD claims a higher discount as may be granted by
the commercial establishment and/or under other existing laws or in combination with other
discount program/s."

Based on the above-stated law, every PWD shall have both a 20 percent discount and an
exemption from the value-added tax, if applicable, on the sale of certain goods and services for
the exclusive use and enjoyment or availment of the said PWD. This includes purchase of
medicines to be used by the concerned PWD. Thus, you may demand to be given a discount on
your purchase of medicine for your condition as this right is specifically granted by law.

However, be mindful that there should also beno double discounts. In the purchase of goods
and services which are on promotional discount, persons with disability can avail themselves of
the establishment's offered discount or the 20 percent discount provided herein, whichever is
higher and more favorable. In cases where the PWD is also a senior citizen entitled to a 20
percent discount under his/her valid senior citizen ID, the person with disability shall elect to
use either his benefits as PWD or as senior citizen to avail of the 20 percent discount but not
both. The benefit is alternative, and not cumulative as to grant the PWD a combined discount.

Topic: Preventive suspension is not a penalty

Q: I worked as a warehouseman. The company issued a preventive suspension for 30 days

against me because several stocks in the warehouse were allegedly missing. This is now the
subject of an investigation being conducted by my employer against me and several employees.
Is the immediate suspension issued by the company considered as violation of the notice
required by law?|

A: It is important to emphasize that the suspension issued by the company is a preventive

measure and not a penalty. Through preventive suspension, an employer safeguards itself from
further harm or losses that may be further caused by the erring employee. It is within the right of
the company to preventively suspend any of its employees pending the investigation of an
alleged offense. This is in consonance with Sections 8 of Rule XXIII, Book V of the Omnibus
Rules Implementing the Labor Code (Omnibus Rules), as amended by Department Order 9,
Series of 1997, which provides that:

"The employer may place the worker concerned under preventive suspension if his continued
employment poses a serious and imminent threat to the life or property of the employer or of his
co-workers."

The nature of preventive suspension was explained in the case of Lafuente and Panaguiton vs.
Davao Warehouse Club, Inc. and Yap, GR 247410, March 17, 2021, where the Supreme Court
speaking through Associate Justice Henri Jean Paul Inting stated that:

"Preventive suspension is a measure allowed by law and afforded to the employer if an

employee's continued employment poses a serious and imminent threat to the employer's life or
property or of his co-workers. It may be legally imposed against an employee whose alleged
violation is the subject of an investigation. Here, it should be pointed out that petitioners have
mistaken their preventive suspension as a violation of the twin notice rule. Preventive
suspension is not the dismissal from employment contemplated under the provisions of the
Labor Code which would require compliance with the twin notice rule. It is merely a disciplinary
measure within the ambit of the management's exercise of prerogative pending the conduct of
investigation for an employee's possible infractions. Xxx"

Applying the above quoted decision in your situation, it would appear that your preventive
suspension is not a penalty, but rather a valid exercise of management prerogative. Considering
the loss of stocks in the warehouse, there is a basis for your employer to safeguard itself from
further harm or losses. As such, your preventive suspension is not a dismissal from employment
contemplated under the provisions of the Labor Code of the Philippines, as amended and
renumbered, which requires compliance with the twin notice rule.

Topic: Barangay proceedings are essential prior to filing a case; exceptions

Q: Are barangay conciliation proceedings really essential if the parties reside in the same
barangay? Are there no exceptions? My mother is thinking of filing a complaint against our
neighbor, and she was hoping it does not need to go through barangay proceedings.

A: As a rule, barangay conciliation proceedings must be endeavored before a dispute between

parties who reside in the same barangay can be brought to the court or a quasi-judicial body.
This is in consonance with Republic Act 7160 (RA 7160), otherwise known as the "Local
Government Code of 1991," which provides:

"Section 409. Venue.– (a) Disputes between persons actually residing in the same barangay
shall be brought for amicable settlement before the Lupon of said barangay.

"x x x
"Section 412. Conciliation. — (a) Pre-condition to Filing of Complaint in Court. — No complaint,
petition, action, or proceeding involving any matter within the authority of the lupon shall be filed
or instituted directly in court or any other government office for adjudication, unless there has
been a confrontation between the parties before the lupon chairman or the pangkat, and that no
conciliation or settlement has been reached as certified by the lupon secretary or pangkat
secretary as attested to by the lupon or pangkat chairman or unless the settlement has been
repudiated by the parties thereto."

Nevertheless, our laws recognize instances where barangay conciliation proceedings are no
longer necessary, particularly Administrative Circular 14-93, dated July 15, 1993, re: Guidelines
on the Katarungang Pambarangay Conciliation Procedure to Prevent Circumvention of the
Revised Katarungang Pambarangay Law. As provided therein, the following cases are not
covered by the mandatory barangay conciliation:

"1. Where one party is the government, or any subdivision or instrumentality thereof;

"2. Where one party is a public officer or employee, and the dispute relates to the performance
of his official functions;

"3. Where the dispute involves real properties located in different cities and municipalities,
unless the parties thereto agree to submit their difference to amicable settlement by an
appropriate Lupon;

"4. Any complaint by or against corporations, partnership or juridical entities, since only
individuals shall be parties to Barangay conciliation proceedings either as complainants or
respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);

"5. Disputes involving parties who actually reside in barangays of different cities or
municipalities, except where such barangay units adjoin each other and the parties thereto agree
to submit their differences to amicable settlement by an appropriate Lupon;

"6. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one
(1) year or a fine over five thousand pesos (P5,000.00);
"7. Offenses where there is no private offended party;

"8. Disputes where urgent legal action is necessary to prevent injustice from being committed or
further continued, specifically the following:

'a. Criminal cases where accused is under police custody or detention (see Sec. 412 (b) (1),
Revised Katarungang Pambarangay Law);

'b. Petitions for habeas corpus by a person illegally deprived of his rightful custody over another
or a person illegally deprived or on acting in his behalf;

'c. Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery
of personal property and support during the pendency of the action; and

'd. Actions which may be barred by the Statute of Limitations.'

"9. Any class of disputes which the President may determine in the interest of justice or upon
the recommendation of the Secretary of Justice;

"10. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Sec. 46
& 47, R.A. 6657);

"11. Labor disputes or controversies arising from employer-employee relations (Montoya vs.
Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended, which grants original and
exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems to
certain offices of the Department of Labor and Employment)

"12. Actions to annul judgment upon a compromise which may be filed directly in court (See
Sanchez vs. Tupaz, 158 SCRA 459)."

Accordingly, your mother may proceed in filing a complaint against your neighbor without having
to go through barangay conciliation proceedings only if the circumstances surrounding her legal
concern fall under one of the exceptional instances abovementioned.

Topic: Transactions made by an agent after death of the principal may be valid

Q: was constituted by my friend Marco as his agent. He executed a special power of attorney
(SPA) in my favor which authorized me to sell his piece of land. After a week, I was able to sell
his lot to Bryan, another friend of mine. However, I was unaware of Marco's sudden demise two
days before the sale. Is the sale valid considering that Marco passed away before the sale took
place?

A: Under Articles 1868 and 1919 of the New Civil Code, "[b]y the contract of agency, a person
binds himself to render some service or to do something in representation or on behalf of
another, with the consent or authority of the latter," and as a general rule, the death of the
principal extinguishes the contract of agency. Nevertheless, the transactions made by an agent
after the death of the principal may be considered valid subject to certain conditions set forth in
Article 1931 of the said Code.

Article 1931 of the same Code provides that "[a]nything done by the agent, without knowledge
of the death of the principal or of any other cause which extinguishes the agency, is valid and
shall be fully effective with respect to third persons who may have contracted with him in good
faith."

Article 1931 was discussed in one case decided by the Supreme Court, to wit:

"Under this provision, an act done by the agent after the death of his principal is valid and
effective only under two conditions, viz: (1) that the agent acted without knowledge of the death
of the principal and (2) that the third person who contracted with the agent himself acted in
good faith. Good faith here means that the third person was not aware of the death of the
principal at the time he contracted with said agent. These two requisites must concur: the
absence of one will render the act of the agent invalid and unenforceable." (Ramon Rallos vs
Felix GoChan, GR L-24332, Jan. 31, 1978, Ponente: Associate Justice Cecilia Muñoz-Palma,
emphasis supplied)
Therefore, the sale of Marco's piece of land may be considered valid although the same took
place after his death, provided that you acted without knowledge of such death and that Bryan
bought the same in good faith. This means that the latter must also be unaware of Marco's
death at the time of the sale. Both requisites must be present. Otherwise, the sale will be
considered void. Indeed, "being the general rule it follows a fortiori that any act of an agent after
the death of his principal is void ab initio unless the same falls under the exceptions provided for
in the aforementioned Articles 1930 and 1931. Article 1931, being an exception to the general
rule, is to be strictly construed."

Topic: Mortgaged property can still be sold

Q: My parents are in the process of obtaining loans, which will be secured by a mortgage upon
their parcel of land and the improvements thereon. We noticed, however, that there is a
provision in the Deed of Real Estate Mortgage to the effect that the mortgagor is prohibited from
disposing the property mortgaged without the prior written consent of the mortgagee. May a
mortgage contract provide such stipulation?

A: Article 2130 of the New Civil Code of the Philippines, which provides the following:

"Art. 2130. A stipulation forbidding the owner from alienating the immovable mortgaged shall be
void."

Further interpreting the above provision of law, the Supreme Court held in the case of Spouses
Litonjua and Philippine White House Auto Supply, Inc. v. L & R Corporation, et al. (GR.
130722, Dec. 9, 1999, Ponente: Associate Justice Consuelo Ynares-Santiago), in this wise:

"Paragraphs 8 and 9 of the subject Deed of Real Estate Mortgage read as follows —

"'1. That the MORTGAGORS shall not sell, dispose of, mortgage, nor in any other manner
encumber the real property/properties subject of this mortgage without the prior written consent
of the MORTGAGEE. x x x'

"Insofar as the validity of the questioned stipulation prohibiting the mortgagor from selling his
mortgaged property without the consent of the mortgagee is concerned, therefore, the ruling in
the Tambunting case is still the controlling law. Indeed, we are fully in accord with the
pronouncement therein that such a stipulation violates Article 2130 of the New Civil Code. Both
the lower court and the Court of Appeals in its Amended Decision rationalize that since
paragraph 8 of the subject Deed of Real Estate Mortgage contains no absolute prohibition
against the sale of the property mortgaged but only requires the mortgagor to obtain the prior
written consent of the mortgagee before any such sale, Article 2130 is not violated thereby. This
observation takes a narrow and technical view of the stipulation in question without taking into
consideration the end result of requiring such prior written consent. True, the provision does not
absolutely prohibit the mortgagor from selling his mortgaged property; but what it does not
outrightly prohibit, it nevertheless achieves. For all intents and purposes, the stipulation
practically gives the mortgagee the sole prerogative to prevent any sale of the mortgaged
property to a third party. The mortgagee can simply withhold its consent and thereby, prevent
the mortgagor from selling the property. This creates an unconscionable advantage for the
mortgagee and amounts to a virtual prohibition on the owner to sell his mortgaged property. In
other words, stipulations like those covered by paragraph 8 of the subject Deed of Real Estate
Mortgage circumvent the law, specifically, Article 2130 of the New Civil Code.

"Being contrary to law, paragraph 8 of the subject Deed of Real Estate Mortgage is not binding
upon the parties. Accordingly, the sale made by the spouses Litonjua to PWHAS,
notwithstanding the lack of prior written consent of L & R Corporation, is valid."

Applying the foregoing, the law absolutely bars a stipulation that prohibits the owner of the
mortgaged property from alienating or selling it. Such prohibition covers not only direct
prohibition, but also applies to other schemes that practically result in prohibiting the owner from
selling the mortgaged property even though the actual words used in the contract do not state
an outright prohibition. This includes stipulations requiring the prior consent of the mortgagee
before the owner-mortgagor can sell the property because it practically defeats the latter's right
to sell the mortgaged property at the behest of the former. As reasoned by the Supreme Court,
while such provision does not absolutely prohibit the owner-mortgagor from selling the
mortgaged property; but what it does not outrightly prohibit, it nevertheless achieves because it
gives the mortgagee the sole prerogative to prevent any sale of the mortgaged property to a
third party.

Topic: How voluntary easement of right of way is extinguished

Q: A corporation owned by our family bought a parcel of land. It appears that the land title
contains an annotation of encumbrance of easement of right of way, after its previous owner
voluntarily constituted an easement of right of way in favor of our neighboring land. Considering
that we are now the new owners, and the neighboring land, in whose favor the easement was
constituted, was subdivided and is also owned by new owners, not to mention the fact that it
now has access to a barangay road, can we now demand cancellation of right of way?

A: An easement is a real right on another's property, corporeal and immovable, whereby the
owner of the latter must refrain from doing or allowing somebody else to do or something to be
done on his property, for the benefit of another person or tenement. Easements are established
either by law or by the will of the owner. The former is called legal, and the latter, voluntary
easement. (Private Development Corporation v. Court of Appeals, G.R. No. 136897, November
22, 2005, Ponente: Honorable Former Associate Justice Cancio C. Garcia)

In your case, what was constituted was a voluntary easement. Your concern is whether you may
demand the cancellation of said easement considering that both dominant and servient estates
belong to new owners, and that the servient estate has access to public road. In this regard,
there is a Supreme Court decision which clarifies how voluntary easement may be extinguished.
In the case of Unisource Commercial v. Chung (G.R. No. 173252, July 17, 2009, Ponente:
Honorable Former Associate Justice Leonardo A. Quisumbing), the Supreme Court explained:

"... As we have said, the opening of an adequate outlet to a highway can extinguish only legal
or compulsory easements, not voluntary easements like in the case at bar. The fact that an
easement by grant may have also qualified as an easement of necessity does not detract from
its permanency as a property right, which survives the termination of the necessity. A voluntary
easement of right of way, like any other contract, could be extinguished only by mutual
agreement or by renunciation of the owner of the dominant estate.
"Neither can petitioner claim that the easement is personal only to Hidalgo since the annotation
merely mentioned Sandico and Hidalgo without equally binding their heirs or assigns. That the
heirs or assigns of the parties were not mentioned in the annotation does not mean that it is not
binding on them. Again, a voluntary easement of right of way is like any other contract. As such,
it is generally effective between the parties, their heirs and assigns, except in case where the
rights and obligations arising from the contract are not transmissible by their nature, or by
stipulation or by provision of law...

"We also hold that although the easement does not appear in respondents' title over the
dominant estate, the same subsists. It is settled that the registration of the dominant estate
under the Torrens system without the annotation of the voluntary easement in its favor does not
extinguish the easement. On the contrary, it is the registration of the servient estate as free, that
is, without the annotation of the voluntary easement, which extinguishes the easement."

Applying the aforementioned decision, it is clear that change of ownership of dominant and
servient estates, and access to public road by servient estate are not valid grounds to extinguish
a voluntary easement. Once attached, the easement of right of way survives and remains
attached as long as the property exist, unless the easement is extinguished. As mentioned
above, the voluntary easement of right of way, as in your case, may be extinguished by
subsequent agreement between owners of dominant and servient estates, or by renunciation of
the owner of dominant estate.

Topic: Notarization is not an empty, meaningless act

Q: I am a college student and work as a part-time secretary in a law firm. There are notarized
documents that I do not record in the notarial book. I only copy the notarial details I already
entered in other documents, like the document number, page number, etc. My boss is very
busy, so pays no mind to this. He relies only on the ones recorded in the notarial book to check
the number of documents he notarized. At the end of the week, I remit to him the total amount
of notarial fees based on the recorded documents, but some of which I keep to myself. Is there
a chance my boss would be prejudiced for what I did?

A: Rule 9.91, Canon 9 of the Code of Professional Responsibility (Code) provides that "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 of good standing."

Interpreting this provision, the Supreme Court, in the case of Johaida Garina Roabuenafe v.
Atty. Lirazan (AC 9361, March 20, 2019, Ponente: Chief Justice Alexander G. Gesmundo)
explained:

"The act of notarization is impressed with public interest. A notary public is mandated to
discharge with fidelity the duties of his office, such duties being dictated by public policy.
Moreover, a lawyer commissioned as a notary public has a responsibility to faithfully observe the
rules governing notarial practice, having taken a solemn oath under the Code of Professional
Responsibility (Code) to obey the laws and to do no falsehood or consent to the doing of any.

"It is settled that notarization is not an empty, meaningless or routinary act, but rather an act
invested with substantive public interest. Notarization converts a private document into a public
document, making it admissible in evidence without further proof of its authenticity. Thus, a
notarized document is, by law, entitled to full faith and credit upon its face. It is for this reason
that a notary public must observe with utmost care the basic requirements in the performance of
his notarial duties; otherwise, the public's confidence in the integrity of a notarized document
would be undermined. x x x

"Respondent cannot simply impute the error to his secretary because he is the one charged by
law with the recording in his notarial register of the necessary information regarding documents
or instruments he has notarized... Respondent cannot simply evade liability and invoke good
faith. Failure to enter the notarial acts in one's notarial register constitutes dereliction of a notary
public's duties, which warrants the revocation of a lawyer's commission as a notary public."

Based on the foregoing, it is clear that when an issue arises consequent to your act, it is highly
possible that your boss will be disciplined by the Supreme Court for failure to make proper
entries in the documents he notarized, and to enter such details in his notarial book. He cannot
attribute the error to you as his secretary to escape liability because such notarial function
should be fulfilled by him, and not by somebody else. Thus, we advise you to stop that improper
act because, aside from the revocation of your boss' privilege to notarize, other penalties may
also attach such as suspension from the practice of law. We encourage you to confide this
matter to him so that proper remedies could be made.

Topic: Requirements for termination due to redundancy

Q: My employer informed me that the position I am occupying was redundant so they will be
terminating my employment. Is the ground raised by my employer valid for purposes of
terminating my employment?

A: Redundancy is governed by the provision of Article 298 of the Presidential Decree No. 442
(Labor Code of the Philippines), as amended and renumbered, which specifically provides that:

"The employer may also terminate the employment of any employee due to the installation of
labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of
operation of the establishment or undertaking unless the closing is for the purpose of
circumventing the provision of this Title, by serving a written notice on the workers and the
Ministry of Labor and Employment at least one (1) month before the intended date thereof. In
case of termination due to the installation of labor-saving device or redundancy, the worker
affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month
pay or to at least one (1) month pay for every year of service, whichever is higher. In case of
retrenchment to prevent losses and in cases of closure or cessation of operations of
establishment or undertaking not due to serious business losses or financial reverses, the
separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay
for every year of service, whichever is higher. A fraction of at least six (6) months shall be
considered one (1) whole year."

The mere allegation of redundancy in order to terminate an employee is not enough. There are
certain requirements to be complied with by the employer. These requirements were enumerated
in the case of HCL Technologies Philippines, Inc. vs. Guarin, Jr., GR 246793, March 18, 2021,
where the Supreme Court speaking through Associate Justice Rosmari Carandang stated that:

"Article 298 of the Labor Code allows the employer to terminate the employee on the ground of
redundancy which exists when the service of an employee is in excess of what is reasonably
demanded by the actual requirements of the business. The following are the requirements for a
valid redundancy program: (1) written notice served on both the employees and the DOLE at
least one month prior to the intended date of retrenchment; (2) payment of separation pay
equivalent to at least one month pay or at least one month pay for every year of service,
whichever is higher; (3) good faith in abolishing the redundant positions; and (4) fair and
reasonable criteria in ascertaining what positions are to be declared redundant and accordingly
abolished."

Applying the above-cited decision in your situation, redundancy is a just cause for an employer
to terminate the services of an employee, but it must be in compliance with the requirements
enumerated such as: written notice served on the worker and the DOLE at least one month prior
to retrenchment; payment of separation pay equivalent to at least one month pay or at least one
month pay for every year of service, whichever is higher; good faith in abolishing the redundant
positions and lastly, fair and reasonable criteria in ascertaining which positions were redundant
and to be abolished. If the above requirements are not present, then your employer's plan to
terminate your services on account of redundancy would violate our Labor Code.

Topic: Pandemic not an excuse to avoid paying rental arrears

Q: Before the pandemic, Leonida leased a commercial space in my building in Quezon City for
two years for her ukay-ukay business. However, the pandemic struck and the government
implemented lockdowns which made her unable to pay monthly rent for several months. When
the lockdowns were lifted, I made a demand for the payment of unpaid rentals, but she refused
to pay. Leonida claimed that her obligation to pay rentals was already extinguished by reason of
a fortuitous event. What is a fortuitous event? Is the pandemic considered a fortuitous event that
would result in the extinguishment of her obligation to pay rentals?

A: The Supreme Court, in Asset Privatization Trust v. T.J. Enterprise, (GR 167195, May 8, 2009) and
speaking through Associate Justice Dante Tinga, stated that Article 1174 of the New Civil Code, which
exempts an obligor from liability on account of fortuitous events or force majeure, refers not only to
events that are unforeseeable, but also to those which are foreseeable, but inevitable:

"xxx The elements of a fortuitous event are: (a) the cause of the unforeseen and unexpected
occurrence, must have been independent of human will; (b) the event that constituted the caso
fortuito must have been impossible to foresee or, if foreseeable, impossible to avoid; (c) the
occurrence must have been such as to render it impossible for the debtors to fulfill their
obligation in a normal manner, and; (d) the obligor must have been free from any participation
in the aggravation of the resulting injury to the creditor.

"A fortuitous event may either be an act of God, or natural occurrences such as floods or
typhoons, or an act of man such as riots, strikes or wars."

The pandemic may be considered a fortuitous event because it is a natural occurrence and
could not have been predicted or anticipated by you or by Leonida. The pandemic, however,
would not excuse Leonida from paying her rental arrears. The Supreme Court, speaking through
Associate Justice Alicia Austria Martinez in Gaisano Cagayan, Inc. v. Insurance Company of
North America (GR 147839, June 8, 2006) stated that:

"xxx As correctly stated by the CA, where the obligation consists in the payment of money, the
failure of the debtor to make the payment even by reason of a fortuitous event shall not relieve
him of his liability. The rationale for this is that the rule that an obligor should be held exempt
from liability when the loss occurs thru a fortuitous event only holds true when the obligation
consists in the delivery of a determinate thing and there is no stipulation holding him liable even
in case of fortuitous event. It does not apply when the obligation is pecuniary in nature.

"Under Article 1263 of the Civil Code, in an obligation to deliver a generic thing, the loss or
destruction of anything of the same kind does not extinguish the obligation. If the obligation is
generic in the sense that the object thereof is designated merely by its class or genus without
any particular designation or physical segregation from all others of the same class, the loss or
destruction of anything of the same kind even without the debtor's fault and before he has
incurred in delay will not have the effect of extinguishing the obligation. This rule is based on the
principle that the genus of a thing can never perish. Genus nunquan perit. An obligation to pay
money is generic; therefore, it is not excused by fortuitous loss of any specific property of the
debtor. Obligations to deliver a generic thing are not extinguished by fortuitous events."

Therefore, notwithstanding the pandemic, Leonida's obligation to pay rentals is not extinguished
by the occurrence of the same because payment of rentals is an obligation to deliver a generic
thing.

Topic: Crimes of arbitrary detention and unlawful arrest

Q: My cousin was apprehended by the police for an alleged theft incident. However, it turned out
that there was no ground to arrest my him. Thus, I wanted to be enlightened on the difference
between the crime of arbitrary detention and illegal arrest. What is the proper case to file against
the police officer who arrested my cousin without any ground?

A: In order to briefly explain and compare the difference between the crime of arbitrary detention and
illegal arrest, we shall refer to the Revised Penal Code (RPC) of the Philippines which provides for the
legal definition of these crimes.

Article 124 of the RPC provides that an arbitrary detention is committed by any public officer or
employee who, without legal grounds, detains a person. On the other hand, Article 269 of the
said Code provides that unlawful arrest is committed by any person who, in any case other than
those authorized by law, or without reasonable ground therefor, shall arrest or detain another for
the purpose of delivering him to the proper authorities.

As can be gleaned from the aforementioned provisions of law, arbitrary detention is committed
by a public officer while the crime of unlawful arrest can be both committed by public officers
and/or private persons. Moreover, the essence of the crime of arbitrary detention is the act of
detaining a person without any lawful cause, whereas in unlawful arrest, the essence of crime is
the act of arresting a person without a legal cause for the purpose of delivering the person
arrested to proper authorities.

Further dividing the line between the two crimes, the Supreme Court explained in the case of
Duropan and Coloma v. People (GR 230825, June 10, 2020) penned by Associate Justice
Marvic Mario Victor Leonen) that:

"Further, if the warrantless arrest was without any legal ground, the arresting officers become
liable for arbitrary detention under Article 124. However, if the arresting officers are not among
those whose official duty gives them the authority to arrest, they become liable for illegal
detention under Article 267 or 268. If the arrest is for the purpose of delivering the person
arrested to the proper authorities, but it is done without any reasonable ground or any of the
circumstances for a valid warrantless arrest, the arresting persons become liable for unlawful
arrest under Article 269.
"xxx

In the crime of unlawful arrest, the offender who arrested or detained another intended to deliver
the apprehended person to the proper authorities, considering he or she does not have the
authority. xxx"

Thus, a public officer, who in the performance of official function or authority, arrests and detains
a person without lawful cause is liable for illegal detention. However, if the public officer does
not have such authority, and the arrest was effected for the purpose of turning over the person
to the proper authorities, then the crime committed is unlawful arrest.

In your case, the public official involved is a police officer who is vested by law to arrest and
detain persons. Thus, if the detention of your cousin is proved to be without legal cause, then
the said police officer is liable for arbitrary detention.

Topic: Filing a case for Slander by Deed

Q: You may file a case for slander by deed against the motorist who slapped you. Slander by deed is
penalized under Article 359 of the Revised Penal Code as amended by Republic Act 10951. It provides:

"Art. 359. Slander by deed. — The penalty of arresto mayor in its maximum period to prisión
correccional in its minimum period or a fine ranging from Twenty thousand pesos (₱20,000) to
One hundred thousand pesos (₱100,000) shall be imposed upon any person who shall perform
any act not included and punished in this title, which shall cast dishonor, discredit or contempt
upon another person. If said act is not of a serious nature, the penalty shall be arresto menor or
a fine not exceeding Twenty thousand pesos (₱20,000).

"Slander by deed is a crime against honor, which is committed by performing any act, which
casts dishonor, discredit, or contempt upon another person. The elements are (1) that the
offender performs any act not included in any other crime against honor, (2) that such act is
performed in the presence of other person or persons, and (3) that such act casts dishonor,
discredit or contempt upon the offended party. Whether a certain slanderous act constitutes
slander by deed of a serious nature or not, depends on the social standing of the offended
party, the circumstances under which the act was committed, the occasion, etc. It is libel
committed by actions rather than words. The most common examples are slapping someone or
spitting on his/her face in front of the public market, in full view of a crowd, thus casting
dishonor, discredit, and contempt upon the person of another." (Noel Villanueva vs. People of
the Philippines — G.R. No. 160351, dated 10 April 2006, penned by Honorable Former
Associate Justice Minita Chico-Nazario; Emphasis supplied)

Applying the foregoing in your present situation, the fact that the said motorist publicly slapped
you in the face while having a heated argument manifests an intent to insult or offend you, and
provides a sufficient probable cause to file a criminal case for slander by deed before the Office
of the Prosecution in the city or municipality where the incident happened.

Topic: Liability of vehicle owner in drunk driving

Q: I own five vehicles registered as Transportation Network Vehicle Service (TNVS). One of my
drivers was found to have been driving while under the influence of alcohol. Can I be held
liable?

A: Section 13 of Republic Act 10586, otherwise known as "Anti-Drunk and Drugged Driving Act of
2013," to wit:

"SEC. 13. Direct Liability of Operator and/or Owner of the Offending Vehicle. – The owner
and/or operator of the vehicle driven by the offender shall be directly and principally held liable
together with the offender for the fine and the award against the offender for civil damages
unless he or she is able to convincingly prove that he or she has exercised extraordinary
diligence in the selection and supervision of his or her drivers in general and the offending driver
in particular.

"This section shall principally apply to the owners and/or operators of public utility vehicles and
commercial vehicles such as delivery vans, cargo trucks, container trucks, school and company
buses, hotel transports, cars or vans for rent, taxi cabs, and the like."

In our jurisdiction, vehicles registered as TNVS are categorized and regulated as public transport
conveyances for which a certificate of public convenience is required. (See Department of
Transportation and Communications Department Order 2015-011 dated May 8, 2015)
Therefore, they are considered as public utility vehicles and are treated the same way as taxi
cabs and cars for rent.

Applying the foregoing provision, you can be held liable — directly and principally — together
with the offending driver for the fine and the award against the latter for civil damages, if any.
Your defense is if you are able to prove that you exercised extraordinary diligence in the
selection and supervision of your driver.

Topic: What is 'gardening leave'?

Q: My nephew submitted his resignation to his company which the latter accepted. He was told
that he need not report for work anymore during the 30-day period prior to the effectivity of his
severance from the company as it is considered as a "gardening leave," although he will still be
paid all the benefits he usually receives as if he is at work. This is the first time I came across
that term. Is this "gardening leave" recognized in the Philippines?

A: The concept of gardening leave began in the United Kingdom. It is when an employee who has
tendered his or her resignation or has been informed of his or her dismissal from employment, is retained
on the payroll of the employer, although he or she may be asked not to perform any work while awaiting
the actual date of severance.

Considering that to this day we have no law or regulation prohibiting the concept of gardening
leave, it is relatively applied in our jurisdiction. To better understand the said concept, our
Supreme Court clearly elucidated in the case of Gertrudes D. Mejila vs. Wrigley Philippines, Inc.
(GR 199469, Sept. 11, 2019); Wrigley Philippines, Inc. vs. Gertrudes D. Mejila (GR 199505,
Sept. 11, 2019), penned by Associate Justice Francis Jardeleza, that:

"The practice of the employer directing an employee not to attend work during the period of
notice of resignation or termination of the employment is colloquially known as "'garden leave"
or "gardening leave." The employee might be given no work or limited duties, or be required to
be available during the notice period to, for example, assist with the completion of work or
ensure the smooth transition of work to their successor. Otherwise, the employee is given no
work and is directed to have no contact with clients or continuing employees. During the period
of garden leave, employees continue to be paid their salary and any other contractual benefits
as if they were rendering their services to the employer.

"In the United Kingdom (UK), where the practice originated, the garden leave clause has been
used as an alternative to post-employment non-competition covenants. The employee remains
employed for the period of the leave but is expected to do no work; he could, then, "stay home
and tend the garden." The provision is typically in place to prevent departing employees from
having access to confidential and commercially sensitive information, business contacts, and
intellectual property, which can be used by a new employer. Since the employee remains an
"employee," he remains bound by a duty of loyalty and, thus, cannot go to work for a
competitor or do anything else to harm the employer. This arrangement provides employers with
the protection they need, is fair to employees, and has been generally accepted and enforced by
the UK courts. The practice has been adopted by employers in the United States, and their
courts have generally upheld garden leave clauses.

"In the Philippines, garden leave has been more commonly used in relation to the 30-day notice
period for authorized causes of termination. There is no prohibition under our labor laws against
a garden leave clause in an employment contract."

Accordingly, the company where your nephew works may require him to use the 30-day period
prior to the effective date of his resignation as a "gardening leave," provided that he is paid
accordingly. This may have been intended to protect the company from unauthorized acquisition
or pilferage of its sensitive business information and the like.

Topic: Clearance before release of last payment

Q: I am one of the several employees of XYZ Corp. who were informed that the company would
cease operations due to serious business losses. We were told that before we could receive our
separation pay, accrued leave credits, termination benefits and 13th month pay, we needed to
sign a release document with a quit claim and vacate our living quarters on company property.
Can our company validly do this?

A: Yes. The imposition of clearance procedures before the release of last payments is allowed under our
labor laws and jurisprudence.

The Supreme Court held in the case of Emer Milan, et al., v. NLRC, GR 202961, Feb. 4, 2015,
penned by Associate Justice Marvic Mario Victor Leonen, that,

"[O]ur law supports the employers' institution of clearance procedures before the release of
wages. As an exception to the general rule that wages may not be withheld and benefits may
not be diminished, the Labor Code provides:

"Art. 113. Wage deduction. No employer, in his own behalf or in behalf of any person, shall
make any deduction from the wages of his employees, except:

"1. In cases where the worker is insured with his consent by the employer, and the deduction is
to recompense the employer for the amount paid by him as premium on the insurance;

"2. For union dues, in cases where the right of the worker or his union to check-off has been
recognized by the employer or authorized in writing by the individual worker concerned; and

"3. In cases where the employer is authorized by law or regulations issued by the Secretary of
Labor and Employment. (Emphasis ours)

"The Civil Code provides that the employer is authorized to withhold wages for debts due:

"Article 1706. Withholding of the wages, except for a debt due, shall not be made by the
employer.

"'Debt' in this case refers to any obligation due from the employee to the employer. It includes
any accountability that the employee may have to the employer. There is no reason to limit its
scope to uniforms and equipment, as petitioners would argue.

"xxx

"The return of the property's possession became an obligation or liability on the part of the
employees when the employer-employee relationship ceased. Thus, respondent Solid Mills has
the right to withhold petitioners' wages and benefits because of this existing debt or liability."

Further, citing the case of Solas v. Power and Telephone Supply, Phils., Inc., et al., GR
162332, Aug. 28, 2008, penned by Former Associate Justice Ma. Alicia Austria- Martinez, the
Supreme Court held that:

"Withholding of payment by the employer does not mean that the employer may renege on its
obligation to pay employees their wages, termination payments, and due benefits. The
employees' benefits are also not being reduced. It is only subjected to the condition that the
employees return properties properly belonging to the employer. This is only consistent with the
equitable principle that "no one shall be unjustly enriched or benefited at the expense of
another."

Based on the foregoing, your company can validly require you to undergo a clearance procedure
such as the execution of a release with quitclaim and to vacate the living quarters as a condition
for the release of your last payments, e.g., separation pay, 13th month pay, to ensure that,
before your separation from work, the properties of your employer in your possession are
returned to them. Such measures qualify as valid reasons to withhold an employee's last pay for
the purpose of verifying and ensuring that an employee's obligation or other accountabilities in
favor of the employer are settled.

Topic: Hospitals may not refuse treatment in emergency or serious cases

Q: My husband is being treated in a private hospital for about a week now. We have unsettled
bills amounting to more than a million pesos. The hospital insists that we should pay at least half
of it for them to continue with their services. I really don't have the means to settle the same as
of the moment. Do I have a legal basis to compel the hospital to provide treatment for my
husband?

A: Section 1 of Batas Pambansa (BP) 702, as amended by Republic Act (RA) 10932 or "An Act
Strengthening the Anti-Hospital Deposit Law by Increasing the Penalties for the Refusal of Hospitals and
Medical Clinics to Administer Appropriate Initial Medical Treatment and Support in Emergency or Serious
Cases," which states that:

"Section 1. In emergency or serious cases, it shall be unlawful for any proprietor, president,
director, manager or any other officer, and/or medical practitioner or employee of a hospital or
medical clinic to request, solicit, demand or accept any deposit or any other form of advance
payment as a prerequisite for administering basic emergency care to any patient, confinement or
medical treatment of a patient in such hospital or medical clinic or to refuse to administer
medical treatment and support as dictated by good practice of medicine to prevent death, or
permanent disability, or in the case of a pregnant woman, permanent injury or loss of her unborn
child, or noninstitutional delivery. x x x"

As provided under Section 1 of the aforementioned law, there are two scenarios wherein
hospitals may not refuse treatment. First, it would be unlawful for the hospital to demand an
advance payment as a prerequisite for providing initial treatment in emergency or serious cases.
The hospital may not refuse to admit a prospective patient in emergency cases for the reason
that such patient has not made any advance payment or deposit for his treatment. Second, it
would be unlawful if the patient had already been admitted to the hospital for continuous
treatment and the hospital refused to provide treatment in an emergency or serious situation as
dictated by good practice of medicine to prevent death or permanent disability. When the patient
has already been admitted to the hospital, the hospital may not discontinue treatment if it would
result in death or permanent disability.

Whether your husband is for initial treatment or has been previously admitted to the hospital, if
you can show that his condition falls under emergency or serious cases, then the hospital
cannot refuse to provide treatment as doing so may lead to death or permanent disability which
Section 1 of BP 702, as amended by RA 10932 seeks to prevent.

For your reference, Section 2 of the same law describes emergency and serious cases.
Emergency is defined as a condition or state of a patient wherein based on the objective
findings of a prudent medical officer on duty for the day there is immediate danger and where
delay in initial support and treatment may cause loss of life or cause permanent disability to the
patient, or in the case of a pregnant woman, permanent injury or loss of her unborn child, or
would result in a non-institutional delivery. On the other hand, a serious case refers to a
condition of a patient characterized by gravity or danger wherein based on the objective findings
of a prudent medical officer on duty for the day when left unattended to, may cause loss of life
or cause permanent disability to the patient, or in the case of a pregnant woman, permanent
injury or loss of her unborn child.

Topic: Liability of parents for the crime committed by minor child

Q: I was informed that a child below 15 years of age is exempt from criminal responsibility.
Nevertheless, the fact would remain that the child committed a wrong against us. In a situation
like this, can we at least file a civil case for damages against the parents of the child offender?

A: Yes. To elucidate, allow us to lead your attention to the pertinent provisions of law and jurisprudence.
To begin with, Article 101 of the Revised Penal Code, Article 2180 of the New Civil Code of the
Philippines, Section 20-D of the Juvenile Justice and Welfare Act of 2006, and Article 221 of the Family
Code of the Philippines respectively reads:

Revised Penal Code of the Philippines

"Article 101. Rules regarding civil liability in certain cases. - x x x

"First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for acts committed by
an imbecile or insane person, and by a person under nine years of age, or by one over nine but
under fifteen years of age, who has acted without discernment, shall devolve upon those having
such person under their legal authority or control, unless it appears that there was no fault or
negligence on their part."

New Civil Code of the Philippines

"Article 2180. The obligation imposed by article 2176 is demandable not only for one's own acts
or omissions, but also for those of persons for whom one is responsible.

"The father and, in case of his death or incapacity, the mother, are responsible for the damages
caused by the minor children who live in their company. X x x."

Juvenile Justice and Welfare Act of 2006

[Republic Act (RA) 9344, as amended by RA 10630]

"Section 20-D. Joint Parental Responsibility. - x x x

"The parents shall be liable for damages unless they prove, to the satisfaction of the court, that
they were exercising reasonable supervision over the child at the time the child committed the
offense and exerted reasonable effort and utmost diligence to prevent or discourage the child
from committing another offense."

Family Code of the Philippines

"Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the
injuries and damages caused by the acts or omissions of their unemancipated children living in
their company and under their parental authority subject to the appropriate defenses provided by
law. (Emphasis and underscoring supplied)

The foregoing provisions of law dictate the civil liability of parents with respect to the
delict/damages committed by their minor children. In line with these, the Supreme Court in the
case of Libi v. Intermediate Appellate Court, GR 70890, Sept. 18, 1992, penned by Associate
Justice Florenz Regalado, held that parents are and should be held primarily liable for the civil
liability arising from criminal offenses committed by their minor children, viz.:

"Under the foregoing considerations, therefore, we hereby rule that the parents are and should
be held primarily liable for the civil liability arising from criminal offenses committed by their
minor children under their legal authority or control, or who live in their company, unless it is
proven that the former acted with the diligence of a good father of a family to prevent such
damages. That primary liability is premised on the provisions of Article 101 of the Revised Penal
Code with respect to damages ex delicto caused by their children 9 years of age or under, or
over 9 but under 15 years of age who acted without discernment; and, with regard to their
children over 9 but under 15 years of age who acted with discernment, or 15 years or over but
under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the
Civil Code.

"Under said Article 2180, the enforcement of such liability shall be effected against the father
and, in case of his death or incapacity, the mother. This was amplified by the Child and Youth
Welfare Code which provides that the same shall devolve upon the father and, in case of his
death or incapacity, upon the mother or, in case of her death or incapacity, upon the guardian,
but the liability may also be voluntarily assumed by a relative or family friend of the youthful
offender. However, under the Family Code, this civil liability is now, without such alternative
qualification, the responsibility of the parents and those who exercise parental authority over the
minor offender." (Emphasis and underscoring supplied)

Therefore, even if a child below 15 years of age is exempted by law from criminal responsibility
due to his or her minority, apart from the mandated intervention to rehabilitate the minor
offender, indubitably, one of the available legal remedies for an offended party is to file a civil
case against the parents of such minor offender pursuant to the aforementioned parental
vicarious liability.

Topic: Reversion of title

Q: The land I bought from the original owner became the subject of a reversion case because
of the fraud employed by the latter in the application of title. My certificate of title is now being
recalled by the court pursuant to a decision which ordered the cancellation of all derivative titles
emanating from the original certificate of title covering lands to be reverted to the State. If the
State will take my land, will this be considered as deprivation of my right over the property
without due process?
A: Reversion is a legal remedy available to the government to recover its land which was mistakenly
awarded to private individuals. This is in consonance with Section 124 of the The Public Land Act
(Commonwealth 141), as amended, which provides that:

"Any acquisition, conveyance, alienation, transfer, or other contract made or executed in

violation of any of the provisions of sections one hundred and eighteen, one hundred and
twenty, one-one hundred and twenty-one, one hundred and twenty two, and one hundred and
twenty-three of this Act shall be unlawful and null and void from its execution and shall produce
the effect of annulling and cancelling the grant, title, patent, or permit originally issued,
recognized or confirmed, actually or presumptively, and cause the reversion of the property and
its improvements to the State."
Corollary thereto, the Supreme Court said in the case of Republic of the Philippines v. The
Heirs of Meynardo Cabrera, et. al., GR 218418, Nov. 8, 2017, penned by Associate Justice
Alfredo Benjamin Caguioa, that:
"Conversely, reversion proceeding is the manner through which the State seeks to revert land
to the mass of the public domain; it is proper when public land is fraudulently awarded and
disposed of in favor of private individuals or corporations, or when a person obtains a title under
the Public Land Act which includes, by oversight, lands which cannot be registered under the
Torrens system as they form part of the public domain."
It is important to emphasize that a certificate of title emanating from a void title vests no right to
the transferee. This is exactly the pronouncement of the Supreme Court in the case of
Constantino Y. Belizario v. Department of Environment and Natural Resources and the Registry
of Deeds of Nasugbu, Batangas, GR 231001, March 24, 2021, where the Supreme Court also
speaking through Associate Justice Alfredo Benjamin Caguioa, cited Hsi Pin Liu, et al. v.
Republic of the Philippines and stated that:
"While the RTC Decision does not expressly include the cancellation of certificates of title
subsequently derived and issued from the original certificates of title in the names of spouses
Gaspar, the reversion of the subject lots to the government or the public domain cannot be fully
effected without the cancellation of such derivative titles.
"xxx
"Petitioners are not being deprived of their property without due process of law. Petitioners
ultimately derive their rights over the subject lots from patents and original certificates of title
obtained by and issued to spouses Gaspar. Since the patents and certificates of title of spouses
Gaspar had been declared void due to fraud and misrepresentation and ordered cancelled, they
had no right over the subject lots which they could have transferred to their immediate
transferees and the latter in turn had no right which they could have transferred to their
respective transferees, including petitioners. Since their predecessors-in-interest had no right
over the subject lots to transfer to petitioners, the latter cannot be deprived of a right, even if it
involves property, which does not exist."
Applying the above-cited decision in your situation, your title was derived from an original
certificate of title which was declared void by the court in a reversion proceeding. The awardee
of the land clearly has no right which he or she can transfer to you. Considering that your
predecessor-in-interest had no right over the land, it follows that you derived no right from the
transfer. Hence, there is no deprivation of property without due process of law as one cannot be
deprived of a right which does not exist.
Topic: Doctrine of mortgagee in good faith

Q: My sister forged the signature of my deceased parents to make it appear that a certain land
was donated to her. She was able to register the lot in her name. I also found out that the
property was mortgaged to a certain businessman because of the annotation at the back of the
title. I informed the businessman about the forgery but he claimed that he is a mortgagee in
good faith. Please enlighten me what he meant by being a mortgagee in good faith.

A: The general rule is a party may rely on the certificate of title involving a registered land. "[A] person
dealing with registered land has a right to rely on the Torrens certificate of title and to dispense with the
need of inquiring further except when the party has actual knowledge of facts and circumstances that
would impel a reasonably cautious man to make such inquiry or when the purchaser has knowledge of a
defect or the lack of title in his vendor or of sufficient facts to induce a reasonably prudent man to inquire
into the status of the title of the property in litigation. The presence of anything which excites or arouses
suspicion should then prompt the vendee to look beyond the certificate and investigate the title of the
vendor appearing on the face of said certificate." (Locsin v. Hizon, et. al., G.R. No. 204369, September
17, 2014, penned by Honorable Former Associate Justice Presbitero J. Velasco, Jr.)

The same doctrine also applies to a mortgagee. The latter is considered in good faith if he had
relied on the correctness of the title of the mortgagor. The requirements for a mortgagee in good
faith are fully explained in the case of Jimenez vs. Jimenez, Jr. et al., G.R. No. 228011,
February 10, 2021, where the Supreme Court through Honorable Associate Justice Mario V.
Lopez stated that:

"There is, however, a situation where, despite the fact that the mortgagor is not the owner of the
mortgaged property, his title being fraudulent, the mortgage contract and any foreclosure sale
arising therefrom are given effect by reason of public policy. This is the doctrine of "the
mortgagee in good faith" based on the rule that all persons dealing with property covered by a
Torrens Certificate of Title, as buyers or mortgagees, are not required to go beyond what
appears on the face of the title. The public interest in upholding the indefeasibility of a certificate
of title, as evidence of the lawful ownership of the land or of any encumbrance thereon, protects
a buyer or mortgagee who, in good faith, relied upon what appears on the face of the certificate
of title. (Emphasis supplied.)

"The doctrine applies when the following requisites concur, namely: (a) the mortgagor is not the
rightful owner of, or does not have valid title to, the property; (b) the mortgagor succeeded in
obtaining a Torrens title over the property; (c) the mortgagor succeeded in mortgaging the
property to another person; (d) the mortgagee relied on what appears on the title and there
exists no facts and circumstances that would compel a reasonably cautious man to inquire into
the status of the property; and (e) the mortgage contract was registered. xxx"

Applying the above-quoted decision in your situation, the businessman or mortgagee was
correct in his claim that he was a mortgagee in good faith if he simply relies on the certificate of
title covering the property furnished as mortgage. He need not go beyond what appears on the
face of the title. The requisites of a mortgagee in good faith were all present in the transaction of
your sister: (a) your sister was not the rightful owner of the property since her title was derived
from a forged deed of donation; (b) she succeeded in transferring the property in her name; (c)
she mortgaged the property to the businessman; (d) the businessman relied on the title of your
sister and there exists no facts or circumstances which compel a reasonable cautious man to
inquire into the status of the property; and (e) the mortgage contract was registered as the
same was annotated at the back of the title.

Topic: Unnotarized deed may be proof of contract of sale

Q: Lito denied the existence of our agreement regarding the sale of his land. He claimed that
the written agreement we signed was not notarized so it will not be admitted as evidence.
Moreover, he said that since the document was not notarized then it follows that there is no
contract of sale. Is he correct?

A: A contract is defined under Article 1305 of the New Civil Code of the Philippines as "a meeting of
minds between two persons whereby one binds himself, with respect to the other, to give something or to
render some service." Correlative thereto, Article 1458 thereof provides that: "By the contract of sale one
of the contracting parties obligates himself to transfer the ownership and to deliver a determinate thing,
and the other to pay therefor a price certain in money or its equivalent. A contract of sale may be
absolute or conditional."

On the other hand, Article 1475 of the same law also states that: "The contract of sale is
perfected at the moment there is a meeting of minds upon the thing which is the object of the
contract and upon the price. From that moment, the parties may reciprocally demand
performance, subject to the provisions of the law governing the form of contracts." Accordingly,
a contract is formed between you and Lito at the precise moment that you both agreed to the
sale of the subject land and the contract price. As a consequence of your contract of sale, both
of you may demand performance of the other party's obligation in accordance with law and the
terms and conditions of your agreement.

Lito may have based his claim on Article 1358 of the New Civil Code of the Philippines, which
states that certain contracts must appear in a public document. The sale of real property was
mentioned in said article to the effect that such transaction is governed by Article 1403 (Statute
of Fraud). Thus, notarization appears to be required. However, our Supreme Court already ruled
that the said article "does not require such form in order to validate the act or contract but to
insure its efficacy. Contracts enumerated by this article are, therefore, valid as between the
contracting parties, even when they have not been reduced to public or private writings." (Julio
Tapec and Prisca Galano v. Court of Appeals and Loreto Raguirag, GR 111952, Oct. 26, 1994,
penned by former Chief Justice Hilario G. Davide, Jr.)

As to the admissibility in evidence of your unnotarized contract of sale, the said private
document may still be admitted as evidence pursuant to Section 20, Rule 132 of A. M. No. 19-
08-15-SC (2019 Amendments to the 1989 Revised Rules on Evidence) which provides that:

"Before any private document offered as authentic is received in evidence, its due execution
and authenticity must be proved by any of the following means:

"(a) By anyone who saw the document executed or written;

"(b) By evidence of the genuineness of the signature or handwriting of the maker; or

"(c) By other evidence showing its due execution and authenticity.

"Any other private document need only be identified as that which it is claimed to be."

The afore-cited provision of the rule was applied in the case of Marito and Maria Fe Serna v.
Tito and Iluminada Dela Cruz, GR 237291, Feb. 1, 2021, where the Supreme Court speaking
through Justice Edgardo delos Santos said that:

"The handwritten Agreement, which respondents presented as proof of the contract of sale over
the subject properties, is a private document. It bears pointing out that there was likewise
compliance with the authentication of private documents for purposes of admissibility as
specified under Rule 132, Section 20 of the Rules of Court, to wit:

"Section 20. Proof of private document. - Before any private document offered as authentic is
received in evidence, its due execution and authenticity must be proved either:

"(a) By anyone who saw the document executed or written; or

"(b) By evidence of the genuineness of the signature or handwriting of the maker.

"Any other private document need only be identified as that which it is claimed to be.

"Considering that Section 20 (a) was observed, petitioners can no longer dispute the due
execution of the Agreement. xxx"

Applying the above-quoted decision in your situation, your contract of sale with Lito, which is a
private document, may still be admitted to prove the existence of the sale. However, it is
essential that its due execution and authenticity be proved either by anyone who saw the
document executed or written, or by evidence of the genuineness of the signature or handwriting
of the maker or by other evidence.

Topic: Revocation of donation

Q: I heard that a donation can be revoked by reason of the ingratitude on the part of the donee.
As such, may I know what the law means when it speaks of the word "ingratitude"? Does it
include the infliction of a physical harm to the donor?

A: Republic Act Number 386, otherwise known as the "New Civil Code of the Philippines." In this
relation, the pertinent provisions of the said Code on donation read as follows:

"Article 765. The donation may also be revoked at the instance of the donor, by reason of
ingratitude in the following cases:

"(1) If the donee should commit some offense against the person, the honor or the property of
the donor, or of his wife or children under his parental authority;

"(2) If the donee imputes to the donor any criminal offense, or any act involving moral turpitude,
even though he should prove it, unless the crime or the act has been committed against the
donee himself, his wife or children under his authority;

"(3) If he unduly refuses him support when the donee is legally or morally bound to give
support to the donor. (648a)

"x x x

"Article 769. The action granted to the donor by reason of ingratitude cannot be renounced in
advance. This action prescribes within one year, to be counted from the time the donor had
knowledge of the fact and it was possible for him to bring the action." (Emphasis and
underscoring supplied)

Applying the foregoing, it is true that ingratitude is considered as one of the grounds for the
revocation of a donation. Apart from that, when the law speaks of ingratitude, it refers to acts of
the donee that either constitute an offense or crime against the donor or his immediate family, or
allege the commission of an offense or act involving moral turpitude against them. It also
includes unjustified refusal to give support to the donor.
Consequently, since our laws consider the act of inflicting physical harm to another person
without legal justification to do so as a crime, then the alleged act committed by the donee in
your query may give rise to an action for the revocation of the donation. Such action can be filed
within one year from the time that the physical harm was inflicted.

Topic: Illegitimate child can inherit from a grandparent

Q: I am an illegitimate child. My father was a legitimate child, but he predeceased my

grandfather. May I inherit from the estate left by deceased grandfather in representation of my
father?

A: Article 982 of the New Civil Code provides that "the grandchildren and other descendants shall inherit
by right of representation, and if any one of them should have died, leaving several heirs, the portion
pertaining to him shall be divided among the latter in equal portions."

Explaining this provision, the Supreme Court En Banc in Diaz v. Intermediate Appellate Court,
GR. L-66574, Feb. 21, 1990, penned by Associate Justice Edgardo Paras, held that the rules
laid down in Article 982 "are subject to limitation prescribed in Article 992 to the end that an
illegitimate child has no right to inherit ab intestato [by intestacy] from the legitimate children
and relatives of his father or mother." Article 992 of the New Civil Code provides that "an
illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of
his father or mother; nor shall such children or relatives inherit in the same manner from the
illegitimate child."

The Supreme Court, quoting Spanish civilist Manresa, explained that the reason for this
interpretation is that "illegitimate child is disgracefully looked down upon by the legitimate family;
and the family is in turn, hated by the illegitimate child; the latter considers the privileged
condition of the former, and the resources of which it is thereby deprived; the former, in turn,
sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish
broken in life; the law does no more than recognize this truth, by avoiding further ground of
resentment."

Recently however, in Aquino v. Aquino, GR 208912, Dec. 7, 2021, under the ponencia of
Associate Justice Marvic Mario Victor F. Leonen, the Supreme Court En Banc, abandoned the
above ruling. It explained:

"This Court abandons the presumption in In re Grey, Corpus, Diaz, and In re Suntay, among
others, that nonmarital children are products of illicit relationships or that they are automatically
placed in a hostile environment perpetrated by the marital family. We are not duty bound to
uncritically parrot archaic prejudices and cruelties, to mirror and amplify oppressive and
regressive ideas about the status of children and family life. The best interest of the child should
prevail.

"We adopt a construction of Article 992 that makes children, regardless of the circumstances of
their births, qualified to inherit from their direct ascendants — such as their grandparent — by
their right of representation. Both marital and nonmarital children, whether born from a marital or
nonmarital child, are blood relatives of their parents and other ascendants. Nonmarital children
are removed from their parents and ascendants in the same degree as marital children.
Nonmarital children of marital children are also removed from their parents and ascendants in
the same degree as nonmarital children of nonmarital children.

"xxx

"Accordingly, when a nonmarital child seeks to represent their deceased parent to succeed in
their grandparent's estate, Article 982 of the Civil Code shall apply. xxx

"xxx

"To emphasize, this ruling will only apply when the nonmarital child has a right of representation
to their parent's share in her grandparent's legitime. It is silent on collateral relatives where the
nonmarital child may inherit by themselves. We are not now ruling on the extent of the right of a
nonmarital child to inherit in their own right. Those will be the subject of a proper case and, if so
minded, may also be the subject of more enlightened and informed future legislation."

Applying this recent decision in your case, it is clear that an illegitimate child has the right to
inherit from his or her grandparent in representation of the child's deceased parent. There is no
more distinction between a legitimate and an illegitimate child in terms of inheriting by right of
representation from a direct ascendant. Thus, when the grandchild's right to inherit by
representation from their grandparent is in issue, the applicable provision is Article 982 of the
New Civil Code.

Topic: Presence of house occupant necessary in implementation of search warrant

Q: My son was arrested when the police implemented a search warrant in his house and
allegedly found prohibited drugs. His wife said they were forced to stay outside the house
guarded by a police officer, while the other officers were conducting the search. My son
attempted to enter his house, but he was barred by the police since there were already some
barangay officials who woud witness the search inside the house. Could you please enlighten us
on the procedure to be observed in conducting a search of a house pursuant to a search
warrant?

A: A search warrant must be implemented in accordance with the requirements provided under Section
8, Rule 126 of the Revised Rules on Criminal Procedure, as amended, which states:

"No search of a house, room, or any other premise shall be made except in the presence of the
lawful occupant thereof or any member of his family or in the absence of the latter, two
witnesses of sufficient age and discretion residing in the same locality."

Accordingly, the presence of the lawful occupant of the house is necessary during the
implementation of the search warrant. Police officers have no discretion to exclude them during
the conduct of the search because the law is clear on this matter. This finds support in the case
of Ballocanag vs. People of the Philippines, GR 241610, Feb. 1, 2021, where the Supreme
Court speaking through Chief Justice Diosdado Peralta states:

"Under this provision, a search under the strength of a warrant is required to be witnessed by
the lawful occupant of the premises sought to be searched. It must be stressed that it is only
upon their absence that their presence may be replaced by two (2) persons of sufficient age
and discretion residing in the same locality. In People v. Go, the Court held that a departure
from the said mandatory rule — by preventing the lawful occupant or a member of his family
from actually witnessing the search and choosing two (2) other witnesses observe the search -
violates the spirit and letter of the law, and thus, taints the search with the vice of
unreasonableness, rendering the seized articles inadmissible due to the application of the
exclusionary rule, viz.:

"As pointed out earlier, the members of the raiding team categorically admitted that the search
of the upper floor, which allegedly resulted in the recovery of the plastic bag containing the
shabu, did not take place in the presence of either the lawful occupant of the premises, i.e.,
appellant (who was out), or his son Jack Go (who was handcuffed to a chair on the ground
floor). Such a procedure, whereby the witnesses prescribed by law are prevented from actually
observing and monitoring the search of the premises, violates both the spirit and letter of the
law."

Applying the above-quoted decision in your situation, the act of the police officers in expelling
your son and his wife from their house during the search without legal justification contravenes
with the provision of Section 8, Rule 126 of the Revised Rules on Criminal Procedure, as
amended. This taints the legality of the search, which cannot be cured by the fact that barangay
officials witnessed the search. The rule is clear that it is only in the absence of the lawful
occupant of the house or a family member that the search may be conducted in the presence of
two witnesses of sufficient age and discretion residing in the same locality. As a result, the
prohibited drugs allegedly found during the search are inadmissible in evidence.

Topic: Nonmarital children can inherit from grandparents

Q: I am the only acknowledged natural child of my father. My parents were not yet married at
the time I was born and they died before their wedding. Since then, my paternal grandparents
took care of me. After battling cancer for several years, my paternal grandfather died. He did not
leave a will. Hence, my aunts and uncles prepared the extrajudicial settlement of my
grandfather's estate. They explained to me that under the law, I am not entitled to represent my
father in inheriting from my grandfather's estate since I was a nonmarital child of my father, who
is a marital child of my grandfather. Is this correct? Thank you very much.

A: The claim of your aunts and uncles possibly stems from the Iron Curtain Rule laid down in Article 992
of the New Civil Code, which provides:

"ARTICLE 992. An illegitimate child has no right to inherit ab intestato from the legitimate
children and relatives of his father or mother; nor shall such children or relatives inherit in the
same manner from the illegitimate child." (943a)

On the other hand, the preliminary statement of the Supreme Court En Banc in Amadea Angela
K. Aquino v. Rodolfo C. Aquino and Abdulah C. Aquino, G.R. 208912 and 209018, Dec. 7,
2021, is very clear: "A child whose parents did not marry each other can inherit from their
grandparent by their right of representation, regardless of the grandparent's marital status at the
birth of the child's parent."

In the above-mentioned case of Aquino, the Supreme Court revisited the Iron Curtain Rule and
discussed thoroughly the right of a nonmarital child to inherit from his or her grandparents by
right of representation, together with the insights of the two amici curiae appointed by the Court,
Dean Cynthia Del Castillo and Professor Elizabeth Aguiling-Pangalangan, as follows:

"[T]his Court abandons the presumption in In re Grey, Corpus, Diaz, and In re Suntay, among
others, that nonmarital children are products of illicit relationships or that they are automatically
placed in a hostile environment perpetrated by the marital family. We are not duty bound to
uncritically parrot archaic prejudices and cruelties, to mirror and amplify oppressive and
regressive ideas about the status of children and family life. The best interest of the child should
prevail.

"We adopt a construction of Article 992 that makes children, regardless of the circumstances of
their births, qualified to inherit from their direct descendants — such as their grandparent — by
their right of representation. Both marital and nonmarital children, whether born from a marital or
nonmarital child, are blood relatives of their parents and other ascendants. Nonmarital children
are removed from their parents and ascendants in the same degree as marital children.
Nonmarital children of marital children are also removed from their parents and ascendants in
the same degree as nonmarital children of nonmarital children.

"The interpretation likewise makes Article 992 more consistent with the changes introduced by
the Family Code on obligations of support among and between the direct line of blood relatives.

xxx

"The language of Article 982 does not make any distinctions or qualifications as to the birth
status of the "grandchildren and other descendants" granted the right of representation.
Moreover, as pointed out by Senior Associate Justice Estela Perlas-Bernabe, to allow
grandchildren and other descendants, regardless of their birth status, to inherit by right of
representation will protect the legitime of the compulsory heir they represent; otherwise, the
legitime will be impaired, contrary to protections granted to this legitime in other areas of our law
on succession. x x x"

In view of the foregoing, the Iron Curtain Rule no longer applies with respect to the right of
nonmarital children to inherit from their direct ascendants by right of representation. As such,
please be advised that you may inherit from your grandfather by right of representation. This
means that you have the right to represent your father and acquire his share in the estate left by
your grandfather. Should your aunts and uncles insist on excluding you, you may enforce your
right in court by proving your filiation with your father.

Topic: Ejectment from a leased dormitory

Q: My brother is renting a dormitory in Manila for P9,000 a month based on a lease contract for
two years. Unfortunately, he failed to pay his rent for two months and was threatened to be
ejected by his landlord. He was also informed that the lessor intends to use the dorm for his
family. We believe, however, that the lessor only wants to eject my brother so that he can rent it
out to other lessees for a higher price. Can the lessor validly eject my brother for these
reasons?

A: Republic Act (RA) 9653, known as the "Rent Control Act of 2009," provides for the rules with
regard to rent of residential units as part of the State's policy to encourage the development and at the
same time ensure affordable housing for the lower income brackets. This law covers all residential units
in the National Capital Region and other highly urbanized cities, with a total monthly rent of up to
P10,000 and P5,000 for residential units in all other areas. (Section 5) Under this law, a residential unit
is defined and is considered to include:

"...apartment, house and/or land on which another's dwelling is located and used for residential
purposes and shall include not only buildings, part or units thereof used solely as dwelling
places, boarding houses, dormitories, rooms and bedspaces offered for rent by their owners,
except motels, motel rooms, hotels, hotel rooms, but also those used for home industries, retail
stores or other business purposes if the owner thereof and his or her family actually live therein
and use it principally for dwelling purposes." (Section 3; Emphasis supplied).

Considering the kind of unit being rented by your brother and its corresponding amount, it
appears that the applicable rules for his lease are governed by this law.

RA 9653 provides for the grounds and conditions to judicially eject a lessee. Based on the
provisions of the law, the failure of the lessee to pay rent for a total of three months is a ground
for judicial ejectment. (Sec. 9 (b)) Since your brother only has two months' worth of unpaid
rent, his lessor cannot eject him for now, based on this ground alone. It is best for your brother
to settle this unpaid rent as soon as possible before it reaches the limit of three months, which
will then give his lessor the right to make good on his threat to judicially eject him.

You also mentioned that the lessor of your brother intends to eject him since the leased unit will
be renovated and used by his family. With regard to this, it is important to note that while RA
9653 expressly recognizes the legitimate personal need of the lessor and/or his or her
immediate family as a ground to eject a lessee, the law still provides for specific conditions
before this can take place. Among this is that the lessor, or his or her immediate family must
use the leased property as a residential unit. Another condition is that the lease period on the
subject property must have already expired. Considering that your brother's lease contract is yet
to expire, his lessor cannot use this ground for now to eject him. (Sec. 9 (c))

The law also states that the owner/lessor is prohibited from leasing the subject residential unit
or allowing its use by a third party for a period of at least one year from the time of
repossession. (Ibid.) In addition, the law provides that violating any of its provisions carries a
penalty of fine ranging from P25,000 to P50,000 or imprisonment for one month and one day
up to six months, or both. (Sec. 13). This provides a safeguard to your worry that your brother's
lessor wants to eject him just so he can lease it to other lessees. Considering the above
discussed provisions, it is clear that your brother is still safe from being judicially ejected from
his dormitory.

Topic: Transfer of property between spouses is prohibited

Q: Jun is unable to pay his loan from me because he has no work. I told him to sell one of his
lands and use the proceeds to pay me. However, he claimed that all of his lands were already
transferred to his estranged wife. I have a suspicion that he transferred his properties to his wife
so that I cannot collect from him. Can I still run after the properties transferred by Jun to his
wife?

A: Jun's alleged transfer of properties to his wife is a prohibited transaction. This is in consonance with
Article 1490 of the New Civil Code of the Philippines which provides that:

The husband and the wife cannot sell property to each other, except:

(1) When a separation of property was agreed upon in the marriage settlements; or

(2) When there has been a judicial separation of property under article 191.

Correlative thereto, Article 87 of the Family Code of the Philippines also states that: "Every
donation or grant of gratuitous advantage, direct or indirect, between the spouses during the
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." Clearly, the transfer of said properties, whether by
way of sale or donation, from Jun to his wife during the marriage is prohibited.

The Supreme Court was explicit on the reason for such prohibition and this was enunciated in
the case of Nicxon L. Perez, Jr. v. Avegail Perez-Senerpida, GR 233365, March 24, 2021,
penned by Associate Justice Alfredo Benjamin Caguioa, as follows:

"The reason behind the prohibition is to protect third persons who may have contracted with a
spouse, believing in the existence of certain properties, and who could easily be defrauded by
removing such property by transfer to the other spouse.

"Going back to Article 87 of the Family Code, the reason for the prohibition is explained thus:

"x x x This provision refers to donation inter vivos. It is dictated by the principle of unity of
personality of the spouses during the marriage, and is intended to avoid possible transfer of
property from one spouse to the other due to passion or avarice. The intimate relations of the
spouses during the marriage places the weaker spouse under the will of the stronger, whatever
the sex, so that the former might be obliged, either by abuse of affection or by threats of
violence, to transfer some properties to the latter. The law seeks to prevent such exploitation in
marriages which might have been contracted under this stimulus of greed.

"x x x The prohibition of this article also applies to the parties in what are called "common law"
marriages; otherwise, the condition of those who incurred guilt would turn out to be better than
those in legal union." (Citations omitted)

Applying the above-cited decision in your situation, the prohibition on the sale of the property
between spouses is to protect a third person who contracted with one spouse and believing in
the existence of the properties. Such a third person can be easily defrauded by removing the
property and transferring the same to the other spouse. Further, the prohibition of transferring
the property by way of donation between the spouses is dictated by the principle of unity of
personality of the spouses and to avoid transfer to the other due to passion or avarice.
Considering that the transfer of properties between Jun and his wife was prohibited, then, it
follows that Jun still has an interest in the subject lands, either as his separate property or part
of the common properties he shares with his spouse. In either case, you may go after the
property by initiating an action in court and securing a levy or attachment on the property
following the pertinent provisions of the Rules of Court.

In case the property is part of the common properties of Jun and his wife, you must also prove
that the proceeds of the loan benefited Jun's family because Article 122 of the Family Code
expressly states that: "The payment of personal debts contracted by the husband or the wife
before or during the marriage shall not be charged to the conjugal properties partnership except
insofar as they redounded to the benefit of the family."

Topic: Replevin as remedy for illegally impounded vehicle

Q: My car was impounded by the police when it was flagged down for allegedly disregarding
traffic signs. I presented my OR/CR, deed of absolute sale and other papers to prove my
ownership but the police still claimed that the car was stolen. What will be my legal remedy to
recover the car?

A: Section 1, Rule 60 of the 1997 Revised Rules of Court, as amended, which provides that: "A party
praying for the recovery of possession of personal property may, at the commencement of the action or
at any time before answer, apply for an order for the delivery of such property to him, in the manner
hereinafter provided."

Correlative thereto, Section 2 of the same rule also states that: "The applicant must show by his
own affidavit or that of some other person who personally knows the facts:

(a) That the applicant is the owner of the property claimed, particularly describing it, or is
entitled to the possession thereof;

(b) That the property is wrongfully detained by the adverse party, alleging the cause of
detention thereof according to the best of his knowledge, information and belief;

(c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to
law, or seized under a writ of execution or preliminary attachment, or otherwise placed under
custodia legis, or if so seized, that it is exempt from such seizure or custody; and

(d) The actual market value of the property.

The applicant must also give a bond, executed to the adverse party in double the value of the
property as stated in the affidavit aforementioned, for the return of the property to the adverse
party if such return be adjudged and for the payment to the adverse party of such sum as he
may recover from the applicant in the action."

Replevin was further elaborated in the case of Police Sr. Supt. Romeo Uy, et al. v Sergio Jr.
and Sales V. Jacalan, GR 232814, Feb. 3, 2021, where the Supreme Court, speaking through
Associate Justice Henri Jean Paul B. Inting, stated that:

Replevin, broadly understood, is both a form of principal remedy and of a provisional relief. It
may refer either to the action itself, i.e., to regain the possession of personal chattels being
wrongfully detained from the plaintiff by another, or to the provisional remedy that would allow
the plaintiff to retain the thing during the pendency of the action and hold it pendente lite. The
action is primarily possessory in nature and generally determines nothing more than the right of
possession. Replevin is so usually described as a mixed action, being partly in rem and party in
personam in rem insofar as the recovery of specific property is, concerned, and in personam as
regards to damages involved. As an "action in rem," the gist of the replevin action is the right of
the plaintiff to obtain possession of specific personal property by reason of his being the owner
or of his having a special interest therein. x x x. Rule 60 of the Rules of Court allows an
application for the immediate possession of the property but the plaintiff must show that he has
a good legal basis, i.e., a clear title thereto, for seeking such interim possession. (Citation
omitted).

Applying the above-cited decision in your situation, the filing of a replevin case is an appropriate
legal remedy to recover the possession of your car which is deemed wrongfully detained by the
authorities. Possession is an incident of ownership so it is essential to show that you have a
good legal basis or a clear title to the car. You can use your OR/CR, deed of absolute sale and
other documents to prove this fact. After filing the replevin case, you may recover your car even
while the case is still pending by complying with the provision of Rule 60 of the Rules of Court,
particularly, the filing of the required affidavit and bond.

Topic: Collateral attack on title not allowed

Q: I was sued by the heirs of Don to recover the possession of a portion of their registered land.
I was in possession of this land, but Don included it in his application for title in 1986. Would the
case be dismissed if I am going to raise fraud in the procurement of Don's title?

A: A collateral attack on the certificate of title is not allowed. This is in consonance with Section 48 of
Presidential Decree (PD) 1529 or the "Property Registration Decree" which provides that:

"A certificate of title shall not be subject to collateral attack. It cannot be altered, modified, or
canceled except in a direct proceeding in accordance with law."

Raising fraud in your answer is deemed a collateral attack to the title of Don. This finds support
in a similar case entitled Celedenio C. Demegillo vs. Arturo S. Lumampao, et al., GR 211253,
Feb. 10, 2021, where the Supreme Court speaking through Associate Justice Ramon Paul
Hernando stated that:

"First, the mere prayer by Demegillo for the reconveyance of the disputed property does not
vest the RTC with jurisdiction to grant the same in his favor where the original complaint
involves an accion publiciana filed by the registered owners themselves. To be clear, the
defense invoked by Demegillo in his answer, particularly, that the title was secured by fraud,
requires a review of the said title issued in favor of Demavivas and her co-plaintiffs, and entails
a determination of an issue that clearly involved a collateral attack on their Torrens title. By
ordering the cancellation of the OCT No. D-4960, the RTC, in effect, allowed Demegillo to
collaterally attack OCT No. D-4960's validity contrary to Section 48 of P.D. No. 1529. Ybanez
v. Intermediate Appellate Court is instructive on this point:

"It was erroneous for petitioners to question the Torrens Original Certificate of Title issued to
private respondent over Lot No. 986 in Civil Case No. 671, an ordinary civil action for recovery
of possession filed by the registered owner of the said lot, by invoking as affirmative defense in
their answer the Order of the Bureau of Lands, dated July 19, 1978, issued pursuant to the
investigatory power of the Director of Lands under Section 91 of Public Land Law (C.A. 141 as
amended). Such a defense partakes of the nature of a collateral attack against a certificate of
title brought under the operation of the Torrens system of registration pursuant to Section 122 of
the Land Registration Act, now Section 103 of P.D. 1529. The case law on the matter does not
allow a collateral attack on the Torrens certificate of title on the ground of actual fraud. The rule
now finds expression in Section 48 of P.D. 1529 otherwise known as the Property Registration
Decree." (Emphasis supplied; citations omitted).

Applying the above cited decision in your situation, raising fraud in your answer to the case filed
against you has the effect of collaterally attacking the title issued to Don, which contravenes the
rule that a Torrens title cannot be altered, modified or cancelled except in a direct proceeding in
accordance with law. Such action is not allowed pursuant to Section 48 of PD 1529. Therefore,
raising the said issue will not result to the dismissal of the case.

What you can do is to file an action for reconveyance. It is a legal and equitable remedy granted
to the rightful landowner, whose land was wrongfully or erroneously registered in the name of
another, to compel the registered owner to transfer or reconvey the land to him. It seeks the
"direct reconveyance from defendant of public land unlawfully and in breach of trust titled by
him, on the principle of enforcement of a constructive trust. xxx such action does not aim or
purport to re-open the registration proceeding and set aside the decree of registration, but only
to show that the person who secured the registration of the questioned property is not the real
owner thereof." (Mariflor T. Hortizuela v. Gregoria Tagufa, et al. GR 205867, Feb. 23, 2015,
Ponente: Associate Justice Jose Mendoza).

Topic: Failure to attend promulgation of judgment

Q: My husband was prosecuted for the crime of robbery. On the day of the promulgation of
judgment, he failed to attend because he contracted Covid-19. Will there be any legal
implication when an accused failed to appear on the date of the promulgation of judgment?

A: Yes, there are legal implications if an accused failed to appear on the date of promulgation of his/her
judgment.

Under Section 6, Rule 120 of the Rules of Court, promulgation of judgment is done "by reading
it in the presence of the accused and any judge of the court in which it was rendered."
However, there are instances where promulgation of judgment can be done in the absence of
the accused. These are: (1) for light offenses, the judgment of conviction may be pronounced in
the presence of his counsel or representative; and (2) for other offenses, in case the accused
fails to appear at the scheduled date of promulgation of judgment despite notice, the
promulgation shall be made by recording the judgment in the criminal docket and serving him a
copy thereof at his last known address or thru his counsel. In the latter case, if the judgment is
for conviction and the accused failure to appear is without justifiable cause, he or she shall lose
the remedies available against the judgment.

This was further discussed in the case of Reynaldo H. Jaylo et al. vs Sandiganbayan et al., GR
183152-54, Jan. 21, 2015, penned by Chief Justice Maria Lourdes Sereno, where the Supreme
Court explained the consequences in the event the accused failed to appear, without justifiable
cause, at the promulgation of a judgment of conviction:

"Except when the conviction is for a light offense, in which case the judgment may be
pronounced in the presence of the counsel for the accused or the latter's representative, the
accused is required to be present at the scheduled date of promulgation of judgment. Notice of
the schedule of promulgation shall be made to the accused personally or through the bondsman
or warden and counsel.

"The promulgation of judgment shall proceed even in the absence of the accused despite
notice. The promulgation in absentia shall be made by recording the judgment in the criminal
docket and serving a copy thereof to the accused at their last known address or through
counsel. The court shall also order the arrest of the accused if the judgment is for conviction and
the failure to appear was without justifiable cause.

"If the judgment is for conviction and the failure to appear was without justifiable cause, the
accused shall lose the remedies available in the Rules of Court against the judgment. Thus, it is
incumbent upon the accused to appear on the scheduled date of promulgation, because it
determines the availability of their possible remedies against the judgment of conviction. When
the accused fail to present themselves at the promulgation of the judgment of conviction, they
lose the remedies of filing a motion for a new trial or reconsideration (Rule 121) and an appeal
from the judgment of conviction (Rule 122).

"The reason is simple. When the accused on bail fail to present themselves at the promulgation
of a judgment of conviction, they are considered to have lost their standing in court. Without any
standing in court, the accused cannot invoke its jurisdiction to seek relief."

Applying the foregoing to your husband's case, there are several types of robbery under the
Revised Penal Code (RPC), all of which carry heavy penalties. Therefore, robbery is not a light
offense which is defined under Article 9 of the RPC, as amended, as "those infractions of law or
the commission of which the penalty of arresto menor or a fine not exceeding Forty thousand
pesos (P40,000) or both is provided." As such, his physical presence is required during the
promulgation of his judgment. His failure to attend the same may result in losing his right to
appeal the judgment or avail of any other remedies unless within fifteen (15) days therefrom he
surrenders and files a motion for leave of court to avail of the remedies, explaining the reason
for his absence following Section 6, Rule 120 of the Rules of Court.

Topic: Offer to sell not a binding option contract

Q: My friend offered me to buy her property for a considerable amount, but I told her that I did
not have enough money to buy it. Thus, she gave me two years to raise the necessary funds so
I could buy the property. After one year, I asked her if I could already buy her property, but she
told me that she changed her mind and sold the said property to her best friend, Amanda. Can I
compel her to revoke the sale to Amanda considering that the two-year period she gave me has
not yet expired?
A: You cannot compel your friend to revoke the sale she executed in favor of Amanda. Based on your
narration of facts — (a) there was no mention that you accepted her offer, and (b) even assuming that
you impliedly accepted the offer, you did not give any consideration distinct from the purchase price.

The New Civil Code of the Philippines, particularly the second paragraph of Article 1479 thereof
provides that:
"Article 1479. A promise to buy and sell a determinate thing for a price certain is reciprocally
demandable.
"An accepted unilateral promise to buy or to sell a determinate thing for a price certain is
binding upon the promissor if the promise is supported by a consideration distinct from the
price."
The aforementioned provision deals with an option contract. The Supreme Court in the case of
Philippine National Oil Company and PNOC Dockyard & Engineering Corporation vs Keppel
Philippines Holdings, Inc. (GR 202050, July 25, 2016), penned by Associate Justice Arturo
Brion exhaustively discussed what an option contract is and separated it from sale, viz.:
"An option contract is a contract where one person (the offeror/promissor) grants to another
person (the offeree/promisee) the right or privilege to buy (or to sell) a determinate thing at a
fixed price, if he or she chooses to do so within an agreed period.
"As a contract, it must necessarily have the essential elements of subject matter, consent, and
consideration. Although an option contract is deemed a preparatory contract to the principal
contract of sale, it is separate and distinct therefrom, thus, its essential elements should be
distinguished from those of a sale.
"In an option contract, the subject matter is the right or privilege to buy (or to sell) a
determinate thing for a price certain, while in a sales contract, the subject matter is the
determinate thing itself. The consent in an option contract is the acceptance by the offeree of
the offerer's promise to sell (or to buy) the determinate thing, i.e., the offeree agrees to hold the
right or privilege to buy (or to sell) within a specified period. This acceptance is different from
the acceptance of the offer itself whereby the offeree asserts his or her right or privilege to buy
(or to sell), which constitutes as his or her consent to the sales contract. The consideration in
an option contract may be anything of value, unlike in a sale where the purchase price must be
in money or its equivalent. There is sufficient consideration for a promise if there is any benefit
to the offeree or any detriment to the offeror." (Citations omitted)
Applying the foregoing in your present situation, there are several reasons why you cannot
compel your friend to revoke the sale she made in favor of Amanda. As earlier stated, there
was no acceptance on your part of the offer, which is required to form the option contract.
Further, even if you accepted the offer, there is no distinct consideration for the option contract,
which is also required to form the said contract. Hence, the offer was not a binding option
contract, which she could withdraw at any time, as what happened in this case when she
changed her mind and sold the property to Amanda.
Topic: Refusal to comply order of reassignment

Q: I am a government employee. I challenged the order reassigning me to another office

because I believed that the said order was void. Should I follow the order while my appeal is
pending or just ignore it? What would be my liability should I ignore the order?

A: Non-compliance with the order of reassignment may be considered as insubordination.

Insubordination is defined in the case of Elena M. Borcillo, et al. vs. Edna L. Maghinay, GR 246542,
Feb. 10, 2021, where the Supreme Court, speaking through Associate Justice Rosmari Carandang, as:

Insubordination refers to "a refusal to obey some order, which a superior officer is entitled to
give and have obeyed. The term imports a willful or intentional disregard of the lawful and
reasonable instructions of the employer." (Citation omitted)

It is essential that you still follow the order of reassignment pending appeal. In the above-cited
case, which is similar to the instant case, the Supreme Court stated that:
"However, despite the void Decision of the DepEd Secretary, Maghinay is not absolutely free
from administrative liability. She should have immediately complied with the reassignment order
Borcillo issued while her appeal remained pending with the DepEd RO-10. We note that
Maghinay began discharging the functions of AO V - Finance [Budget] Division only in March
2016 while the reassignment order took effect on January 26, 2015. She waited for the
Decision of the DepEd Secretary affirming her reassignment pursuant to SO No. 123 before she
complied with the order. Maghinay failed to act promptly on the Borcillo's instruction in SO No.
123 which enjoys the presumption of regularity and warrants her obedience and compliance. To
our mind, this inaction and non-compliance to SO No. 123, despite being subsequently nullified,
constitutes a disregard of the instructions of her supervisor. While the case of Light Rail Transit
Authority v. Salvana is not on all fours with the present case, it is worthy to highlight the Court's
explanation that "what respondent should have done would be to occupy the new position and
then file the proper remedies. She should not have defied the orders of her superiors." Thus,
upon receipt of SO No. 123, Maghinay should have immediately reported to her new work
assignment though she may not agree with it. (Underscoring supplied; citations omitted)

Applying the above-cited decision in your situation, it is important to emphasize that orders
issued by superior authority in the exercise of their official functions are presumed to be valid
unless the same is declared void with finality. Thus, it would be prudent for you to comply with
the order of reassignment while you are appealing the said order so that you will not be charged
for insubordination, which carries the penalty by suspension from the service for a period of one
(1) month and one (1) day to six (6) months for the first offense and dismissal from the service
for the second offense under Rule 10, Section 50 of the 2017 Rules on Administrative Cases in
the Civil Service.

Topic: Effect of payment of indemnity for right of way

Q: I bought a lot in Parañaque City. However, I noticed that it had no adequate outlet to the
public highway. Thus, I filed a case in court to compel my neighbor to grant me a right of way.
The court decided in my favor, but it ordered me to pay him as an indemnity for the use of his
lot. If I pay my neighbor as ordered by the court, can I become the owner of the affected lot?

A: No, there will be no transfer of ownership of the property affected by the easement upon payment of
indemnity. Article 649 of the Civil Code provides for the requirements of a legal right of way, viz.:

"Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any
immovable, which is surrounded by other immovables pertaining to other persons and without
adequate outlet to a public highway, is entitled to demand a right of way through the neighboring
estates, after payment of the proper indemnity." (Emphasis supplied)

Applying the above-quoted provision of law, the Supreme Court in the case of Anastacia
Quimen vs. Court of Appeals and Yolanda Q. Oliveros — GR 112331, May 29, 1996, penned by
former Associate Justice Josue Bellosillo, elucidated that "[a] right of way in particular is a
privilege constituted by covenant or granted by law to a person or class of persons to pass over
another's property when his tenement is surrounded by realties belonging to others without an
adequate outlet to the public highway. The owner of the dominant estate can demand a right of
way through the servient estate provided he indemnifies the owner thereof for the beneficial use
of his property." (Emphasis supplied; citations omitted)

Further, in 2015, the Supreme Court in the case of Demetria De Guzman, et al. vs. FBLINVEST
Development Corporation — GR 191710, Jan. 14, 2015, penned by former Associate Justice
Mariano Del Castillo explained that the payment of indemnity is merely for the use of the right of
way and not for its alienation, viz.:

"In easement of right of way, there is no alienation of the land occupied.

"xxx Payment of the value of the land for permanent use of the easement does not mean an
alienation of the land occupied. In fact under the law and unlike in purchase of a property,
should the right of way no longer be necessary because the owner of the dominant estate has
joined it to another abutting on a public highway, and the servient estate demands that the
easement be extinguished, the value of the property received by the servient estate by way of
indemnity shall be returned in full to the dominant estate. This only reinforces the concept that
the payment of indemnity is merely for the use of the right of way and not for its alienation."
(Emphasis supplied; citations omitted)

Applying the foregoing in your present situation, if you will pay for the value of the indemnity for
the affected land, it would not mean that the ownership over the subject land will be transferred
to you because the payment of indemnity is merely for the use of the right of way. You are only
paying for the right to use a portion of your neighbor's property to enter your property, and not to
purchase it.

Topic: Registration of mortgage

Q: I registered my claim in 1995 on the certificate of title covering a land which I believe was
fraudulently registered in the name of my half-brother. Unfortunately, I also found out that the
property was mortgaged to LC in 1992. When my half-brother failed to pay his debt, LC
foreclosed the mortgage and emerged as the highest bidder in 1998. Can I consider LC to be a
buyer in bad faith because he became aware of my claim when I registered it in 1995 and yet
he still purchased the property in 1998? Which right should prevail?

A: the mortgage contract between your half-brother and LC was regis-tered in 1992, or three years
earlier than the registration of your claim. At that time, LC had no knowledge of your claim yet as such
information was made known to him in 1995. As such, LC is con-sidered a mortgagee-buyer in good
faith.

This is in accordance with Section 44 of Presidential Decree 1529, or the Property Registration
Decree, which provides that: "Every registered owner receiving a certificate of title in pursuance
of a decree of registration, and every subsequent purchaser of registered land taking a
certificate of title for value and in good faith, shall hold the same free from all encumbrances
except those noted in said certifi-cate xxx."

Corollary thereto, the Supreme Court, speaking through Associate Justice Mario V. Lopez in the
case of Danilo Santiago F. Jimenez vs Damian F. Jimenez Jr., et al. (GR 228011, Feb. 10,
2021), stated that:

"In sum, jurisprudence dictates that a subsequent lien or encumbrance annotated at the back of
a cer-tificate of title of a foreclosed property will not affect the rights of a purchaser in a
foreclosure sale be-cause such sale retroacts to the date of the registration of the mortgage,
making the sale prior in time to the lien or encumbrance. The foreclosure sale retroacts to the
date of registration of the mortgage because it is incidental to the fulfilment of the mortgagor's
obligation in the mortgage contract upon his default. In turn, the purchaser in a foreclosure sale
essentially derives his right from the previously registered mortgage. To rule otherwise would be
to render nugatory the purpose of the mortgage as security. Furthermore, we stress that the
nullity of the mortgagor's certificate of title does not auto-matically carry with it the nullity of a
registered mortgage if the mortgagee acted in good faith. Once the mortgagor defaulted in the
fulfillment of his obligation, the mortgagee in good faith can still cause the foreclosure of the
mortgage. In such a case, the purchaser in the foreclosure sale acquires the right of the
mortgagee in good faith, making the sale prior in time as against any subsequent lien or
encumbrance."

Applying the above-cited law and jurisprudence in your situation, LC's right as mortgagee-
purchaser in good faith in a foreclosure sale will prevail considering that your claim was
registered subsequent to his mortgage. Your claim will not affect LC's right as the purchaser in
the foreclosure sale considering that the foreclosure retroacts to the date of the registration of
the mortgage; it being incidental to the fail-ure of the mortgagor to fulfill his obligation in the
mortgage contract. To restate, the purchaser in a foreclosure sale is actually deriving his right
from the time the mortgage was executed.

Topic: Small claims procedure

Q: My neighbor borrowed a considerable amount of money from me. When he failed to pay, I
sought the assistance of our barangay captain to settle the matter. Unfortunately, my neighbor
still failed to pay me. I shared my problem with an officemate who told me that my case is
covered by a rule called "Small Claims." May I know what that rule is and what it covers? Does
it include the enforcement of a barangay amicable settlement?

A: In the exercise of its constitutional power to issue rules concerning pleading, practice, and procedure
in all courts, among others, the Supreme Court issued the Rules on Small Claims way back in 2008 in
order to simplify and expedite proceedings involving minimal money claims. Over the years, the rule was
refined and revised in order to keep up with the changing social and economic conditions. At present, the
matter is governed by AM 08-8-7-SC, otherwise known as the "Rule on Expedited Procedures in the
First Level Courts," dated March 1, 2022. Succinctly, Rule 1, Section 1 of the aforementioned rule reads:

"A. Civil Cases

"x x x

"(2) Small Claims Cases, as defined hereunder, where the claim does not exceed One Million
Pesos (P1,000,000.00), exclusive of interest and costs.

"A 'small claim' is an action that is purely civil in nature where the claim or relief raised by the
plaintiff is solely for the payment or reimbursement of a sum of money. It excludes actions
seeking other claims or reliefs aside from payment or reimbursement of a sum of money and
those coupled with provisional remedies.

"The claim or demand may be:

"(a) For money owed under any of the following:

"1. Contract of Lease;

"2. Contract of Loan and other credit accommodations;

"3. Contract of Services; or

"4. Contract of Sale of personal property, excluding the recovery of the personal property,
unless it is made the subject of a compromise agreement between the parties.

"(b) The enforcement of barangay amicable settlement agreements and arbitration awards,
where the money claim does not exceed One Million Pesos (P1,000,000.00), provided that no
execution has been enforced by the barangay within six (6) months from the date of the
settlement or date of receipt of the award or from the date the obligation stipulated or adjudged
in the arbitration award becomes due and demandable, pursuant to Section 417, Chapter VII of
Republic Act No. 7160, otherwise known as The Local Government Code of 1991." (Emphasis
and Underscoring Supplied)

A reading of the cited rule dictates that small claims cases are suits where the plaintiff merely
claims or demands payment for money owed under a contract of lease, loan and other credit
accommodations, services, or sale of personal property, where the amount does not exceed
P1,000,000. It also covers cases involving the enforcement of barangay amicable settlement
agreements and arbitration awards, where the money claim does not exceed P1,000,000,
which was not executed by the Lupon within six months from the maturity of the obligation.
Topic: Death extinguishes usufruct

Q: My wife and I have been residing in a small house that was built by my mother-in-law on a
land owned by her best friend. The latter even executed a document for the use of her land by
my mother-in-law for the time being. Unfortunately, my mother-in-law passed away a few
months ago and her best friend asked us to vacate the land because she plans to use it when
she retires next year. I just want to know whether we can continue staying in the house since
the document has no period. If we cannot, can we demand for reimbursement for the house that
was built by my mother-in-law?

A: It appears that what exists between your late mother-in-law and her best friend is a usufruct. Under
the New Civil Code of the Philippines:

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

"Art. 563. Usufruct is constituted by law, by the will of private persons expressed in acts inter
vivos or in a last will and testament, and by prescription."

As explained by our Supreme Court:

"Usufruct, in essence, is nothing else but simply allowing one to enjoy another's property. It is
also defined as the right to enjoy the property of another temporarily, including both the jus
utendi and the jus fruendi, with the owner retaining the jus disponendi or the power to alienate
the same." (Mercedes Moralidad vs. Spouses Diosdado Pernes and Arlene Pernes, GR
152809, Aug. 3, 2006, Ponente: Associate Justice Cancio Garcia)

It must be emphasized that like any other rights granted under the law, a usufruct also
extinguishes, and among the modes of extinguishment thereof is the demise of the usufructuary,
unless a contrary intention clearly appears. (Article 603 (1), New Civil Code) So, while we take
into consideration that there may have been no mention in the document of a period for the
termination of the usufruct in favor of your mother-in-law, it can be terminated by her death.

Corollary, since your mother-in-law has already passed away and there is no showing that her
rights as a usufructuary was transferable to her children or any other contrary intention, then it is
submitted that the subject usufruct has already ceased. Consequently, your mother-in-law's best
friend may demand for the return of her land.

With respect to your query of reimbursement for the improvements made by your mother-in-law
on the land, we submit that it may not be done. As explained by the Supreme Court:

"If the builder is a usufructuary, his rights will be governed by Arts. 579 and 580. In case like
this, the terms of the contract and the pertinent provisions of law should govern (3 Manresa
215-216; see also Montinola vs. Bantug, 71 Phil. 449).

"By express provision of law, respondents, as usufructuary, do not have the right to
reimbursement for the improvements they may have introduced on the property. We quote
Articles 579 and 580 of the Civil Code:

"Art. 579. The usufructuary may make on the property held in usufruct such useful
improvements or expenses for mere pleasure as he may deem proper, provided he does not
alter its form or substance; but he shall have no right to be indemnified therefor. He may,
however, remove such improvements, should it be possible to do so without damage to the
property.

"Art. 580. The usufructuary may set off the improvements he may have made on the property
against any damage to the same." (Moralidad vs. Sps. Pernes, Id.)

Topic: False pretenses constitute estafa

Q: My cousin introduced himself as the owner of a condominium unit located in Makati City and
sold me the property. I already paid in full the P6.8-million purchase price last year. However,
my cousin failed to deliver the certificate of title of and the keys to the condominium unit despite
several demands. Last week, I found out that he is not the owner of the condominium and that
he has no authority to sell the property. Can my cousin be held criminally liable for estafa?

A: "ARTICLE 315. Swindling (Estafa).—Any person who shall defraud another by any of the means
mentioned herein-below x x

"2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:

"(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications,
property, credit, agency, business or imaginary transactions, or by means of other similar
deceits." (Emphases Supplied)

Moreover, the Supreme Court in the case of RCL Feeders PTE., LTD. vs Hon. Hernando Perez
and Feliciano Zuluaga (GR. 162126, Dec. 9, 2004) through Retired Honorable Associate
Justice Consuelo Ynares-Santiago elucidated:

"The elements of the crime of estafa under the foregoing provision [Art. 315 (2) (a)] are: (1)
there must be a false pretense, fraudulent act or fraudulent means; (2) such false pretense,
fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the
commission of the fraud; (3) the offended party must have relied on the false pretense,
fraudulent act or fraudulent means and was thus induced to part with his money or property; and
(4) as a result thereof, the offended party suffered damage.

"In other words, to sustain a charge and subsequent conviction for estafa under the aforecited
provision, respondent must be alleged to have actually made fraudulent representations which,
in turn, caused petitioner to part with its money. xxx xxx xxx The fraud must be alleged to have
been personally committed by respondent prior to or simultaneously with the payment or delivery
of money. If there be no such prior or simultaneous false statement or fraudulent representation,
any subsequent act of the accused, however fraudulent or suspicious it may appear, cannot
serve as basis for prosecution for that class of estafa." (Emphases supplied; citation omitted)

Applying the law and the jurisprudence in your question, you need to prove that your cousin had
actually made fraudulent representations which, in turn, caused you to part with your own
money. It appears to be the case as your cousin defrauded you into believing that he was the
owner, and therefore had the authority to sell and dispose the condominium unit, despite him not
being the owner of the said property. Because of such representation, you parted with your
money and paid in full the price of the property. Clearly, the claim made by your cousin that he
was the owner of the condominium unit and he had the authority to sell the said property was
indeed a false representation, belonging to the category of false pretense that he has property
under Par. 2 (a) of Article 315 of the Revised Penal Code. Such fraudulent representation
committed prior to or simultaneous with the payment you made constitutes the crime of Estafa.
Hence, you may file a criminal case of Estafa against your cousin.

Topic: Liability of a surety

Q; My sister executed and delivered a promissory note to one of her creditors where she
undertook to pay her loan amounting to P500,000 within three months. Her creditor prepared a
surety agreement and made me sign the same as a security for the payment of the loan before
releasing the money. My sister failed to pay her loan due to business losses. Thereafter, I was
informed by my sister's creditor that, as a surety, I am equally liable to pay for the outstanding
loan of my sister. Is my sister's creditor correct in saying that I am equally liable like a principal
debtor when I merely signed the surety agreement?

A: "Article 2047. By guaranty, a person, called the guarantor, binds himself to the creditor to fulfill the
obligation of the principal debtor in case the latter should fail to do so.

If a person binds himself solidarily with the principal debtor, the provisions of Section 4, Chapter
3, Title I of this Book shall be observed. In such a case, the contract is called a suretyship.

Article 1207. The concurrence of two or more creditors or of two or more debtors in one and the
same obligation does not imply that each one of the former has a right to demand, or that each
one of the latter is bound to render, entire compliance with the prestation. There is a solidary
liability only when the obligation expressly so states, or when the law or the nature of the
obligation requires solidarity." (Emphases supplied)

The Supreme Court, in the case of Rosalina Carodan vs China Banking Corp. (GR 210542,
Feb. 24, 2016; Ponente: Chief Justice Maria Lourdes P.A. Sereno) discussed that:

"A surety binds himself to perform if the principal does not, without regard to his ability to do so.
xxx xxx xxx In other words, a surety undertakes directly for the payment and is so responsible at
once if the principal debtor makes default, while a guarantor contracts to pay if, by the use of
due diligence, the debt cannot be made out of the principal debtor. xxx

A contract of surety is an accessory promise by which a person binds himself for another
already bound, and agrees with the creditor to satisfy the obligation if the debtor does not. xxx

A surety is usually bound with his principal by the same instrument, executed at the same time,
and on the same consideration. He is an original promissor and debtor from the beginning, and
is held, ordinarily, to know every default of his principal. Usually, he will not be discharged,
either by the mere indulgence of the creditor to the principal, or by want of notice of the default
of the principal, no matter how much he may be injured thereby. Simply put, a surety is
distinguished from a guaranty in that a guarantor is the insurer of the solvency of the debtor and
thus binds himself to pay if the principal is unable to pay while a surety is the insurer of the
debt, and he obligates himself to pay if the principal does not pay." (Emphases Supplied;
citations omitted).

Thus, the creditor of your sister was correct when he/she asserted that you are liable to pay the
outstanding debt of your sister because you signed a surety agreement. Taking the
aforementioned laws and jurisprudence into consideration, as a surety, you bound yourself to be
liable like a principal debtor for your sister's loan if she fails to pay the same when it becomes
due and demandable. As it turns out, she did fail to pay her outstanding debt when it became
due, and so your obligation to pay for her loan arose.

Topic: Lessee can suspend the payment of rent

Q: I have been leasing a townhouse for a year now. I informed the lessor that the drainage in
the kitchen sink was not working. The clogged drainage causes a puddle of water to form
whenever we wash the dishes. We also need to put a large pail below the sink to catch the
leaking water. Despite this, the lessor still refuses to hire a plumber to fix the problem without
any good reason. Can I stop paying my monthly rent because of the lessor's refusal to fix the
problem?
A: Article 1654 of the New Civil Code of the Philippines, which enumerates the obligations of the lessor,
viz:

"Article 1654. The lessor is obliged:

(1) To deliver the thing which is the object of the contract in such a condition as to render it fit
for the use intended;

(2) To make on the same during the lease all the necessary repairs in order to keep it suitable
for the use to which it has been devoted, unless there is a stipulation to the contrary;

(3) To maintain the lessee in the peaceful and adequate enjoyment of the lease for the entire
duration of the contract." (Emphasis supplied)

The provision in the article expressly stipulates that the lessor is obliged to make all the
necessary repairs in the property leased. Necessary repairs include those which must be done
to keep the thing leased suitable for the use to which it has been devoted. In your case, the
lessor must make all the necessary repairs in the townhouse you are renting to keep it suitable
for its intended use. This includes repairing the clogged drainage as it is essential to the fitness
of the premises for continued occupation.

As a lessee, you have the option to suspend the payment of rent considering that the lessor
unjustifiably refuses to make the necessary repairs. (Art. 1658, New Civil Code of the
Philippines) Also, you may ask for the indemnification of damages allowing the contract to
remain in force or ask for its rescission plus indemnification of damages. (Art. 1659, Id.)

Topic: Malicious prosecution

Q: My father had a misunderstanding with his employer over some lost office items, but he was
able to sort it out because his coworkers attested that those items were not lost but were, in
fact, not delivered to their company by their supplier.

Despite my father having sorted out what seemed to be a mere confusion, his employer still filed
a complaint against him for allegedly stealing those items. If the fiscal dismisses the complaint,
which we are confident will eventually happen because we have evidence to prove that the
items were not delivered to their office so it is impossible that he stole them, can my father file a
case for malicious prosecution even if the complaint against him was only before the
prosecutor's office and did not reach the court?

A: An action for damages on account of malicious prosecution is a remedy recognized under our laws.
But what is "malicious prosecution" exactly and what are the elements that need to be established? As
pronounced by our Supreme Court in the case of Sosmeña vs Bonafe, et al. (GR 232677, June 8,
2020, Ponente: Associate Justice Amy Lazaro-Javier):

"Magbanua v Junsay explains the cause of action of malicious prosecution:

In this jurisdiction, the term "malicious prosecution" has been defined as "an action for
damages brought by one against whom a criminal prosecution, civil suit, or other legal
proceeding has been instituted maliciously and without probable cause, after the termination of
such prosecution, suit, or other proceeding in favor of the defendant therein." While generally
associated with unfounded criminal actions, the term has been expanded to include unfounded
civil suits instituted just to vex and humiliate the defendant despite the absence of a cause of
action or probable cause. x x x

The statutory basis for a civil action for damages for malicious prosecution are found in the
provisions of the New Civil Code on Human Relations and on damages particularly Articles 19,
20, 21, 26, 29, 32, 33, 35, 2217 and 2219 (8). To constitute malicious prosecution, however,
there must be proof that the prosecution was prompted by a sinister design to vex and humiliate
a person, and that it was initiated deliberately by the defendant knowing that his charges were
false and groundless. Concededly, the mere act of submitting a case to the authorities for
prosecution does not make one liable for malicious prosecution.

This Court has drawn the four elements that must be shown to concur to recover damages for
malicious prosecution. Therefore, for a malicious prosecution suit to prosper, the plaintiff must
prove the following: (1) the prosecution did occur, and the defendant was himself the prosecutor
or that he instigated its commencement; (2) the criminal action finally ended with an acquittal;
(3) in bringing the action, the prosecutor acted without probable cause; and (4) the prosecution
was impelled by legal malice — an improper or a sinister motive. The gravamen of malicious
prosecution is not the filing of a complaint based on the wrong provision of law, but the
deliberate initiation of an action with the knowledge that the charges were false and groundless.

Malicious prosecution does not only pertain to criminal prosecutions but also to any other legal
proceeding such as a preliminary investigation." (Emphasis supplied; citations omitted)

Applying the foregoing, we submit that your father may file an action for damages for malicious
prosecution even if the complaint that was filed against him did not reach the court, provided
that the preliminary investigation therefore resulted in the dismissal of the complaint due to lack
of probable cause. Further, he must be able to establish that there was legal malice on the part
of his employer in instituting the complaint against him.

Topic: Prohibited activities while driving

Q: My driver uses his mobile phone even while driving. If he would continue doing the said act,
would he be violating any law?

A: Section 4 of Republic Act (RA) 10913, otherwise known as the "Anti-Distracted Driving Act," which
states that:

"Section 4. Distracted Driving. - Subject to the qualifications in Sections 5 and 6 of this Act,
distracted driving refers to the performance by a motorist of any of the following acts in a motor
vehicle in motion or temporarily stopped at a red light, whether diplomatic, public or private,
which are hereby declared unlawful:

"(a) Using a mobile communications device to write, send, or read a text-based communication
or to make or receive calls, and other similar acts; and

"(b) Using an electronic entertainment or computing device to play games, watch movies, surf
the internet, compose messages, read e-books, perform calculations, and other similar acts."

Based on the above-stated law, a person who uses mobile communication devices while driving
is considered to be committing an unlawful act. Should a person commit any of these prohibited
acts, he or she may be punished accordingly, depending on the number of times that they have
violated the provisions of RA 10913 as provided under Section 8 thereof, viz:

"Section 8. Penalties. - Any person who shall violate any provision of this Act shall be penalized
with:

"(a) A fine of five thousand pesos (P5,000.00) for the first offense;

"(b) A fine of ten thousand pesos (P10,000.00) for the second offense;

"(c) A fine of fifteen thousand pesos (P15,000.00) and suspension of driver's license for three
(3) months for the third offense; and

"(d) A fine of twenty thousand pesos (P20,000.00) and revocation of driver's license;
Provided, That the implementing agency may increase the amount of fine herein imposed once
every five (5) years in the amount not exceeding ten percent (10%) of the existing rates sought
to be increased which shall take effect only upon publication in at least two (2) newspapers of
general circulation: Provided, further, That a driver of a public utility vehicle, a school bus, a
school service vehicle, a common carrier hauling volatile, flammable or toxic material, or a driver
who commits an act classified herein as distracted driving within a fifty (50)-meter radius from
the school premises shall be subject to a penalty of thirty thousand pesos (P30,000.00) and
suspension of one's driver's license for three (3) months."

Topic: Requirements for reissuance of lost title

Q: I cannot locate my Torrens title despite my exhaustive effort to look for it. One year has
already elapsed, so I am now contemplating to file an appropriate case for the issuance of
another copy of the title. May I know the requirements for this process? Is the execution of an
affidavit of loss, registration of the title with the Registry of Deed, and filing of a case before the
court sufficient for the issuance of a duplicate?|
A: The requirements for the issuance of a duplicate copy of a lost title is found under Section 109 of
Presidential Decree (PD) 1529, otherwise known as the "Property Registration Decree." The said
provision of the law specifically provides that:

"In case of loss or theft of an owner's duplicate certificate of title, due notice under oath shall be
sent by the owner or by someone in his behalf to the Register of Deeds of the province or city
where the land lies as soon as the loss or theft is discovered. If a duplicate certificate is lost or
destroyed, or cannot be produced by a person applying for the entry of a new certificate to him
or for the registration of any instrument, a sworn statement of the fact of such loss or destruction
may be filed by the registered owner or other person in interest and registered.

"Upon the petition of the registered owner or other person in interest, the court may, after notice
and due hearing, direct the issuance of a new duplicate certificate, which shall contain a
memorandum of the fact that it is issued in place of the lost duplicate certificate, but shall in all
respects be entitled to like faith and credit as the original duplicate, and shall thereafter be
regarded as such for all purposes of this decree."

Take note that both the notice to the Registry of Deeds and trial before a court are essential
requirements for the issuance of a duplicate title but the same will not be a guaranty that the
court will grant your claim. This is in consonance with the decision of the Supreme Court in the
case of Republic of the Philippines vs. Ciruelas (GR 239505, Feb. 17, 2021), where the
Supreme Court, speaking through Associate Justice Edgardo Delos Santos, stated that:

"Section 109 of PD No. 1529 has two distinct requirements: the first paragraph refers to the
notice requirement, i.e., submission of an Affidavit of Loss to the Register of Deeds while the
second paragraph pertains to the procedure for the replacement, i.e., filing a petition for the
issuance of a new duplicate certificate. The second paragraph contemplates the conduct of a
full-blown hearing wherein petitioner must prove the fact of loss or theft through preponderant
evidence. As applied to the instant case, mere compliance with the notice requirement and the
filing of a petition with the appropriate RTC does not automatically entitle the registered owner to
a replacement duplicate certificate. Rogelio, through Dominador, must still establish by
preponderance of evidence that the owner's duplicate was lost."

Applying the above-quoted decision relative to your queries, the requirement for the issuance of
a duplicate title are: notice requirement and filing of petition for the issuance of new duplicate
title. The compliance of the said requirements, however, does not guaranty the issuance of a
duplicate title in your favor because you still need to prove by preponderance of evidence before
the court that your owner's duplicate of title was lost.

Topic: Criminal case for improper waste disposal

Q: My driver was caught throwing cigarette butts on the sidewalk and was accosted by a
personnel of the Metropolitan Manila Development Authority who introduced himself as an
environmental enforcer. Subsequently, he was charged for violation of Republic Act 9003. Is the
filing of a criminal complaint even necessary? It was just a small piece of waste anyway. I hope
your office can advise me if the law really criminalizes such a small action considering the
resulting inconvenience for my driver.

A: RA 9003 which is known as the "Ecological Solid Waste Management Act of 2000." This law
prohibits certain acts related to inappropriate waste management and provides penalties thereto.

Among those included in the list of prohibited acts under Chapter VI, Section 48 of the law is:

"(1) Littering, throwing, dumping of waste matters in public places, such as roads, sidewalks,
canals, esteros or parks, and establishment, or causing or permitting the same;"

From this provision, it is clear that the act of your driver in throwing away cigarette butts on a
sidewalk, which is considered a waste matter, squarely falls within the list of identified prohibited
acts under the law. In short, what your driver did was unlawful.

Since your driver committed a prohibited act, the provision on fines and penalties shall be
applied to him. According to Section 49 of the same chapter of RA 9003:

"(a) Any person who violates Sec. 48, paragraph (1) shall, upon conviction, be punished with a
fine of not less than Three hundred pesos (P300.00) but not more than One thousand pesos
(P1,000.00) or render community service for not less than one (1) day to not more than fifteen
(15) days to an LGU where such prohibited acts are committed, or both;
"xxx

"The fines herein prescribed shall be increased by at least ten percent (10%) every three (3)
years to compensate for inflation and to maintain the deterrent function of such fines."
(Emphasis supplied)

A conviction is necessary in order to apply the imposable penalty for the violation of this law.
However, there has to be a criminal court proceeding which requires the filing of an actual
criminal complaint against the violators of this law. Thus, the filing of a criminal complaint
against your driver is a necessary consequence of his violation and part of the judicial process
to impose the penalty provided by the law. Also note that the amount of the imposable fine
increases every three years as stated therein.

Topic: Effect of non-registration of the Special Power of Attorney for the filing of
reconstitution of lost title

Q: I was given by Joshua a Special Power of Attorney (notarized document) to file an

appropriate petition in court for the issuance of new duplicate of title on his behalf. One relative
working at the local government unit told me to register the said document otherwise the same
would be void. Is this correct? What is the purpose of registration?

A: The requirement of registration of the Special Power of Attorney (SPA) was specifically provided
under Section 64 of Presidential Decree (PD) 1529 or the "Property Registration Decree" which states:

"Any person may, by power of attorney, convey or otherwise deal with registered land and the
same shall be registered with the Register of Deeds of the province or city where the land lies.
Any instrument revoking such power of attorney shall be registered in like manner."

The contract of agency between you and Joshua is valid as long as the following requirements
enumerated under Article 1318 of the New Civil Code of the Philippines are present:

"There is no contract unless the following requisites concur:

"(1) Consent of the contracting parties;

"(2) Object certain which is the subject matter of the contract;

"(3) Cause of the obligation which is established."

Correlative thereto, Article 1869 of the same law provides that:

"Agency may be express, or implied from the acts of the principal, from his silence or lack of
action, or his failure to repudiate the agency, knowing that another person is acting on his behalf
without authority. Agency may be oral, unless the law requires a specific form." (Emphasis and
underscoring supplied)

The contract of agency between you and Joshua was perfectly valid as the requirements
provided by law was already complied with. Its non-registration with the Registry of Deeds has
nothing do with its validity. This finds support in the case of Republic of the Philippines vs.
Ciruelas (GR 239505, Feb. 17, 2021), where the Supreme Court speaking through Associate
Justice Edgardo L. Delos Santos stated that:

"Petitioner makes much of the fact that the SPA conferring authority to Dominador was not
registered with the Registry of Deeds of Batangas and, thus, in violation of Section 64 of P.D.
No. 1529 which states:

"SEC. 64. Power of attorney. Any person may, by power of attorney, convey or otherwise deal
with registered land and the same shall be registered with the Register of Deeds of the province
or city where the land lies. Any instrument revoking such power of attorney shall be registered in
like manner.

"A plain reading of the aforementioned provision, however, does not state that the registration of
an SPA is a prerequisite to its validity or conversely, its non-registration makes the agent's
authority ineffective. The Court agrees with the rationalization of the appellate court that the
main purpose of registration is to notify the whole world and ultimately, to protect the rights of
any third person who may have interests or claims over the land. Xxx"
Applying the above-cited decision in your situation, the non-registration of the SPA with the
Registry of Deeds affects only the notice requirement. The primary purpose of registration of
said document is to notify the whole world and to protect rights of third person who has interest
in the said land. Thus, the statement of your relative is not correct because the failure to register
the said SPA has nothing to do with the validity of said document.

Topic: Prescription of action for medical malpractice

Q: May I know the prescriptive period for filing a complaint about medical malpractice? My sister
is still aching from the aftermath of her ill-fated operation and would only desire to be informed
about the said period until such time she deems it appropriate and necessary to file the
appropriate case for such malpractice.

A: The answer to your question is four years counted from the time of the alleged medical malpractice.
The basis of such a period is found in the provisions of the Republic Act 386, otherwise known as the
"New Civil Code of the Philippines." For your guidance, Article 2176 in relation to Article 1146 of the
said law reads:

"Article 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.

"Article 1146. The following actions must be instituted within four years:"(1) Upon an injury to
the rights of the plaintiff;

"(2) Upon a quasi-delict;" (Emphasis and underscoring supplied)

In relation to the foregoing, the Supreme Court in the recent case of De Jesus vs. Uyloan (GR
234851. Feb. 15, 2022), penned by the Chief Justice Alexander Gesmundo, reiterates that for
the type of negligence committed by members of the medical profession the same is covered by
the New Civil Code provision on quasi-delict which prescribes in four years, viz.:

"For lack of a specific law geared toward the type of negligence committed by members of the
medical profession in this jurisdiction, such claim for damages is almost always anchored on the
alleged violation of Art. 2176 of the Civil Code, which states that:

"ART. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter." (Emphasis and underscoring supplied)

Nonetheless, as held in the above-mentioned case of De Jesus vs. Uyloan, the only time that
an otherwise tortious act of medical malpractice or a quasi-delict case can be taken out from
such kind of cases and construed as a violation of contract which prescribes in six for oral
contract or 10 years for a written contract, would be on the occasion of a successful allegation
that the medical malpractice complaint is actually based on the breach of an express promise to
provide medical treatment or achieve a specific result, thus:

"Thus, where the complaint contains averments of the foregoing elements and the defendant
doctor failed to observe such degree of care which caused damage or harm to the plaintiff
patient, the cause of action is one for medical negligence under the law on torts rather than
contract. X x x

"There is no mention at all of any express promise on the part of the defendant doctors to
provide medical treatment or achieve a specific result. The absence of an express agreement as
basis for contractual liability is evident from a plain invocation of an implied contract between the
parties. X x x

"We hold that a mere reference to an implied contract between the physician and the patient, in
general, is insufficient for pleading a cause of action under the contract theory of professional
malpractice. An action for medical malpractice based on contract must allege an express
promise to provide medical treatment or achieve a specific result." (Emphasis and underscoring
supplied)

Therefore, applying the said law and jurisprudence to your query, if the complaint does not
allege an express promise of specific result or medical treatment, the general rule on medical
malpractice which prescribes in four years premised on the breach of a doctor's professional
duties of skill and care, or their improper performance apply.

Topic: Requirement of guardian's bond in claiming life insurance proceeds

Q: after battling Covid-19 for the past three months, my wife succumbed to death. She was the
breadwinner of our family, and I am the one physically taking care of our seven-year-old son
while managing my small online business. While I was organizing her things, I came across her
life insurance policy where our son was the beneficiary. I immediately tried contacting the
insurance company to claim the proceeds of the life insurance policy in behalf of my son. I was
informed, however, that I must first post a guardianship bond. Is this really required even if I am
the legitimate father of our son?

A: Section 182 of the Insurance Code, as amended by Republic Act 10607, which provides:

"Section 182. An insurance upon life may be made payable on the death of the person, or on
his surviving a specified period, or otherwise contingently on the continuance or cessation of life.

"Every contract or pledge for the payment of endowments or annuities shall be considered a life
insurance contract for purposes of this Code.

"In the absence of a judicial guardian, the father, or in the latter's absence or incapacity, the
mother, of any minor, who is an insured or a beneficiary under a contract of life, health, or
accident insurance, may exercise, in behalf of said minor, any right under the policy, without
necessity of court authority or the giving of a bond, where the interest of the minor in the
particular act involved does not exceed Five hundred thousand pesos (P500,000.00) or in
such reasonable amount as may be determined by the Commissioner. Such right may include,
but shall not be limited to, obtaining a policy loan, surrendering the policy, receiving the
proceeds of the Policy, and giving the minor's consent to any transaction on the policy.

"In the absence or in case of the incapacity of the father or mother, the grandparent, the eldest
brother or sister at least eighteen (18) years of age, or any relative who has actual custody of
the minor insured or beneficiary, shall act as a guardian without need of a court order or judicial
appointment as such guardian, as long as such person is not otherwise disqualified or
incapacitated. Payment made by the insurer pursuant to this section shall relieve such insurer of
any liability under the contract." (Emphasis supplied)

As a general rule and in the absence of a judicial guardian, the father or the mother of a minor
who is a beneficiary of a life insurance policy may exercise in behalf of the latter any right under
the said policy even in the absence of court authority or the giving of a bond provided, however,
that the interest of the minor beneficiary in the particular act involved does not exceed
P500,000 or in such reasonable amount as may be determined by the Insurance
Commissioner. Such right may include, but shall not be limited to, receiving the proceeds of the
policy which is the subject of your query.

Your narration, however, is bereft of facts as to the amount of interest your son has under the
subject policy, which will determine whether or not a court-approved guardian's bond is required.
In this regard, please be advised that should the interest of your son under the subject policy
does not exceed P500,000 or in such reasonable amount as may be determined by the
Insurance Commissioner, you may receive the proceeds of the subject policy in behalf of your
son without the need to secure a court-approved guardian's bond. On the other hand, should
the interest of your son on the subject policy exceeds P500,000 or in such reasonable amount
as may be determined by the Insurance Commissioner, you have to secure a court-approved
guardian's bond before you may be allowed to receive the proceeds of the subject policy in
behalf of your son.

Topic: Slander by deed

Q: Someone poured a bucket of urine on my mother in the street fronting our house. The same
was witnessed by several of our neighbors. My mom was ashamed by the incident. Later, I was
informed that it was done by one of our unruly neighbors who had a long standing ill-will against
her. If the sole purpose of the act is to shame my mother, may I know the crime, if there is any,
committed by our neighbor?

A: Article 359 of Act No. 3815, otherwise known as the Revised Penal Code, as amended, which
defines and penalizes the crime of slander by deed, viz.:

"Art. 359. Slander by deed. - The penalty of arresto mayor in its maximum period to prisión
correccional in its minimum period or a fine ranging from Twenty thousand pesos (P20,000) to
One hundred thousand pesos (P100,000) shall be imposed upon any person who shall perform
any act not included and punished in this title, which shall cast dishonor, discredit or contempt
upon another person. If said act is not of a serious nature. the penalty shall be arresto menor or
a fine not exceeding Twenty thousand pesos (₱20,000)." (Emphasis and underscoring
supplied).

Pertinently, the Supreme Court in the case of Villanueva vs People (G.R. No. 160351, April 10,
2006), penned by former Associate Justice Minita Chico-Nazario, dictates the elements and
essence of the crime as follows:

"Slander by deed is a crime against honor, which is committed by performing any act, which
casts dishonor, discredit, or contempt upon another person. The elements are (1) that the
offender performs any act not included in any other crime against honor, (2) that such act is
performed in the presence of other person or persons, and (3) that such act casts dishonor,
discredit or contempt upon the offended party. Whether a certain slanderous act constitutes
slander by deed of a serious nature or not, depends on the social standing of the offended
party, the circumstances under which the act was committed, the occasion, etc. It is libel
committed by actions rather than words." (Emphasis and underscoring supplied).

In line with the facts in your query, it appears that all the elements of the crime are present.
First, your neighbor did not perform an oral or written defamation since the same was committed
by an action rather than through words. Second, the act of your neighbor was performed in the
presence of other person/s. And third, the act of the said neighbor in allegedly pouring a bucket
full of urine definitely casts dishonor on your mother.

Thus, applying the foregoing law and jurisprudence to your query, if all of the allegations that
you mentioned are duly proven, the neighbor who committed the preceding act would be held
liable for the crime of slander by deed.

Topic: Collection suit or foreclosure sale

Q: My friend borrowed money from me secured by a real estate mortgage. When the loan
became due, however, he failed to pay despite several demands. I finally decided to file a
collection suit against him where the court ruled in my favor. During the execution of the court's
decision, the sheriff told me that my friend doesn't have enough funds to pay me and up to this
day, the judgment remained unsatisfied. I am thinking of pursuing my other remedy which is to
foreclose the mortgage. Is this possible?
A: in the case of Bachrach Motor Co., Inc. vs. Esteban Icarañgal and Oriental Commercial Co., Inc., (GR
L-45350, May 29, 1939, ponente: Chief Justice Manuel Moran) In Bachrach, the mortgage creditor
instituted an action to foreclose the mortgage when the judgment on a collection suit filed earlier
remained unsatisfied. The Supreme Court, in Bachrach, discussed and ruled that:

"Most of the provisions of our Code of Civil Procedure are taken from that of California, and in
that jurisdiction the rule has always been, and still is, that a party who sues and obtains a
personal judgment against a defendant upon a note, waives thereby his right to foreclose the
mortgage securing it. (Citations omitted)

"xxx

"We hold, therefore, that, in the absence of express statutory provisions, a mortgage creditor
may institute against the mortgage debtor either a personal action for debt or a real action to
foreclose the mortgage. In other words, he may pursue either of the two remedies, but not
both." (Emphasis supplied)

In addition, the mortgage creditor in the case of Caltex Philippines, Inc., vs. The Intermediate
Appellate Court and Herbert Manzana (GR 74730, Aug. 25, 1989, ponente: Associate Justice
Leo Medialdea) filed first a collection suit and while the case is pending, it foreclosed extra-
judicially the mortgaged property. The Supreme Court, in Caltex, discussed the remedies of a
mortgage creditor:

"Thus, where a debt is secured by a mortgage and there is a default in payment on the part of
the mortgagor, the mortgagee has a choice of one (1) of two (2) remedies, but he cannot have
both. The mortgagee may:

"1) foreclosure the mortgage; or

"2) file an ordinary action to collect the debt.

"When the mortgagee chooses the foreclosure of the mortgage as a remedy, he enforces his
lien by the sale on foreclosure of the mortgaged property. The proceeds of the sale will be
applied to the satisfaction of the debt. With this remedy, he has a prior lien on the property. In
case of a deficiency, the mortgagee has the right to claim for the deficiency resulting from the
price obtained in the sale of the real property at public auction and the outstanding obligation at
the time of the foreclosure proceedings (Soriano v. Enriquez, 24 Phil. 584; Banco de Islas
Filipinas v. Concepcion Hijos, 53 Phil. 86; Banco Nacional v. Barreto, 53 Phil. 101).

On the other hand, if the mortgagee resorts to an action to collect the debt, he thereby waives
his mortgage lien. He will have no more priority over the mortgaged property. If the judgment in
the action to collect is favorable to him, and it becomes final and executory, he can enforce said
judgment by execution. He can even levy execution on the same mortgaged property, but he will
not have priority over the latter and there may be other creditors who have better lien on the
properties of the mortgagor."

In view of the foregoing, please be advised that since you have already availed of the remedy of
filing an ordinary action to collect the debt, you thereby waived your mortgage lien. This means
that you can no longer exercise your right to foreclose the mortgage. The remedies of collection
and foreclosure are mutually exclusive which means that you cannot avail one once you invoke
the other remedy.

Since the court ruled in your favor and a writ of execution was already issued, your next remedy
is to levy execution on the properties of the mortgage debtor, if there are any, or on the same
mortgaged property. Kindly take note, however, that you will not have priority over the latter and
there may be other creditors who have better lien on the properties of the mortgagor.

Topic: Former spouse wants to claim share in undivided absolute community

Q: My marriage with Roy was declared void by the court sometime in 2006. Roy married
Angela in 2008, and he died in 2009. My problem is, our conjugal properties were not divided;
hence, there is now a fusion of the properties from the first marriage and second marriage of
Roy. My children and I were contemplating on filing a petition for the settlement of Roy's estate
in order to get our inheritance. Will the case prosper?

A: It is important to emphasize that you are no longer an heir of Roy (deceased) when your marriage
was voided by the court in 2006. This is in consonance with Article 99 of the Family Code of the
Philippines which provides that "the absolute community terminates: xxx xxx (3) When the marriage is
annulled or declared void; or xxx." Thus, it would be improper for you to join the petition to be filed by
your children.

The correct legal remedy for you was provided in the decision of the Supreme Court entitled
David and Heirs of Rene Aguas vs. Calilung (GR 241036, Jan. 26, 2021), where the Supreme
Court through Associate Justice Edgardo Delos Santos stated that:

"Of the exceptions referred to above, the Court notes that the intestate court in the Settlement
Proceeding may provisionally pass upon the question of inclusion in, or exclusion from, the
inventory of the subject properties in this case. The same, however, would not give Lucila full
and complete relief as the said inclusion or exclusion is still subject to the final determination of
ownership in a separate action. How would Lucila amply and finally protect then her right and
interest over Sunset Valley Estate or recover her share in the aforesaid co-owned property?

"The Court holds that Lucila, being a stranger to the Settlement Proceeding, should file a
separate civil action for partition before the regular courts against the administrator of Rene's
estate. This course of action is not only consistent with the aforesaid jurisprudential
pronouncements, but is likewise in accord with Section 1, Rule 87 of the Rules of Court, which
provides that an action to recover real property or an interest therein from the estate may be
commenced against administrator, to wit:

"SEC. 1. Actions which may and. which may not be brought against executor or administrator.
— No action upon a claim for the recovery of money or debt or interest thereon shall be
commenced against the executor or administrator; but to recover real or personal property, or an
interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for
an injury to person or property, real or personal, may be commenced against him."

Applying the above-quoted decision in your situation, as your marriage was declared void by the
court in 2006, you are already considered as a stranger to the settlement of Roy's estate.
Hence, your appropriate legal remedy now is to file a separate civil action for partition against
the administrator of Roy's estate for the partition of the properties belonging to the absolute
community of properties when your marriage with Roy was subsisting. This action is in
consonance with Section 1, Rule 87 of the 1997 Rules of Court, as amended.

Topic: When to execute absolute deed of sale

Q: I purchased a condominium unit on installment basis. Under our contract to sell, we agreed
that I pay it monthly for five years. We also agreed that I would shoulder the payment of all
taxes necessary for the transfer of title. Last year, I fully paid the purchase price. However, the
seller refused to execute a notarized deed of sale arguing that he will sign a notarized deed of
sale only after I have paid the taxes. May I compel the seller to execute a notarized deed of
sale?

A: Article 1357 of the New Civil Code of the Philippines which provides that:

"If the law requires a document or other special form, as in the acts and contracts enumerated
in the following article, the contracting parties may compel each other to observe that form, once
the contract has been perfected. This right may be exercised simultaneously with the action
upon the contract."

One decision that interprets this provision is in the case of Fil-Estate Properties vs. HRI (G.R.
No. 231936, November 25, 2020), where the Supreme Court, through Associate Justice Amy
C. Lazaro-Javier, explained:

"Upon full payment of the contract price, HRI became rightfully entitled to the execution of a
deed of absolute sale in its favor. A contract to sell has been defined as "a bilateral contract
whereby the prospective seller, while expressly reserving the ownership of the subject property
despite delivery thereof to the prospective buyer, binds itself to sell the property exclusively to
the prospective buyer upon fulfillment of the condition agreed upon, that is, full payment of the
purchase price. In a contract to sell, "ownership Is retained by the seller and is not pass until
the full payment of the price. Consequently, once the buyer has paid the purchase price in full,
the contract to sell is converted to an absolute sale and the buyer has the right to demand the
execution of a Deed of absolute sale in its favor.

"On the strength of Article 1357 of the Civil Code and relevant jurisprudence, in relation to
Section 135 of the LGC, therefore, HRI has the right to compel FEPI to execute a notarized
Deed of Absolute Sale in its favor for purposes of registration. Presentation of the owner's
duplicate certificate of title and proof of payment of taxes and fees are conditions sine qua non
to the transfer of title before the Register of Deed. Under the Section 135 of the LGC, proof of
payment of taxes and fees is a requirement before the Register of Deeds may initiate the
transfer of title over a property.

"To emphasize, upon HRI's full payment of the purchase price, not only has it acquired the right
to a notarized deed of absolute sale, but the right as well to the owner's duplicate CCT."

Applying the aforementioned in your case, it is clear that you may compel the seller of the
condominium unit not only to execute a notarized deed of sale, but also to hand over to you the
Condominium Certificate of Title (CCT) considering that you have already paid the purchase
price in full. Payment of taxes is not a condition precedent before the seller may execute a
notarized deed of sale. On the contrary, the execution of a notarized absolute deed of sale and
the delivery of the CCT are the requisites before the Register of Deeds will allow the registration
of the sale and legally process the transfer of the CCT in your name as the new owner.

Topic: Contract of necessary deposit

Q: One day, I was tasked to bring the company car and stay in a hotel with my officemates for a
seminar. As soon as I arrived at the hotel entrance to drop off my officemates, the valet parking
service of the hotel requested for the company car keys. Hesitant at first, as this is my first time
encountering valet parking services, I eventually entrusted the keys when they ensured that it is
part of the services and standard procedure of the hotel to park the car for their guests. I was
issued a claim stub in return. However, the next day at around 5 a.m., we were awakened by a
phone call from the front desk informing us that the company car was carnapped. We
coordinated with the authorities and did our best to find the car but to no avail. I am only earning
almost a little above the minimum wage, and I am afraid that I will be the one to pay for the
loss. Can the hotel be held liable for such loss?

A: Durban Apartments vs. Pioneer Insurance (GR 179419, Jan. 12, 2011, (Ponente: Associate Justice
Antonio Eduardo Nachura), wherein the Supreme Court discussed the contract of necessary deposit and
the liability of the hotel citing the New Civil Code, as follows:

"Article 1962, in relation to Article 1998, of the Civil Code defines a contract of deposit and a
necessary deposit made by persons in hotels or inns:

"Art. 1962. A deposit is constituted from the moment a person receives a thing belonging to
another, with the obligation of safely keeping it and returning the same. If the safekeeping of the
thing delivered is not the principal purpose of the contract, there is no deposit but some other
contract.

"Art. 1998. The deposit of effects made by travelers 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.

"Plainly, from the facts found by the lower courts, the insured See deposited his vehicle for
safekeeping with petitioner, through the latter's employee, Justimbaste. In turn, Justimbaste
issued a claim stub to See. Thus, the contract of deposit was perfected from See's delivery,
when he handed over to Justimbaste the keys to his vehicle, which Justimbaste received with
the obligation of safely keeping and returning it. Ultimately, petitioner is liable for the loss of
See's vehicle."

In addition, Article 1999 of the New Civil Code further provides:

"Article 1999. The hotel-keeper is liable for the vehicles, animals and articles which have been
introduced or placed in the annexes of the hotel. (n)."

Applying the foregoing to your case, a contract of necessary deposit was perfected between you
and the hotel after you entrusted the keys and the company car to the valet parking driver as
part of the standard procedure of the hotel for the purpose of safely keeping it and returning the
same to you. Consequently, please be advised that the hotel may be held liable for the loss of
the company car for failing to safely keep the said vehicle.

Topic: Additional leave benefit of solo parents

Q: My two children of minor age have been under my custody since their father has abandoned
us for almost five years now. Since I am the only one attending to all their needs while I am also
working, there are times when I am not able to go to work. Are there additional leave benefits
that I could avail of?

A: Section 8 of Republic Act 8972, "An Act Providing for Benefits and Privileges to Solo Parents and
Their Children, Appropriating Funds Therefor and for Other Purposes," otherwise known as the "Solo
Parents' Welfare Act of 2000," which provides that:

"Section 8. Parental Leave. - In addition to leave privileges under existing laws, parental leave
of not more than seven (7) working days every year shall be granted to any solo parent
employee who has rendered service of at least one (1) year."

Based on the above-stated law, as a solo parent, aside from other leave benefits or privileges
as provided under existing laws, you may avail of parental leave of not more than seven days
should you have already rendered services in your current company for at least a year.

Topic: Survey plan necessary for identification of land

Q: I am having a land dispute with my neighbor regarding a portion of my land which he

occupied. I intend to recover the said land, and I would like to know if my certificate of title
(Torrens Title) would be sufficient to establish that my neighbor has encroached on my property.

A: In recovering a parcel of land, it is essential that the property must be identified. This is in
consonance with Article 434 of the New Civil Code of the Philippines which states that: "In an action to
recover, the property must be identified, and the plaintiff must rely on the strength of his title and not on
the weakness of the defendant's claim. (n)"

The certificate of title containing the technical description may not be sufficient to prove the
identity of your land. This finds support in the case of Gemina vs. Heirs of Espejo Jr. (GR
232682, Sept. 13, 2021) where the Supreme Court speaking through Associate Justice Ramon
Paul Hernando stated that:
"If only to shed light on a few questions of law to serve as guide, Article 434 of the Civil Code
is controlling in this case. It provides that '[i]n an action to recover, the property must be
identified, and the plaintiff must rely on the strength of his title and not on the weakness of the
defendant's claim.' It is hornbook doctrine that the entitlement to the possession of real property
belongs to its registered owner. However, the registered owner must seek proper judicial remedy
and comply with the requisites of the chosen action in order to recover possession of a real
property from the occupant who has actual and physical possession thereof. Furthermore, it
must be emphasized that the plaintiff must not bank on the weakness of the defendant's title,
hence, must establish his title and the identity of the property because of the possibility that
neither the plaintiff nor the defendant is entitled or even more the true owner of the property in
dispute.

"It appears on record that the identity of the subject property was ascertained by the trial court
and the appellate court based on the technical description stated in TCT 93309 and the Judicial
Affidavit of Ma. Teresa R. Espejo which merely identified TCT 93809 as one registered in the
names of Gerardo and Nenafe. To our mind, the technical description that provides for the
metes and bounds of a parcel of land cannot stand alone, much more be considered as
foolproof evidence exactly pointing to the subject property. The identity of the disputed land
sought to be recovered or of the subject property in this case may be established through a
survey plan of the said property. Absent such evidence or any other proof to such effect. We
cannot subscribe hook, line and sinker to the conclusion that the subject property had been
sufficiently identified."

Applying the above-cited decision in your situation, the technical description as reflected in the
certificate of title (Torrens Title) which provides for the metes and bounds of the land cannot
stand alone in an action for recovery of the same. The identity of the land may be established
through a survey plan of the property.

Topic: Payment of taxes in a negotiated sale

Q: A road widening project by the national government is being done in my province. Sadly, my
real property will be affected by the project. The Department of Public Works and Highways
offered to purchase my property, and we are still negotiating the purchase price. In case I agree
to such a sale, who shall pay the taxes on such sale?

A: Section 5 (c) of Republic Act 10752, otherwise known as the "Right of Way Act", viz:
"SECTION 5. Rules on Negotiated Sale. – The implementing agency may offer to acquire,
through negotiate sale, the right-of-way site or location for a national government infrastructure
project, under the following rules.

xxx xxx xxx

"(c) With regard to the taxes and fees relative to the transfer of title of the property to the
Republic of the Philippines through negotiated sale, the implementing agency shall pay, for the
account of the seller, the capital gains tax, as well as the documentary stamp tax, transfer tax
and registration fees, while the owner shall pay any unpaid real property tax." (Emphasis
supplied)

Based on the afore-mentioned provision of law, the implementing agency is obliged to pay for
the capital gains tax, documentary stamp tax, transfer tax and registration fees while the owner
shall only pay for any unpaid real property tax. It must, however, be stated that this rule is
applicable when the transfer of title in favor of the government is through a negotiated sale.

Topic: There is no robbery without intent to gain

Q: Can there be robbery without intent to gain?

A: As repeatedly provided in jurisprudence, in order to be held liable with the crime of robbery, the
following elements must be satisfied, viz:

(1) that there is personal property belonging to another;

(2) that there is unlawful taking of that property;

(3) that the taking is with intent to gain; and

(4) that there is violence against or intimidation of persons or force upon things. [Emphasis and
underscoring supplied] (Flores vs. People, April 23, 2018, GR 222861, Ponente: Chief Justice
Alexander Gesmundo).

Delving on the indispensable element of intent to gain, the Supreme Court said that the same is
presumed if the act of unlawful taking of personal property belonging to another is proven
together with the qualifying circumstance of violence against or intimidation of person, thus:

"Jurisprudence provides that intent to gain or animus lucrandi is an internal act which can be
established through the overt acts of the offender and is presumed from the proven unlawful
taking. Actual gain is irrelevant as the important consideration is the intent to gain." [Emphasis
and underscoring supplied] (People vs. Manlao, GR 234023, Sept. 3, 2018, Ponente:
Associate Justice Estela Perlas-Bernabe).

The foregoing dictates that intent to gain is presumed if the other requisites of the crime is
present — especially the element of unlawful taking. Be that as it may, the presumption cannot
be simply applied in cases wherein the author of the act evinces a different purpose. In Gaviola
vs. People (GR 163927, Jan. 27, 2006), written by Associate Justice Romeo J. Callejo Sr., the
Supreme Court elucidates the essence of the offense and on the matter of intent to gain:

"The gist of the offense is the intent to deprive another of his property in a chattel, either for
gain or out of wantonness or malice to deprive another of his right in the thing taken. This
cannot be where the taker honestly believes the property is his own or that of another, and that
he has a right to take possession of it for himself or for another, for the protection of the latter."
(Emphasis and underscoring supplied)

Consequently, there can be no robbery when the author of the act was not impelled by any
intention of gain. Precisely, as in the words of the Supreme Court, "(c)riminal intent must be
clearly established with the other elements of the crime; otherwise, no crime is committed"
(Magsumbol vs. People, GR 207175, Nov. 26, 2014, Ponente: Associate Justice Jose Catral
Mendoza).

Topic: Limitation on the right to fence property

Q: Julius and I bought individual lots from Jose. The said properties of Jose were intended for a
subdivision. Julius, however, was no longer interested in pursuing his project, so he sold the
said lots as ordinary lots. This was indicated in our contract of sale. Julius now wants to stop the
construction of the fence surrounding the lots I bought because this will allegedly block his
immediate access to his property. Does Julius have any legal basis to prohibit me from fencing
my property?

A: As a property owner, your right to fence the same is governed by Article 430 of the New Civil Code of
the Philippines which states that:

"Every owner may enclose or fence his land or tenements by means of walls, ditches, live or
dead hedges, or by any other means without detriment to servitudes constituted thereon."

Julius may not prohibit you from fencing your land especially if the same will not injure his rights
in accordance with Article 431 of the said law which provides: "The owner of a thing cannot
make use thereof in such manner as to injure the rights of a third person."

This finds support also in the decision of the Supreme Court in the case of Aneco Realty and
Development Corporation vs. Landex Development Corporation (GR 165952, July 28, 2008),
where the Supreme Court speaking through Honorable Former Associate Justice Ruben Reyes
stated that:

"Anent the substantive issue, We agree with the RTC and the CA that the complaint for
injunction against Landex should be dismissed for lack of merit. What is involved here is an
undue interference on the property rights of a landowner to build a concrete wall on his own
property. It is a simple case of a neighbor, petitioner Aneco, seeking to restrain a landowner,
respondent Landex, from fencing his own land.

"Article 430 of the Civil Code gives every owner the right to enclose or fence his land or
tenement by means of walls, ditches, hedges or any other means. The right to fence flows from
the right of ownership. As owner of the land, Landex may fence his property subject only to the
limitations and restrictions provided by law. Absent a clear legal and enforceable right, as here,
We will not interfere with the exercise of an essential attribute of ownership."
Applying the above-cited decision in your situation, Julius has no legal basis in prohibiting you
from fencing your property. As a property owner, you have the right to enclose or fence your
land by means of walls, ditches, hedges or any other means and this right flows from the right of
ownership. The only limitation of the exercise of said right is when the construction is detrimental
to any servitude or injurious to the right of Julius which do not exist under the facts you have
provided.

Topic: Simultaneous filing of Batas Pambansa 22 and estafa

Q: My friend borrowed money from me to buy a diamond ring for his fiancée. As an assurance, I
asked him to issue a postdated check. When my friend's obligation became due, I deposited the
check and unfortunately it bounced for the account was already closed. I went to his fiancée to
look for him but to my shock, they were never engaged. Is it possible for me to file
simultaneously a case for Batas Pambansa 22 (BP 22) and estafa?

A; Yes, you may simultaneously file a case for violation of Batas Pambansa 22 (BP 22) and estafa
against your friend because it presents two different causes of action and it does not amount to double
jeopardy.

The Supreme Court in the case of Leonora B. Rimando vs. Spouses Winston and Elenita
Aldaba and People of the Philippines (GR 203583, Oct. 13, 2014), penned by Associate
Justice Estela Perlas-Bernabe, clearly explained that:

"While the filing of the two sets of Information under the provisions of Batas Pambansa Bilang
22 and under the provisions of the Revised Penal Code, as amended, on estafa, may refer to
identical acts committed by the petitioner, the prosecution thereof cannot be limited to one
offense, because a single criminal act may give rise to a multiplicity of offenses and where there
is variance or differences between the elements of an offense is one law and another law as in
the case at bar there will be no double jeopardy because what the rule on double jeopardy
prohibits refers to identity of elements in the two (2) offenses. Otherwise stated, prosecution for
the same act is not prohibited. What is forbidden is prosecution for the same offense. Hence,
the mere filing of the two (2) sets of information does not itself give rise to double jeopardy.

"Essentially, while a BP 22 case and an estafa case may be rooted from an identical set of
facts, they nevertheless present different causes of action, which, under the law, are considered
"separate, distinct, and independent" from each other. Therefore, both cases can proceed to
their final adjudication — both as to their criminal and civil aspects — subject to the prohibition
on double recovery."

Applying the foregoing in your present situation, you may file two cases of BP 22 and estafa
against your friend without violating any law because the afore-mentioned cases stemmed from
two different causes of action.

Topic: Sister can inherit from dead sibling

Q: My sister died a few months ago. I was very close to her, especially that I am her only sibling
and that she and my brother-in-law do not have any children. I really thought that the estate of
my sister would automatically go to my brother-in-law being her spouse, but a co-worker told
me that I have a share in her estate considering that our parents have long passed away. Is this
correct? My sister did not have a last will and testament.

A: The provisions of our New Civil Code on legal or intestate succession are applicable in situations
where a person dies without a will, or with a void will, or one which has subsequently lost its validity.
(Article 960 (1), Ibid.)

Corollary, it is without a doubt that a surviving spouse generally inherits from his or her
deceased spouse. However, it is worth emphasizing that whether said surviving spouse will
inherit the entire estate of the deceased, or only a portion thereof, assuming the latter has no
surviving descendants and ascendants, will depend on whether there are surviving brothers and
sisters or nephews and nieces of the deceased.

For guidance, Article 995 in relation to Article 1001 of the New Civil Code expressly provides:

"Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate children
and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the
entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should
there be any, under article 1001. xxx
"Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the
latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children
to the other half."

Applying the foregoing in the situation that you have presented, it is submitted that you are
entitled to half of the estate left by your late sister considering that you are one of her
compulsory heirs. Her surviving spouse, on the other hand, is entitled to the other half of your
sister's estate.

Topic: Reconstitution of title

Q: The Torrens title of our grandparents covering a certain land in the province was lost.
Someone advised us to file in court a petition for reconstitution of title. May we know the
documents that we can present to support the intended petition? Since we cannot locate the
other original duplicate copy, can we present an approved subdivision plan and technical
description to support the reconstitution of title?

A: The judicial reconstitution of a Torrens title under Republic Act (RA) 26 means the restoration in the
original form and condition of a lost or destroyed Torrens certificate attesting the title of a person to
registered land. The purpose of the reconstitution is to enable, after observing the procedures prescribed
by law, the reproduction of the lost or destroyed Torrens certificate in the same form and in exactly the
same way it was at the time of the loss or destruction. (Republic of the Philippines vs. Mancao, GR.
174185, July 22, 2015, Ponente: Chief Justice Lucas Bersamin)

The reconstitution of a lost title may be from the following sources as enumerated under Section
2 of RA 26:

"(a) The owner's duplicate of the certificate of title;

"(b) The co-owner's, mortgagee's, or lessee's duplicate of the certificate of title;

"(c) A certified copy of the certificate of title, previously issued by the register of deeds or by a
legal custodian thereof;

"(d) An authenticated copy of the decree of registration or patent, as the case may be, pursuant
to which the original certificate of title was issued;
"(e) A document, on file in the registry of deeds, by which the property, the description of which
is given in said document, is mortgaged, leased or encumbered, or an authenticated copy of
said document showing that its original had been registered; and

"(f) Any other document which, in the judgment of the court, is sufficient and proper basis for
reconstituting the lost or destroyed certificate of title."

It is important to emphasize that the reconstitution of title may be based on any other document,
which in the judgment of the court, is sufficient and proper basis for reconstitution. This is also in
consonance with the pronouncement of the Supreme Court in the case of Republic of the
Philippines vs. Abellanosa and Manalo (GR 205817, Oct. 6, 2021), where the Supreme Court
speaking through Associate Justice Ramon Paul Hernando stated:

"For the judicial reconstitution of an existing and valid original certificate of Torrens title, Section
2 of RA 26 has expressly listed the acceptable bases:

"SECTION 2. Original certificates of title shall be reconstituted from such of the sources
hereunder enumerated as may be available, in the following order:

"(a) The owner's duplicate of the certificate of title;

"xxx

"(f) Any other document which, in the judgment of the court, is sufficient and proper basis for
reconstituting the lost or destroyed certificate of title.

"In the instant case, the contents of the second amendment and the original petition for
reconstitution, along with their respective supporting documents, were considered collectively by
the RTC. Thus, the bases for the reconstitution of the title were not only the plans and technical
descriptions but also the legible duplicate copies of the titles and a host of other official
documents."

Applying the above-quoted decision in your situation, the approved subdivision plan or technical
description may be classified as any other document under Section 2 (f) of RA 26 as one of the
sources for the reconstitution of title. However, it is essential that in the judgment of the court,
the said subdivision plan together with other documents to support your petition will be
collectively considered by the court as sufficient and proper basis for the reconstitution of lost
title.

Topic: Penalty for failure to appear before Lupon

Q: I filed a complaint against my neighbor before our barangay, but he refused to attend the
hearings despite being served with summons. What remedy can the barangay use against my
neighbor for willfully disobeying the summons that were served to him?

A: Section 515 of Republic Act 7160 otherwise known as the "Local Government Code of 1991", which
reads, viz:

"Section 515. Refusal or Failure of Any Party or Witness to Appear before the Lupon or
Pangkat. - Refusal or willful failure of any party or witness to appear before the lupon or pangkat
in compliance with a summons issued pursuant to the provisions on the Katarungang
Pambarangay under Chapter 7, Title III of this Code may be punished by the city or municipal
court as for indirect contempt of court upon application filed therewith by the lupon chairman, the
pangkat chairman, or by any of the contending parties. Such refusal or willful failure to appear
shall be reflected in the records of the lupon secretary or in the minutes of the pangkat secretary
and shall bar the complainant who fails to appear, from seeking judicial recourse for the same
cause of action, and the respondent who refuses to appear, from filing any counterclaim arising
out of, or necessarily connected with the complaint." (Emphasis supplied)

Clearly, a barangay, through its lupon chairman or pangkat chairman, may file a petition for
indirect contempt in accordance with Rule 71 of the Rules of Court.

Topic: Temporary right of way

Q: James is constructing a high-rise building on his land which adjoined my property. However,
all his equipment and materials pass through my land which disturbs our tranquility. I told him to
stop passing through my property, but he claimed that he cannot access his land without
passing through my property. He said that the transport of materials using my property was
indispensable for the construction of his building and I may be compelled to provide a temporary
right of way for free. Can I really be compelled to provide the said temporary right of way?
Please enlighten me on the matter.

A: James was actually demanding for a temporary right of way. This is governed by Article 656 of the
New Civil Code of the Philippines which states that:

"If it be indispensable for the construction, repair, improvement, alteration or beautification of a

building, to carry materials through the estate of another, or to raise therein scaffolding or other
objects necessary for the work, the owner of such estate shall be obliged to permit the act, after
receiving payment of the proper indemnity for the damage caused him."

You shall be obliged to permit the passage of the construction materials which belong to James.
This finds support in the decision of the court in the case of Preysler, Jr. vs. Court of Appeals
and Far East Enterprises, Inc. (G.R. No. 158141, July 11, 2006), where the Supreme Court
speaking through honorable former associate justice Leonardo A. Quisumbing stated that:

"However, under Article 656 of the New Civil Code, if the right of way is indispensable for the
construction, repair, improvement, alteration or beautification of a building, a temporary
easement is granted after payment of indemnity for the damage caused to the servient estate. In
our view, however, "indispensable" in this instance is not to be construed literally. Great
inconvenience is sufficient. In the present case, the trial court found that irrespective of which
route petitioner used in gaining access to his property, he has to pass private respondent's
subdivision. Thus we agree that petitioner may be granted a temporary easement. x x x"

Applying the above-quoted decision in your situation, the grant of temporary right of way for the
construction of the building which belongs to James may be permitted, but there must be a
corresponding payment of indemnity for the damage caused to the servient estate. Thus, James
had no legal basis in his claim that the temporary right of way is free.

Topic: Right of way

Q: I own a lot surrounded by the properties of my neighbors Rick, Miguel and Leandro. My only
way out from my property to the public highway is a one-hundred-meter walk through the
eastern portion of Rick's property. Unfortunately, this route is unpaved and only two meters
wide. The most convenient and shortest route for me is the southern property of Miguel. May I
demand Miguel to provide a right of way through his property?
A: Article 649 of the New Civil Code which reads as follows:
"Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any
immovable, which is surrounded by other immovables pertaining to other persons and without
adequate outlet to a public highway, is entitled to demand a right of way through the
neighboring estates, after payment of the proper indemnity.
xxx xxx xxx" (Emphasis supplied)
Applying the said law in your situation, you can no longer legally demand a right of way from
Miguel. To be entitled to an easement of right of way, the following requisites should be met:
1. The dominant estate is surrounded by other immovables and has no adequate outlet to a
public highway;
2. There is payment of proper indemnity;
3. The isolation is not due to the acts of the proprietor of the dominant estate; and
4. The right of way claimed is at the point least prejudicial to the servient estate; and insofar as
consistent with this rule, where the distance from the dominant estate to a public highway may
be the shortest.
One of the requisites for a compulsory grant of right of way is that the estate of the claimant of
a right of way must be isolated and without outlet to a public highway. In the case of Dichoso Jr.
vs Marcos (GR 180282, April 11, 2011), the Supreme Court ratiocinated through Associate
Justice Antonio Eduardo Nachura that "the true standard for the grant of compulsory right of
way is adequacy of outlet going to a public highway and not the convenience of the dominant
estate." (Emphasis supplied)
Topic: Sale should not prejudice legitime of other heirs

Q; Anthony filed a complaint before the barangay intending to recover the land sold by his father
and brother to me. He said that the land is part of their inheritance when his mother died, thus,
the sale made by his father and brother without his consent is totally void. I am worried that I
might lose the said land. Please guide me on this matter.

A: Anthony, his brother, and father became compulsory heirs to the estate left by his mother when the
latter died. This is in accordance with Article 777 of the New Civil Code of the Philippines which states
that "the rights to the succession are transmitted from the moment of the death of the decedent." They
became co-owners of the estate (Article 1078, Id.) and they may sell or dispose their proportionate
share without prejudicing the legitime of other heirs. Pursuant to Article 886 of the same law, "legitime is
that part of the testator's property which he cannot dispose of because the law has reserved it for certain
heirs who are, therefore, called compulsory heirs."

The sale made by Anthony's father and brother of a portion of the estate may not be totally void.
Please be guided by the pronouncement of the Supreme Court in the case of The Heirs of
Protacio Go, Sr. et al. vs. Servacio and Go (GR 157537, Sept. 7, 2011), where the Supreme
Court speaking through Chief Justice Lucas Bersamin stated that:

"Alienation by the survivor. — After the death of one of the spouses, in case it is necessary to
sell any portion of the community property in order to pay outstanding obligation of the
partnership, such sale must be made in the manner and with the formalities established by the
Rules of Court for the sale of the property of the deceased persons. Any sale, transfer,
alienation or disposition of said property affected without said formalities shall be null and void,
except as regards the portion that belongs to the vendor as determined in the liquidation and
partition. Pending the liquidation, the disposition must be considered as limited only to the
contingent share or interest of the vendor in the particular property involved, but not to the
corpus of the property.
"This rule applies not only to sale but also to mortgages. The alienation, mortgage or disposal of
the conjugal property without the required formality, is not however, null ab initio, for the law
recognizes their validity so long as they do not exceed the portion which, after liquidation and
partition, should pertain to the surviving spouse who made the contract." [underlining supplied]

"It seems clear from these comments of Senator Arturo Tolentino on the provisions of the New
Civil Code and the Family Code on the alienation by the surviving spouse of the community
property that jurisprudence remains the same — that the alienation made by the surviving
spouse of a portion of the community property is not wholly void ab initio despite Article 103 of
the Family Code, and shall be valid to the extent of what will be allotted, in the final partition, to
the vendor. And rightly so, because why invalidate the sale by the surviving spouse of a portion
of the community property that will eventually be his/her share in the final partition? Practically
there is no reason for that view and it would be absurd."

Applying the above-cited decision in your situation, the alienation made by the other compulsory
heirs to the exclusion of Anthony may not be totally void if the legitime of the latter was not
prejudiced. Thus, the sale made by his father and brother may be respected and valid as long
as the sale does not exceed the portion which may be allotted to them after the liquidation or
partition of the estate.

Topic: Legitimate children can use their mother's surname

Q: My best friend wants to change her surname. In her birth certificate, she was registered
under her father's surname being a legitimate child. But her father abandoned them when she
was only four years old to live with another woman. Neither did he provide support for her. Since
childhood, all her school and other records appear under her mother's surname. She is taking
up medicine and wants her diploma and future credentials to appear under the surname of her
mother, considering all the sacrifices she made to single-handedly raise my best friend. Also,
she believes that such change will avoid confusion as to the surname she has been using most
of her life from that appearing in her birth certificate. She has plans to eventually work abroad
and hopefully settle there with her mother. Will such change be possible?

A: It has been very common in our society for legitimate children to be registered under the surname of
their father. This is anchored on one of the rights granted to legitimate children under the law, particularly
Article 174 of the Family Code of the Philippines which provides:

"Art. 174. Legitimate children shall have the right:

(1) To bear the surnames of the father and the mother, in conformity with the provisions of the
Civil Code on Surnames; x x x"

Even the New Civil Code of the Philippines endows upon legitimate children the use the
surname of their father. Article 364 thereof states that:

"Art. 364. Legitimate and legitimated children shall principally use the surname of the father."

However, our Supreme Court has clearly held that the above-mentioned legal provisions do not
prevent legitimate children from using the surname of their mother as their surname. In the case
of Anacleto Ballaho Alanis 3rd vs. Court of Appeals (GR 216425, November 11, 2020,
Ponente: Associate Justice Marvic M.V.F. Leonen), the High Court explained:

"x x x Indeed, the provision states that legitimate children shall "principally" use the surname of
the father, but "principally" does not mean "exclusively." This gives ample room to incorporate
into Article 364 the State policy of ensuring the fundamental equality of women and men before
the law, and no discernible reason to ignore it. This Court has explicitly recognized such
interpretation in Alfon v. Republic:

The only reason why the lower court denied the petitioner's prayer to change her surname is
that as legitimate child of Filomeno Duterte and Estrella Alfon she should principally use the
surname of her father invoking Art. 364 of the Civil Code. But the word "principally" as used in
the codal-provision is not equivalent to "exclusively" so that there is no legal obstacle if a
legitimate or legitimated child should choose to use the surname of its mother to which it is
equally entitled. Moreover, this Court in Haw Liong vs. Republic, GR L-21194, April 29, 1966,
16 SCRA 677, 679, said:

"The following may be considered, among others, as proper or reasonable causes that may
warrant the grant of a petitioner for change of name: (1) when the name is ridiculous, tainted
with dishonor, or is extremely difficult to write or pronounce; (2) when the request for change is
a consequence of a change of status, such as when a natural child is acknowledged or
legitimated; and (3) when the change is necessary to avoid confusion (Tolentino, Civil Code of
the Philippines, 1953 ed., Vol. 1, p. 660). "" (Emphasis supplied)

Applying the foregoing, your friend may file a petition in court to seek for the change of her
surname as registered in her birth certificate. She must be able to establish, among others, that
her intended change will ultimately avoid confusion as she has been using the surname of her
mother as her surname in all of her records, save for her birth certificate.

Topic: Choice of surname of illegitimate child belongs to said child

Q: I have a half-sister who is now 15 years old. Our mother is not married to either of our
fathers. Although my half-sister was recognized by her father who's been working abroad, she
has been using our mother's surname. All along my sister and I thought that that was OK with
him. But it turns out that he did not know that my sister is not using his surname after all these
years. He thought that with the recognition document which he signed before, she carried his
surname. Now her father wants her to use his surname, while our mother wants her to continue
using her surname. Between them, whose choice should prevail?

A: Our laws are clear that illegitimate children shall use the surname of their mother, although said
children may opt to use the surname of their father if they have been duly recognized. This is particularly
embodied under Republic Act (RA) 9255 which provides that:

"SECTION 1. Article 176 of Executive Order No. 209, otherwise known as the Family Code of
the Philippines, is hereby amended to read as follows:

"Article 176. Illegitimate children shall use the surname and shall be under the parental authority
of their mother, and shall be entitled to support in conformity with this Code. However,
illegitimate children may use the surname of their father if their filiation has been expressly
recognized by the father through the record of birth appearing in the civil register, or when an
admission in a public document or private handwritten instrument is made by the father. x x x"
(Underscoring supplied)

With that in mind, it is only appropriate for your half-sister to use the surname of your mother
given the fact that she is an illegitimate child. This is notwithstanding the fact that her father
recognized her in any of the manner provided under our law. At most, such recognition will only
give your half-sister an option to use her father's surname if she so desires. This can be
gleaned from the very provisions of RA 9255 when it used the word "may", as above-
mentioned.

However, we wish to emphasize that the choice of which surname to use does not belong to
either the father or mother of the illegitimate child. Such right of choice only belongs to the child
himself/herself. As explained by our Supreme Court:

"Art. 176 gives illegitimate children the right to decide if they want to use the surname of their
father or not. It is not the father (herein respondent) or the mother (herein petitioner) who is
granted by law the right to dictate the surname of their illegitimate children.

"x x x

"On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity,
one must abide by its words. The use of the word "may" in the provision readily shows that an
acknowledged illegitimate child is under no compulsion to use the surname of his illegitimate
father. The word "may" is permissive and operates to confer discretion upon the illegitimate
children." (Grande vs. Antonio, GR 206248, Feb.18, 2014, Ponente: Associate Justice
Presbitero Velasco Jr.)

Accordingly, it is up to your half-sister whether she will choose to continue using the surname of
your mother or she will opt to adopt the surname of her father. Neither your mother or your half-
sister's father can lawfully dictate which surname to choose.

Topic: Consent of legitimate children during adoption

Q: I am 16 years old, and I just discovered that I have a brother who is an illegitimate child of
my father. He is almost the same age as me. His mother recently died, and now my father
wants to make up for the years he wasn't able to be a father to his illegitimate child. My father is
convincing my mother to jointly adopt his illegitimate child to give him a chance of having a
whole family. However, this is a lot to process. I cannot believe that after all these years of
being an only legitimate child, I have a brother. This may sound selfish but if my parents
proceed with the adoption, do I have any right to say no?

A: Section 23 of Republic Act (RA) 11642 or the "Domestic Administrative Adoption and Alternative
Child Care Act" provides:

"Sec 23. Whose Consent is Necessary to the Adoption – After being properly counseled and
informed of the right to give or withhold approval of the adoption, the written consent of the
following to the adoption are hereby required:

"(a) The adoptee, if ten (10) years of age or over;

"(b) The biological parents of the child, if known, or the legal guardian, or the proper
government instrumentality which has legal custody of the child, except in the case of a Filipino
of legal age if, prior to the adoption, said person has been consistently considered and threated
as their own child by the adopters for at least three (3) years;

"(c) The legitimate and adopted children, ten (10) years of age or over, of the adopters, if any;

"(d) The illegitimate children, ten (10) years of age or over, of the adopter if living with said
adopter or over whom the adopter exercises parental authority and the latter's spouse if any;
and

"(e) The spouse, if any, of the person adopting or to be adopted.

"Provided, that children under ten (10) years of age shall be counseled and consulted, but shall
not be required to execute written consent."

The afore-mentioned provision clearly provides that as a 16-year-old legitimate child of your
parents, you have the right to give or withhold approval of the adoption of the illegitimate son of
your father.

In line with this, the Supreme Court, in the case of Rosario Mata Castro and Joanne Benedicta
Charissima M. Castro, A.K.A. "Maria Socorro M. Castro" And "Jayrose M. Castro," vs. Jose
Maria Jed Lemuel Gregorio And Ana Maria Regina Gregorio (GR 188801, Oct. 15, 2014),
briefly discussed the reason why your consent, as a legitimate child, is required. The Supreme
Court discussed that:
"The consent of the adopter's other children is necessary as it ensures harmony among the
prospective siblings. It also sufficiently puts the other children on notice that they will have to
share their parent's love and care, as well as their future legitimes, with another person."

In view of the foregoing, your right to give or withhold approval of the adoption of the illegitimate
son of your father is clearly recognized by our law and jurisprudence. Without your written
consent, there can be no adoption.

Topic: Act of discrimination may result in constructive dismissal

Q: I was forced to resign due to the discrimination I suffered from my previous employer. I was
dumbfounded precisely because as a woman like me, the last thing that I would expect from a
lady boss is a gender-based discrimination. Be that as it may, may I still file a case for illegal
dismissal and claim payments for the work that I performed despite my resignation?
A: The answer to your question is yes. In this regard, please be informed of the provision of Article 133
of Presidential Decree (PD) 442, as amended, otherwise known as the Labor Code of the Philippines.
Succinctly, the law reads:

"Article 135. Discrimination prohibited. It shall be unlawful for any employer to discriminate
against any woman employee with respect to terms and conditions of employment solely on
account of her sex.
"The following are acts of discrimination:
"Payment of a lesser compensation, including wage, salary or other form of remuneration and
fringe benefits, to a female employee as against a male employee, for work of equal value; and
"Favoring a male employee over a female employee with respect to promotion, training
opportunities, study and scholarship grants solely on account of their sexes.
"Criminal liability for the willful commission of any unlawful act as provided in this Article or any
violation of the rules and regulations issued pursuant to Section 2 hereof shall be penalized as
provided in Articles 288 and 289 of this Code: Provided, that the institution of any criminal
action under this provision shall not bar the aggrieved employee from filing an entirely separate
and distinct action for money claims, which may include claims for damages and other
affirmative reliefs. The actions hereby authorized shall proceed independently of each other."
(Emphasis and underscoring supplied)
In line with the foregoing, it is indubitable that a corresponding criminal liability awaits any
person found guilty of sex-related discrimination at work. Aside from the stated liability, the
aggrieved employee who was forced to resign due to the discrimination may also file a case for
constructive dismissal on account of such acts. Thus, as held by the Supreme Court in Italkarat
18, Inc. vs. Gerasmio (GR 221411, Sept. 28, 2020) penned by Associate Justice Ramon Paul
Hernando, for a case for constructive dismissal to prosper, it is necessary that:
"An act, to be considered as amounting to constructive dismissal, must be a display of utter
discrimination or insensibility on the part of the employer so intense that it becomes unbearable
for the employee to continue with his employment." (Emphasis and Underscoring Supplied)
On the issue of your right to receive payments for the performed but unpaid work, DoLE's Labor
Advisory Number 6, Series of 2020 is pertinent. For your guidance, final payment in the said
advisory includes a worker's unpaid earned salary which can be claimed as a matter of right
within 30 days from separation. Thus, in the event that your evidence of discrimination for
purposes of the constructive dismissal case is insufficient to support such position, you may still
claim your earned salary and other benefits notwithstanding your resignation.
Topic: Concrete posts are not covered by building code

Q: I was erecting concrete posts for my fence on my property when my neighbor's brother,
claiming to be a building official with the local government unit, removed those posts. I
complained before the Office of the Mayor, but the said employee justified his action by saying
that the posts need building permit and it is within his power to demolish dangerous buildings
like those posts. Is he correct?

A: The building of any structure without the corresponding permit is prohibited. This is in consonance
with Section 213 of Presidential Decree 1096 (National Building Code of the Philippines) which provides
that:

"It shall be unlawful for any person, firm or corporation, to erect, construct, enlarge, alter, repair,
move, improve, remove, convert, demolish, equip, use, occupy, or maintain any building or
structure or cause the same to be done contrary to or in violation of any provision of this Code.
Xxx"

Relative thereto, Section 214 of same law states that:

"Dangerous buildings are those which are herein declared as such or are structurally unsafe or
not provided with safe egress, or which constitute a fire hazard, or are otherwise dangerous to
human life, or which in relation to existing use, constitute a hazard to safety or health or public
welfare because of inadequate maintenance, dilapidation, obsolescence, or abandonment; or
which otherwise contribute to the pollution of the site or the community to an intolerable
degree."

The posts erected on your property may not be considered as dangerous or ruinous. This finds
support in the case of Telmo vs. Bustamante (GR 182567, July 13, 2009), where the Supreme
Court speaking through Associate Justice Antonio Eduardo Nachura stated that:

"A careful reading of the foregoing provisions would readily show that they do not apply to the
respondent's situation. Nowhere was it shown that the concrete posts put up by respondent in
what he believed was his and his co-owners' property were ever declared dangerous or ruinous,
such that they can be summarily demolished by petitioner.

"What is more, it appears that the concrete posts do not even fall within the scope of the
provisions of the National Building Code. The Code does not expressly define the word
'building.' However, we find helpful the dictionary definition of the word 'building,' viz:

"[A] constructed edifice designed usually covered by a roof and more or less completely
enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other
useful structure — distinguished from structures not designed for occupancy (as fences or
monuments) and from structures not intended for use in one place (as boats or trailers) even
though subject to occupancy.

"The provisions of the National Building Code would confirm that 'building' as used therein
conforms to this definition. Thus, applying the statutory construction principle of ejusdem
generic, the word 'structure' should be construed in the context of the definition of the word
'building.' The concrete posts put up by respondent on the property are not properly covered by
the definition of the word "building" nor is it embraced in the corresponding interpretation of the
word 'structure'."

Applying the above-quoted decision in your situation, the concrete posts erected on your
property are not considered to be dangerous or ruinous, hence, they should not have been
removed or demolished. Further, these posts do not even fall within the scope of the provision of
the National Building Code as these are not considered as building or structure. Building or
structure is defined as constructed edifice usually covered by a roof and more or less completely
enclosed by walls and serving as a dwelling, storehouse, factory, shelter for animals, or other
useful structure.

Topic: Prescriptive period for reconveyance of property

Q: I bought a land from Juan in 2000, and this transaction was witnessed by Dindo. Juan sold
the same land to Dindo in 2010. Dindo registered the Deed of Absolute Sale covering their
transaction in 2015. I confronted Dindo regarding the matter and demanded that he reconvey
the property to me, but he refused. He said that reconveyance was not feasible because 10
years have elapsed from the date of their Deed of Absolute Sale.
A: A fraudulent sale may have been committed by Juan considering that he already sold the property to
you in 2000, and yet he sold the same property to Dindo in 2010. An implied trust was created in this
kind of transaction, and this is in accordance with Article 1456 of the New Civil Code of the Philippines
which provides that:

"If property is acquired through mistake or fraud, the person obtaining it is, by force of law,
considered a trustee of an implied trust for the benefit of the person from whom the property
comes."
Your action to recover the land is governed by prescription under Article 1144 of the same law
which states that:
"The following actions must be brought within ten years from the time the right of action
accrues:
"(1) Upon a written contract;
"(2) Upon an obligation created by law;
"(3) Upon a judgment."
The 10-year prescriptive period will be counted from the registration of the Deed of Absolute
Sale between Juan and Dindo in 2015. This is in consonance with the decision of the Supreme
Court in the case of Spouses Aboitiz vs. Spouses Po (GR 208450, June 5, 2017), where the
Supreme Court speaking through Associate Justice Marvic M.V.F Leonen stated that:
"In Crisostomo, the petitioners were able to transfer the property under their names without
knowledge of the respondent. The respondent filed an action for reconveyance. In arguing that
the action for reconveyance had prescribed, the petitioners claimed that the cause of action of
the respondent should be based on the latter's Deed of Sale and thus the respondent's right of
action should have accrued from its execution. This Court, however, ruled that the right of action
accrued from the time the property was registered because registration is the act that signifies
that the adverse party repudiates the implied trust:
"In the case at bar, respondent's action which is for Reconveyance and Cancellation of Title is
based on an implied trust under Art. 1456 of the Civil Code since he averred in his complaint
that through fraud petitioners were able to obtain a Certificate of Title over the property. He
does not seek the annulment of a voidable contract whereby Articles 1390 and 1391 of the Civil
Code would find application such that the cause of action would prescribe in four years.
"An action for reconveyance based on implied or constructive trust prescribes in ten years from
the alleged fraudulent registration or date of issuance of the certificate of title over the property."
Applying the above-cited decision in your situation, the action for reconveyance has not yet
been barred by prescription since the period will be counted from the date of the registration of
the fraudulent sale in 2015. Thus, the statement of Dindo that the prescriptive period will be
counted from the date of the absolute sale between him and Juan in 2010 has no legal basis.
Topic: Deeds, conveyances and encumbrances

Q: I extended a loan to my neighbor, and she used a piece of land that she owned as collateral.
We executed a deed of real estate mortgage, but we were not able to have it notarized before a
notary public. I intend to have the deed registered on the certificate of title of the property. Can I
cause the registration of said deed even if it was not notarized?
A: The answer to your question is no. In this regard, please be informed of the provision of Section 122
of Presidential Decree 1529, otherwise known as the "Property Registration Decree," which provides:

"Section 112. Forms in conveyancing. xxx.

"Deeds, conveyances, encumbrances, discharges, powers of attorney and other voluntary

instruments, whether affecting registered or unregistered land, executed in accordance with the
law in the form of public instruments shall be registerable: xxx." (Emphasis supplied)

Applying the foregoing, it is now indubitable that deeds, conveyances, encumbrances,

discharges, powers of attorney and other voluntary instruments must be in the form of public
instruments in order for them to be registrable. In your situation, considering that your deed of
real estate mortgage has yet to be acknowledged before a notary public, it remains a private
instrument. The register of deeds, therefore, can validly deny the registration or annotation of the
instrument. Thus, it is first suggested that you have the deed notarized before a notary public so
that it can be registered or annotated to the certificate of title.

Topic: Denial of hospital confinement

Q: My friend's aunt was pregnant. She felt a sudden intense pain in her stomach, so their family
had to rush her to the hospital. According to my friend, her aunt was denied confinement after
they could not give a deposit, stating that the hospital was understaffed. Their family had to look
for another hospital that could attend to her aunt. Unfortunately, the baby died. Although her
aunt has not yet decided whether to file a complaint against the hospital, they are wondering if
there is any law that covers situations like this?

A: As a general rule, hospitals and medical clinics are not allowed to demand payment of deposits in
exchange for attending to the emergency needs of patients. If a hospital or clinic denies emergency aid
to a patient who is in need thereof, it may be by reason of inadequate medical capabilities. However,
such hospital or clinic practitioner/s must be able to administer the necessary emergency treatment and
support to stabilize the patient and then may transfer the patient to another hospital where he or she may
be given adequate hospital care. This is pursuant to Republic Act 10932, the Act which strengthened RA
9439, otherwise known as the "Anti-Hospital Deposit Law":

"Section 1. Section 1 of Batas Pambansa Bilang 702, as amended, is hereby further amended
to read as follows:

"Sec. 1. In emergency or serious cases, it shall be unlawful for any proprietor, president,
director, manager or any other officer and/or medical practitioner or employee of a hospital or
medical clinic to request, solicit, demand or accept any deposit or any other form of advance
payment as a prerequisite for administering basic emergency care to any patient, confinement or
medical treatment of a patient in such hospital or medical clinic or to refuse to administer
medical treatment and support as dictated by good practice of medicine to prevent death, or
permanent disability, or in the case of a pregnant woman, permanent injury or loss of her unborn
child, or noninstitutional delivery: Provided, That by reason of inadequacy of the medical
capabilities of the hospital or medical clinic, the attending physician may transfer the patient to a
facility where the appropriate care can be given, after the patient or his next of kin consents to
said transfer and after the receiving hospital or medical clinic agrees to the transfer: Provided,
however, That when the patient is unconscious, incapable of giving consent and/or
unaccompanied, the physician can transfer the patient even without his consent: Provided,
further, That such transfer shall be done only after necessary emergency treatment and support
have been administered to stabilize the patient and after it has been established that such
transfer entails less risks than the patient's continued confinement: x x x"
If the elements mentioned in the foregoing provision of RA 10932 can be established by your
friend's aunt, then she may pursue filing a complaint. It is worthy to note that there is a
presumption of liability on the part of the hospital or clinic if death, injury or even loss of the
unborn child transpired proceeding from the denial of a patient's admission. According to Section
5 of RA 10932:

"Section 5. New Sections 5, 6, 7 and 8 shall be inserted after Section 4 of Batas Pambansa
Bilang 702, as amended, to read as follows:

"Sec. 5. Presumption of Liability. - In the event of death, permanent disability, serious

impairment of the health condition of the patient-complainant, or in the case of a pregnant
woman, permanent injury or loss of her unborn child, proceeding from the denial of his or her
admission to a health facility pursuant to a policy or practice of demanding deposits or advance
payments for confinement or treatment, a presumption of liability shall arise against the hospital,
medical clinic, and the official, medical practitioner, or employee involved."

Topic: Premature campaigning

The May 2022 local and national elections are fast-approaching. I have been seeing a lot of
commercial and political advertisements and political sorties of different personalities running for
national or local positions after they have filed their respective certificates of candidacies. I have
been hearing about premature campaigning, may these personalities be held liable for it?

A; in the case of Rosalinda A. Penera vs. Comelec et al. (GR 181613, Nov. 25, 2009, Ponente:
Associate Justice Antonio Carpio).

In the said case, petitioner argued, which the Supreme Court concurred, that:

"Section 79(a) of the Omnibus Election Code defines a 'candidate' as 'any person aspiring for
or seeking an elective public office, who has filed a certificate of candidacy x x x.' The second
sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369,
provides that '[a]ny person who files his certificate of candidacy within [the period for filing]
shall only be considered as a candidate at the start of the campaign period for which he filed his
certificate of candidacy.' The immediately succeeding proviso in the same third paragraph states
that 'unlawful acts or omissions applicable to a candidate shall take effect only upon the start of
the aforesaid campaign period.'"
The Supreme Court also held that in "enacting RA 9369, Congress even further clarified the
first proviso in the third paragraph of Section 15 of RA 8436" when "Congress inserted the
word "only" so that the first proviso now reads —

"x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only
upon the start of the aforesaid campaign period x x x. (Underscoring supplied)

"Thus, Congress not only reiterated but also strengthened its mandatory directive that election
offenses can be committed by a candidate 'only' upon the start of the campaign period. This
clearly means that before the start of the campaign period, such election offenses cannot be so
committed.

"When the applicable provisions of RA 8436, as amended by RA 9369, are read together,
these provisions of law do not consider Penera a candidate for purposes other than the printing
of ballots, until the start of the campaign period. There is absolutely no room for any other
interpretation."

The Supreme Court further quoted with approval the Dissenting Opinion of Honorable Former
Associate Justice Antonio T. Carpio, thus:

" Xxx. Any person may thus file a certificate of candidacy on any day within the prescribed
period for filing a certificate of candidacy yet that person shall be considered a candidate, for
purposes of determining one's possible violations of election laws, only during the campaign
period. Indeed, there is no "election campaign" or "partisan political activity" designed to
promote the election or defeat of a particular candidate or candidates to public office simply
because there is no "candidate" to speak of prior to the start of the campaign period. Therefore,
despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at
the time of the questioned motorcade which was conducted a day before the start of the
campaign period. x x x"
Based on the foregoing, those personalities running for national or local positions who are
involved in political sorties or commercial/political advertisements may not be held liable for
premature campaigning since they are only considered candidates for the purpose of violating
our election laws at the start of the campaign period. Relative to the May 2022 National and
Local elections, the campaign period for national positions will start on Feb. 8, 2022 until May
7, 2022 or 90 days before the scheduled elections; while the campaign period for local
candidates will be 45 days before the May 9, 2022 polls or will start on March 25, 2022 until
May 7, 2022.

QUESTION: I am foreigner with a Filipina girlfriend who is 20 years old. I came to the
Philippines in 2008. My girlfriend and I have already set a date for our wedding in Manila and
the preparations for the big day are well underway. However, when we attempted to obtain a
marriage license, we were disappointed to find out that it will take a long time before we can get
one and our set wedding date will come first before the projected release of our marriage
license. Is there any way we could dispense with this requirement?

ANSWER: We gathered from your narration that you plan to marry a Filipina here in the
Philippines and that you have tried to obtain a marriage license for that very purpose. However,
the requirements under Philippine law thwart the celebration of your marriage on the wedding
date you have earlier picked.

Under the Philippine law governing this matter or the Family Code of the Philippines, one of the
formal requisites of marriage is a valid marriage license. Absent this requirement, the ensuing
marriage shall be considered a nullity, subject only to certain exceptions as provided under the
law, none of which appear to exist in your case.

It is also worthy to note, that your girlfriend being only 20 years of age should first obtain
parental consent before a marriage license will be issued because the manifestation of said
consent must be appended to the application for marriage license. (Art. 14, Family Code of the
Philippines).

Likewise, under the Family Code, pre-nuptial counseling is mandated before the issuance of a
marriage license when either or both of the contracting parties need parental consent or advice,
to wit:

“Art. 16. In the cases where parental consent or parental advice is needed, the party or parties
concerned shall, in addition to the requirements of the preceding articles, attach a certificate
issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this
Code or a marriage counsellor duly accredited by the government agency to the effect that the
contracting parties have undergone marriage counselling. Failure to attach said certificate of
marriage counselling shall suspend the issuance of the marriage license for a period of three
months from the completion of publication of the application. xxx”

Although pre-nuptial coun-seling is not a requisite for a valid marriage, such is needed for the
issuance of a marriage license at the soonest possible time or 10 days after the posting of the
application for marriage license in conspicuous places within the building where the local civil
registrar is housed. (Article 17, Family Code of the Philippines

Furthermore, Article 21 of the Family Code likewise mandates citizens of a foreign country, who
wish to get married in the Philippines, to submit a certificate of legal capacity to contract
marriage, issued by their respective diplomatic or consular officials before they can obtain the
necessary marriage license here in the Philippines.

It is clear, therefore, that the steps provided for under Philippine laws should be complied with
and respected before any person may get married in the Philippines. It is worthy to note at this
juncture that such laws pertaining to marriage were not culled for the mere convenience of the
parties. Rather, these laws are made to protect the parties and uphold the sanctity of the
marriage as an institution.

Topic: Builder in bad faith

Q: Jeffrey encroached a portion of my land with his ongoing construction of a fence. Despite my
repeated oral and written demands about it and my request for work stoppage, he still
introduced more improvements to my land. My complaint was brought before the barangay for
the removal of the improvements but he claimed that he is both a buyer and builder in good
faith. Jeffrey also argued that the land is covered by the technical description reflected in his title
despite admitting that he did not conduct a relocation survey on the property.
A: As a lawful owner of the land, you may demand the removal of improvements introduced by Jeffrey
on your property. This is in accordance with Article 450 of the New Civil Code of the Philippines which
states that:

"The owner of the land on which anything has been built, planted or sown in bad faith may
demand the demolition of the work, or that the planting or sowing be removed, in order to
replace things in their former condition at the expense of the person who built, planted or sowed,
or he may compel the builder or planter to pay the price of the land, and the sower the proper
rent." Correlative thereto, Article 449, id. also provides that: "He who builds, plants, or sows in
bad faith on the land of another, loses what is built, planted or sown without right to indemnity."

Jeffrey is not a builder in good faith because he was informed of your claim through a letter
when he was building his fence. In a similar case entitled Pen Development Corporation and
Las Brisas Resort Corporation vs. Martinez Leyba, Inc. (G.R. No. 211845, August 9, 2017), the
Supreme Court through former Associate Justice Mariano C. Del Castillo stated that:

"Defendant's claim of lack of notice on the claim of the plaintiff on the overlapped properties is
belied by the evidence presented by plaintiff which consisted by [sic] a letter dated as early as
March 11, 1968 (Exh. N, N-1, N-2) advising defendant that the land it was trying to fence of
[sic] is within plaintiff's property, and at the same time asking the defendant to refrain from
occupying and building improvements thereon and from doing any act in derogation of plaintiff's
property rights. Five (5) succeeding letters addressed to defendant followed suit and the
evidence clearly show that the same were received by defendant and no less than Paul Naidas
wrote a reply letter to plaintiff's counsel, Alfonso Roldan on July 31, 1971 which conclusively
affirm the fact that defendant is well aware of plaintiffs claim to the portion of the land
encroached. Thus, the defendant's claim that it is a builder in good faith finds no factual nor
legal basis. On the contrary, the defendant's continued construction and introduction of
improvements on the questioned portion of plaintiff's property clearly negates good faith."

Applying the above-quoted decision in your situation, Jeffrey is not an innocent purchaser since
he failed to engage the services of a geodetic engineer to determine the accuracy of the
description of the property he bought. He is not also a builder in good faith because he was
previously informed of your claim through letters. Thus, he will lose the improvements he
introduced to your land.

Topic: Liability of registered owner of vehicle

Q: XY corporation is the registered owner of a vehicle involved in a collision incident where I

was injured. The corporation denied liability since the alleged vehicle was issued to its manager
and the car was driven by the latter's personal driver at the time of the collision. The corporation
further claimed that its liability will arise only if I can prove that the driver is one of its
employees. Is this correct?

A: The responsibility of the corporation as a registered owner of the vehicle from the damages caused by
its employees may find support under the following provisions of the New Civil Code of the Philippines:

"Article 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.

"Article 2180. The obligation imposed by article 2176 is demandable not only for one's own acts
or omissions, but also for those of persons for whom one is responsible. X x x

"Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in any
business or industry. X x x".

In line with the foregoing, XY corporation is liable for the damages caused by the car registered
in its name. You do not need to prove that the driver is one of the corporation's employees. This
finds support in the decision of the case entitled Filcar Transport Services vs. Espinas (GR
174156, June 20, 2012), where the Supreme Court through the ponencia of Associate Justice
Arturo Brion ruled:

"In upholding the liability of Equitable, as registered owner of the tractor, this Court said that
'regardless of sales made of a motor vehicle, the registered owner is the lawful operator insofar
as the public and third persons are concerned; consequently, it is directly and primarily
responsible for the consequences of its operation.' The Court further stated that '[i]n
contemplation of law, the owner/operator of record is the employer of the driver, the actual
operator and employer being considered as merely its agent.' Thus, Equitable, as the registered
owner of the tractor, was considered under the law on quasi delict to be the employer of the
driver, Raul Tutor; Ecatine, Tutor's actual employer, was deemed merely as an agent of
Equitable.

"Thus, it is clear that for the purpose of holding the registered owner of the motor vehicle
primarily and directly liable for damages under Article 2176, in relation with Article 2180, of the
Civil Code, the existence of an employer-employee relationship, as it is understood in labor
relations law, is not required. It is sufficient to establish that Filcar is the registered owner of the
motor vehicle causing damage in order that it may be held vicariously liable under Article 2180
of the Civil Code." (Emphasis and underscoring supplied)

Applying the above quoted decision in your situation, in contemplation of the law, the corporation
is the owner of the car on record. XY corporation is the lawful operator insofar as the public and
third persons are concerned. As such, it necessarily follows that the XY corporation is
responsible for the operation of the car. You do not need to prove the existence of employer-
employee relationship between XY corporation and the driver. What you just need to establish is
that XY corporation is the registered owner of the car at the time of collision.

Topic: Vicarious liability of employers

Q: My brother was involved in a vehicular accident last week. The driver of the car escaped
from the scene of the incident but my brother was able to get his plate number. It was
discovered that the registered owner of the car is a manufacturing company and that the car
was assigned to one of its employees. The said employee was on his way to work at the time of
the accident. He admitted his negligence but told my brother that he has no means to pay for
the damages sustained by my brother's car. Can the manufacturing company be held liable for
the negligence of its employee?

A: "Article 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting
contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.

Article 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts
or omissions, but also for those of persons for whom one is responsible.
xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in any
business or industry. xxx xxx xxx

Article 2181. Whoever pays for the damage caused by his dependents or employees may
recover from the latter what he has paid or delivered in satisfaction of the claim. xxx xxx xxx"
(Emphasis supplied)

The Supreme Court in the case of Filcar Transport Services vs Jose A. Espinas (G.R. 174156,
June 20, 2012) through former Associate Justice Arturo Brion discussed the vicarious liability of
the employer to the negligence and damages caused by its employees, to wit:

"As a general rule, one is only responsible for his own act or omission. Thus, a person will
generally be held liable only for the torts committed by himself and not by another. xxx xxx xxx
The law, however, provides for exceptions when it makes certain persons liable for the act or
omission of another. One exception is an employer who is made vicariously liable for the tort
committed by his employee. xxx xxx xxx Under Article 2176, in relation with Article 2180, of the
Civil Code, an action predicated on an employee's act or omission may be instituted against the
employer who is held liable for the negligent act or omission committed by his employee.
Although the employer is not the actual tortfeasor, the law makes him vicariously liable on the
basis of the civil law principle of paterfamilias for failure to exercise due care and vigilance over
the acts of one's subordinates to prevent damage to another. It is well settled that in case of
motor vehicle mishaps, the registered owner of the motor vehicle is considered as the employer
of the tortfeasor-driver, and is made primarily liable for the tort committed by the latter under
Article 2176, in relation with Article 2180, of the Civil Code. xxx xxx xxx Whether the driver of
the motor vehicle, Floresca, is an employee of Filcar is irrelevant in arriving at the conclusion
that Filcar is primarily and directly liable for the damages sustained by Espinas. While Republic
Act 4136 or the Land Transportation and Traffic Code does not contain any provision on the
liability of registered owners in case of motor vehicle mishaps, Article 2176, in relation with
Article 2180, of the Civil Code imposes an obligation upon Filcar, as registered owner, to
answer for the damages caused to Espinas' car. xxx xxx xxx This does not mean, however, that
Filcar is left without any recourse against the actual employer of the driver and the driver
himself. Under the civil law principle of unjust enrichment, the registered owner of the motor
vehicle has a right to be indemnified by the actual employer of the driver of the amount that he
may be required to pay as damages for the injury caused to another."

Applying the above-mentioned law and jurisprudence in your brother's situation, the
manufacturing company, being the employer of the employee who caused damages to your
brother's vehicle, is vicariously liable for the negligent acts and omissions committed by its
employees. Moreover, the company as the registered owner of the vehicle which figured in an
accident is directly and primarily responsible to the public and to third persons who sustained
injuries while the vehicle is being operated. Lastly, the employer has the right to be indemnified
by its employees for all the expenses it incurred for the latter's negligence to third persons.

Topic: Easement of right of way

Q: My new neighbors are currently constructing their houses. My property became isolated
because of this construction. I talked to my neighbors and informed them that the shortest
access to the public road passes through their lot. They advised me, however, to use the other
right of way alternative on the other side of my property. Can I compel my neighbors to grant me
a right of way on their properties?

A: Articles 649 and 650 of the New Civil Code of the Philippines, to wit:

"Article 649. The owner, or any person who by virtue of a real right may cultivate or use any
immovable, which is surrounded by other immovables pertaining to other persons and without
adequate outlet to a public highway, is entitled to demand a right of way through the neighboring
estates, after payment of the proper indemnity.

"Should this easement be established in such a manner that its use may be continuous for all
the needs of the dominant estate, establishing a permanent passage, the indemnity shall consist
of the value of the land occupied and the amount of the damage caused to the servient estate.

"Article 650. The easement of right of way shall be established at the point least prejudicial to
the servient estate, and, insofar as consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest." (Emphasis supplied)

In the case of Helen Calimoso, et al. vs. Axel D. Roullo, the Supreme Court through Associate
Justice Arturo Brion (GR 198594, Jan. 25, 2016) elucidated the requisites for entitlement to
easement of right of way:

"(1) The dominant estate is surrounded by other immovables and has no adequate outlet to a
public highway; (2) There is payment of proper indemnity; (3) The isolation is not due to the
acts of the proprietor of the dominant estate; and (4) The right-of-way claimed is at the point
least prejudicial to the servient estate; and insofar as consistent with this rule, where the
distance from the dominant estate to a public highway may be the shortest. xxx xxx xxx Under
this guideline, whenever there are several tenements surrounding the dominant estate, the right-
of-way must be established on the tenement where the distance to the public road or highway is
shortest and where the least damage would be caused. If these two criteria (shortest distance
and least damage) do not concur in a single tenement, we have held in the past that the least
prejudice criterion must prevail over the shortest distance criterion. xxx xxx xxx We have held
that mere convenience for the dominant estate is not what is required by law as the basis of
setting up a compulsory easement or that a longer way may be adopted to avoid injury to the
servient estate, such as when there are constructions or walls which can be avoided by a round-
about way." (Emphases supplied)

Applying the said laws and jurisprudence mentioned in your situation, the establishment of a
right of way through your neighbors' lots would cause the destruction of their houses. Although
this right of way has the shortest distance to a public road, it is not the least prejudicial
considering the destruction. Moreover, you have an option to traverse to the other side of your
lot without causing any damage. The passage may be longer but it is the best way to prevent
any damage to the properties of your neighbor. Hence, you cannot compel your neighbors to
grant you a right of way on their properties.

Topic: Special Power of Attorney

Q: My sister and I agreed that I will take care of her personal stuff while she is away for a
couple of months. She left me with an Authorization Letter to this effect, as well as access to her
condominium unit where all her belongings are kept. However, it turned out that her work
required her to stay longer abroad. She is now considering to have her condominium unit leased
or sold to interested parties. Will the Authorization Letter be enough so I can perhaps do any of
those mentioned transactions?

A: It appears that there is a contract of agency between you and your sister. Under the law, there is a
contract of agency when "a person binds himself to render some service or to do something in
representation or on behalf of another, with the consent or authority of the latter." (Article 1868, New
Civil Code of the Philippines).

Although the authority granted to an agent may be couched in general terms, the agent may
only do such acts of administration. Specific acts that relate to strict dominion must be embodied
in a Special Power of Attorney (SPA). As expressly provided under Articles 1877 and 1878 of
the New Civil Code:

"Art. 1877. An agency couched in general terms comprises only acts of administration, even if
the principal should state that he withholds no power or that the agent may execute such acts as
he may consider appropriate, or even though the agency should authorize a general and
unlimited management.

"Art. 1878. Special powers of attorney are necessary in the following cases: x x x

(5) To enter into any contract by which the ownership of an immovable is transmitted or
acquired either gratuitously or for a valuable consideration; x x x

(8) To lease any real property to another person for more than one year; x x x

(12) To create or convey real rights over immovable property; x x x

(15) Any other act of strict dominion."

Taking the foregoing into consideration, we submit that it will be necessary for your sister to
execute a Special Power of Attorney (SPA) in your favor so that you may lawfully enter into a
contract of lease involving her property, or sell or convey the same. Without the said document,
your sister will not be bound by the conditions or effects of any of the mentioned transactions
that you may enter into on her behalf because a simple Authorization Letter will not suffice.

Topic: A special power of attorney is required in sale of a piece of land through an agent

Q: I have been living here in Japan since 2015. Last year, I executed a general power of
attorney in favor of my cousin authorizing him to administer all my businesses and properties in
the Philippines. I found out recently that my cousin is selling one of my properties to his friend. I
did not authorize my cousin to sell any of my properties. Can he sell my property based on the
general power of attorney I executed?

A: Based from the facts you have narrated, the provisions that address your situation are Articles 1874
and 1878 of the New Civil Code:

"Art. 1874. When a sale of a piece of land or any interest therein is through an agent, the
authority of the latter shall be in writing; otherwise, the sale shall be void. x x x

"Art. 1878. Special powers of attorney are necessary in the following cases: xxx

"(5) To enter into any contract by which the ownership of an immovable is transmitted or
acquired either gratuitously or for a valuable consideration; xxx (Emphasis Supplied)

Based on the foregoing provisions, a special power of attorney (SPA) is required in a sale of a
piece of land through an agent. In the case of Florentina Bautista-Spille vs. NICORP
Management and Development Corporation, et al. (GR 214057, Oct. 19, 2015), the Supreme
Court through Associate Justice Jose Mendoza stated:

"When the sale of a piece of land or any interest thereon is through an agent, the authority of
the latter shall be in writing; otherwise, the sale shall be void. Thus, the authority of an agent to
execute a contract for the sale of real estate must be conferred in writing and must give him
specific authority, either to conduct the general business of the principal or to execute a binding
contract containing terms and conditions which are in the contract he did execute. A special
power of attorney is necessary to enter into any contract by which the ownership of an
immovable is transmitted or acquired either gratuitously or for a valuable consideration. The
express mandate required by law to enable an appointee of an agency (couched) in general
terms to sell must be one that expressly mentions a sale or that includes a sale as a necessary
ingredient of the act mentioned. For the principal to confer the right upon an agent to sell real
estate, a power of attorney must so express the powers of the agent in clear and unmistakable
language. When there is any reasonable doubt that the language so used conveys such power,
no such construction shall be given the document. xxx Thus, when the authority is couched in
general terms, without mentioning any specific power to sell or mortgage or to do other specific
acts of strict dominion, then only acts of administration are deemed conferred." (Emphases
supplied)

It is worthy to note here that you only executed a general power of attorney in favor of your
cousin. This is not in accordance with the requirement of law that the sale of a piece of land
made through an agent must be in writing and must express the powers of the agent in clear
and unmistakable language in order for the principal to confer the right upon an agent to sell the
real property. Your cousin is only authorized to administer and manage your properties but not
to make any act of disposition nor sell any of your properties. Based on the above-mentioned
provisions of the New Civil Code, a special power of attorney is required in a sale of real
property through an agent.

Topic: Void contracts not subject to ratification

Q: May I know what are the so-called void contracts? Similarly, may I be enlightened if the
same can be ratified or used as a source of any right by any one of the contracting parties to
such a void contract?

A: The answer to your query is found in the provisions of Republic Act (RA) 386, otherwise known as
the New Civil Code of the Philippines. Tersely, Article 1409 thereof dictates the void contracts as follows:

"CHAPTER 9

Void and Inexistent Contracts

Article 1409. The following contracts are inexistent and void from the beginning:

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

(2) Those which are absolutely simulated or fictitious;

(3) Those whose cause or object did not exist at the time of the transaction;

(4) Those whose object is outside the commerce of men;

(5) Those which contemplate an impossible service;

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

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

These contracts cannot be ratified. Neither can the right to set up the defense of illegality be
waived." (Emphasis and underscoring supplied)

Having said that, apropos to your second question, it is clear pursuant to the last sentence of
Article 1409 that a void contract cannot be ratified or waived.

In fact, as reiterated by the Supreme Court in the case of Fullido vs Grilli (G.R. 215014,
February 29, 2016), ponencia of former Associate Justice Jose Mendoza, it says:

"A void contract cannot be the source of any right; x x x A void or inexistent contract may be
defined as one which lacks, absolutely either in fact or in law, one or some of the elements
which are essential for its validity. It is one which has no force and effect from the very
beginning, as if it had never been entered into; it produces no effect whatsoever either against
or in favor of anyone. Quod nullum est nullum producit effectum. Article 1409 of the New Civil
Code explicitly states that void contracts also cannot be ratified; neither can the right to set up
the defense of illegality be waived. Accordingly, there is no need for an action to set aside a
void or inexistent contract." (Emphasis and underscoring supplied)

Thus, applying the cited laws and jurisprudence, if a party enters a contract which is deemed
null and void for being one of the contracts referred to in Article 1409 of the New Civil Code, the
same is considered to have no force and effect. Moreover, the same cannot also be made as a
source of any right whatsoever as it is considered as if it had never been entered into. As such,
it cannot be ratified or waived.

Topic: Separate charges for Batas Pambansa Blg. 22 and estafa

Q: I am engaged in the business of selling aquarium tanks. One of my customers who

purchased a 500-gallon fish tank from my shop issued a postdated check as payment.
However, the check was dishonored by the bank because of insufficient funds. I am now
contemplating filing a case of estafa and violation of Batas Pambansa Blg. 22 simultaneously. Is
this legally possible?

A: Yes, the simultaneous filing of Batas Pambansa Blg. 22 (BP 22) and Estafa cases is possible. In the
case of Peter Nierras vs Hon. Dacuycuy (G.R. Nos. 59568-76, January 11, 1990), the Supreme Court,
through former Associate Justice Edgardo Paras, laid down the differences between BP 22 and Estafa,
to wit:

"What petitioner failed to mention in his argument is the fact that deceit and damage are
essential elements in Article 315 (2-d) Revised Penal Code, but are not required in Batas
Pambansa Bilang 22. Under the latter law, mere issuance of a check that is dishonored gives
rise to the presumption of knowledge on the part of the drawer that he issued the same without
sufficient funds and hence punishable (People v Veridiano, 132 SCRA 523) which is not so
under the Penal Code. Other differences between the two also include the following: (1) a
drawer of a dishonored check may be convicted under Batas Pambansa Bilang 22 even if he
had issued the same for a pre-existing obligation, while under Article 315 (2-d) of the Revised
Penal Code such circumstance negates criminal liability; (2) specific and different penalties are
imposed in each of the two offenses; (3) estafa is essentially a crime against property, while
violation of Batas Pambansa Bilang 22 is principally a crime against public interest as it does
injury to the entire banking system; (4) violations of Article 315 of the Revised Penal Code are
mala in se, while those of Batas Pambansa Bilang 22 are mala prohibita."

Moreover, in the case of Leonora Rimando vs Spouses Aldaba and People (G.R. 203583,
October 13, 2014), the Supreme Court, through Associate Justice Estela Perlas-Bernabe,
explained, to wit:

"Essentially, while a BP 22 case and an estafa case may be rooted from an identical set of
facts, they nevertheless present different causes of action, which, under the law, are considered
"separate, distinct, and independent" from each other. Therefore, both cases can proceed to
their final adjudication — both as to their criminal and civil aspects — subject to the prohibition
on double recovery. Perforce, a ruling in a BP 22 case concerning the criminal and civil
liabilities of the accused cannot be given any bearing whatsoever in the criminal and civil
aspects of a related estafa case, as in this instance."

Thus, the filing of two sets of information for BP 22 and estafa is not prohibited.

Topic: Donation of immovable property

Q: I am a hardworking, average income earner and was able to acquire four (4) houses and
lots because of my perseverance. I would like to donate one (1) of my properties to my niece
who will marry her long-time boyfriend soon. Can you please explain to me the legal procedure
in donating a house and lot?

A: To answer your question, we shall refer to Article 725 of the New Civil Code which reads as follows:

"Article 725. Donation is an act of liberality whereby a person disposes gratuitously of a thing or
right in favor of another, who accepts it."

By this definition, you as a donor voluntarily transfers ownership over a property to your
intended recipient or donee who in turn accepts the donated property as a donee.

For immovable properties such as the house and lot that you intend to donate to your niece, the
law provides that:
"Article 749. In order that the donation of an immovable may be valid, it must be made in a
public document, specifying therein the property donated and the value of the charges which the
donee must satisfy."

The acceptance may be made in the same deed of donation or in a separate public document,
but it shall not take effect unless it is done during the lifetime of the donor. (Emphasis supplied)

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an
authentic form, and this step shall be noted in both instruments."

In other words, for there to be a valid donation, the law requires that a deed of donation be
executed in a public document indicating the details of the property to be donated and
conditions for the donations, if any. It is also required that the person receiving the donation
expressly manifest her conformity in receiving the donation in the same document of donation or
in a separate document which must be executed within the lifetime of the donor. These formal
requirements in the preparation and execution of a deed of donation must be fully observed for
there to be an actual valid donation.

Topic: Illegal use of violence to collect debt

Q: My driver told me about an incident involving his brother who is a taho vendor in Manila. He
claimed that his brother had an altercation with the supplier of his taho products. The supplier of
taho allegedly mauled his brother to forcibly confiscate from him his taho-selling equipment,
including his bike that he uses to sell the taho, as payment for an alleged unpaid obligation.
Despite repeated pleas made by my driver's brother, the taho supplier refused to return his
equipment. This is really sad considering that my driver's brother relies on the income from
selling taho as his main source of income. Some of the people they talked to suggested that the
taho supplier is justified from taking the taho vendor's belongings as payment for his debts. I
don't agree with this that is why I want to ask if the action of the taho supplier is legal. Can the
taho supplier collect payment for debts from the brother of my driver that way? Can they file a
case against the taho supplier?

A: The act of forcibly taking the property of a debtor by a creditor as payment for debt is illegal. In fact,
such action falls under the crime of light coercion. According to the Revised Penal Code of the
Philippines (RPC):

"Art. 287. Light coercions. — Any person who, by means of violence, shall seize anything
belonging to his debtor for the purpose of applying the same to the payment of the debt, shall
suffer the penalty of arresto mayor in its minimum period and a fine equivalent to the value of
the thing, but in no case less than 75 pesos. xxx" [Article 287, RPC] (Emphasis supplied).

Considering the details you provided, it appears that this provision is applicable to the brother of
your driver since it involves the use of violence by the taho supplier, as creditor, when he
mauled and forcibly took the personal property of his debtor as payment to his debt.

Despite the obligation of the debtor to pay his debts, a creditor has no right to violently take the
debtors' properties as payment for a debt. The taho supplier should have resorted to legal
means by filing a collection case against his debtor in order to collect the money owed to him.

Because of his violent actions in collecting the money owed to him, the taho supplier can be
charged with the crime of light coercion. If proven guilty, the crime of light coercion carries a
penalty of one month and one day to two months of imprisonment with a fine equivalent to the
value of the thing taken.

Topic: Notary public not required to determine validity of document

Q: I would like to recover the land that was allegedly made as a collateral for a loan which was
obtained by my parents (deceased) to Juan. Juan claimed that the land was sold to him, and he
presented a notarized Deed of Absolute Sale that was signed by my parents. I went to the
notary public to verify the said document, and it was confirmed that the lawyer notarized the
document. I asked the lawyer if he determined the validity of the document before he notarized
it, but he claimed that it is no longer part of his duty as a notary public. Am I correct in my belief
that the notary public should have examined the document if it is valid before notarizing it?

A: A contract of sale is a consensual contract which is perfected by mere meeting of the minds of the
seller and the buyer. This is pursuant to 1458 of the New Civil Code of the Philippines, which states that
"by the contract of sale one of the contracting parties obligates himself to transfer the ownership and to
deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent. X x
x". Correlative thereto, Article 1319 of the same law provides that: "Consent is manifested by the
meeting of the offer and the acceptance upon the thing and the cause which are to constitute the
contract. The offer must be certain and the acceptance absolute. A qualified acceptance constitutes a
counter-offer. X x x".

The determinant factor for a contract to be valid is found under Article 1318 (Id.) which provides
that:

"There is no contract unless the following requisites concur:

"(1) Consent of the contracting parties;

"(2) Object certain which is the subject matter of the contract;

"(3) Cause of the obligation which is established."

Thus, a contract of sale is presumed to be valid if the enumerated requisites in the aforecited
law are present. A contract which was presented for notarization converts the document into a
public document; however, its validity may still be questioned if there are proofs to establish that
the parties did not intend to enter into a contract of sale. Please be guided by the
pronouncement of the court in the case of Uy vs. Heirs of Renales (GR 227460, Dec. 5,
2019), where the Supreme Court speaking through Associate Justice Alfredo Benjamin Caguioa
stated:

"Thus, even if there is a document that purports to be a contract of sale, if there is strong
countervailing evidence establishing the want of consent or meeting of the minds, there is no
contract of sale.

"In Spouses Salonga v. Spouses Concepcion, it was held that the notarization of a document
does not guarantee its validity because it is not the function of the notary public to validate an
instrument that was never intended by the parties to have any binding legal effect. Neither is the
notarization of a document conclusive as to the nature of the transaction, nor is it conclusive of
the true agreement of the parties thereto. Simply stated, the existence, veracity, and authenticity
of a notarized written deed of sale do not conclusively determine whether all the essential
requisites of a contract are present."

Applying the above cited decision in your situation, your statement that the notary public must
determine the validity of the document before notarizing the same has no legal basis. It is not
the function of the notary public to determine the validity of the instrument which was never
intended by the parties to have any binding legal effect. Further, the existence, veracity and
authenticity of a notarized contract of sale does not conclusively determine the existence of all
the essential requisites of a contract.

Topic: Consequential damages in expropriation

Q: A portion of my land was expropriated for a certain government project. Someone advised
me to demand also for the payment of consequential damages aside from the market value of
my land. Can I demand the payment of said damage and what would be the basis of this kind of
damage?

A: The consequential damages, if there is any, to be paid to the land owner in expropriation proceedings
has its basis in Section 6, Rule 67 of the 1997 Revised Rules of Court, as amended, which provides
that:

"Before entering upon the performance of their duties, the commissioners shall take and
subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall
be filed in court with the other proceedings in the case. Evidence may be introduced by either
party before the commissioners who are authorized to administer oaths on hearings before
them, and the commissioners shall, unless the parties consent to the contrary, after due notice
to the parties, to attend, view and examine the property sought to be expropriated and its
surroundings, and may measure the same, after which either party may, by himself or counsel,
argue the case. The commissioners shall assess the consequential damages to the property not
taken and deduct from such consequential damages the consequential benefits to be derived by
the owner from the public use or purpose of the property taken, the operation of its franchise by
the corporation or the carrying on of the business of the corporation or person taking the
property. But in no case shall the consequential benefits assessed exceed the consequential
damages assessed, or the owner be deprived of the actual value of his property so taken."
Although only a portion of your lot was expropriated, it does not necessarily follow that you are
entitled to such kind of damages. This finds support in the case of Republic of the Philippines
vs. Spouses Bunsay (G.R. No. 205473, December 10, 2019), where the Supreme Court
speaking through Associate Justice Alfredo Benjamin S. Caguioa stated that:

"Just compensation [is defined as] the full and fair equivalent of the property sought to be
expropriated. x x x The measure is not the taker's gain but the owner's loss. [The
compensation, to be just,] must be fair not only to the owner but also to the taker."

In order to determine just compensation, the trial court should first ascertain the market value of
the property by considering the cost of acquisition, the current value of like properties, its actual
or potential uses, and in the particular case of lands, their size, shape, location, and the tax
declarations thereon. If as a result of the expropriation, the remaining lot suffers from an
impairment or decrease in value, consequential damages may be awarded by tine trial court,
provided that the consequential benefits which may arise from the expropriation do not exceed
said damages suffered by the owner of the property".

Applying the above cited decision in your situation, you are only entitled to the payment of just
compensation of your property when a portion of it was taken for public purpose. Consequential
damages are paid to the lot owner when as a result of the expropriation of a portion of your
land, the remaining lot suffers from an impairment or decrease in value. Thus, your demand for
consequential damages aside from the fair market value has no legal basis considering that you
failed to mention whether the remaining portion of your land suffered from impairment or
decrease in value after the expropriation.

Topic: Allegation is no proof

Q: Ben said that he can positively identify me as the person who shot him at midnight in front of
my house where the surroundings are dark. He added that I am the only person in the area who
is known to have a gun so I am the only one who can commit the crime. Is his testimony
sufficient to prove that I committed the crime?

A: Basic is the rule in criminal prosecution that the burden of proof rests on the complainant. This is in
accordance with Section 1, Rule 131 of the 1989 Revised Rules on Evidence, as amended by A.M. 19-
08-15-SC, which states that:

"Burden of proof is the duty of a party to present evidence on the facts in issue necessary to
establish his or her claim or defense by the amount of evidence required by law. Burden of proof
never shifts. x x x."

Correlative thereto, Section 1, Rule 133 of the same rules states that:

"In a criminal case, the accused is entitled to an acquittal, unless his or her guilt is shown
beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of
proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is
required, or that degree of proof which produces conviction in an unprejudiced mind."

The alleged positive identification of the victim that you shot him is doubtful and may not
overcome the presumption of innocence. This finds support in the case of Fernandez vs People
of the Philippines (G.R. 241557, Dec. 11, 2019), where the Supreme Court speaking through
Honorable former associate justice Jose Reyes Jr., stated that:

"Conviction in criminal cases demands proof beyond reasonable doubt. While this does not
require absolute certainty, it calls for moral certainty. It is the degree of proof that appeals to a
magistrate's conscience:

An accused has in his favor the presumption of innocence, which the Bill of Rights guarantees.
Unless his guilt is shown beyond reasonable doubt, he must be acquitted. This reasonable
doubt standard is demanded by the due process clause of the Constitution, which protects the
accused from conviction except upon proof beyond reasonable doubt of every fact necessary to
constitute the crime with which he is charged. The burden of proof is on the prosecution, and
unless it discharges that burden the accused need not even offer evidence on his behalf, and he
would be entitled to an acquittal. Proof beyond reasonable doubt does not, of course, mean
such degree of proof as excluding possibility of error produces absolute certainty. Moral certainty
only is required, or that degree of proof which produces conviction in an unprejudiced mind. The
conscience must be satisfied that the accused is responsible for the offense charged.

A man's life and liberty are not aspects to be trifled with, which is why only the most exacting
standard is required in order to find a person criminally liable. In this case, more than just
reasonable doubt is attendant to the circumstances of the crime alleged. While the Court does
not deny that Garino indeed suffered a grievous injury, the Court does heavily question if
Fernandez was the one who inflicted it. This doubt is enough to sway the mind of the Court and
acquit Fernandez."

Applying the above quoted decision in your situation, doubt exists as to the alleged positive
identification of the perpetrator of the crime. First, the incident happened at midnight and the
surroundings were dark. Second, his assumption that you are the only person in the area who
possesses a gun is not synonymous to the conclusion that you committed the crime. Mere
allegation is not tantamount to proof. In sum, the victim cannot present proof beyond reasonable
doubt as required in criminal prosecution.

Topic: Division of properties between spouses when marriage was declared void due to
psychological incapacity

Q: I intend to file a case against my estranged wife for declaration of nullity of marriage on the
ground of psychological incapacity. Assuming the same will be granted. Can I get most of the
properties since the funds utilized to acquire these properties came from me? How do we
partition the properties?

A: Partition of properties of the spouses under void marriage is governed by Article 147 of the Family
Code of the Philippines which states that:

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

"In the absence of proof to the contrary, properties acquired while they lived together shall be
presumed to have been obtained by their joint efforts, work or industry, and shall be owned by
them in equal shares. For purposes of this Article, a party who did not participate in the
acquisition by the other party of any property shall be deemed to have contributed jointly in the
acquisition thereof if the former's efforts consisted in the care and maintenance of the family and
of the household. x x x".

Relative thereto, Article 496 of the New Civil Code also states that: "Partition may be made by
agreement between the parties or by judicial proceedings. Partition shall be governed by the
Rules of Court insofar as they are consistent with this Code."

The liquidation of the absolute community of property shall be governed by the rule on co-
ownership. This finds support in the decision of the court entitled, Diño vs Diño (GR 178044,
Jan. 19, 2011), where the Supreme Court speaking through Associate Justice Antonio Carpio
stated:

"In this case, petitioner's marriage to respondent was declared void under Article 36 of the
Family Code and not under Article 40 or 45. Thus, what governs the liquidation of properties
owned in common by petitioner and respondent are the rules on co-ownership. In Valdes, the
Court ruled that the property relations of parties in a void marriage during the period of
cohabitation is governed either by Article 147 or Article 148 of the Family Code. The rules on
co-ownership apply and the properties of the spouses should be liquidated in accordance with
the Civil Code provisions on co-ownership. Under Article 496 of the Civil Code, "[p]artition may
be made by agreement between the parties or by judicial proceedings. x x x."

Applying the above cited decision in your situation, the properties acquired during your marriage
are clearly governed by the rule on co-ownership. The general rule is that it is presumed that
said properties shall be owned in equal shares if you cannot substantiate your claim that the
funds utilized to acquire these properties came from you. Lastly, partition of properties between
the spouses may be made through agreement or by judicial proceeding.

Topic: Release of death certificate

Q: My father died last year. This year, I went to the Philippine Statistics Authority (PSA) to get
an authenticated copy of his death certificate so we can claim his death benefits and settle the
estate left by him. I found out that his death was not recorded. Upon our inquiry at the hospital
where he died, we were told that his death certificate would not be forwarded to the city health
office and subsequently to the civil register until we fully settle the remaining hospital bills. Is the
action of the hospital correct?
A: For your enlightenment, under Administrative Order 1, Series of 1993, otherwise known as the
"Implementing Rules and Regulations of Act 3753," and other Laws on Civil Registration, it is provided
that:

"Rule 33. Persons Responsible to Report the Event -

"(1) It shall be the responsibility of the physician who last attended the deceased, or the
administrator of the hospital or clinic where the person died, to prepare the proper death
certificate and certify as to the cause of death. The death certificate shall then be forwarded
within forty-eight (48) hours after death, to the health officer who shall examine the certificate of
Death and then affix his signature in the appropriate box and shall order its registration in the
Office of the civil Registrar.

"x x x x x x x x x

"Rule 69. Violations of Act No. 3753. - (1) x x x

"(2) Any person whose duty is to report any fact concerning the civil status of persons and who
knowingly fails to perform such duty, and any person convicted of having violated any of the
provisions of Act 3753, shall be punished by a fine of not less than ten nor more than two
hundred pesos." (Section 17, Ibid.)

Applying this provision to your case, it is clear that when a person died in a hospital, the law
imposes an obligation to the physician who last attended the deceased, or to the hospital or
clinic administrator, to report the death by preparing a certificate of death and forwarding the
same to the local health officer who will cause its registration in the local civil registry within the
period prescribed by law. Those who are held responsible cannot condition the reporting of the
fact of death to the settlement of the deceased hospital bills. Thus, any person who failed to
perform the duty imposed on him/her may be held criminally liable. Although the principal
penalty of fine is a very small amount, this penalty is in addition to possible civil and
administrative liabilities that may also be imposed against those responsible. Article 2176 of the
Civil Code of the Philippines provides: "Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence,
if there is no pre-existing contractual relation between the parties, is called a quasi-delict x x x"

Topic: Filing a notice of claim

Q; The taxi I was riding hit another car and I suffered injuries. This accident happened months
ago, and I want to file a claim upon the compulsory motor vehicle liability insurance of the taxi. I
just want to know if I can still file my claim.

A: Section 397 of Presidential Decree No. 612, otherwise known as the "Insurance Code" as amended
by Republic Act No. 10607, which reads:

"Section 397. Any person having any claim upon the policy issued pursuant to this chapter
[Chapter VI. Compulsory Motor Vehicle Liability Insurance] shall, without any unnecessary
delay, present to the insurance company concerned a written notice of claim setting forth the
nature, extent and duration of the injuries sustained as certified by a duly licensed physician.
Notice of claim must be filed within six (6) months from the date of accident, otherwise, the
claim shall be deemed waived. Action or suit for recovery of damage due to loss or injury must
be brought, in proper cases, with the Commissioner or the courts within one (1) year from denial
of the claim, otherwise, the claimant's right of action shall prescribe." (Emphasis supplied)

Clearly, a notice of claim must be filed within six months with the insurance company from the
date of accident, otherwise, the action shall be deemed waived. In your situation, you must file
such claim within the prescribed period or your claim shall be waived.

Topic: Compromise agreement

Q: For failure to redeem a foreclosed property, the other party filed in court a complaint for
consolidation of title. The case was referred for mediation proceeding during which time,
amicable settlement was reached wherein we both agreed to extend the period to redeem the
property. This was approved by the court, and judgment was rendered based on our agreement.
During the given extended period, we again failed to repurchase the property. Now that the
decision has become final, is it legally possible to come to another compromise agreement with
the same party?
A: To address your question as to whether or not a compromise agreement may still be entered into by
the parties despite final judgment, we refer you to the case of Spouses Garcia vs. Spouses Soriano (GR
219431, Aug. 24, 2020), penned by Associate Justice Henry Jean Paul Inting, where the Supreme
Court explained:

"Within the context of the present case, the Court finds that the applicable principle is the rule
on compromise agreements after final judgment, and not the doctrine of immutability of final
judgments. A final judgment based on compromise has the same force and effect of a final
judgment on the merits by a court of competent jurisdiction, and is, thus, subject to the same
prevailing principles on compromise agreements after final judgment.

"The rule of long standing is that rights may be waived or modified through a compromise
agreement even after a final judgment has already settled the rights of the contracting parties. x
x x The issue involving validity of a compromise agreement notwithstanding a final judgment is
not novel. Jesalva v. Bautista upheld a compromise agreement that covered cases pending trial,
on appeal, and with final judgment. The Court noted that Article 2028 [of the Civil Code]
implied allowed such agreements; there was no limitation as to when these should be entered
into. x x x

"There is no justification to disallow a compromise agreement, solely because it was entered

into after final judgment. The validity of the agreement is determined by compliance with the
requisites and principles of contract, not by when it was entered into. As provided by the law on
contracts, a valid compromise must have the following elements: (1) the consent of the parties
to the compromise, (2) an object certain that is the subject matter of the compromise, and (3)
the cause of the obligation that is established."

Applying the above-mentioned decision to your case, we find nothing which prevents you from
entering into a modified or a new compromise agreement even after the subject judgment based
on compromise agreement attained finality as long as the elements of a valid contract, as
mentioned above, are present, since a compromise agreement, as defined by Article 2028 of
the New Civil Code of the Philippines, is in the nature of a contract.

Topic: Dry riverbed cannot be registered

Q: A portion of the river bed beside my lot has dried up forming a dry land. I have been in open,
notorious, public, continuous and adverse possession of the said dry land for 30 years now. I
have been planting it with corn and other vegetation like string beans and okra on a regular
basis. Considering the length of time that I have been in exclusive possession of the said dry
land, can I apply it for land registration?

A: Article 457 of the New Civil Code and in the case of Republic v Santos III, et al. (G.R. 160453,
November 12, 2012, Ponente: former Chief Justice Lucas Bersamin).

Article 457 of the said law provides:

"Article 457. To the owners of the lands adjoining the bank of rivers belong the accretion, which
they gradually receive from the effects of the current of the waters."

In the abovementioned case of Republic vs Santos III, "accretion" was defined as "the process
whereby the soil is deposited along the banks of rivers. The deposit of soil, to be considered
accretion, must be: (a) gradual and imperceptible; (b) made through the effects of the current of
the water; and (c) taking place on land adjacent to the banks of rivers."

In the same case, the Supreme Court held that:

"The process of drying up of a river to form dry land involved the recession of the water level
from the riverbanks and the dried-up land did not equate to accretion, which was the gradual
and imperceptible deposition of soil on the riverbanks through the effects of the current. In
accretion, the water level did not recede and was more or less maintained. Hence, respondents
as the riparian owners had no legal right to claim ownership of Lot 4998-B. Considering that the
clear and categorical language of Article 457 of the Civil Code has confined the provision only
to accretion, we should apply the provision as its clear and categorical language tells us to. xxx

The State exclusively owned Lot 4998-B and may not be divested of its right of ownership.
Article 502 of the Civil Code expressly declares that rivers and their natural beds are public
dominion of the State. It follows that the river beds that dry up, like Lot 4998-B, continue to
belong to the State as its property of public dominion, unless there is an express law that
provides that the dried-up riverbeds should belong to some other person."
Moreover, the Supreme Court ratiocinated in the said case that acquisitive prescription will not
apply. Thus, "Yet, even conceding, for the sake of argument, that respondents possessed Lot
4998-B for more than thirty years in the character they claimed, they did not thereby acquire the
land by prescription or by other means without any competent proof that the land was already
declared as alienable and disposable by the Government. Absent that declaration, the land still
belonged to the State as part of its public dominion."

Corollary to the above, you cannot apply the said lot for land registration since you mentioned
that it is a riverbed that had dried up, thus, it belongs to the State as part of its public dominion
and consequently beyond the commerce of man. Also, acquisitive prescription will not run
absent the declaration by the government that the land is already alienable and disposable.

Topic: Changing one's status from legitimate to illegitimate

Q: There was an error in the entry of my birth certificate. As far as I am concerned, I am an

illegitimate child of my parents. However, my birth certificate indicates that I am a legitimate
child of my biological parents because they both signed my birth certificate. I would like to seek
legal advice if an administrative proceeding can be brought for the purpose of changing my
status from "legitimate" to "illegitimate."

A: an administrative proceeding cannot be brought for the purpose of changing your status and surname.
As clearly provided in Section 1 of Republic Act 10172, only clerical or typographical errors and change
of first name or nickname can be corrected by the concerned city or municipal registrar. The said
provision is quoted below:

"SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or
Nickname. — No entry in a civil register shall be changed or corrected without a judicial order,
except for clerical or typographical errors and change of first name or nickname, the day and
month in the date of birth or sex of a person where it is patently clear that there was a clerical or
typographical error or mistake in the entry, which can be corrected or changed by the concerned
city or municipal civil registrar or consul general in accordance with the provisions of this Act
and its implementing rules and regulations." (Emphasis supplied)

It may be stressed that the change you sought to be made are not clerical or harmless errors
but they are considered substantial as it would affect your filiation, specifically your legitimacy,
from legitimate to illegitimate. However, this nature requires judicial action for correction of entry.
To further expound on this matter, the Supreme Court in the case of Francler P. Onde vs. The
Office of the Local Civil Registration of Las Piñas City (GR 197174, September 10, 2014),
penned by Associate Justice Martin Villarama Jr. emphasized that "when a petition for
cancellation or correction of an entry in the civil register involves substantial and controversial
alterations, including those on citizenship, legitimacy of paternity or filiation, or legitimacy of
marriage, a strict compliance with the requirements of the Rules of Court is mandated."
(Emphasis supplied) Therefore, applying the foregoing in your present situation, a judicial action
for the correction of entry is necessary.

Topic; Lessor need not be the owner of leased property

Q: I leased a parking space from my friend. It turned out that my friend is not the owner of such
property, but is also a lessor. Is it valid to lease out a property even if the lessor is not the
owner?
A: Article 1650 of the New Civil Code provides that "when in the contract of lease of things there is no
express prohibition, the lessee may sublet the thing leased, in whole or in part, without prejudice to his
responsibility for the performance of the contract towards the lessor."

Similarly, in Ballesteros vs. Abion (GR 143361, Feb. 9, 2006), the Supreme Court through
former Chief Justice Renato Corona, explained:
"Although the lessor need not be the owner of the property being leased, he should have a right
(e.g. either as usufructuary or a lessee), or at least an authority (e.g., as an agent of the
owner, usufructuary, or lessee) to lease out. x x x The river cannot rise higher than its source.
Where the purported lessor is bereft of any right or authority to lease out the property, then his
supposed lessee does not acquire any right to the possession or enjoyment of the property. X x
x x Suffice it to say that the second lease contract was legally inexistence for lack of an object
certain. Under Arts. 1318 and 1409 of the Civil Code, Contract the cause or object of which did
not exist at the time of the transaction are inexistent and void ab initio."
Applying the foregoing to your case, it is clear that your friend may validly sublease a property
he/she leased from the owner provided that the original contract of lease he/she executed with
the owner does not prohibit subleasing. Your friend does not need to be an owner in order to
sublease a property. It is, however, a minimum requirement, that he/she has a right, or at least
an authority over the subject property, otherwise, the sublease transaction is inexistent and void
ab initio.
On a side note, it must be remembered that Republic Act (RA) 9653 or the Rent Control Law,
prohibits sublease or assignment of lease of residential units unless the owner/lessor permits.
Section 8 of RA 9653 provides "Assignment of Lease or Subleasing – Assignment of lease or
subleasing of the whole or any portion of the residential unit, including acceptance of boarders
or bed spacers, without the written consent of the lessor, is prohibited."
Topic: Infirmities in notarization will not invalidate contract

Q: Donna obtained a loan from me, and we executed a contract with mortgage. The contract
was notarized, and Donna gave me her certificate of title. Donna's refusal to pay led me to the
idea of foreclosing the mortgage. However, she denied the existence of the mortgage and
claimed that there was a problem in the notarization of the contract which affected its validity.
Further, she claimed that the mortgage did not appear in the notarial register and the notarial
details in the contract were different from the entries in the notarial register. Will Donna's
allegations suffice to invalidate the mortgage contract?

A: The existence of a contract depends in the presence of the requisites enumerated under Article 1318
of the New Civil Code of the Philippines, which are the following: (1) Consent of the contracting parties;
(2) Object certain which is the subject matter of the contract; and (3) Cause of the obligation which is
established.

Relative thereto, Article 1306 of the same law provides that "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."
Thus, it is safe to conclude that the contract of mortgage between you and Donna remains to be
valid as long as the same is not contrary to law, morals, good customs, public order or public
policy.

Donna's allegation pertaining to the non-existence of mortgage would fail because of the
presence of the written contract which was duly notarized. Further, all her allegations regarding
the alleged problem in the notarization of the document are mere infirmities which will not affect
the validity of the mortgage. This finds support in the case of Ganancial vs. Cabugao (GR
203348, July 6, 2020), where the Supreme Court speaking through Associate Justice Ramon
Paul Hernando stated:

"[A]n irregular notarization merely reduces the evidentiary value of a document to that of a
private document, which requires proof of its due execution and authenticity to be admissible as
evidence. The irregular notarization — or, for that matter, the lack of notarization — does not
thus necessarily affect the validity of the contract reflected in the document. (Citation omitted)

"Errors in, or even absence of, notarization on a deed of mortgage will not invalidate an already
perfected mortgage agreement. If anything, these would only depreciate the evidentiary value of
the said written deed, as the same would be demoted from a public document to a private one."

Applying the above-cited decision in your situation, Donna's allegations stating that mortgage
contract does not appear on record and the notarial details are different from the entries
appearing on the notarial register are considered as mere infirmities which have nothing to do
with the validity of the contract. The mortgage contract which was notarized is a public
document and it will be reduced to a private document assuming Donna can prove that such
irregularity exists. Further, even if the document will be reduced to a private document, it does
not necessarily follow that the same is invalid as long as the requisites stated under Article 1318
of the New Civil Code of the Philippines are all present. It shall still remain valid and binding as
between the two of you as the parties to the mortgage contract.

Topic: Sibling's share on brother's estate

Q: Last year, my brother died due to Covid-19 and was survived by his wife. They do not have
any children. My brother was a businessman and a wealthy man. His wife doesn't have any
work and is fully dependent on him. She is also a shopaholic. During his lifetime, my brother
helped me with my medications. Now that he is gone, I asked for help from his wife for my
medication, but she refused to help me. She told me that since she is the wife, all of my
brother's wealth will automatically go to her and she doesn't care about me. My brother left no
will, but I believe my brother will not let me die without my medications. Do I have a claim on my
brother's estate that I can use for my medication? If so, how much? Or will everything go to his
wife who never contributed to my brother's wealth?

A: Article 961 of the New Civil Code provides that "in default of testamentary heirs, the law vests the
inheritance in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of
the deceased, in the surviving spouse, and in the State." As you've mentioned, your brother left no will.
This means that he doesn't have any testamentary heirs and thus, the rules on intestacy will apply in the
distribution of his estate.

First, it is presumed that the property regime between your brother and his wife was absolute
community of property since it was not specified in your letter. This is important in determining
the estate of your brother. Kindly take note of Article 91 of the Family Code which provides that
"unless otherwise provided in this Chapter or in the marriage settlements, the community
property shall consist of all the property owned by the spouses at the time of the celebration of
the marriage or acquired thereafter. (197a)"

In this regard, even if your brother's wife did not contribute to his wealth, all of his property
together with his wife's property, if any, will form part of the conjugal property, subject to certain
exceptions. As such, one half of the total conjugal property will be the conjugal share of your
brother which will form part of his estate and the other half will be the conjugal share of his wife.

With regard to the distribution of your brother's estate, Article 1001 of the New Civil Code
provides that "should brothers and sisters or their children survive with the widow or widower,
the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their
children to the other half."

In view of the foregoing, his wife is entitled to one half of his estate and you will be entitled to
the other half of your brother's estate through intestate succession. Please be advised that his
wife cannot deny your claim on the estate of your brother because the rules on intestacy give
you the right on one-half of your brother's estate.