UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
PRELIMS PERIOD
AUGUST 19, 2022
ARTICLE 2
PUBLICATION
Art. 2. Laws shall take effect after fifteen days following the
completion of their publication either in the Official Gazette
or in a newspaper of general circulation in the Philippines,
unless it is otherwise provided. (New Civil Code)
Atty. Seña:
The option to publish in the newspaper of general circulation
was not always present. It was not always an option.
Q: When did it become an option?
A: Effectivity of E.O. 200 which amended Art. 2 of the NCC.
Q: Why was Art. 2 amended?
A: The amendment became necessary because in the case of
Tañada vs. Tuvera, one of the issues faced by the petitioners
in their Motion for Reconsideration was where should
publication be made. They raised this issue because they felt
that publishing in the Official Gazette was not really
practical. It was not published in a timely manner, it was not
circulated regularly, and even though it were circulated, very
few people had access to the Official Gazette. So the purpose
of giving notice was defeated. They felt [inaudible] it was
more practical to have the laws published in a newspaper of
general circulation.
The Supreme Court said that while that may be true, you may
be correct, but it is no longer [inaudible] because that
amounts to amending the law. Because you are adding
another option to the provision of Art. 2. If the Supreme
Court were to do that, then it would be exercising powers
that do not belong to them. That would amount to judicial
legislation.
Because of the refusal of the Supreme Court to rule upon that
request by the petitioners, then President Corazon Aquino,
subsequently issued E.O. 200 heeding the request of the
petitioners. That is why we have the other option.
Q: What were the rest of the issues raised in Tañada vs.
Tuvera aside from WHERE should publication be made?
A: The petitioners asked WHAT should be published. HOW
should publication be made. WHEN should publication be
made.
I had to ask that question what laws must be published
because in the original decision, the Supreme Court made a
distinction as to when publication must be required.
Page 1 of 126
If the law is of local application, if the law only affects private
individuals, then there may be no need to publish anymore.
They (the petitioners) sought clarification on that point in
their Motion for Reconsideration.
Q: In resolving that issue on WHAT must be published,
what did the Supreme Court say?
A: The Supreme Court said that ALL LAWS must be
published. In fact, the Supreme Court departed from its
original stance where it said that if it is imbued with public
interest, then it must be published.
The requirement that the statute must be imbued with
public interest applies to all laws. You cannot have a law that
is not imbued with public interest. You cannot make a
distinction premised on the presence of public interest
because it should be present in all kinds of laws.
Q: What did the Supreme Court say in answer to the
question: “What should be published?”
A: All laws should be published. We make no distinction
anymore whether it is general or local application or
private/public law. Because all laws are imbued with public
interest. So be it a statute enacted by congress, executive
order issued by the sitting president, or administrative rules
and regulations implementing a law, it must be published.
The only exceptions would be:
1. Administrative rules internal or interpretative in
character;
2. Letters of instruction issued by supervisors to their
subordinates;
Q: Give an example of a private law
A: A law granting Filipino citizenship to a private individual.
If it only affects a specific person/entity, that is a private law.
Q: How should publication be made?
A: It should be published in full because if the purpose of
publication is to give notice, it goes without saying that you
have to publish in full. But the problem was back then, there
were a lot of secret laws. In some cases, there were only
token attempts to comply with the law because they would
only publish the title but the body of the law is with the
executive secretary. But that is not complete compliance
because titles do not reflect what the law was about. The
only time that you would know such a law existed is when
you are being arrested for violating the law. Therefore,
publication must be in full, otherwise, no publication at all.
Q: When should publication be made given that there
was a lot of secret clause?
A: The SC said that publication must soon be made as soon
as possible.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Atty. Seña:
Earlier on, we pointed out that the petitioners in Tañada vs.
Tuvera, questioned the practicality of still publishing in the
Official Gazette considering that it was not that accessible to
the public. The irony is they were pushing for the newspaper
of circulation as an option from the theory that newspaper
were more accessible.
Now the year 2022, we can say the same thing about
newspapers, people don’t read newspapers anymore.
Q: What is the primary source of information of the
people today?
A: The internet. Everyone gets their information online.
Q: Should online publication be considered an option
given that people turn to the internet for information?
Not to the Official Gazette, not to newspaper of general
circulation. Can an argument now be made that online
publication should be allowed as an alternative under
Article 2? If so, what possible basis can you raise to
justify that option?
A: There’s this law, the E-Commerce Act. It provides that
electronic documents published online could be considered
as the same as written documents. Electronic documents are
your text messages, emails, posts, websites, social media
Q: Are you familiar with the E-commerce Act?
A: Under the E-commerce Act, electronic documents, such as
text messages, emails, posts on websites, are considered to
be the functional equivalent of written documents, and you
cannot say that the electronic document is voidable, invalid,
or unenforceable simply because they are not in writing.
Because of the existence of the E-commerce Act, an
argument was made but perhaps publication online may also
be considered as equivalent of publication in hardcopy, and
this issue is resolved in the case of Garcillano vs. House of
Representatives Committee on Public Information.
Garcillano vs. House of Representatives Committee on
Public Information
G.R. No. 170338 | December 23, 2008 | Nachura, J.
Although what was involved in this case was the Rules of
Procedure of the Senate, the Supreme Court nonetheless
laid down the rule that E-Commerce Act only considers
electronic documents as a functional equivalent of written
documents for evidentiary purposes. The E-Commerce Act
does not provide or does not make the internet as a medium
for publishing laws, rules, and regulations.
Q: What if the question is like this: There is an online
version of the Official Gazette and since the law speaks
of publication in the Official Gazette, shouldn’t we
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interpret Article 2 as including this online version of the
Official Gazette as a venue for publication? How would
you answer that question?
A: You cannot give Article 2 this interpretation which allows
for publication for the online version of the Official Gazette
simply because Congress would not have intended it to be
that way because that technology was not yet in existence at
that time. They could not have predicted that the time would
come where we would have the internet where there will be
electronic versions of documents or even of publications.
That is why we cannot ascribe that kind of interpretation to
Art 2.
Q: If publication is not complied with in accordance with
Art 2 what will be the consequence? What happens to
the law?
A: It would not be effective. Hence, the people who have
violated the said law will not be punished.
Q: What about its validity? Would non-publication affect
the validity of the law?
A: No. The validity of the law will not be compromised.
Rather its effectivity only.
Atty. Seña:
The law may or may not be valid. But its validity will not be
measured on whether or not it will be published.
Requirement of publication only has a bearing on the
question of effectivity. Whether a law is valid or not will
depend on its stand with the constitution. This is the
yardstick of the validity of statuts – the constitution
ARTICLE 3
ARTICLE 3. Ignorance of the law excuses no one from
compliance therewith.
Q: What laws are included in this conclusive
presumption of the knowledge of the law?
A: This includes only domestic laws.
Q: What kind of domestic laws?
A: Only mandatory and prohibitory laws may be covered by
Art. 3. Art. 3 actually embodies the rule that proscribes the
defense of ignorance of the law, hence, ignorance of the law
excuses no one. When we’re speaking of a proscription
against the defense then it can only be referring to a
mandatory or prohibitory law because these are the laws
which may be violated. You can never violate a permissive
law because a permissive law does not mandate or prohibit
you. It’s only directory. You may or may not follow the law
if it is permissive.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: On the distinction of foreign and domestic laws,
foreign laws will not be covered by Art. 3. So what is the
rule that we observe when it comes to foreign laws?
A: In the absence of proof of foreign laws, the doctrine of
processual presumption shall apply. It provides that the
foreign laws are the same as ours.
Atty. Seña:
If you make an allegation that foreign law applies in this case,
but you fail to prove what this foreign law is or how it
applies, what will happen is that the court will resolve the
issue that you have brought before it using Philippine laws
under the doctrine of processual presumption. It will be
presumed that the foreign law you are reciting is the same as
Philippine law.
ARTICLE 4
ARTICLE 4. Laws shall have no retroactive effect, unless the
contrary is provided.
Atty. Seña:
It proscribes that laws will have prospective effect. It will not
have retroactive effect. That is the general rule.
Q: What are the exceptions?
A: These are:
1. Unless there is provided under the law
2. Remedial laws
3. Penal laws which are favorable to the accused
4. Emergency laws
5. Curative laws and laws which creates substantive
rights but do not impair existing rights
Atty. Seña:
So, with regard to the exceptions: third, which are penal laws
which are favorable to the accused, we have the case of
inmates of the New Bilibid Prison v. De Lima. This was
decided in June 2019.
NEW BILIBID PRISON v. DE LIMA
June 2019
This case is about the GCTA or RA 10592. This GCTA was
passed which gives time credits to convicts or detainees for
their good behavior while inside the jail or facility. And over
a period of time, this credit for good behavior will
accumulate and should they have enough credits to warrant
release, they will be released from prison.
The IRR was issued. However, in the IRR, the law shall be
given prospective application. Why? You might think why
when this is favorable to the accused? So happened that the
GCTA was not exactly a penal law. Only penal laws shall be
given retroactive effect IF favorable to the accused.
Page 3 of 126
This is not a penal law because the GCTA does not define a
crime, offense, nor provide a penalty. This is what a penal
law is.
When questioned with the SC, the SC agreed that the GCTA
does not define a crime, offense, nor provide a penalty, BUT,
its provisions, when applied, would result in the reduction of
the penalty imposed upon the accused. We cannot lose our
eyes to the fact that such reduction is beneficial to the
accused, therefore, it ought to be given retroactive effect.
AQUINO v. AQUINO
December 2021
SC came up with another way to refer to illegitimate
children: non-marital children. The issue is the right of
representation of an illegitimate child. If you remember you
wills and succession, an illegitimate child cannot represent
the putative parent in the succession of the estate of the
grandparent, unless the putative parent is also illegitimate.
This is the Iron Curtain Rule. Aquino v. Aquino changed that
rule.
Atty. Seña:
The focus for now is the manner of proving illegitimate
filiation. There is a difference between the NCC and the FC.
The illegitimate child was born before the effectivity of the
FC. So, the child was born under the NCC which states that if
the putative parent of the illegitimate child dies during his
minority, then the illegitimate child will have 4 years from
reaching the age of majority to claim the status of a
legitimate child.
In the FC, if you are an illegitimate child, and you plan to
establish legitimate filiation aside from birth certificate or a
public or private handwritten instrument, then you must
bring the action for acknowledgment within the lifetime of
the putative parent. And it doesn’t matter whether or not the
putative parent died in your minority.
Atty. Seña:
It does not matter whether or not the putative parent died
during your minority. Death of the putative parent, under the
family code forecloses on other evidence.
Q: Do we apply this rule under the Family Code on the
child who was born under the Civil Code, given that the
Family Code provides [inaudible] because the right of
the child here to claim his legitimate status has already
vested under the Civil Code?
A: His right to claim his illegitimate status within 4 yrs after
attaining the age of majority has already vested. It cannot be
impaired by the different rules provided under the Family
Code. I strongly suggest that you read this case in the original
– Aquino vs. Aquino, Dec. 7, 2021.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
ARTICLE 6
Article 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or good
customs, or prejudicial to a third person with a right
recognized by law.
Q: How would you define a waiver?
A: Waiver is an intentional abandonment of a right or
conduct that warrants the conclusion that such waiver has
been made.
Q: What are the requisites of a valid waiver?
A:
1. That the right must exist;
2. The person waiving the same must know that such
right exist;
3. There is an intention, whether express or implied to
abandon such right;
4. The person waiving has the full capacity to do so;
5. Such waiver must not be contrary to law, morals, good
customs, public order or public policy;
6. The waiver must not prejudice a 3rd person’s right that
is recognized by law;
7. If the law requires a formality, it must comply with it.
Q: Example of an Invalid or Void Waiver
A: When a father waives his right to his salary knowing that
he has children whose sustenance depends on him, then
such waiver would not be valid because it violates the
requirements that the waiver must not prejudice a third
person’s right that is recognized by law.
Q: Does a waiver operate to transfer rights?
Atty Seña:
I’m sure you come across documents in your study, wherein
you would say, “I so and so, waive, renounce, transfer and
quitclaim all of my rights, interest and participation over this
parcel of land, in favor of XYZ”. So, if the document is worded
that way, would that amount to a transfer of one’s right in
favor of the person benefitted by the waiver?
ACAP v. CA
G.R. No. 118114 December 7, 1995
FACTS:
Teodoro Acap has been a tenant of a portion of land of in
Negros Occidental since 1960. The said lot was formerly
under the names of Spouses Vasquez and Lorenza
Oruma. Upon their death, Felixberto, their only son,
inherited the lot. Felixberto sold the lot to Cosme Pido.
Acap continued to be the tenant of the portion of the said
land and paid rentals to Pido. When Pido died, his
Page 4 of 126
surviving heirs executed a notarized “Declaration of
Heirship and Waiver of Rights” of the lot in favor of Edy
de los Reyes. De los Reyes alleged that he and Acap
entered into an oral lease agreement whereby Acap
accepted to pay him 10 cavans of rice per year as lease
rental. Acap denied having entered the said agreement
with de los Reyes and that he did not recognize de los
Reyes’s ownership over the land. De los Reyes filed a suit
of recovery and possession against Acap and for the
payment of rentals accruing to him as owner of the said
lot.
ISSUE:
Whether or not the Declaration of Heirship and Waiver
of Rights is a recognized mode of acquiring ownership by
private respondent de los Reyes over the lot in question
RULING:
No. Private respondent cannot conclusively claim
ownership over the subject lot on the sole basis of the
waiver document. Under Article 712 of the Civil Code, the
modes of acquiring ownership may be through Original
mode (i.e. occupation, acquisitive prescription, law or
intellectual creation) and Derivative mode (i.e. mortis
causa – sale, barter, donation, assignment or mutuum). In
a contract of sale, a party obligates himself to transfer
ownership and to deliver a determinate thing while the
other pays a price certain in money or its equivalent. On
the other hand, a Declaration of Heirship and Waiver of
Rights operate as a public instrument when filed with the
Registry of Deeds whereby the heirs decide and divide
the estate left by decedent among themselves as they see
fit.
Hence, private respondent, being then a stranger to the
succession of Pido, cannot conclusively claim ownership
over the subject lot on the sole basis of the waiver which
neither recites the elements of either a sale, or a
donation, or any other derivative mode of acquiring
ownership.
Atty. Seña:
The Supreme Court said No, in the case of ACAP v. CA,
decided on 1995, SC said that the wordings of the document
do not amount to an effective transfer of rights. Using the
words waiving, renouncing or executing a quitclaim, does
not operate to have the beneficiary of the waiver become the
owner of the rights that had been waived.
According to the SC, under the law we only have certain
modes for acquiring ownership, and these modes may be
classified as either original or derivative. For the original
mode, we have occupation, acquisitive prescription, law or
intellectual creation. For the derivative mode, we have
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
succession mortis causa or tradition as a consequence of
sale, barter, donation, assignment or mutuum.
Under the language of the document, there is no indication
that there was a donation, barter, or sale. The document
made use of the word transfer but it was not clear what was
the consideration for the transfer. Was it a transfer pursuant
to a donation, a sale? – nothing was indicated in the
document. For that reason, SC held that the waiver is not
effective as a vehicle for transferring ownership because it
neither recites the elements of a sale, or a donation or any
derivative mode of acquiring ownership.
This is very telling because we have taken it for granted, na
kapag tayo ay nag-aaral ng kaso at merong nakalagay, na
there was a waiver. We take it for granted. Almost
automatically that amounts to an effective transfer of title.
But ACAP v. CA, tells us otherwise.
OTAMIAS v. REPUBLIC
G.R. No. 189516, June 08, 2016
FACTS:
Edna Mabugay-Otamias and retired Colonel Francisco B.
Otamias were married and had five children. Edna and
Colonel Otamias separated due to his alleged infidelity.
Edna filed a Complaint-Affidavit against Colonel Otamias
before the Armed Forces of the Philippines. Edna
demanded monthly support Colonel Otamias executed
an affidavit stating that he can give 50% of his retirement
benefits.
Colonel Otamias executed a Deed of Assignment where
he waived 50% of his salary and pension benefits in favor
of Edna and their children. The Deed of Assignment was
considered by the parties as a compromise agreement.
The agreement was honored until Edna alleged that “the
Armed Forces of the Philippines suddenly decided not to
honor the agreement” between Colonel Otamias and his
legitimate family. The Armed Forces of the Philippines
Pension Gratuity Management Center reiterated that it
could not act on Edna’s request to receive a portion of
Colonel Otamias’ pension “unless ordered by the
appropriate court”.
ISSUE:
Whether or not the Deed of Assignment made by Colonel
Otamias and Edna Otamias is a valid waiver of his rights
over the 50% of his retirement benefits.
RULING:
Yes. The concept of waiver has been defined by this Court
Page 5 of 126
as “a voluntary and intentional relinquishment or
abandonment of a known existing legal right, advantage,
benefit, claim or privilege, which except for such waiver
the party would have enjoyed; the voluntary
abandonment or surrender, by a capable person, of a
right known by him to exist, with the intent that such
right shall be surrendered and such person forever
deprived of its benefit; or such conduct as warrants an
inference of the relinquishment of such right; or the
intentional doing of an act inconsistent with claiming it”.
When Colonel Otamias executed the Deed of Assignment,
he effectively waived his right to claim that his
retirement benefits are exempt from execution. The right
to receive retirement benefits belongs to Colonel
Otamias. His decision to waive a portion of his retirement
benefits does not infringe on the right of third persons,
but even protects the right of his family to receive
support.
In addition, the Deed of Assignment should be
considered as the law between the parties, and its
provisions should be respected in the absence of
allegations that Colonel Otamias was coerced or
defrauded in executing it. The general rule is that a
contract is the law between parties and parties are free
to stipulate terms and conditions that are not contrary to
law, morals, good customs, public order, or public policy.
Atty. Seña:
What was involved was the pension benefits of a retired
general who was guilty of being unfaithful and so, he entered
into a compromise agreement with the wife, whereby he
pledged to give her half of his pension benefits. When he
retired, the AFP was complying even the wife receives her
share. At a certain point, the AFP refused to release the
pension benefits to the wife. The wife obtained a writ of
execution on the compromise agreement signed by the
husband. When she tries to enforce the writ of execution, the
AFP said, no, you cannot execute pension benefits because
these are exempted from execution under the law.
SC said, the right to be exempt from execution of the pension
benefits may be waived and this is exactly what the husband
did.
Article 7. Laws are repealed only by subsequent ones, and
their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with the
Constitution, the former shall be void and the latter shall
govern.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws or
the Constitution.
Atty. Seña:
The important part here would be how laws must conform
with the Constitution, because if a law does not conform with
it, that law will be considered null and void.
Q: What is the effect of a law that has been declared null
and void?
OPERATIVE FACT DOCTRINE
A: A law that is null and void is legally non-existent. It is as
though it did not come into existence at law. It did not give
rise to any rights or obligations.
Q: Would there be an exception to this rule where we do
not give any effect to a law that is null and void?
A: Yes. The Operative Fact Doctrine which provides that
prior to the declaration of a law as unconstitutional, it
existed and people relied on its existence.
Atty. Seña:
They may have relied on this provision and they may have
incurred obligations pursuant to this law which was
subsequently declared unconstitutional.
These consequences may not be simply ignored. Even if the
law is declared unconstitutional, there may be
circumstances that would warrant the recognition of its
effects prior to the declaration of its unconstitutionality.
Now, here is a practical example. We have to remember that
every law passed is presumed to be valid and constitutional.
Since it is presumed to be valid, people will follow that law.
Now, when will it become null and void?
You must first go to court and invoke judicial power and that
also takes time. The law may have become effective today
but the petition to question its constitutionality will take
time to be filed and resolved. Any resolution on that issue
will take time to be final and executory. So, for a long time,
this law will come into existence.
By the time the law is finally declared as invalid, there may
be acts already executed which may not simply be undone.
Now comes the doctrine of operative fact which will justify
the giving of cognition to the consequences of these acts.
In the case of Mandanas v. Ochoa (G.R. Nos. 199802,
208488), the SC took the time to give this caution that we
should only apply the doctrine of operative fact under those
extraordinary circumstances. Otherwise, the rule regarding
the effect of unconstitutionality will be diluted.
Page 6 of 126
Our rule of thumb is: It applies only when a declaration of
unconstitutionality will impose an undue burden to
those who relied on an invalid law.
FILM DEVELOPMENT COUNCIL OF THE PHILIPPINES v.
COLON HERITAGE REALTY CORPORATION
FACTS:
Cebu City passed City Ordinance No. LXIX: Revised Omnibus
Tax Ordinance of the City of Cebu, Sections 42 and 43,
Chapter XI of the Ordinance required proprietors, lessees or
operators of theaters, cinemas, concert halls, circuses,
boxing stadia and other places of amusement to pay
amusement tax equivalent to 30% of the gross receipts of
the admission fees to the Office of the City Treasurer of Cebu
City.
June 7, 2002: Congress passed RA 9167 creating FDCP.
Sections 13 and 14 thereof provide that the amusement tax
on certain graded films which would otherwise accrue to the
cities and municipalities in Metropolitan Manila and highly
urbanized and independent component cities in the
Philippines during the period the graded film is exhibited,
should be deducted and withheld by the proprietors,
operators or lessees of theaters or cinemas and remitted to
the FDCP which shall reward the same to producers of the
graded films.
The RTC Granted Cebu City and CHRC separate petition for
declaratory relief before the RTC Cebu City which sought to
declare Sections 13 and 14 of RA 9167 invalid and
unconstitutional.
ISSUE:
W/N doctrine of operative fact in relation to the declaration
of Sections 13 and 14 of RA 9167 as invalid and
unconstitutional.
RULING:
YES. The operative fact doctrine equally applies to the non-
remittance by proprietors since the law produced legal
effects prior to the declaration of the nullity of Sections 13
and 14 of RA 9167.
The operative fact doctrine recognizes the existence and
validity of a legal provision prior its being declared as
unconstitutional and legitimizes otherwise invalid acts done
pursuant thereto because of considerations of practicality
and fairness.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

In this regard, certain acts done pursuant to a legal provision
which was just recently declared as unconstitutional by the
Court cannot be anymore undone because not only would it
be highly impractical to do so, but more so, unfair to those
who have relied on the said legal provision prior to the time
it was struck down.
The right to receive the amusement taxes accrued the
moment the taxes were deemed payable under the
provisions of the Omnibus Tax Ordinance of Cebu City.
If you would apply the general rule, after the law was
declared unconstitutional, the FDCP and the producers who
received the funds should have been asked to return the
funds to the LGUs. This would be an undue burden on the
producers (i.e. that no person would think to not spend the
funds thinking that the law will be unconstitutional and that
they would be asked to return the funds several years after).
Hence, this is an instance wherein the Supreme Court
applied the doctrine of operative fact.

Taxes, once due, must be paid without delay to the taxing

authority

The prompt payment of taxes to the rightful authority,

cannot be left to the whims of taxpayers. To rule otherwise
would be to acquiesce to the norm allowing taxpayers to
reject payment of taxes under the supposition that the law
imposing the same is illegal or unconstitutional. This would
unduly hamper government operations.

Atty. Seña:
This case pertains to amusement taxes which are imposed
whenever a movie is shown in the cinemas. It is part of the
ticket price that you pay. The amusement taxes would go to
the coffers of the LGU of the place where the movie was
shown or exhibited.

However, in 2002, the Film Development Council of the

Philippines in order to encourage the production of good-
class movies; wherein the movies may be Graded-A or
Graded-B, etc.

When a movie gets high ratings from the FDCP, the producer
will also be entitled to a certain percentage of the
amusement taxes collected. It is an incentive for the
producer to continue making quality movies.

However, this law [RA 1967] runs over the right of the LGU
to create their own funds and/or to tax specific activities for
purposes of creating their funds. The amusement taxes that
were imposed by the City of Cebu which they also collected
pursuant to the ordinance that they passed, will now no
longer go to their coffers, but will instead go to the FDCP.
Since this law existed, the LGUs affected complied by
transmitting the amusement taxes to the FDCP who in turn
distributed this to the producers who obtained high ratings.

The law was eventually struck down as unconstitutional.

However, by that time, the funds that were collected were
already distributed to the producers who, in turn, may have
already spent it.

Page 7 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

AUGUST 22, 2022 dynamic. Even in the interpretation of Art. 36 on

Psychological Incapacity.
ARTICLE 8
JUDICIAL DECISIONS Q: Since Art. 8 says that judicial decisions shall form part
of the legal system, does it mean that judicial decisions
Art. 8. Judicial decisions applying or interpreting the laws or are laws?
the Constitution shall form part of the legal system of the A: No. Judicial decisions are not laws. They are only evidence
Philippines. (New Civil Code) of what the law means.

Q: When the law speaks of ‘decisions’ here, whose
decisions are we referring to?
A: The law refers to the decisions of the Supreme Court only.
Q: What principle is embodied in Art. 8?
A: The principle of Stare Decisis.
Q: What does Stare Decisis mean?
A: The doctrines laid down by the Supreme Court in a case,
where certain facts are obtaining, must be adhered to in
subsequent cases involving similar facts.
It is important to make a qualification because the premise
for the application of Stare Decisis is similarity of facts
obtaining. Otherwise, you cannot invoke Stare Decisis.
TWO KINDS OF STARE DECISIS
HORIZONTAL STARE VERTICAL STARE
DECISIS DECISIS
Obligatory – lower
Not obligatory, more of a
courts are obligated to
policy – Must be
follow the doctrines laid
observed to promote
down by the Supreme
predictability in the law.
Court.
Atty. Seña:
Because if jurisprudence is consistent, then more or less, you
will have a sense on how the Court will be deciding in the
cases that you are handling.
Predictability is good because you will be able to advise your
clients accordingly. And the people in general, they will be
able to act accordingly as well.
At the same time that we are promoting predictability, we
have to balance this with another consideration that we
should not allow ourselves to simply, blindly adhere to
precedents. Especially when it comes to Constitutional
matters. That is why jurisprudence is dynamic because it
adapts to the changing times.
Example of such dynamic characteristic:
Recently, the rulings laid down by the Supreme Court when
it comes to Art. 26 (par. 2) of the Family Code. It is very
Q: Must these judicial decisions be published in
accordance with Art. 2 for them to be effective against
third persons, meaning to say, those people who are not
parties to the case?
A: No need for publication. The basis for this is the very old
case of Roy vs. Court of Appeals. The Supreme Court has
ruled that judicial decisions are not laws which will be
governed by Art. 2. No need to publish to become effective.
The Supreme Court reasoned that since they are evidence of
what the law means, then they are deemed part of the law
from the time the laws are enacted. Moreover, it is the duty
of lawyers, members of the Bar to keep themselves abreast
of the latest rulings of the Supreme Court.
DE ROY VS. COURT OF APPEALS
G.R. No. L-80718 January 29, 1988
PONENTE: Cortes, J.
FACTS:
The firewall of a burned-out building owned by petitioners
collapsed and destroyed the tailoring shop occupied by the
family of private respondents, resulting in injuries to private
respondents and the death of Marissa Bernal, a daughter.
Private respondents had been warned by petitioners to
vacate their shop in view of its proximity to the weakened
wall but the former failed to do so.
On the basis of the foregoing facts, the Regional Trial Court.
First Judicial Region, Branch X X XVIII, presided by the Hon.
Antonio M. Belen, rendered judgment finding petitioners
guilty of gross negligence and awarding damages to private
respondents.
On appeal, the decision of the trial court was affirmed in toto
by the Court of Appeals in a decision promulgated on August
17, 1987, a copy of which was received by petitioners on
August 25, 1987. On September 9, 1987, the last day of the
fifteen-day period to file an appeal, petitioners filed a motion
for extension of time to file a motion for reconsideration,
which was eventually denied by the appellate court in the
Resolution of September 30, 1987.

Page 8 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Petitioners filed their motion for reconsideration on
September 24, 1987 but this was denied in the Resolution of
October 27, 1987. This Court finds that the Court of Appeals
did not commit a grave abuse of discretion when it denied
petitioners’ motion for extension of time to file a motion for
reconsideration, directed entry of judgment and denied
their motion for reconsideration. It correctly applied the
rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R.
No. 70895, August 5, 1985, 138 SCRA 46], that the fifteen-
day period for appealing or for filing a motion for
reconsideration cannot be extended.
ISSUE:
Whether there is a law requiring the publication of Supreme
Court decisions in the Official Gazette before they can be
binding?
RULING:
There is no law requiring the publication of Supreme Court
decisions in the Official Gazette before they can be binding.
Petitioners contend that the rule enunciated in the
Habaluyas case should not be made to apply to the case at
bar owing to the non-publication of the Habaluyas decision
in the Official Gazette as of the time the subject decision of
the Court of Appeals was promulgated. Contrary to
petitioners’ view, there is no law requiring the publication of
Supreme Court decisions in the Official Gazette before they
can be binding and as a condition to their becoming effective.
It is the bounden duty of counsel as lawyer in active law
practice to keep abreast of decisions of the Supreme Court
particularly where issues have been clarified, consistently
reiterated, and published in the advance reports of Supreme
Court decisions (G.R.s) and in such publications as the
Supreme Court Reports Annotated (SCRA) and law journals.
Q: What effect do we give to a Supreme Court doctrine?
Do we give it prospective application or do we apply it
retroactively?
A: As a general rule, it is to be applied retroactively. When
we say that it will be given retroactive effect, we only mean
to say that we will not hesitate to apply a Supreme Court
doctrine to a case which was filed or initiated before that
doctrine was laid down. So, it will still be covered by the
doctrine. Thus, as we have said, the Supreme Court decision
is evidence of what the law means and the meaning of the
law has been part of it since the time of its enactment.
Q: What is the exception?
A: There will be prospective application of judicial decisions
if a certain Supreme Court doctrine has already been
overruled. The overruled doctrine would no longer apply.
Page 9 of 126
This is to protect those who have relied on the old doctrine
or who have acted in accordance with the old doctrine.
NOTE: We cannot say that it is intended to protect vested
rights because it may happen that the old doctrine is
procedural in character, in which case, we cannot speak of
vested rights. It is more of an equitable approach to prevent
injustice. Walang pinagkaiba ito sa Doctrine of Operative
Fact that we discussed in relation to Art. 7.
ARTICLE 9
SILENCE, OBSCURITY OR INSUFFICIENCY OF THE LAWS
Art. 9. No judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the laws.
(New Civil Code)
Q: How should a court or judge decide if there is silence,
obscurity, or insufficiency of the law?
A: The Court should render decisions on the basis of customs
and principles of equity. Customs must qualify as juridical
customs.
Q: What are juridical customs?
A: Customs that are proven as fact. The courts will not take
judicial notice of a custom unless proven as a fact. Because
customs are not written down, and even if written down is
not passed by congress. It emanates from longstanding
practice by a great majority of the population to such an
extent that it has acquired obligatory force.
Q: What is the exception where you will no longer look
for a custom or an applicable principle of equity?
A: In criminal cases, in case of silence, obscurity or
insufficiency of the law, the accused shall be acquitted under
the principle nullum crimen nullum sine poene (no crime
without law). If there is no law punishing the act committed,
then there is no crime. The only thing to be done is to acquit
the accused.
REYES v. LIM
G. R. No. 134241 - August 11, 2003
Involves a contract to sell where the buyer paid 10M as
down payment. Buyer went to court to set aside the
Contract To Seller because he learned the seller sold the
same to a third person. The buyer wanted the seller to
deposit the money to court. Seller refused. Seller did not
want because he would lose control over the money
while the case is pending. He wanted to benefit from the
money while the case is pending. At first glance, he has
the law on his side because there is nothing in the Rules
of Court which provides for provisional remedy of
deposit. But the trial court granted the motion of the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
plaintiff and ordered the defendant to deposit the
amount. Defendant appealed this. The SC sustained the
lower court. The SC held there was a hiatus in the law and
ROC. If left on its own, the hiatus would result in injustice
to the plaintiff. Art. 9 was invoked. RTC acted correctly in
allowing deposit notwithstanding the silence, obscurity
or insufficiency of the law. Because there was really no
way for the contract to sell to ripen into a contract of sale
since the property was already sold to another. So the
defendant has no basis to withhold the money and was
merely using technicalities
ARTICLE 10, 11 & 12 – No need to discuss them anymore
since I am requiring you to know what are the requisites of
a juridical customary. Essentially, there must be an
obligatory character attaching to the customs for it to be
considered as a rule that can be applied to situations where
the law is absent.
ARTICLE 13. When the law speaks of years, months, days
or nights, it shall be understood that years are of three
hundred sixty-five days each; months of thirty days; days
of twenty-four hours;and nights from sunset to sunrise.
If months are designated by their name, they shall be
computed by the number of days which they respectively
have.
In computing a period, the first day shall be excluded, and
the last day included.
Q: What is the rule when we compute the period?
A: The first day shall be excluded and the last day shall be
included.
Q: So today is August 22, let’s say that you receive
summons to file an answer and was given 15 days to do
so, when will be your deadline to file an answer?
A: September 6. 15 days after August 22 is September 6. We
should not include August 22 in the computation of the days.
Atty. Seña:
Instead of computing manually, you simply add the number
of days to the date. So August 22 + 15 is 37. From 37 you will
be deducting the number of days of the present month which
is August. How many days do we have in August? 31. From
37 you deduct 31 and the difference is 6. And the 6, you
attach to the succeeding month which is September. Hence,
September 6.
The provision of Article 13 was ruled to have been impliedly
repealed by the Administrative Code of 1997.
Page 10 of 126
Q: Tell us about this implied repeal.
A: Under the Civil Code, a year is made of 365 days while in
the Administrative Code, a year is composed of 12 calendar
months.
Q: What is a calendar month?
A: A calendar month is designated in the calendar without
regard to the number of days it may contain. It is defined as
the period of time running from the beginning of a certain
numbered day up to but not including the corresponding
numbered day of the next month. And it is not a sufficient
number of days in the next month then up to then including
the last day of that month.
A calendar month could be composed of a certain numbered
day of the month up to the day before the counterpart
numbered day in the next month.
By way of example, what is one calendar month from
December 31, 2022. We start on the next day which is
January 1, 2023. Then you extend that to the day of the next
month's counterpart, which is February 1, 2023. So iaatras
lang ng isang araw. And you will land on January 31, 2023.
So that will be your one calendar month from December 31,
2022. It will be from January 1, 2023 to January 31, 2023.
If it so happens that the succeeding month does not have
sufficient number of days to correspond to the numbered
date of the month at the beginning, then you simply put it on
the last day of the month. So our next month should be one
calendar month from January 31, 2023 to February but
February has only 28 days so it is not enough to correspond
to 31 days.
We will define the calendar month from January 31, 2023 as
from February 1, 2023 to February 28, 2023. This issue came
to the Court in the case of CIR v. Primetown (2007).
CIR v. Primetown
G.R. No. 162155 | August 28, 2007 | CORONA, J.
In this case, there was a petition for refund that was filed
by a taxpayer, and it was filed on April 14, 2000. Now,
the petition for refund under the NIRC should be filed
within two years from the time the adjustment was
sought by the petitioner, and in this case, the final
adjustment return was filed by the taxpayer on April 14,
1998. So, the question is: When will the two-year
period from April 14, 1998 expire?
CTA said that the two-year period to file a petition for
refund expired on April 13, 2000. How did CTA arrived
in this computation? By using the Civil Code. Under the
CC, one year is 365 days, so multiplied by 2 — 730 days.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
The taxpayer said NO. They argued that they were just in
time kasi hindi naman na natin i-aapply ang Civil Code. It
is already repealed by the Administrative Code where the
computation should be one year is 12 calendar months,
so two years, we should compute 24 calendar months
from April 14, 1998.
In this case, the SC sustained the taxpayer, and said that
indeed there is this incompatibility with Article 13 and
Section 31, Chapter 8, Book I of the Administrative Code,
and because of their incompatibility is irreconcilable,
then it should be deemed that there is an implied repeal.
Applying Section 31, Chapter VIII, Book I of the
Administrative Code of 1987 to this case, the two-year
prescriptive period (reckoned from the time respondent
filed its final adjusted return 34 on April 14, 1998)
consisted of 24 calendar months, computed as follows:
Atty. Seña:
As you can see, the period was computed by converting year
1 and year 2 to 12 calendar months each. And as you can see,
one calendar month from April 14, 1998 had the period
starting on the next day which is the 15th. And the end of that
calendar month was placed on the day before the
counterpart. Ano ba ang counterpart ng April 15? It should
have been May 15 pero following the rule that the end of the
calendar month was placed before the counterpart (May 15)
kaya nasa May 14 tayo. You only need to get this part right
kasi ‘yung susunod, may pattern ka na.
Page 11 of 126
TERRITORIALITY PRINCIPLE
ARTICLE 14. Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn in
Philippine territory, subject to the principles of public
international law and to treaty stipulations. (8a)
Q: Article 14 embodies the principle of territoriality.
What does that mean?
A: Basically, our basis for enforcing Criminal Law is
territorial and we do not look at citizenship or nationality so
long as a person is within our territory, then that person will
be subject to our penal laws.
However, if we say that our Philippine Criminal Laws would
be applicable to everyone within our territory, then outside
our territory, Philippine Criminal Laws would have no effect.
It cannot be violated subject to certain exceptions.
Q: Let us say that a married woman had a sexual
intercourse with a man other than her husband and she
commits this act in Hong Kong, how would this principle
of territoriality affect the right of the husband to bring a
case against her?
A: The husband is prevented by the principle of territoriality
from prosecuting the wife for adultery under our Revised
Penal Code but the husband is not precluded in suing the
wife for such criminal offense as she may have committed for
that act under the laws of Hong Kong. So, if under Hong Kong
law, the wife is guilty for some offense, adultery for instance,
then the husband may maintain an action in Hong Kong but
he will invoke the laws of Hong Kong and not Philippine laws
precisely because the Philippine law cannot be given effect
outside Philippine jurisdiction. Philippine law cannot be
given effect outside the Philippine jurisdiction.
Q: Does this mean to say since Philippine law and penal
law cannot be given effect outside Ph jurisdiction as to
make the wife liable for adultery under RPC? Does it
follow that the wife is no longer considered married if
she is outside PH?
A: NO. because status is governed by Art. 15 which embodies
our adherence to nationality principle wherever she goes
would be considered married to the husband.
Q: In fact, while the husband cannot prosecute her for
adultery as defined by the RPC the husband may
nonetheless sue her for what?
A: The husband may institute a case against sexual infidelity.
You can see the RPC outside PH territory is not applicable.
But the civil law particularly those pertaining to the status of
Filipino citizens will follow the person wherever the person
may be. If you are married here, you are married anywhere
in the world. Your rights and obligations will be carried. Your
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
obligation is to not have sexual intercourse with other
persons apart from your spouse.
Kendel Socorro v. Van Wilsem (2014) – we will be tackling
this case in re Art. 15. The short version is the foreigner
husband was refusing to support his child by the petitioner.
Among other things, the mother of the child wanted to make
him liable for violation of the VAWC. His violence was
withholding support. The foreigner here was trying to say
that he cannot be prosecuted under the VAWC because he is
not a citizen of the Philippines. This case SC reiterated the
provisions of Art. 14 saying that he is governed by the VAWC
because penal laws and those of publica security and safety
are obligatory upon those who live or sojourn in the
Philippine territory. It so happens that the foreigner was
residing in the PH. Therefore, he was covered by the VAWC
law.
ARTICLE 15
PUBLICATION
ARTICLE 15. Laws relating to family rights and duties, or
to the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though living
abroad.
Atty. Seña:
Because of Art. 15 this embodies adherence to the
nationality principle. We apply the nationality principle not
just to Filipino citizens but to foreigners. One consequence
of the adherence to nationality principle is that Filipinos can
get married any place in the world, and once they get
married their status as married will attach to them. Since PH
laws do not provide for divorce, Ph who married any place
in the world cannot also obtain decree of divorce no matter
where they go. At least this is how it started. Your capacity
to get married will be governed by PH, your capacity to
obtain divorce decree will also governed by PH law. And PH
laws do not provide for divorce.
There are some Filipinos who were able to obtain. How is
that? when you are abroad and you got to the courts there
and you ask for divorce decree. The courts do not care what
your national laws provide. The only thing they will look into
is your residence. If you have fulfilled the residency
requirement it is only 6 months. Then you can sue before the
courts.
If you are a Filipino who obtained divorce decree and you do
not fall under Art. 26 par 2, that divorce decree will not be
recognized in the Philippines. You will remain married.
There is this case. Van Dorn v. Romillo. This is important not
because of its substantial ruling but because of the manner
SC resolved the case. This was the trigger of the inclusion of
Page 12 of 126
Art. 26 par 2 in the Family Code. If you would look at the
Codal provision of FC, par. 2 was added. It was an
afterthought. There was a lobbying against its inclusion
because a lot of people feared that it would somehow
introduce divorce in the Philippines. It was removed then
returned.
Before Art. 26 Par 2 saw the light of day, we have Vandorn
which involved a foreigner husband and a Filipino wife. A
divorce was obtained and after the divorce the Filipina came
back to the PH. The foreigner followed suit and he was asking
that he be given his share in the conjugal partnership of
properties which all accrued to the efforts of Filipina wife.
The husband argued that divorce was not recognized in the
Philippines because Filipinos are not allowed to divorce.
Atty. Seña:
Wala pa tayong Art. 26(2) of the Family Code before. So, I
have to get my share in my wife’s business, or whatever
investments she made.
If the Supreme Court were to simply apply the Nationality
Principle, napakadali ng kaso. They’ll say “Yes, the Filipino
wife is married to him, and we cannot recognize such divorce
decree by virtue of Art. 15, NCC.”
BUT, the Supreme Court is brilliant. Instead of focusing on
the status of the Filipina wife, it focused on the status of the
foreign husband.
The Supreme Court stated, “We apply the Nationality
Principle not just to our citizens, but also to foreigners, and
under YOUR law, you divorced from her, and with that, you
are no longer her husband, leaving you no standing to come
to court and ask for a share in the conjugal properties she
amassed.”
It is because of the inequity of the situation where Filipinos
married to foreigners find themselves in, that there was a
clamor for recognition of divorce decrees obtained by
foreign spouses as against their Filipino spouses.
Ang nangyayari, in applying the Nationality Principle,
foreigner spouse would be free to remarry under his
national law, while the Filipino spouse, under the same
Nationality Principle, would remain married to the foreign
spouse, for the simple reason that we do not recognize
divorce, or we do not recognize divorce back then. This
leaves the Filipino spouse in limbo, while the foreign spouse
has moved on and have remarried.
This is the principle under Art. 26(2) of the Family Code.
BUT, Republic v. Manalo changed the interpretation of Art.
26(2) of the Family Code. It EXPANDED the exception.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
REPUBLIC OF THE PHILIPPINES v. MARELYN TANEDO
MANALO
G.R. No. 221029, April 24, 2018
Ponente: Peralta, J.
FACTS:
Marelyn Tanedo Manalo was married to a Japanese
national. She later filed for divorce against her husband, and
a divorce decree was issued by a Japanese court.
In 2012, she sought the cancellation of the entry of marriage
in the Civil Registry of San Juan, Metro Manila by virtue of
the said divorce decree. She later amended her petition for
the judicial recognition of the divorce decree.
RTC denied Marelyn's petition, arguing that the divorce
obtained by Marelyn in Japan should not be recognized. The
RTC held that based on Article 15 of the New Civil Code, the
Philippine law "does not afford Filipinos the right to file for
a divorce whether they are in the country or living abroad,
if they are married to Filipinos or to foreigners, or if they
celebrated their marriage in the Philippines or in another
country" and that unless Filipinos "are naturalized as
citizens of another country, Philippine laws shall have
control over issues related to Filipinos' family rights and
duties, together with the determination of their condition
and legal capacity to enter into contracts and civil relations,
inclusing marriages."
Upon appeal, the CA overturned RTC's ruling. CA held that
Article 26 of the Family Code of the Philippines (Family
Code) is applicable even if it was Manalo who filed for
divorce against her Japanese husband because the decree
may obtained makes the latter no longer married to the
former, capacitating him to remarry. As such, it would be
height of injustice to consider Manelyn as still married to
the Japanese national, who, in turn, is no longer married to
her and can legally have another wife.
OSG's motion for recommendation was denied by CA.
Hence, the instant petition.
ISSUE:
Whether or not a Filipino citizen have the capacity to
remarry under Philippine law after initiating a divorce
proceeding abroad and obtaining a favorable judgment
against his or her alien spouse who is capacitated to
remarry.
RULING:
YES. Paragraph 2 of Article 26 of the Family Code speaksof
"a divorce x x x validly obtained abroad by the alien spouse
capacitating him or her to remarry." Based on a clear and
plain reading of the provision, it only requires that there be
a divorce validly obtained abroad. The letter of the law does
not demand that the alien spouse should be the one who
Page 13 of 126
initiated the proceeding wherein the divorce decree was
granted. It does not distinguish whether the Filipino spouse
is the petitioner or the respondent in the foreign divorce
proceeding.
The purpose of Paragraph 2 of Article 26 is to avoid the
absurd situation where the Filipino spouse remains
married to the alien spouse who, after a foreign divorce
decree that is effective in the country where it was
rendered, is no longer married to the Filipino spouse.
A Filipino who initiated a foreign divorce proceeding is in
the same place and in like circumstances as a Filipino who
is at the receiving end of an alien initiated proceeding.
Therefore, the subject provision should not make a
distinction. In both instance, it is extended as a means to
recognize the residual effect of the foreign divorce decree
on a Filipinos whose marital ties to their alien spouses are
severed by operations of their alien spouses are severed by
operation on the latter's national law.
In fact, there is no real and substantial difference between a
Filipino who initiated a foreign divorce proceedings and a
Filipino who obtained a divorce decree upon the instance of
his or her alien spouse. In the eyes of the Philippine and
foreign laws, both are considered as Filipinos who have the
same rights and obligations in a alien land. The
circumstances surrounding them are alike.
Finally, a prohibitive view of Paragraph 2 of Article 26
would do more harm than good. If We disallow a Filipino
citizen who initiated and obtained a foreign divorce from
the coverage of Paragraph 2 Article 26 and still require him
or her to first avail of the existing "mechanisms" under the
Family Code, any subsequent relationship that he or she
would enter in the meantime shall be considered as illicit in
the eyes of the Philippine law.
Worse, any child born out such "extra-marital" affair has to
suffer the stigma of being branded as illegitimate. Surely,
these are just a few of the adverse consequences, not only
to the parent but also to the child, if We are to hold a
restrictive interpretation of the subject provision. The irony
is that the principle of inviolability of marriage under
Section 2, Article XV of the Constitution is meant to be tilted
in favor of marriage and against unions not formalized by
marriage, but without denying State protection and
assistance to live-in arrangements or to families formed
according to indigenous customs.
Although the SC held that a Filipino may initiate divorce
against a foreign spouse, Marelyn's case was still remanded
to the RTC to allow Marelyn to present evidence as proof of
the relevant Japanese law on divorce.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Atty. Seña:
Under the ruling of Republic v. Manalo, even the Filipino
spouse CAN obtain a divorce decree. It is no longer limited to
the foreign spouse.
Q: What happens to Art. 15? Where it states that rights
and obligations shall be binding even to Filipinos
abroad?
A: The Supreme Court did not really address this exception
carved out by this case in relation to Art. 15. But, the
Supreme Court stated that, under Art. 26(2), it is the foreign
spouse who obtains the divorce decree, IT DID NOT STATE
that “it should be the foreign spouse who shall file the
petition” therefore, we should apply this.
GR: Filipinos cannot initiate a divorce decree by virtue of Art.
15.
XPN: If they are in a mixed marriage, and Art. 26(2) applies
(in relation to Republic v. Manalo)
Another thing discussed in the case of Republic v. Orbecido,
is the VAWC case, whether or not a foreigner may be
compelled to provide support under the provisions of the
Family Code.
Q: May a foreigner be compelled to give support under
Art. 195 of the Family Code?
A: Based on Art. 195 of the Family Code, a foreigner may not
be compelled. Under the Nationality Principle, since he is a
foreigner, his family duties are not covered by the Family
Code.
Q: Then what law governs, on his rights and obligations?
A: By his national law. This is by the same token that
Filipinos are governed by their national law.
Here, in the case of Del Socorro v. Van Wilsem,
DEL SOCCORO V. VAN WILSEM
FACTS:
Del Soccoro and Van Wilsen contracted marriage in
Holland. Later on was divorced in Holland. So Del Soccoro
went back to the Philippines together with her son. Van
Wilsen promised support in the amount equivalent to Php
17, 500 or 250 gildin. Upon arrival in the PH, Del Soccoro
and her son did not receive support. When Van Wilsen came
to the PH, he remarried in Cebu. Del Soccoro sent a demand
letter to Van Wilsen but the latter refused to receive the
demand letter. Del Soccoro filed against him a case under
RA9262 for failure to give support. Refusal to give support
is tantamount to economic abuse under RA 9262. An
information was filed in Court against Van Wilsen but the
criminal complaint was dismissed because the allegations
failed to state an offense.
Page 14 of 126
An MR was filed but was denied.
ISSUE:
Whether a foreign national has the obligation to give
support.
RULING:
Del Soccoro cannot rely on Art. 195 of the Family Code since
we adhere to Art. 15 of the New Civil Code.
In view of failure to prove the law of Netherlands, the
doctrine of processual presumption was applied. Babalik
nanaman siya sa PH. When we talk about processual
presumption in case there is failure to prove foreign law,
then the courts should presume that the foreign law is the
same as the national or internal law. Ang iappply ay batas
ng PH. Under our laws, fathers have an obligation to
support their children.
Assuming that foreign law of the Netherlands was proved
and established, it cannot be applied here because it
contravenes sound and established policy of the forum. And
also, the SC cited that prohibitive laws concerning persons,
their acts or property or those which have for their object
public order, public policy or good customs, shall not be
rendered ineffective by laws or judgments promulgated or
by determinations or conventions agreed upon in a foreign
country. Even if the foreign law is proved, it would not be in
keeping with sound and well-established public policy to
apply the laws of the Netherlands because it contravenes
ours.
Atty. Seña:
You must not only allege, you must also prove. And should
you fail to prove what his national law is, then we apply the
Doctrine of Processual Presumption, which means that we
will treat his national law to be the same as the Philippine
law. It is in this sense that we can now apply the Family Code,
not at the outset, but only because there was a failure to
prove what his national law is and we had to apply the
doctrine or the principle of processual presumption.
Q: Supposing that he was able to prove his national law,
and he was able to show that under his national law, he
had no obligation to support his children, will his
national law be given effect here?
A: It cannot be applied in this case because even if the laws
of a foreigner states that a father or a parent does not
provide a law that a parent support a child, it is not
applicable here in the Phil, because it would be an injustice
to the child and it is not proper in a sense that a parent
cannot be said to support his or her child.
Atty Seña:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
It is against public policy. And once you use that term public
policy, it will now be easy for you to justify why we can’t
refuse to apply his national law. Because you can now look
at Art. 17. And what has Art.17 say that will justify as
refusing to apply the national law of the foreigner? (last
paragraph of Art.17)
Prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, public
policy and good customs shall not be rendered ineffective by
laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.
Q: Can you invoke Art.197 of the Family Code against the
foreigner?
A: No, if he invokes it, his national law will apply. But he must
prove it as fact. Should he fail to prove it as fact, then
processual presumption comes in, and Philippine law may
now apply.
Q: Supposing he was able to prove what his law is, but
his law exempts him from the obligation to give support,
can we give effect to that law?
A: No, because that would fall contrary to provisions of
Art.17, because the obligation to give support is a matter of
public policy here in the Philippines. And his national law
cannot render that law immune in public policy.
Q: Can a Filipino wife bring an action for nullity of
marriage under Art.36, but alleging that it is the
husband who suffers from psychological incapacity?
A: No, unless the wife an show that the foreign law or the
national law of the husband is the same as the Philippine law,
in that it also provides for psychological incapacity as a
ground for nullity of marriage. If she’s not able to prove that,
then her petition will be dismissed because of the nationality
principle. (Keppel vs. Keppel, Aug. 14, 2019)
ARTICLE 16
Article 16. Real property as well as personal property is
subject to the law of the country where it is stipulated.
Atty. Seña:
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless
of the country wherein said property may be found.
Atty. Seña:
Page 15 of 126
Par. 1 lays down the rule of lex rei sitae, the personal
property will be governed by the law of the place where they
are situated. By way of exception, we do not apply lex rei
sitae, but instead we apply the national law of the decedent.
This will come into play in intestate and testamentary
succession, and the intrinsic validity of testamentary
provisions.
The National law of the decedent will be applied regardless
of the nature of the property, or where the property is
situated.
AZNAR V. GARCIA
G.R. No. L-16749, January 31, 1963
FACTS:
Edward Christensen was born in New York but he
migrated to California where he resided for a period of 9
years. In 1913, he came to the Philippines where he
became a domiciliary until his death. In his will, he
instituted an acknowledged natural daughter, Maria Lucy
Christensen (legitimate child), as his only heir, but left a
legacy sum of money in favor of Helen Christensen Garcia
(illegitimate child). Counsel for Helen claims that under
Article 16, paragraph 2 of the Civil Code, California law
should be applied; that under California law, the matter is
referred back to the law of the domicile. On the other
hand, counsel for Maria, averred that the national law of
the deceased must apply, illegitimate children not being
entitled to anything under California law.
ISSUE:
Whether or not the national law of the deceased should
be applied in determining the successional rights of his
heirs.
RULING:
Yes. Article 16 of the Civil Code states that successional
rights are determined by the national law of the country
where the deceased is a citizen hence the internal law of
California since it was ruled that Edward Christensen is a
citizen of California.
The State of California prescribes two sets of laws for its
citizens residing therein and a conflict of law rules for its
citizens domiciled in other jurisdictions. Art. 946 of the
California Civil Code states that “If there is no law to the
contrary in the place where personal property is situated,
it is deemed to follow the person of its owner and is
governed by the law of his domicile.” Edward, a citizen of
the State of California, is considered to have his domicile
in the Philippines. The court of domicile cannot and
should not refer the case back to the California, as such
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
action would leave the issue incapable of determination,
because the case would then be tossed back and forth
between the states(doctrine of renvoi). The validity of the
provisions of Edward’s will depriving his acknowledged
natural child of latter’s legacy, should be governed by the
Philippine law.
The decision appealed from is reversed and the case
returned to the lower court with instruction that the
partition be made as the Philippine law on succession
provides.
Atty. Seña:
The decedent was an American citizen, specifically, he was a
resident of California. He had two daughters, one he did not
acknowledge, the other he did. He left a will bequeathing all
of his estate to the recognized daughter, Mary Lucy and to
the unrecognized daughter, he left a legacy.
The unrecognized daughter Helen, brought a case before the
Court to ask for the completion of his legitime. She was
saying that under Philippine law, we have a system of
legitime of which she cannot be deprived unless she is
disinherited. In the meantime, her filiation as a natural child
of the decedent was recognized by the Court.
The estate of the decedent, Edward Christensen, opposed the
petition of Helen on the theory that this is a matter of
successional rights and it shall be determined by the national
law of the decedent. Here, the national law is – law of U.S. The
U.S. is made of separate states, each of which would have its
own national law, own state law. The estate of Christensen
claims that it was California law which should apply and
under the internal law of California, there is no system for
legitimes. No basis for the petition filed by Helen.
The renvoi doctrine was invoked in this case. Under the
theory, it is said that the rules of the conflict of laws are to be
understood as incorporating that only the ordinary and
internal law but also the conflict of laws of that foreign
country.
In other words, when Art. 16 speaks of the National Law of
the decedent, it refers not just to the internal law of
California.
RENVOI DOCTRINE
Atty. Seña:
Under the Renvoi Theory, the rules of the conflict of laws are
to be understood to incorporate not only the ordinary or
internal law, but also the conflict of laws of the foreign
country. In other words, when Art. 16 speaks of the national
law of the decedent, it speaks of not just the internal law of
Page 16 of 126
the foreign country, but also to the conflict of laws rule of
said foreign country.
Q: And what is that rule of conflict of California in Aznar
v. Garcia?
A: It states that a resident of California who was domiciled
outside of California would have to be governed by the law
of the place of his domicile. In that case, there was a choice:
One is to apply the conflicts of law rule which means
reverting the matter back to the Philippines where Mr.
Christensen was domiciled prior to his death, or the prior
option is to apply the internal law of California which will
result in the denial of the petition since the laws of California
does not provide for a system for legitime.
The SC said that we cannot apply the internal laws of
California because those laws apply only in situations where
the decedent is both a resident and a domiciliary. The
conflicts of law rule, which on the other hand covers the
situation where there is a foreign element – in this case it is
the decedent’s domicile in another country. That is what
applies in the case of Christensen. So, we apply the conflicts
of law rule.
When the matter is referred to the Philippines, there is again
two options: we can either apply Art. 16, which is our
conflicts of law rule, or we can go directly to our internal law
which is our law on succession.
The SC court said that in this instance, we can no longer
apply Art. 16 again like in the first instance. Because if we
apply Art. 16 again, the matter will go back again to
California then back to the Philippines again. It will be an
endless going back and forth.
So, this time around, with this referral, we will now apply the
internal law of the Philippines – our law on succession.
Which as it happens, provides for a system on legitime.
Note: Helen, the unrecognized illegitimate child, is now
entitled to the completion of her legitime. She received a
legacy so there is no preterition. If there was preterition, the
institution of heirs would have been annulled and the
succession to the estate of Christensen would have been by
intestate succession. In such case, the two daughters would
have inherited in equal parts.
ARTICLE 17
ARTICLE 17. The forms and solemnities of contracts, wills,
and other public instruments shall be governed by the laws
of the country in which they are executed.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
When the acts referred to are executed before the diplomatic
or consular officials of the Republic of the Philippines in a
foreign country, the solemnities established by Philippine
laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, public
policy and good customs shall not be rendered ineffective by
laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.
Q: What principle is embodied in the first paragraph of
Art. 17?
A: It is lex loci celebrationis.
Q: What does that mean?
A: It means that the governing law as to the execution of
contracts and other public instruments shall be the law in
the place where the document is executed.
Q: What kind of validity is governed by lex loci
celebrationis?
A: Only the extrinsic validity.
HUMAN RELATIONS
ARTICLE 19. Every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.
Article 19 embodies the Principle of Abuse of Rights.
Q: What are the elements of a cause of action based on
abuse of rights?
A: The requisites are:
1. There is legal right or duty;
2. Such duty is exercised in bad faith;
3. It is for the sole intent of prejudicing or injuring
another;
4. The Absence of good faith is essential to abuse of right
Atty. Seña:
We have to appreciate what transforms one’s exercise of his
right into an abuse of right situation. Keep in mind that when
you act in exercise of your right, you should not be
countenanced or sanctioned. And the fact that another
person will be injured when you exercise your right should
not matter, so long as there is no bad faith and that you are
not exercising your right solely for the intention of causing
injury.
Page 17 of 126
Now, as an example, you are in a dorm where the walls are
thin. If you listen to your radio and the person in the other
rooms beside you hear the music and be disturbed, do they
have a cause of action against you?
You go by the elements. Do you have the right? Yes. Were you
acting in bad faith? No. Were you doing it solely to cause
injury? No.
So that means he has no cause of action against you.
ABUSE OF RIGHT [ART. 19]
Q: You live in a dormitory wherein the walls of the rooms
are thin. You are listening to music [?], and the person in
the other room hears it and becomes disturbed, does he
have a cause of action [for abuse of rights]?
Atty. Seña:
No, there is no cause of action:
1. You possess the right;
2. You were not acting in bad faith; and
3. You were not doing it solely for causing injury to
him.
Q: In the same situation, there was a radio turned on.
Your neighbor is extra-sensitive to noise. Is there a
cause of action for abuse of rights?
A: No, there is no cause of action. The actor is acting well
within his right since there is no showing that he is in bad
faith or that he is doing it solely to cause injury to the
neighbor.
Q: A turns on the radio just as he has to leave his home
and be gone for the whole day. What should be the
conclusion?
A: The circumstances would tell us that he may be doing this
to cause injury to the other person. It is well within his right,
but we have a basis to believe that he is acting in bad faith,
and that his act of leaving the radio on before he lives is
really intended to prejudice the other persons. There will be
a cause of action for abuse of rights.
ART. 20 & 21 in relation to ART. 19
ARTICLE 20. Every person who, contrary to law, wilfully or
negligently causes damage to another, shall indemnify the
latter for the same.
ARTICLE 21. Any person who wilfully causes loss or injury
to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the
damage.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

Atty. Seña: intention was to abandon the woman and not fulfill the
Art. 19 is not self-executory. We would have to look to Arts. promise to marry.
20 and 21 to obtain relief.

Q: What is the difference between Art. 20 and 21?

A: Art. 20 speaks of an act contrary to law. Meanwhile, Art.
21 does not require any violation of any law, but what is
required is that the manner of the act of which the act is
committed is contrary to morals, good customs, or public
policy.

Hence, if you have a cause of action under Art. 19, your relief
will be for damages under either Art. 20 or 21.

Atty. Seña:
The breach of promise to marry is also related to these
provisions. Generally, there is no right of action in relation to
a breach of promise to marry. You cannot go to court to
compel a person to marry nor even ask for damages simply
because your beloved changed their mind. This is because a
promise in relation to marriage exists based on feelings that
change, and we cannot be faulted, much less punished, for
having a change of heart.

However, it is a different matter if one proposes and cause

the other party to go through the preparations for a wedding,
to a point that a matrimonial bed has been purchased,
invitations sent, gowns have been made, and a day before the
wedding he/she calls off the wedding with the flimsiest
excuse that the mother does not approve of the wedding. In
this case, there is a cause of action for damages. The damages
here would pertain to the actual damages i.e. that is the
wedding expenses, and the humiliation of being virtually left
before the altar (Wassmer v. Velez).

In another instance, the Supreme Court stated that there is a

cause of action for damages for breach of promise to marry
because the foreigner wooed this probinsyana. The
foreigner promised to marry her and even went to her
province and met her parents. For those who grew up in the
province, there is a great significance of the act of bringing
home to the province the boyfriend/girlfriend in order to
introduce him/her to the barrio and the family. Hence, when
the probinsyana surrendered her virtue to him, she did so
with the belief that he would marry her. However, after
surrendering herself to him, the foreigner married another
person. Hence, there is bad faith. In this case, it is not the
breach per se but the manner by which he enticed her into
having sex with him using the promise of marriage [is what
is being punished] (Baksh v. CA).

In another instance, a couple broke up. However, the man

kidnapped the woman and raped her in a motel. After raping
her, the man promised to marry her. The father of the man
also backed up the promise of marriage. However, the man’s

Page 18 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
AUGUST 26, 2022
ART. 22 – PRINCIPLE AGAINST UNJUST ENRICHMENT
Art. 22. Every person who through an act of performance by
another, or any other means, acquires or comes into
possession of something at the expense of the latter without
just or legal ground, shall return the same to him. (New Civil
Code)
Accion in rem verso - an action for recovery of what has
been paid or delivered without just cause or legal ground.
Requisites:
1. The defendant has been enriched;
2. The plaintiff has suffered a loss;
3. The enrichment of the defendant is without just or
legal ground; and
4. The plaintiff has no other action based on contract,
quasi-contract, crime or quasi- delict.
Q: Is it required that the plaintiff’s loss should cause the
defendant’s gain?
A: It is not required that it should produce, it is enough that
there be some kind of relation between the plaintiff’s loss
and the defendant’s gain such that it can be shown that the
defendant’s gain would not have taken place were it not for
the plaintiff’s loss. Enough na ‘yun. Mababa lang ang
standard na kailangan nating ma-satisfy.
Atty. Seña:
If you would look at the provision of Art. 22, it seems to be
broad enough to include actions of solutio indebiti.
Essentially, an accion in rem verso will lie whenever the
defendant would be in possession of something that he has
no right to be in possession of. It does not matter what
caused him to be in possession. This in itself shows that this
could include a mistake on the part of the plaintiff which
caused the defendant to be in possession of that thing that
he has no business having.
Q: How do we carve out a right of action for solutio
indebiti from the coverage of Art. 22?
A: Must refer to the 4th element of accion in rem verso which
states that there should be no other action based on contract,
quasi-contract, crime or quasi-delict.
Atty. Seña:
Remember, the Chapter on Human Relations, this is usually
referred to as the Chapter of Last Resort. When you practice
on your own, you would learn that when all else fails and the
client would still want you to file some action, your last
recourse would be to look at the provisions on Human
Page 19 of 126
Relations. Conversely, if there is some other basis to support
their cause of action i.e. contract, law, delict, quasi-delict,
quasi-contract, then you would have to exhaust that first
before you resort to Human Relations.
That is why in solutio indebiti, the presence of the mistake
giving rise for a cause of action for solutio indebiti, precludes
the application of Art. 22.
ART. 29 – CIVIL LIABILITY ARISING FROM CRIMINAL
OFFENSES
Art. 29. When the accused in a criminal prosecution is
acquitted on the ground that his guilt has not been proved
beyond reasonable doubt, a civil action for damages for the
same act or omission may be instituted. Such action requires
only a preponderance of evidence. Upon motion of the
defendant, the court may require the plaintiff to file a bond
to answer for damages in case the complaint should be found
to be malicious.
If in a criminal case the judgment of acquittal is based upon
reasonable doubt, the court shall so declare. In the absence
of any declaration to that effect, it may be inferred from the
text of the decision whether or not the acquittal is due to that
ground.
Q: What will be the effect of the acquittal of an accused
in a criminal case?
A:
1) If the acquittal is on the ground that the accused is not
the author of the act or omission complained of, there is
no civil liability ex delicto.
2) When the acquittal is based on reasonable doubt on
the guilt of the accused, he is not exempt from civil
liability ex delicto which may be proved by
preponderance of evidence only.
(Rabuya Prebar Reviewer in Civil Law, 2021)
Q: What is the meaning when acquittal is based on
reasonable doubt but civil liability still subsists?
A: The accused may be held civilly liable despite his acquittal
in the criminal action. It would depend on how the civil
aspect was treated.
1. If civil action arises from delict, it would be
impliedly instituted with the criminal action, unless
there is waiver or reservation for separate
prosecution.
2. If there is no reservation, then it is deemed
impliedly instituted, in which case it was also
prosecuted simultaneously with the criminal action.
Alongside with the judgement for acquittal on
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
reasonable doubt, there will also be a judgement
awarding damages based on the civil liability of the
accused.
3. Should there be an appeal, there can be no
judgement from acquittal but there can be appeal
from the judgement awarding the civil aspect.
4. If there is reservation, following the acquittal for
reasonable doubt, the civil action may still be
instituted because it subsists because a judgement
based on reasonable doubt does not extinguish civil
liability. Civil action only requires preponderance of
evidence, not proof beyond reasonable doubt.
GR: If the civil action arises from a criminal offense, there
would be an implied institution. But there is always an
option to make a reservation, in which case, the plaintiff may
prosecute separately.
XPNs:
1. If the criminal action is for violation for BP22, the
civil action will always be impliedly instituted with
the criminal action;
2. Violation of BP22 by a corporation, if the issuer or
drawee of the check is a corporation, we do not
prosecute the corporation but the signatories. If
there is an acquittal for any reason, including
reasonable doubt, then the check signatories would
be free from civil liability.
XPN to the XPN:
1. If the corporate officer made themselves personally
or solidarily liable for corporate obligations as
sureties or accommodation party. Their civil
liability shall subsist.
2. If there are circumstances warranting piercing the
veil of corporate fiction where corporate officers are
merely using the corporation to perpetuate fraud.
5 sources of obligations:
1. Law
2. Contract
3. Quasi-contract
4. Delict
5. Quasi-delict
There are some instances where the same act both constitute
a delict and quasi-delict or related to culpa contractual.
Q: How do you prosecute a single action arising from
these sources of obligation either arising from the same
act or related to?
A: Independent civil action and civil actions under Article 31.
To be clear, actions under Article 31 such as article 32, 33,
34 and 2176 are not independent civil actions. Because the
Page 20 of 126
provisions of article 31 are not based on the act or omission
committed as a felony.
Q: How do we illustrate this? How do we exemplify this?
A: Example: Mr. Coronel as the passenger on board the bus
being recklessly driven by the driver and then the bus gets
into an accident and the driver is sued for reckless
imprudence. Mr. Coronel also sue the bus company for
damages because you were not able to reach your
destination.
Q: What would be your cause of action against the bus
driver and the bus company?
A: As to the bus company, culpa contractual while on the
driver it would be based on delict for reckless imprudence.
Q: Are these two questions related?
A: Yes, because they arise from the same incident. What the
obligation of the bus company to you as a passenger, it arises
separately and independently from the contract of carriage
that you have entered with the bus company.
Atty. Seña:
We do not even speak of implied institution, we do not even
speak of independent civil action. It is simply separate.
For Article 32, 33, 34 and 2176 – These are recognized
independent civil actions.
Independent civil actions are not deemed instituted with the
criminal action that they may be related to and that there is
also no need to reserve the right to file them separately kasi
nga why would there be a need for such reservation when
there is no implied institution.
Note: If you are simultaneously maintaining an action for
damages for quasi-delict and at the same time pursuing a
criminal action with the civil liability impliedly instituted
while you may obtain a judgment in both cases where in such
a same act wherein you cannot recover in both instances.
There is no double recovery.
ARTICLE 36. Prejudicial questions, which must be decided
before any criminal prosecution may be instituted or may
proceed, shall be governed by rules of court which the
Supreme Court shall promulgate and which shall not be in
conflict with the provisions of this Code.
Q: What is a prejudicial question?
A: For a prejudicial question to arise, there must be civil
action and a criminal action pending.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: Does it matter which of the two actions was first
commenced?
A: The civil action must be commenced ahead of the criminal
action. Before one may invoke a presence of prejudicial
question, it must be shown that apart from resolution of the
issue being determinative of the guilt or innocence of the
accused, it must be further shown that the civil action was
found ahead of the criminal action.
Q: Do you have an idea why we have this requirement?
A: It is meant to curb abuse. There is a new ruling, Pulido vs.
People and this is significant because apart from being en
banc this is penned by Justice Hernando. So the civil action
must precede the criminal action, this is because based from
the observation of the SC that whenever someone is charged
with a criminal case, he would file a civil action no matter
how flimsy, no matter how far-fetched the allegations would
be from the criminal action and seeks the postponement or
suspension of the proceedings in the criminal action.
Atty. Seña:
Whenever someone is charged with a criminal case, he
would file a civil action no matter how far fetched the
allegations would be from the criminal action and seek the
postponement or suspension of the proceedings in the
criminal action, and what would the suspension do to the
accused? It gives him time. The longer the criminal action is
suspended, the longer that there is no progress in the
criminal action, then the more the complainant becomes
wary of pursuing the action, and what happens kapag
napagod ‘yung plaintiff or complainant? It would lose
interest and they would stop attending the hearings. They
will stop cooperating with the fiscal, and then eventually,
what will the accused do? The accused will seek the
dismissal of the case for failure to prosecute.
So, to curb that, the Supreme Court said that we will now
require that the civil case be commenced ahead of the
criminal action because when you file a civil case, the
presumption is you did not know yet that it will be
[inaudible] criminally. So, if you filed it without that kind of a
notion that there is a possible criminal action against you,
then in all likelihood, that civil action is filed in good faith;
and that you really have a cause of action.
Now, this question is usually associated with bigamy when it
comes to the Family Code but just to illustrate how it applies,
we have this case of Domingo vs. Spouses Singson.
Page 21 of 126
Domingo vs. Sps. Singson
G.R. No. 203287 | April 5, 2017 | Reyes, J.
It is a sad and usual story where one’s sibling claims
ownership of property that should have been co-owned by
all siblings. Sabi ng defendant, the land was sold to her by
the mother. The other siblings did not believe that. They
think that the Deed of Sale was forged. So, what did they do?
They went to Court and sought the declaration of nullity of
the contract of sale on the ground that it was a forgery, and
later on they filed a criminal action for falsification against
the defendant sibling,
Sabi ni defendant sibling: “I am moving to suspend the
criminal action because there is a prejudicial question. If
the trial court hearing the nullity case for (inaudible) were
to sustain the validity of that deed of sale then that means
there was no forgery. If no forgery, then there is no
falsification to speak of. On the other hand, if the trial court
were to grant the petition on the ground that the signature
of the mother was forged, then there may be basis to
proceed with the criminal action.”
So, maliwanag diba? That all the elements of prejudicial
question had been met. We have previously instituted civil
action and the issue in the civil action would be
determinative of the guilt or innocence of the accused in a
criminal action.
Atty. Seña:
You can also invoke the existence of a prejudicial question to
seek suspension of the proceedings in the preliminary
investigation. Hindi lang tayo limited sa criminal action
pending.
Pulido vs. People
G.R. No. 220149| July 27, 2021| Hernando, J.
The Supreme Court has abandoned two doctrines that
they have laid down before.
The first doctrine that was abandoned was regard to the
nullity of the prior marriage. If you would remember, SC
was not consistent when it comes to answering the
question of whether or not the nullity of prior marriage is
a defense against the crime of bigamy only if there is
already a judicial decree of nullity. That question also
gives rise to the question of whether or not the pending
case of nullity of a prior marriage would constitute a
prejudicial question that would warrant suspension of the
proceeding for bigamy.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
The second one pertains to the nullity of the subsequent
marriage. If SC had been consistent prior to Tenebro, SC
had always ruled that the subsequent marriage must be
valid in all aspect save for the fact the it is bigamous in
character. Fi that is the requirement, previously, prior to
Tenebro, the nullity for the subsequent marriage would
constitute as a defense against the crime of bigamy or at
the very least would constitute in the proceeding that is
pending would constitute a prejudicial question.
Atty. Seña:
But, when Tenebro v CA was promulgated, this changed. J.
Carpio in his dissenting opinion said this ruling had
overturned a doctrine that has been existing for 80 years.
The ruling in Tenebro was to the effect that it does not
matter whether the subsequent marriage is valid or void
because the subsequent marriage is always necessarily void
because it is bigamous in character. It should not matter that
it is void for some other reason than its bigamous character.
The first doctrine on the first marriage, SC explained that
nullity of the prior marriage is now considered as a defense
against the crime of bigamy. And there is no need on part of
the party invoking the nullity of the prior marriage to first
secure a decree of nullity. SC said the need to reconcile Art.
40 of FC which says “a prior judicial declaration of nullity of
a previous marriage before a party may remarry and that it
is not for the parties, particularly the accused, to determine
the validity or invalidity of the marriage.”, with the concept
of a null and void marriage under CC as being legally
inexistent and subject to a collateral attack as well as
definition of bigamy under RPC is not really necessary
anymore.
If you remember, Art 40 of FC was intended to reconcile Art
349 of RPC with our understanding of what the nature of the
void marriage is. If marriage is void, the bigamy is inexistent.
You can always attack its validity in any proceeding. Any
proceeding may include a proceeding for bigamy. You do not
need a decree on nullity. The problem is Art 349, art 349 says
bigamy is committed by any person who contracts a
subsequent marriage without first legally dissolving the
prior marriage. ART 349 says that if you get married without
first obtaining a decree of nullity, you are liable for bigamy.
Can you appreciate how contradictory of null and void
marriage under CC and definition of bigamy RPC?
SC said art 349 only applies to voidable and valid marriages.
It does not apply to void marriages. So when we speak of
legal dissolution or on the requirement that the prior
marriage must be first legally dissolved, you can only refer
to annulment of the voidable marriage. It cannot refer to
nullity.
Page 22 of 126
Secondly, Art 40 is procedural in character and is given
retroactive effect save where there are vested rights which
will be impaired.
SC said Art 40 which requires the presence of decree of
nullity before one can remarry will only apply for purposes
of remarriage. It means when you get married without first
securing the nullity of your prior void marriage then your
subsequent marriage will be null and void under Art. 40. But
it will not make you liable for bigamy. This is the ruling of SC.
How about the people who purposely contract void
marriages? How could you punish them, when you cannot
punish them with bigamy?
You will not get them under Art. 349 of the RPC, but you can
get them both liable for knowingly contracting illegal
marriages. That takes care of the first marriage.
Going back, in the 2nd marriage, the Supreme Court
effectively abandoned Tenebro v. CA.
The 2nd marriage should have all the requisites of a valid
marriage. Otherwise, no crime of bigamy was committed.
This is because a void marriage is legally inexistent.
Therefore, the 2nd marriage shall be void for reasons other
than its bigamous character, then it is legally inexistent, and
cannot be said that you actually contracted the subsequent
marriage.
To be clear, under the ruling of Pulido v. People, the nullity of
the 1st, the nullity of the 2nd, are now defenses against the
crime of bigamy. You may invoke these defenses even
though you have not secured yet a decree of nullity.
And should it happen, a civil action to have these marriages
declared a nullity before you are charged with bigamy, you
can invoke prejudicial question. And a decree of nullity that
you can obtain anytime, either before OR after the criminal
action for bigamy has been filed, then that would be a
suitable defense.
In Tenebro v. CA, the Supreme Court held that in
psychological incapacity as a ground for the nullity of a
marriage, there is recognition written into the law itself that
such a marriage, although void ab initio, may still produce
legal consequences and among these legal consequences is
incurring criminal liability for bigamy. (Rabuya, Civil Law
Reviewer, 2021)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
BOOK I
PERSONS
Title I. - CIVIL PERSONALITY
CHAPTER 1
GENERAL PROVISIONS
Art. 37. Juridical capacity, which is the fitness to be the
subject of legal relations, is inherent in every natural
person and is lost only through death. Capacity to act,
which is the power to do acts with legal effect, is acquired
and may be lost. (n)
Q: What is juridical capacity, and what is capacity to act?
A: Juridical personality is the fitness to be the subject of legal
relations. Capacity to act is the power to do acts with legal
effects.
Q: Which one out of those, cannot exist without the
other?
A: Capacity to act cannot exist without juridical personality.
Capacity to act presupposes the existence of juridical
personality.
Atty. Seña:
When you say personality, it’s either you have it or you don’t.
There is no in between. Unlike capacity to act, you may not
have it, but it may be limited or restricted.
Personality, is if you are a human being, you acquire this
upon birth under Art. 40 of the NCC. Birth determines
personality.
Q: On capacity to act, where do you acquire this?
A: A person acquires capacity to act upon reaching the age
of majority. Or emancipation.
Q: How many ways can a person be emancipated?
A: A person may be emancipated once he reaches the age of
18 years old.
Q: Has this always been the case?
A: NO. Under the Civil Code, there are other ways where a
person may be emancipated. Emancipation by marriage, by
agreement. But that was changed.
Q: How was that changed?
A: The Civil Code was amended in a way where before a
woman can act, there has to be first the consent of a man. But
the Civil Code has been amended, where women can do acts
without the consent of a man.
Page 23 of 126
Atty. Seña:
When we speak of emancipation, the provisions of Civil Code
on emancipation was amended by RA No. 6809. This is
because the age of majority under the Civil Code was set at
21 years of age, and upon amendment, was changed to 18
years of age.
RA 6809 came after the Family Code. That’s why the age of
majority under the FC was at 21 years old. That is why there
are provision in the FC referring to minors. 21 years old in
the FC is a significant age. Under the FC, while 18 is age of
marriage, 21 is still the age of majority.
Atty. Seña:
Under the Family Code, 18 was the marrying age, but still the
person capacitated to marry was considered a minor,
because 21 was the age of majority. Since, the age intended
to meet the age of majority and the marrying age uniform. It
also gives away with the other means of emancipation
limiting it to emancipation by attainment of the age of
majority.
Atty.40 has also been amended, because if you look at Art.40,
it speaks of birth as being determinative of personality. But
it also speaks of presumptive personality.
Q: What is this?
A: It applies to the unborn child, who is still inside of the
mother. That unborn child enjoys provisional, limited and
presumptive personality in the eyes of law.
Atty Seña:
It is presumptive, it is provisional because it is only deemed
to exist for purposes and are favorable to the fetus, and
subject to the condition that the fetus may subsequently
born on conditions provided by Art.40. And we said a while
ago that this has been amended.
Q: How was it amended?
A: It was amended, civil personality is given from
conception.
Atty Seña:
It was amended by a child in lieu of the welfare code or Art.5
of PD 603.
PD 603: Article 5. Commencement of Civil Personality. -
The civil personality of the child shall commence from the
time of his conception, for all purposes favorable to him,
subject to the requirements of Article 41 of the Civil Code.
From the provisional personality that Art.40 provided, we
now have a declaration that the fetus shall have personality
from the time of his conception, albeit from the limited
purposes of transaction favorable to the person.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: How else should we treat the conditions that must be
complied with under Art.41? Should this be treated as
suspensive conditions? Or should be resolutory
conditions?
A: It would be treated as a resolutory condition.
Atty Seña:
As a resolutory condition. In fact, in the case of Quimiguing
v. Icao, the defendant was sued for support, due to the fetus
in the womb of the woman that he got pregnant. Among his
defenses was that the petition failed to allege that there has
already been the birth of the child. So the petition should be
dismissed for lack of cause of action because it was not
alleged that the child has already been born. He is implying
that the fetus can only claim support from, although he
already has personality, if it can be shown that it has already
been born. So ginagawa niyang suspensive condition yung
birth of the fetus, which again will defeat the purpose of
giving it personality, for all transactions favorable to it. The
Supreme Court said, the conditions under Art.41 is not
suspensive in character. There is no need to show that birth
has taken place before the fetus may be entitled for support,
precisely because the fetus is considered to have personality
for purposes that are favorable to it.
So, for us to reconcile the provision requiring compliance
with the conditions of Art.41 with the holding of the
Supreme Court that those conditions are not suspensive in
character, and there’s no need to show that birth has taken
place before the fetus can be entitled to receive support.
Then the only way for us to do it is to treat the conditions as
resolutory in character. Meaning to say, should birth not take
place, then whatever rights we have acquired while the fetus
is in the womb, will be considered as extinguished. It makes
sense rather than saying birth is a suspensive condition, in
which case, it goes against the obvious purpose of the law
which is, to protect the fetus from conception, from the time
that it was conceived.
Q: When does birth take place?
A: As provided under Art.41, birth takes place or the fetus is
considered born if it is alive at the time it is completely
delivered from the mother’s womb.
Atty Seña:
Be mindful when the law says it is delivered from the
mother’s womb, it presupposes that it is delivered alive. The
fetus must be alive or the baby must be alive.
Q: Is there a period of time that the baby must remain
alive after being delivered from the mother’s womb?
A: Yes, there is also a qualification as provided in Art.41, the
provision states that if the fetus had an intrauterine life of
less than 7months, then it should be alive or survive after
24hours after delivery. But, if the fetus had an intrauterine
Page 24 of 126
life of at least 7months, then it is considered born, regardless
if it dies immediately after.
It should survive within 24 hours after delivery, but if the
fetus had an intrauterine life of at least 7 months, then it is
considered born regardless if it dies immediately after.
Atty Seña:
As a general rule, there is no minimum period of time the
baby should remain alive after being delivered from the
mother’s womb. It could have been alive for just a few
minutes, or for an hour or 2 hours; so long as it was born
alive.
However, if it had an intrauterine life of less than seven (7)
months, the law requires that it must survive for 24 hours. If
it dies within 24 hours, it is considered not to have been born
at all and it did not acquire personality.
Q: Donation was made to the fetus while it was in the
mother’s womb, can it be a donee?
A: YES, because a donation is favorable to the fetus and
therefore we say that in conception, it provided it with
personality.
If there was an accident and delivery has to be done in an
attempt to save the baby and the mother. But at that time,
the mother was only 6 months pregnant
Q: If the baby is delivered alive but it does not survive
for the next 24 hours, what happens?
A: It is deemed to have never acquired personality.
Q: Who will get the donated property? Should there be a
transmittal of rights from the baby to his parents? Or
should the donated property revert to the donor on the
premise that the donee never existed?
A: In this case, since the baby died within 24 hours, it never
acquired personality at all. There can be no transmission of
rights of the donated property between the baby and the
parents. Donated property reverts back to the donor/owner.
ARTIFICIAL PERSONS/JURIDICAL PERSONS
and
NATURAL PERSONS
CHAPTER 2
Natural Persons
Article 40. Birth determines personality; but the
conceived child shall be considered born for all purposes
that are favorable to it, provided it be born later with the
conditions specified in the following article. (29a)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Article 41. For civil purposes, the foetus is considered
born if it is alive at the time it is completely delivered
from the mother's womb. However, if the foetus had an
intra-uterine life of less than seven months, it is not
deemed born if it dies within twenty-four hours after its
complete delivery from the maternal womb. (30a)
Artificial persons/ Juridical Persons
- no lag in acquiring capacity to act and acquiring
personality
- acquisition of personality and capacity to act
happens simultaneously because this will be
embodied in the license granted by the government.
- Ex. Corporation – simultaneous acquisition of
corporate personality and corporate powers
Natural persons
- acquired personality upon birth but he had to wait
until he reached the age of majority to get capacity
to act.
- In the meantime, you are a minor, you have to act
through your guardian and parents.
- Civil personality – this is extinguished by death (all
or nothing proposition, either you have it or not)
Article 42. Civil personality is extinguished by death.
The effect of death upon the rights and obligations of the
deceased is determined by law, by contract and by will.
(32a)
PRESUMPTION OF SURVIVORSHIP
Article 43. If there is a doubt, as between two or more
persons who are called to succeed each other, as to which
of them died first, whoever alleges the death of one prior
to the other, shall prove the same; in the absence of proof,
it is presumed that they died at the same time and there
shall be no transmission of rights from one to the other.
Q :When do we apply this presumption in Art. 43?
A: The presumption under Art. 43 is only applied by the
parties involved are called to succeed one another
Whoever alleges, must prove the same.
Atty Seña:
Conversely, if you have proof, then there’s no room for the
presumption provided in Art. 43.
Page 25 of 126
SURNAMES
Atty Seña:
If there is no controversy regarding the rules on surnames,
pay attention to the rules on surnames as applied to
married women. Rules on surnames that may be used in
case of annulment, legal separation, and should the husband
died.
Article 376. No person can change his name or surname
without judicial authority.
Atty Seña:
If one wants to change a name or surname, we have to go to
court, file a petition either under Rule 103 or Rule 108. But,
this has since been changed by R.A. 9048 and R.A. 11072
R.A. 9048, as amended by R.A. 11072
- Correction of first names and nicknames
- Administrative in nature
Q: How did RA 9048, as amended, change Art. 376 of the
Civil Code?
A: RA 9048, as amended by RA 10172, provided for the
correction of first names not only based on clerical or
typographical errors.
As it stands now, the petition for the change of name shall be
governed by RA 9048, as amended, and it shall be
administrative in nature – no longer judicial.
NOTE: RA 9048 does not authorize the administrative
correction of surnames – only first names and nicknames.
The jurisdiction is now under the Civil Registrar.
Atty. Seña:
In that sense, the correction of names and nicknames are
now removed from the coverage of Rule 103 and Rule 108.
The amendment of RA 9048 by RA 10172 expanded the
coverage of the administrative proceeding for correction of
entries. With RA 10172, even the day and month of birth and
sex of a person may now be corrected without judicial
proceedings – but only if it is patently clear that there is a
clerical or typographical error.
In relation to this, we have the case of Republic v. Silverio
(G.R. No. 174689) and Republic v. Cagandahan (G.R. No.
166676).
In Silverio, the SC did not allow the change of first name
because the petitioner therein is doing so to make his name
consistent with the result of his gender reassignment
surgery.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
In this case, the SC ruled that one’s gender, as stated in the
birth certificate, is determined by a physical or visual
examination of the baby’s genitals upon birth. In the absence
of a mistake, the determination made after would be
immutable. It cannot be changed anymore. In the same
token, a person cannot change his first name, if the purpose
in doing so is for the purpose of changing his gender.
In Cagandahan, despite the issue also being a change in the
gender, the change there was brought about by nature –
Cagandahan was intersex upon birth. The SC ruled that any
change of name would be allowable because it is consistent
with what nature determines for the gender of the person to
be.
RULES GOVERNING PERSONS WHO ARE ABSENT
Atty. Seña:
For this topic, what is important to know is when a person
may be declared as absent, who may seek the declaration of
absence, and the administration of the properties of the
absentee. But what may be more important is the
determination of when the presumption of death may be
warranted.
Q: The presumption of death is also premised on the
absence. When will absence cause a right to a
presumption of death?
A: It depends on the persons who were left behind. They will
make that call. They can still consider the person absent if
they wish so. However, if they will want the absentee to be
declared presumptively dead for any purpose (e.g.,
succession, partition, remarriage), then they need to refer to
the rules for declaration of presumption of death.
GR: To be clear, you cannot file a petition to have a
person declared presumptively dead.
Q: If you go to court and file such a petition without
alleging you are doing so for the purpose of remarriage,
what will happen to your petition?
A: The petition will be dismissed for lack of cause of action
to file the petition. The reason being is that what we are
trying to secure from the court is simply a presumption. And
that presumption can be overturned at any time. Hence, the
judgment will never attain finality.
The only exception to this is Art. 41 of the Civil Code which
mandates that you need to secure a judicial decree of
presumption of death for purposes of remarriage.
Q: If you file a petition to declare someone as
presumptively dead without alleging that you are doing
so for purposes of remarriage, what will happen to the
petition?
Page 26 of 126
A: The petition will be dismissed because the court will hold
that there is no cause of action to file the petition. The reason
being is that what we are trying to secure from the court is
simply a presumption; that presumption can be overturned
at any time, and therefore, the judgment cannot really attain
finality.
The only exception to this is ART. 41, which mandates that
you go to court and secure a decree of presumptive death if
you intend to remarry. The only reason we allow that is
because the law requires the filing of that petition.
ART. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage,
the prior spouse had been absent for four consecutive
years and the spouse present has a well-founded belief that
the absent spouse was already dead. In case of
disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of
the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code
for the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the
absent spouse. (83a)
Q: Now, if you cannot file a petition for the declaration of
presumptive death for reasons other than remarriage,
how do you establish the presumption of death for other
purposes, such as opening succession for the estate of
the missing person? How do you establish the
circumstances that would warrant the presumption of
death? Who will declare that such presumption exists?
A: You will establish those facts in the proceeding where the
presumption of death is required to be shown; for instance,
in the settlement of an estate. So, you file for settlement of
an estate, either intestate or testate, and you establish the
presumption of death in the same proceeding.
In another instance, wherein there is a will, you file a petition
for probation. During the proceeding wherein you have to
establish the fact of death, you bring out these circumstances
which are needed for the declaration of the presumption of
death but also in the same proceeding where such
presumption of death is relevant. In that example, in the
petition for probate.
GR: When it comes to period, an absence of 7 years is
generally sufficient to warrant the presumption that a
person is presumptively dead.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

XPN:
(1) when it comes to opening a succession to a person’s
estate, the law requires 10 years.
(2) When the person is 75 years old at the time of
his/her disappearance, the law requires 5 years.
(3) The disappearance takes place under danger of
death pursuant to Art. 391, the law requires 4 years.
a. Art. 391 is also applied in relation to Art. 41.
However, when Art. 391 is applied to Art.
41, the period is shortened to two years.

Page 27 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
SEPTEMBER 5, 2022
THE FAMILY CODE
ART. 1 – DEFINITION OF MARRIAGE
Art. 1. Marriage is a special contract of permanent union
between a man and a woman entered into in accordance
with law for the establishment of conjugal and family life. It
is the foundation of the family and an inviolable social
institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that
marriage settlements may fix the property relations during
the marriage within the limits provided by this Code.
Q: What does the last sentence mean?
A: It means that the parties cannot alter what is provided in
the law insofar as the nature, the consequences, and
incidence of marriage are concerned. It will always be the
law which will apply. The parties cannot enter into an
agreement saying that we are separating in fact and we will
each live our separate lives including having
sexual/romantic relations with other people. They cannot do
that. The only exception to this rule would be insofar as
property relations are concerned. The parties can stipulate
but even then the stipulation must be well within the
parameters set by law.
You can also refer to Article 1 for guidance on what the policy
of the State is on marriage. Very telling that marriage is
defined as a special contract of permanent union between a
man and woman. Gender-defined ‘yung kontrata unlike an
ordinary contract where gender does not matter.
This is significant because if there is a same gender marriage
that was validly contracted abroad and it is now being
sought to be recognized here in the Philippines perhaps
through registration with our civil registrar. Then you may
invoke Article 1 to deny the petition for registration or
recognition.
Q: How would we go about denying that petition using
Article 1?
A: We begin by saying that Article 1 embodies the public
policy of our State/of our laws insofar as marriages are
concerned. By way of public policy, marriage under
Philippine law is limited to just a man and a woman. That is
clear from Article 1. For this reason, the fact that same
gender marriage is recognized abroad as valid is of no
moment because under Article 17 (NCC), our laws which
have for their purpose public policy cannot be rendered
ineffective by any foreign law or judgment or whatever ends.
Page 28 of 126
To be valid, a marriage must have all of the requisites set
forth in the law. And these requisites may be classified as
essential and formal.
Q: What are the essential requisites?
A: Capacity and consent.
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.
Q: What are the factors which determine capacity to
marry?
A:
1) Age;
2) Gender which must be a man and a woman; and
3) Lack of any legal impediment under the Family
Code.
Q: What is the marrying age under the Family Code?
A: 18 years of age.
Q: What was the marrying age under the Civil Code?
A: 14 y/o for female and 16 y/o for male.
Q: Why was that the marrying age under the Civil Code?
A: Because under the civil code, marrying was for
procreation. So what the civil code is looking at is WON the
female is capacitated to bear children. And 14 was already
considered child bearing age. At present, for a girl to marry
at 14 is unthinkable and shocking. Under Article 1 of the
family code, marriage is no longer only for procreation but
also for establishment of conjugal and family life. The law
now recognizes that some people just want to get married
without having children.
Q: How do we determine a person’s gender?
A: Physical examination of a person’s genitalia.
Q: Do we recognize sexual reassignment through
surgery to change gender?
A: In Republic vs Silverio, the SC laid down the general rule
that gender is determined at birth through the visual
examination of an infant’s genitalia. In the absence of any
mistake, such determination is immutable and can no longer
be changed. Therefore, even if a person undergoes surgical
procedure, he will forever remain to be of the gender that he
was found to be at the time he was an infant. There is no law
recognizing changes brought about by a gender
reassignment procedure.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
As an exception, the SC held in the case of Republic vs
Cagandahan that the gender of a person who is intersex shall
be that which the person chooses to be upon reaching the
age of maturity. An intersex person is one who has both male
and female genitalias. At some point in his life, either the
female or male aspect of his personality will become more
dominant. Whichever becomes more dominant will be the
gender of that person. That would be recognized because the
change was not done through artificial means.
ABSENCE OF LEGAL IMPEDIMENT
Q: We make this determination through?
A: By measuring the status of the parties against the
provisions of articles 37 and 38.
Previously, step brothers and step sisters cannot marry each
other under the civil code. This prohibition has already been
removed under the FC.
Consent Freely Given with the Presence of a Solemnizing
Officer
Q: Whose consent is referred to here?
A: The consent of the parties to be married
Q: Is parental consent an essential requisite?
A: Yes, if the contracting parties are between the age of 18-
21
Q: What purpose does parental consent serve if the
parties are between 18-21?
A: Because marriage is a special contract. The parties need
their parent’s guidance.
Atty Seña:
The absence of parental consent would not mean absence of
consent by the parties. Because there is still consent. They
still consented to the marriage.
Whether or not they are able to give perfect consent,
whether or not they had the capacity to make that decision,
that is determined by the presence or absence of parental
consent.
So take away parental consent when it is required, our
conclusion is that there is still consent but that consent is
defective. That consent is not perfect. Since it is only
defective, then the marriage is not rendered null and void
but only voidable. Valid until annulled.
Q: Who is supposed to give parental consent?
A: 1. Father
2. Mother
3. The surviving parent or guardian
Page 29 of 126
4. Person having legal charge
There is hierarchy under the Family Code.
Atty Seña:
At the top of the list is the father. If the father is around and
does not want to give consent then you cannot skip him and
go to the mother because there is a hierarchy
Q: Do we still [inaudible] with the guardian for the
person who is in charge of the party?
A: Not anymore because under R.A. 6809, the age of majority
was lowered from 21 to 18. So if you’re 18, then you are fully
capacitated and there is no need for you to have a guardian.
And no one could also have legal charge of you.
Q: You may ask, why is it still in the Family Code?
A: This anomaly was born by the fact that R.A. 6809 came
after the Family Code. The Family Code was already in effect
when we have R.A. 6809. That is why the Family Code from
time to time will speak about minors under the age of 21
when in R.A. 6809, there is no such thing. Because if you’re
18 and under the age of 21, you are already of age.
Q: What are the formal requisites?
A: 1. Authority of the solemnizing officer
2. Valid marriage license except in cases provided in
Chapter provided in the first Title of the Family
Code
3. Marriage ceremony which takes place with the
appearance of the contracting party or the
solemnizing officer under declaration that they take
each other as husband and wife in the presence of
not less than two witnesses of the marriage
FIRST REQUISITE: AUTHORITY OF THE SOLEMNIZING
OFFICE
Q: Who are authorized to solemnize marriages?
A: 1. Any incumbent member of the judiciary within
the court’s jurisdiction;
2. Any priest, rabbi, imam, ministers and pastors as
long as at least one of the contracting parties belong
to their religious sect or church;
3. Any ship captain or airplane chief but only in
cases of articulo mortis;
4. Military Commander;
5. Any consul general, consul, vice-consul;
6. Under LGC, the Mayors
Atty Seña:
Mayors cannot have authority to solemnize marriages under
the Family Code, therefore it was only restored actually by
the LGC.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: When did the LGC take effect?
A: January 1, 1992.
Thus, there will be a period of time from the date of
effectivity of the Family Code and the date of effectivity of the
LGC when Mayors did not have the authority to solemnize
marriages.
Q: Did they have authority to solemnize under the Civil
Code?
A: Yes, they have the authority under the Civil Code but this
was removed under the Family Code.
Q: Why was this removed?
A: It was removed in order to curb the unscrupulous practice
of marriages in mass weddings for political purposes. So, it
was taken away from them. But when the LGC was enacted,
the provision was snuck back in. So they had the authority
once more.
Atty Seña:
It is a requirement that the marriage to be solemnized by a
Judge should be done within the territory of the court over
which a judge is presiding.
Q: What if the parties would request the judge to
celebrate the marriage in another venue? And the venue
happens to be outside the territorial jurisdiction of this
court? Would the judge have the authority to celebrate
the marriage?
A: The provisions of the law are very clear, it must be within
the court’s jurisdiction. And there is a reason for this
requirement because the authority of the judge would only
be within the territory of the court where he is presiding.
Outside of that territory, he no longer has any authority.
Even if the parties were to make a request for a different
venue, their capacity to make such a request is necessarily
limited by the territory of the court.
Atty Seña:
Of course it is a different matter when you are dealing with
Justices of the Court of Appeals, Supreme Court or the
Sandiganbayan. Their jurisdiction is nationwide.
Q: What if a Mayor celebrated the marriage in August of
1990. What would be the status of that marriage?
A: The status of the marriage will be void because with the
said date, the Mayor has yet no authority to solemnize any
marriages prior to the effectivity of the LGC.
Q: Supposing that the parties believed in good faith that
the Mayor had the authority to marry them, would this
good faith save the validity of the marriage?
Page 30 of 126
A: Remember that the effect of nullity arising from the
absence of an essential or formal requisite is subject to one
exception, the exception being Article 35, paragraph 2. And
what is the exception? If the formal requisite absent is
authority of the solemnizing officer and either of the party
believed in good faith that the solemnizing officer was so
authorized to celebrate their marriage, then the marriage
may still be valid.
Q: So the thrust of the question here really is do we apply
the exception? Is the exception applicable here?
A: The exception will not apply. It would still be valid
because good faith will not save the validity of the marriage.
The exception does not apply because you cannot claim good
faith based on a mistake of law. Everyone is required to
know the law. Everyone is conclusively presumed to know
the law.
Q: Ano ang pinag-uusapan natin na mistake of law dito?
A: Dapat alam nila na noong panahon na iyon hindi pwedeng
magkasal ang mga mayor.
Q: With regard to the authority of the priest, rabbi,
imam, or minister of any church or religious sect, give
me the complete qualifications.
A: The requirement would be he must be duly authorized,
his authority must be in writing, and he must also be
registered with the Civil Registrar General, and then at least
one of the contracting parties must belong to his church or
religious sect. Those are the requirements that must be met.
Atty Seña:
Now if you have no idea as of yet kung sino itong mga
ministers na ito, there is a section in the Civil Registrar’s
Office where there is a registry of all these ministers, and I
believe that these can be accessed online.
So long as the person declares that he believes in something
and that something is his religion, no one can question him.
Q: What about the fact that neither of the parties belongs
to the church or religious sect?
A: So far no one has questioned that before the Supreme
Court
Q: What about the authority of the ship captain, airplane
chief, or military commander?
A: The ship captain, airplane chief, or military commander,
they have authority to solemnize marriages in articulo
mortis.
Q: In marriages in articulo mortis, is it enough that there
is danger of death or does the law require more than
that?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
A: The law requires much more than that. One of the
contracting parties must really be at the point of death (i.e.
he or she is dying or fatally wounded for the marriage to be
valid).
Q: What happens if after the marriage, the party at the
point of death survives?
A: The marriage would still be valid as provided for the
Family Code.
Q: Would there be any consequence arising from the fact
that the marriage was celebrated in articulo mortis?
A: There would be an economic consequence (it has bearing
on the legitime of the SS). If the marriage is celebrated in
articulo mortis and one of the spouses died, the surviving
spouse would be entitled to ½ of the estate of the deceased
spouse. However, if the other party survives but later on dies
(within three months after the celebration of the marriage),
the surviving spouse would only be entitled to 1/3 of the
estate of the deceased spouse.
Q: Under Article 31, the provision shifts to airplane pilot
instead of airplane chief so do we take it that any pilot
on board the airplane would be authorized to solemnize
the marriage in question?
A: It should be the airplane chief. It cannot be the co-pilot. It
is also the same with the ship captain. It should be the
officer-in-charge of the vessel.
Q: It cannot be the co-pilot?
A: No. it should be the airplane chief. And it should be the
ship captain. It should be the officer in charge of the vessel
who should be solemnizing the marriage.
MARRIAGES SOLEMNIZED BY CONSUL-GENERAL,
CONSUL, VICE-CONSUL
Q: Under what circumstances may the solemnizing
officer may solemnize a marriage?
A: The general-consul, consul, and vice-consul can only
solemnize marriage between Filipino citizens abroad as
provided under Art. 10 of FC. They must celebrate this within
the confines within the consular office abroad because these
consular offices are an extension of Philippine territory.
2ND FORMAL REQUISITE: VALID MARRIAGE LICENSE
Q: What is a marriage license?
A: This symbolizes the participation of the State in the
marriage of the contracting parties. It embodies the
permission of the State in letting the parties get married.
Q: Why does the State give permission to the parties to
get married?
Page 31 of 126
A: Under Art. 1, marriage is the foundation of the family and
an inviolable social institution. That is why the state has to
be involved and acquire the permission of the state.
Atty Seña:
A marriage license is a formal requisite. It is different from a
marriage certificate. Marriage certificate is not a formal
requisite.
Q: How is a marriage license different from a marriage
certificate?
A: If a marriage license is a permission given by the State to
a party to get married.
Q: How do you characterize a marriage certificate? It is
the best evidence of marriage. Is it the only evidence of
marriage?
A: No. There can be other supporting evidence such as
photos of the wedding, invitation, testimonies of the
attending parties.
Since it is only evidence of the marriage, the absence of a
marriage certificate has no bearing to the validity of the
marriage unlike a marriage license.
MARRIAGES EXEMPT TO THE MARRIAGE LICENSE
1. Marriage in articulo mortis
2. If the parties are residing in a remote area with no
means of transportation to the local civil registry –
the law based this to the location with no
transportation where the parties are to be married.
You should mention the reason why there is no
means of transportation. The lack of means of
transportation is on account of the remote location
of the residence of the parties.
Q: When the law says there is no means of
transportation, what does the law actually mean?
A: The law means that the location must be so remote that
the transportation that would enable the parties to appear
to the civil registrar would be so difficult.
It is not total absence as required by law. The law looks at
the difficulty of commuting from the place of residence of the
parties to the civil registrar’s office.
Q: Why was this considered as an exception? Why is it
used as an exception to the requirement of marriage
license?
A: This is in recognition of the fact that when the Family Code
was enacted. There were certain communities or residence
which were remotely located that it would impose additional
burden to the contracting parties to travel in order to get the
marriage license
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Atty Seña:
Our lawmakers were concerned that if you would still insist
on the parties getting a license despite the difficulty, then the
parties would simply opt not to get married. To spare them
of the difficulty and at the same time to encourage them to
legalize their unions so they were included in the exceptions.
3. Marriages between Muslims or among members of
the ethnic cultural communities provided that their
marriages are solemnized according to their
customs or practices
The law recognizes the autonomy of the Muslims and other
similar ethnic communities to determine how to go about
carrying out their marriages or weddings. There is danger
here because sometimes there are certain customs where
marriages which would otherwise be disallowed by FC
would still be allowed to proceed.
EXAMPLE:
A marriage where the parties are both minors. The term that
was used was “kasalang pamilya” where the minors were
married by agreement of all the family members.
It is arguable that no license may be required of marriage
since this was one celebrated under customs of a particular
community. While it may be said that it does not need a
marriage license, this means that the government will not
know that minors are being married. No one polices this
phenomenon where minors are being wed.
RA 11596
RA 11596 was passed in December 2021 and published in
January 2022. This law is an act prohibiting the practice of
child marriages. It is important since it absolutely prohibits
marriages involving children.
Children were defined as those below 18 years of age, or
those above 18 years of age but cannot fully take care of
themselves. What is prohibited is any marriage involving a
child, even though the same may be sanctioned by the
customs and traditions of our communities. It is also
prohibited to make unions outside of wedlock between an
adult and a child, or between children.
Last exception under Art. 34.
Art. 34. No license shall be necessary for the marriage of
a man and a woman who have lived together as husband
and wife for at least five years and without any legal
impediment to marry each other. The contracting parties
shall state the foregoing facts in an affidavit before any
person authorized by law to administer oaths. The
solemnizing officer shall also state under oath that he
ascertained the qualifications of the contracting parties
Page 32 of 126
are found no legal impediment to the marriage. (76a)
(Art. 34, FC)
Q: Why is this an exception?
A: Because this exception encourages people to marry and
enjoy the benefits of marriage.
Q: Why are they encouraged to marry?
A: Under the law, marriage provides benefits for families,
and under Article 1 of the FC, the family is an inviolable social
institution, and so, upon reaching the 5 years, the
government wants these parties to undergo marriage and
enjoy the benefits as provided.
Atty Seña:
Usually, when people have been cohabiting for so long,
without the benefit of marriage, they will become
complacent and would no longer want to get married.
Sometimes, part of the reason is that they do not want to
attract the publicity that they are not married.
What if your grandparents are not married, who have been
lecturing you on morality and good customs, it turns out that
they are not married to each other. You would be shocked.
Put yourselves in their shoes. You would then also be
worried about your grandchildren’s reactions, right?
Paano mo malalaman? Because there will be a publication
for 10 days, under the law. So there, you no longer need a
marriage license, BUT, execute an affidavit that they have
been living for five years or more, immediately preceding
before the wedding, and that they do not have any legal
impediment in marriage.
Q: When should there be no legal impediment to marry
each other?
A: In the case of Niñal v. Bayadog.
ENGRACE NIÑAL V. NORMA BAYADOG
G.R. No. 133778 - March 14, 2000
FACTS:
Petitioners Niñal were the children of Pepito Niñal during
marriage. Pepito killed their mother and one year and 8
months later married respondent Bayadog without
marriage license. However, they executed an affidavit that
they have cohabited together for at least five years and thus
were exempted from securing a marriage license. In Feb
1997, Pepito died and the petitioners filed a petition for
declaration of nullity of the second marriage due to absence
of marriage license. The petition was grounded on the
assumption that it might affect the successional rights of
the Niñals. Bayadog averred that Niñal have no cause of
action and not among the persons who could file an action
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
for “annulment of marriage” under Article 47 of the Family
Code.
The lower court dismissed the petition of the Niñals on the
ground that Annulment/Voidable must be a direct attack.
A void marriage is subject to collateral attack: (1) Case can
be filed by interested parties or heirs even after the lifetime
of the parties. (2) Can also be raised in an estate proceeding
involving property.
ISSUES:
Will the successional rights of the Niñals be affected
because of their father’s second marriage with Bayadog?
Is Bayadog’s contention correct?
RULING:
No, because the second marriage is void. As a general rule,
a marriage license is a requirement for marriage but there
are exceptions: one of which is cohabitation for at least 5
years without legal impediments (Article 76 Old Civil
Code). No third party must be involved during those 5 years
to be exempt from marriage license, otherwise, the law will
encourage immorality. In this case, Pepito and Bayadog
cannot claim their 5-year cohabitation as an exception
because such is an adulterous one. Thus, their marriage
was void and the successional rights of the Niñals will not
be affected.
No. Bayadog contends that the Niñals have no cause of
action because they are not among those listed under
Article 47 of the Family Code. Article 47 provides causes or
grounds of action where a marriage may be annulled.
However, these are grounds for voidable marriages and not
for void marriages. Void marriages may be questioned even
after the death of either of the parties but voidable
marriages may only be questioned during the lifetime of the
parties. The reason why a voidable marriage may only be
questioned during the lifetime of the parties is that it may
leave their offspring as legitimate. On the converse, once
any of the party of a voidable dies, it will be disastrous to
declare their offspring as illegitimate which once lived up
with the knowledge of the legitimacy of their parent’s
marriage. Here, Bayadog’s and Pepito’s marriage was void,
therefore Article 47 does not apply. Furthermore, the heirs
of Niñals may validly question such subsequent marriage.
Atty Seña:
Supreme Court said that the absence of impediment must be
for the entire duration of the 5 years preceding the marriage.
So long as they can establish this in the affidavit, the
marriage they contract without the license would be valid.
Is this prone to abuse? YES.
Page 33 of 126
For some reason, Filipinos do not take oaths seriously. It is
just a suggestion to the truth of their actions, not in actually
telling the truth. Those who do not want to get a license will
just execute an affidavit and blatantly lie. That was the issue
in the case of Republic v. Dayot.
REPUBLIC OF THE PHILIPPINES V. JOSE A. DAYOT
GR No. 175581, March 28, 2008.
FACTS:
Jose Dayot and Felisa Tecson married each other in
November 1986. Their marriage was without a marriage
license because they executed a Joint Affidavit of
Cohabitation whereby they declared that prior to their
intended marriage, they have been cohabiting as husband
and wife for at least five years (as required by law). In July
1993 however, Jose Dayot filed a Complaint for Annulment
of Marriage and/or Declaration of Nullity of Marriage
against Felisa on the ground that in February 1987, he
found out that he was defrauded by Felisa into signing a
marriage contract and other documents which pertain to
their marriage. He claimed that no marriage ceremony
happened and that when he signed the marriage
documents, he thought he was signing documents for the
delivery of certain packages to Felisa.
The Regional Trial Court denied Dayot’s complaint. On
appeal, the Court of Appeals affirmed the RTC as it ruled
that Dayot’s action was already barred by prescription.
The CA ratiocinated that an action for annulment based on
fraud must be raised within four years from the date of
discovery as per the Civil Code.
Dayot filed a motion for reconsideration on the ground that
the exemption from obtaining a marriage license – that
they had cohabited for at least five years as husband and
wife prior to the marriage – was not really complied with.
Dayot asserted the falsity of the Affidavit of Cohabitation
as in fact, they only began cohabiting in June 1986 or about
five months before their marriage in November 1986. This
time, the CA ruled in favor of Dayot.
ISSUE:
Whether or not the marriage between Dayot and Felisa is
valid.
HELD:
No. It was established that indeed, Dayot and Felisa only
began cohabiting in June 1986. Hence, when they married
in November 1986, they had not cohabited for at least five
years to warrant their exemption from obtaining a
marriage license. Since the content of their affidavit of
cohabitation is a falsity, they were not exempt from
obtaining a marriage license before marrying each other.
Their marriage is thus void ab initio. An action to annul a
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
void ab initio marriage does not prescribe, thus, Dayot was
not estopped from questioning the validity of the marriage
even if he filed the complaint only in 1993.
SIDE ISSUE: Will equity work in this case considering that,
on paper, Dayot was part of the falsity?
In its second assignment of error, the Republic (through
the Office of the Solicitor General) puts forth the argument
that based on equity, Dayot should be denied relief because
he perpetrated the fabrication, and cannot thereby profit
from his wrongdoing. This is a misplaced invocation. It
must be stated that equity finds no room for application
where there is a law. There is a law on the ratification of
marital cohabitation, which is set in precise terms under
Article 76 of the Civil Code. Nonetheless, the authorities
are consistent that the declaration of nullity of the parties’
marriage is without prejudice to their criminal liability.
Atty Seña:
Parang isang linggong pag-ibig to. The guy was younger than
the woman. Then he wanted to have the marriage nullified,
and said that they did not live together for 5 years, and
assailed the contents of the affidavit, kasi kamakailan lang
sila nagkakilala, and just signed those for them to marry.
The OSG was on to him. It's impossible to sign without you
knowing or reading those. The OSG was opposing the
petition, since he would be benefiting from his own
falsehood. This is wrong.
The judge solemnizing the marriage cannot be the same
judge who will be administering the oath in the affidavit
of cohabitation.
An MTC judge is authorized to solemnize marriages and
administer oaths.
In the case of [inaudible], lininaw ng Supreme Court that Art.
34 actually contemplates a situation where a judge who
solemnizes marriage is the different judge who should
administer the oath.
Last formal requisite. Marriage ceremony.
Marriage Ceremony
Marriages get complicated now.
Atty Seña:
They do not really add to the validity of the marriage. (Atty.
is referring to the wedding activities done nowadays, like
hashtags, prenup photoshoots, etc.) Because the law simply
requires that the appearance of the parties before the
solemnizing officer and declaration of each other as husband
and wife, with presence of at least 2 witnesses of legal age.
If you go by definition of wedding ceremony in the Family
Code, wedding should be finished in 5 mins tops. Those
Page 34 of 126
extras do not add to the validity of marriage, but they also do
not detract from the validity of marriage, so long as the bare
minimum has been met.
What happens if no marriage ceremony took place? If the
parties simply signed the marriage certificate? Would you
still have a valid marriage certificate? And this is not only
about whether or not there is a valid marriage, because the
implication of a void marriage carries with it the necessity of
filing a petition to nullify (abala at gastos). And then prior to
the case of Pullido, may possibility pa na maging liable ka sa
bigamy.
In one case, Morigo v. People, the Supreme Court said, since
the parties always have a marriage certificate without
undergoing a marriage ceremony, there is no marriage to
speak of. And therefore, there was no need to declare that
marriage a nullity. And for that reason, the groom cannot be
held liable for bigamy or contracting that succeeding
marriage without having that prior marriage declared a
nullity. But as I mentioned, medyo irrelevant na yan ngayon
gawa ng doctrinal ruling sa Pullido v. People.
Now, there’s this other very interesting case, Republic v.
Olaybar.
Q: What is this case all about?
A: The case of Olaybar stems when a couple requested for a
CENOMAR, in the Office, since this is one of the requirements
to get married. Upon receipt of CENOMAR, she discovered
that upon the records, she was already married, as recorded,
but having no knowledge about this, she denied that she
contracted this marriage, and she claimed that the alleged
signature in the said documents were forged, thus she filed a
petition so that the Court will cancel the entry of said
marriage that contained her forged signature. In this case,
the Court said, the (inaudible) on record will prove that her
signature was actually forged. Aside from the certificate of
marriage, which contains the forged signature, there were
no other pieces of evidence that will actually prove that the
said marriage with another person actually existed.
Q: So, what was the issue here?
A: The issue here, was apart from the forging of the
signature, it was also, the issue is whether or not the petition
for cancellation for marriage will affect her marriage to be
declared as void ab initio. So, the Court in this case held that
a petition for correction or cancellation of an entry in the
civil registry cannot substitute for an action to invalidate
marriage, because this would be a direct action in order to
declare the marriage void ab initio.
Atty Seña:
Whether or not it was proper for her to simply sought the
cancellation of her entry of the said marriage in the civil
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
registrar. Instead of filing a petition for nullity. The Supreme
Court said that this is a case of stolen identity. She had no
participation in the marriage at all. Ni hindi nga siya
nakapirma dun sa marriage certificate, ginamit lang yung
pangalan niya, lahat ng details niya. Yung nagpakasal, kinuha
yung details niya, name bday, address. So ginawa niya,
nagfile siya ng petition to cancel the entry. Because if
hihilingin mo na mag file ng petition to nullify the marriage,
that’s too much. There’s no marriage to speak off. And
definitely, it’s easier to cancel the entry than to file a petition
nullifying the marriage. The process itself is more tedious
kung magpapa-nullify ka ng kasal. Ba’t mo naman hihilingin
sa kanya yun, di naman siya nagpakasal talaga. Ninakaw lang
yung identity niya. SO in this case, it’s not even a case of a
void marriage or lack of a formal requisite of marriage
ceremony. It’s simply an inexistent marriage. Kaya pwede na
yung petition for cancellation of entry.
ARTICLE 4
Art. 4. The absence of any of the essential or formal
requisites shall render the marriage void ab initio, except
as stated in Article 35 (2).
Atty Seña:
1. Defect in the essential requisite – marriage shall be
valid until annulled or it will be voidable.
2. Irregularity in the formal requisite – will not affect
the validity of the marriage, but it will render the
person responsible, civilly, administratively and
criminally liable.
Q: What would be an example of an absence of the
essential requisite of consent (lack of consent)?
A: If the marriage is in jest. (biro lang), marriage is part of a
stage play or movie acting – even if they say ‘I do’, they are
really not consenting to being married (focus on the aspect
of lack of consent)
Atty Seña:
Vitiated Consent is not lack of consent; defective consent –
not render the marriage void, but it shall render the
marriage voidable.
Voidable Marriages
1. Vitiated Consent
2. Lack of Capacity/ Impaired Capacity (e.g. Insane
person)
Q: What about those marriages entered into in securing
a green card? Would this qualify as a marriage wherein
there is lack of consent? (contention of wife petitioner in
Republic v. Albios)
Page 35 of 126
The woman found herself an American man who she
contracted to marry her in exchange for a sum of money in
order to obtain a green card. She was not able to get a green
card and since Art. 26(2) was still unaltered in its
interpretation by Republic v. Manalo, she cannot file for
divorce. The man was nowhere to be found to file the
divorce.
REPUBLIC v. ALBIOS
G.R. No. 198780; October 16, 2013
FACTS:
Liberty Albios married Daniel Lee Fringer, an American
citizen. She later on filed a petition to nullify their
marriage. She alleged that immediately after their
marriage, they separated and never lived as husband and
wife because they never really had any intention of
entering into a married state or complying with any of
their essential marital obligations. She said that she
contracted Fringer to enter into a marriage to enable her
to acquire American citizenship; that in consideration
thereof, she agreed to pay him the sum of $2,000.
After the ceremony they separated ways and Fringer never
communicated again with Albios, and in turn she did not
pay the former $2,000.She described their marriage as one
made in jest and, therefore, null and void ab initio.
ISSUE:
Is a marriage contracted for the sole purpose of acquiring
American citizenship void ab initio on the ground of lack
of consent?
RULING:
No. Both Fringer and Albios consented to the marriage.
There was real consent because it was not vitiated nor
rendered defective by any vice of consent.
Their consent was also conscious and intelligent as they
understood the nature and the beneficial and
inconvenient consequences of their marriage, as nothing
impaired their ability to do so. Their consent was freely
given is best evidenced by their conscious purpose of
acquiring American citizenship through marriage. There
was a clear intention to enter into a real and valid
marriage so as to fully comply with the requirements of
an application for citizenship. There was a full and
complete understanding of the legal tie that would be
created between them, since it was that precise legal tie
which was necessary to accomplish their goal.
Under Article 2 of the Family Code, for consent to be valid,
it must be (1) freely given and (2) made in the presence
of a solemnizing officer. A "freely given" consent requires
that the contracting parties willingly and deliberately
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
enter into the marriage. Consent must be real in the sense
that it is not vitiated nor rendered defective by any of the
vices of consent under Articles 45 and 46 of the Family
Code, such as fraud, force, intimidation, and undue
influence. None of these are present in the case.
Therefore, their marriage remains valid.
Atty Seña:
The SC ruled in Albios, that the petition for declaration of
nullity of marriage based on lack of consent may not prosper
because there is consent. Albios consented to get married.
According to the SC, motive is different from consent.
The Court also ruled that the marriage may not be
considered as voidable by reason of fraud. The instances of
fraud under Art. 45 and Art. 46 of the FC contemplates fraud
committed against one of the parties – that is not the case
here. The fraud here was committed by both parties, by
agreement, against the immigration agency of the US.
Q: Now, supposing that the requisite absent is marriage
license. How do we prove that the marriage was contracted
without a license? How do you prove the absence of a
marriage license?
A: Through a certification from the local civil register where
the parties applied for a marriage license that no such license
was issued based on the records.
As per jurisprudence, the SC held that if you can show that
the marriage license in question was actually issued to
another couple, then that too, would prove that the marriage
was celebrated without a license.
ARTICLE 26
When discussing Art. 26 the focus inevitably goes to the
second paragraph. But the first paragraph is equally
important.
Q: What rule is embodied in the first paragraph of Art.
26?
A: It states that all marriages solemnized outside of the
Philippines, and valid there as such, are also considered valid
here in the Philippines, except for marriages considered void
under Art. 35 (1)(4)(5) and (6), Art. 36, Art. 37, Art. 38.
The exceptions qualify the marriage even though the
marriage was perfectly valid where it was celebrated. It does
not matter that the law of the place where the marriage was
celebrated has these grounds for nullity.
ART. 26. All marriages solemnized outside the Philippines,
in accordance with the laws in force in the country where
Page 36 of 126
they were solemnized, and valid there as such, shall also be
valid in this country, except those prohibited under Articles
35 (1), (4), (5) and (6), 36, 37 and 38. (17a)
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (As amended by
Executive Order 227)
ART. 26 (1)
Q: What do these exemptions imply? What does it mean
that we have these exemptions?
Atty Seña:
The exceptions in Art. 26 (1) simply means that you may cite
these grounds to nullify the marriage even though the such
marriage was perfectly valid when it was celebrated. It does
not matter that the law of the place where the marriage was
celebrated does not provide for these grounds for nullity.
For example, you got married in the USA. When you came
back to the Philippines, you sued for nullity alleging that you
are psychologically incapacitated (it is allowed that you
claim that you are the incapacitated party). It does not
matter even if the laws of the USA do not provide
psychological incapacity as a ground for nullity; this is
pursuant to Art. 26 (1)
Q: You married in the USA before the Governor of Texas?
You came back to the Philippines and you want to file a
petition for nullity on the ground that your marriage is
violative of Art. 35 (2) (lack of authority of a solemnizing
officer). Can you now allege this as a ground?
A: No, it is not among the exceptions under Art. 26 (1); which
simply means that you cannot invoke it as a nullity. When it
comes to authority, it pertains to the intrinsic validity of the
marriage, which will be consistent with our adherence to the
lex loci celebrationis doctrine.
FC GROUNDS FOR NULLITY ONLY APPLY TO THE
FILIPINO SPOUSE
Atty Seña:
[WITH REGARD TO ART. 26 (1)] If you are going to invoke
any of these grounds for nullity (such as psychological
incapacity), and these grounds happen to affect your status
and/or the family rights and duties of the party concerned,
make sure that you are invoking these grounds with regard
to the Filipino party in the marriage (Simundac-Keppel v.
Keppel).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

For example, your marriage is a mixed marriage validly
celebrated abroad. Upon your return to the Philippines, you
want to invoke psychological incapacity. However, the
spouse is a foreigner. Hence, you cannot just invoke
psychological incapacity with regard to that foreign spouse
without showing that his own national law also provides for
psychological incapacity as a ground for nullity.
If psychological incapacity is not a ground for nullity in his
national law, the remedy, in this case, is to invoke that
ground of psychological incapacity with regard to yourself.
That ground will apply to you because your national law
(Philippine laws) provide psychological incapacity as a
ground for nullity.
ART. 26 (2)
so under the Rules of Court governing the recognition of
foreign judgments. This foreign spouse might want to have
the divorce recognized in certain instances such as when the
marriage that was dissolved by the divorce was celebrated
in the Philippines, and therefore, recorded here. It may also
happen that this foreigner would want to remarry here in the
Philippines again. He would have to have the previously
contracted marriage canceled in the civil register.
In another instance, the foreigner was not married in the
Philippines, and, therefore, is not recorded in the Philippines
but is divorced. He does not need the court to recognize the
divorce decree for the purpose of remarriage. You should
only advise the foreigner client to simply secure a certificate
of capacity to marry from his consular office.

ART. 26. x x x
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (As amended
by Executive Order 227)

Atty Seña:
So long as the marriage is mixed, Art. 26 (2) will still apply.
We do not care when it became mixed; whether it was mixed
at the outset (that the marriage consisted of a Filipino and a
foreigner) or whether it became mixed after the celebration
of the marriage (that the marriage was celebrated by two
Filipinos, but one later acquired a foreign nationality).

Due to Republic v. Manalo a Filipino in a mixed marriage may

validly file for a petition for a decree of divorce, provided
that that divorce decree will allow the foreign spouse to
remarry in accordance with his national law. This functions
as an exception to the Nationality Principle in Art. 15;
wherein if it is adhered to, Filipinos cannot obtain a decree
of divorce, no matter where they go.

However, in marriages where both parties are Filipinos,

they will not be covered by this Art. 26 (2).

In order for a Filipino spouse to be benefitted from a divorce

decree, he must file a petition for its recognition under the
provision of Art. 26 (2). Simultaneously with the recognition
of that divorce decree, you may also pray for the declaration
by the court that you are thereby capacitated to remarry. The
right of action under Art. 26 (2) is to serve exclusively for
Filipinos; it cannot be invoked by the foreign spouse.

However, this does not mean that the foreign spouse cannot
have his divorce decree recognized. He can, but he has to do

Page 37 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

VOID MARRIAGE v. VOIDABLE MARRIAGE VOID MARRIAGES

VOID MARRIAGE VOIDABLE MARRIAGE

ARTICLE 35
1 Action to nullify may be Action to annul may only
brought by a third be filed by the parties. Article 4
Article 40 ARTICLE 36
person such as the
prior spouse. Article 41
Article 44
2 Not subject to Maybe ratified.
Article 53
ratification.
3 Direct and collateral Direct attack only.
attack
4 Action is Action is subject to ARTICLE 37 ARTICLE 38
imprescriptible prescription.

Atty Seña:
1 - Action to nullify may be brought by a third person such as Atty Seña:
the prior spouse. These would be the provisions in the FCC governing null and
void marriages.
To qualify, we are speaking here of a right of action to file a
petition to nullify. This constitutes a direct attack. Under the
rules on nullity, the Supreme Court limited the right of action
to the parties of the marriage.

However, that right of action has been extended to include

the prior spouse where the subsequent marriage is assailed
as bigamous. The reasoning here is that the parties of the
bigamous marriage do not qualify as the aggrieved spouse;
which would be the spouse in the previous marriage.

This limitation with regard to standing to file the petition is

limited to a direct attack is being emphasized because when
you are dealing with a void marriage, you can attack its
validity in any proceeding where such becomes relevant. For
instance, when you are dealing with the settlement of the
estate of the deceased and you wish to exclude a subsequent
spouse of the deceased. You can do that in the proceeding for
the settlement of the estate of the deceased; which is a
collateral attack. Unlike in a direct attack, if you are making
a collateral attack, you need not be a party to the marriage;
you simply need to be an interested party whose rights are
affected by the nullity of the marriage.

Page 38 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
SEPTEMBER 9, 2022
VOID AND VOIDABLE MARRIAGES
VOID VOIDABLE
Action to nullify may be Action to annul may only
brought by a third person be filed by the parties
such as the prior spouse
Not subject to ratification May be ratified
Direct and collateral attack Direct attack only
Action is imprescriptible Action is subject to
prescription
WHO HAS THE STANDING TO FILE
Atty. Seña:
Topmost on our list would be the distinction as to who has
standing to file a petition for nullity or petition for
annulment. Under the rules on declaration of nullity and
annulment, the right of action to file a petition either to
nullify or to annul is reserved only in favor of the parties to
the marriage. But that is by way of direct attack.
Now, for void marriages, we have an exception in that when
it comes to bigamous marriages, the right of action is also
extended to the aggrieved prior spouse. The spouse in the
prior marriage. And this was rationalized by the Supreme
Court by saying that in the case of a bigamous marriage, the
party who is aggrieved by that bigamous marriage is not
really either of the parties to the subsequent marriage but
rather it would be the prior spouse of the party who
contracted the two successive marriages.
But we also have to understand that a direct attack is
different from a collateral attack.
Collateral attack
When you assail the validity of a marriage in a proceeding
where the declaration of the nullity of the marriage is not the
main objective. For instance, if you are involved in a
proceeding for the settlement of estate and the deceased
contracted two marriages during his lifetime and the
intention of his heirs from his first marriage is to exclude the
subsequent spouse. What they can do is to assail the validity
of the second marriage in the proceeding for the settlement
of the estate of the deceased spouse. This is a collateral
attack because you will establish the nullity of marriage in
the same proceeding. It will be an incidental issue and you
are allowed to do that because what is involved is a null and
void marriage.
Had it been a voidable marriage, you will not be allowed to
do the same.
Page 39 of 126
Q: Paano naman kung halimbawang by way of defense? Kasi
sa example natin, seeking to exclude the subsequent spouse,
the party assailing the validity of the marriage is essentially
asserting a right, perhaps, a right to a bigger legitime. Kapag
inexclude mo ‘yung wife, mas malaki ‘yung hahatiin ng
magkakapatid.But what if you would want to make that
collateral attack by way of defense?
A: This has been illustrated to us by the recent
pronouncements of the Supreme Court in the case of Pulido
vs. People.
In Pulido vs. People, maliwanag na sinabi ng Supreme Court
that you can invoke the nullity of either the prior or
subsequent marriage without need of presenting a prior
decree of nullity. In other words, in the same proceeding for
the prosecution for bigamy, you may establish the nullity of
either the first or the second marriage. Collateral attack pa
rin ito, but this around, it is by way of defense.
LUISITO G. PULIDO VS. PEOPLE
G.R. NO. 220149 July 27, 2021
FACTS:
Pulido and Arcon were married on September 5, 1983 in
a civil wedding at the Municipal Hall of Rosario Cavite. In
2007, Pulido stopped going home to their conjugal
dwelling. Upon confrontation, Arcon found out that
Pulido has an affair with Baleda and they were married
on July 31, 1995.
In December 2007, Arcon filed bigamy case against
Pulido and Baleda.
Pulido defended that both of his marriages was void ab
initio. His marriage with Arcon is void due to lack of
marriage license, and his marriage to Baleda is also void
due to lack of marriage ceremony.
Baleda on the other hand claimed that she only knew
Pulido's prior marriage sometime in April 2007 and that
she filed a Petition to Annul their marriage before the
filing of the bigamy case. The court even declared their
marriage null and void for being bigamous on October 25,
2007.
The trial court convicted Pulido of bigamy but acquitted
Baleda. Appeals and motions of Pulido were likewise
denied. The court ruled in reliance with the provision of
Art. 40 of the Family Code.
Meanwhile in 2015, the court in a civil case declared
Arcon and Pulido's marriage null and void. A decree of
absolute nullity of their marriage was issued in 2016.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
ISSUE:
Whether Judicial Declaration of Nullity of Marriage is
necessary to establish the invalidity of a void ab initio
marriage in a bigamy case – NO
RULING:
No. The court in this case abandons its earlier rulings and
hold that a judicial declaration of absolute nullity is not
necessary to prove a void ab initio prior prior and
subsequent marriages in a bigamy case. Consequently, a
judicial declaration of absolute nullity of the first and/or
second second marriages presented by the accused in the
prosecution for bigamy is a valid defense, irrespective of
the time within which they are secured.
The court based the foregoing conclusion and
justification on the following:
Retroactive effects of a void ab initio marriage in
criminal prosecutions for bigamy.
The court stressed out that the nullity of a void ab
initio marriage, being inexistent under the eyes of the law
can be maintained in any proceeding in which the fact of
marriage may be material, either direct or collateral, in
any civil court between parties at any time, whether
before of after death of either or both the spouses. A void
marriage is ipso facto void without need of any judicial
declaration of nullity. This requirement is necessary
under Art. 40, where the law treated a void ab
initio marriage as valid for purposes of remarriage.
Thus, being inexistent from the beginning, the void first
marriage does not qualifies nor satisfies one of the
essential elements of bigamy which requires the
existence of a prior valid marriage. Logically, there is no
first marriage to begin with. As for the retroactive effect
of a void ab initio marriage, there is nothing to annul nor
dissolve as the judicial declaration of nullity merely
confirms the inexistence of such marriage. This also
explains why the second element of bigamy which
requires that the former marriage has not been legally
dissolved or annulled is wanting in the case of void ab
initio prior marriage. The RPC provision regarding
bigamy pertains to contracting a subsequent marriage
when a voidable or valid first marriage is still subsisting.
In the same vein, when the accused contracted a
subsequent void ab initio marriage, which is void other
than it being bigamous, it has the effect of not having
entered into a subsequent marriage at all because the
same is inexistent from the beginning. Thus, negates
existence of one of the elements of bigamy which
requires that the accused contracts a second or
subsequent marriage. A subsequent judicial declaration
Page 40 of 126
of absolute nullity of the second marriage merely
confirms its inexistence.
In both instances, the accused may validly raised the
defense of a void ab initio marriage without a judicial
declaration of nullity.
Article 40 of the Family Code requires a judicial
declaration of absolute nullity for purposes of
remarriage but not as a defense in bigamy.
The Court clarifies that the requirement under Art. 40
(Final judgment requiring the previous marriage void)
need not be obtained only for purposes of remarriage.
The word "solely" under Art. 40 qualifies the "final
judgment declaring such previous marriage void" and
not "for purposes of remarriage".
RATIFICATION
Atty. Seña:
Another point of distinction is that voidable marriage, it is
subject to ratification. A void marriage is not.
Q: What does ratification do?
A: It cleanses the marriage of its defects. Kaya nga kapag may
ratification na, kahit hindi pa ubos ‘yung ating prescriptive
period to file the action, we can no longer file a petition for
annulment because we no longer have any ground since the
defect has already been washed away by ratification.
VOID MARRIAGES
Q: What are the marriages considered void under the
Family Code?
A:
Art. 35. The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen years of
age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized
to perform marriages unless such marriages were
contracted with either or both parties believing in good faith
that the solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered
the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing
under Article 41;
(5) Those contracted through mistake of one contracting
party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article
53.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Art. 36. A marriage contracted by any party who, at the time
of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage,
shall likewise be void even if such incapacity becomes
manifest only after its solemnization. (As amended by
Executive Order 227)
Art. 37. Marriages between the following are incestuous and
void from the beginning, whether relationship between the
parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half
blood.
Art. 38. The following marriages shall be void from the
beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or
illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and
the adopted child;
(6) Between the surviving spouse of the adopted child and
the adopter;
(7) Between an adopted child and a legitimate child of the
adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry
the other, killed that other person’s spouse, or his or her own
spouse.
Atty. Seña:
That will be the obvious definitions of void marriages under
the Family Code. But remember, we have Article 4 too.
Article 4 says that any marriage which lacks any of the
essential or formal requisites would also be null and void.
That, too, would be a source for void marriages.
Art. 4. The absence of any of the essential or formal
requisites shall render the marriage void ab initio, except as
stated in Article 35 (2).
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
An irregularity in the formal requisites shall not affect the
validity of the marriage but the party or parties responsible
for the irregularity shall be civilly, criminally and
administratively liable.
Atty. Seña:
Then we have Article 40. Article 40 when taken together
with Article 50, provides us with yet another void marriage.
A subsequent marriage that is void under Article 40.
Page 41 of 126
Art. 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a
final judgment declaring such previous marriage void.
Art. 50. The effects provided for by paragraphs (2), (3), (4)
and (5) of Article 43 and by Article 44 shall also apply in the
proper cases to marriages which are declared ab initio or
annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of
the spouses, the custody and support of the common
children, and the delivery of third presumptive legitimes,
unless such matters had been adjudicated in previous
judicial proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified of
the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it
is situated, shall be adjudicated in accordance with the
provisions of Articles 102 and 129.
Atty. Seña:
Then we also have Article 44. And Article 44 would refer to
a terminable subsequent marriage terminated by the filing
of the notice of reappearance where both parties acted in
bad faith.
Art. 44. If both spouses of the subsequent marriage acted in
bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
dispositions made by one in favor of the other are revoked
by operation of law.
Atty. Seña:
I think I’ve also emphasized to you how the good faith or the
bad faith of the parties would have no bearing on the validity
of a marriage. Except for Article 35 (par. 2), and to a certain
extent, Article 41 and Article 44.
Ano ang ibig nating sabihin na irrelevant ang good faith or
bad faith of the parties? Kasi kung halimbawang you will be
marrying your first cousin and you did not know that you
were so related, your lack of bad faith will not save your
marriage. It will still be null and void.
Similarly, if you were to marry using a fake marriage license.
Kahit na hindi ikaw ‘yung nag-procure nung fake marriage
license, kahit na in good faith ka, that marriage will still be
null and void.
Or if you marry someone who is already previously married
and you did not know, good faith ka, but your good faith will
not save your marriage. It will still be a nullity.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

But this is not to say that your good faith or the bad faith of Atty. Seña:
the other party would not have consequences. That will be Art 35(4) should be understood in two concepts:
factored in when it comes to forfeitures that will be meted 1. It defines bigamous and polygamous marriages as
against the guilty party or the party in bad faith. That is null and void.
provided for under Article 147 and Article 148 (NCC). And 2. It provides for an exception: if article 41 applies,
where applicable, also under Article 44 and Article 43, (FC). then the marriage cannot be considered bigamous
or polygamous because it would be considered a
VOID MARRIAGES UNDER ARTICLE 35 (FC) valid terminable subsequent marriage under article
41.
Art. 35. The following marriages shall be void from the
beginning: Art 35(5). Those contracted through mistake of one
(1) Those contracted by any party below eighteen years of contracting party as to the identity of the other; and
age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized Atty. Seña:
to perform marriages unless such marriages were Involves mistakes as to the identity of others. This is a
contracted with either or both parties believing in good faith mistake in the physical identity of the other party. You must
that the solemnizing officer had the legal authority to do so; have a mistake in the other party (person you wanted to
(3) Those solemnized without license, except those covered marry). This is a reiteration of article 4 because in this case,
the preceding Chapter; we have absence of consent which is an essential requisite of
(4) Those bigamous or polygamous marriages not failing a valid marriage.
under Article 41;
(5) Those contracted through mistake of one contracting Art 35(6). Those subsequent marriages that are void
party as to the identity of the other; and under Article 53
(6) Those subsequent marriages that are void under Article
53. Atty. Seña:
If you take article 35 together with article 40, we can come
Atty. Seña: up with an enumeration of those subsequent marriages that
The first ground would tell us that those who are underage are void under the family code.
if they contract a marriage even with the consent of their
parents or guardians, the marriage should be null and void. 35(4) – bigamous or polygamous marriages subject to
exceptions under article 41
Even without Article 35 (par. 1), this instance would still be 40 – marriages contracted subsequent to a prior void
under Article 4 because you lack an essential requisite which marriage
is capacity to marry. 53 – those void marriages contracted subsequent to a prior
void marriage under article 40.
Art. 35(2). Those solemnized by any person not legally
authorized to perform marriages unless such marriages VOID SUBSEQUENT MARRIAGE
were contracted with either or both parties believing in
good faith that the solemnizing officer had the legal Status of Subsequent Marriages:
authority to do so. 1. Marriages void under article 35(4)
2. Terminable subsequent marriages
Atty. Seña: 3. Marriages void under article 40
Art. 35(2) is a reiteration of Article 4: Absence of a formal 4. Marriages void under article 53
requisite which is the authority of the solemnizing officer. By
way of exception, if either party are in good faith that the VOID UNDER VOID UNDER VOID UNDER
solemnizing officer had the legal authority to do so, then the 35(4) ARTICLE 40 ARTICLE 53
marriage would still be valid. Prior marriage is Prior marriage is Prior
valid or atleast, void marriage is
Art. 35(3). Those solemnized without license, except those presumably valid void under
covered the preceding Chapter article 40 or
voidable
Art 35(4). Those bigamous or polygamous marriages not under article
failing under Article 41 45

Page 42 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

No decree of The subsequent The prior 147/148. They actually have a community property or
annulment (pulido marriage is marriage is conjugal partnership. But the children are illegitimate.
vs people) is contracted declared a
secured for the without having nullity or 3rd column: Void under article 53
prior marriage and the prior marriage annulled but 40 vs 45:
the subsequent declared a nullity there is no
marriage does not compliance In article 40, the prior marriage is simply void for any reason.
fall under article with the But in article 53, the prior marriage must be void under
41 provisions of article 40.
article 52
Children are Children are Children are So if you would follow the rules as to how a marriage
illegitimate and illegitimate but legitimate but becomes void under article 40, it means that if you are going
parties are the parties are the parties to apply article 53, you will have at least three marriages.
governed by co- governed by are governed 1. 1st marriage is void
ownership under either the ACP or by co- 2. 2nd marriage was contracted without having prior
article 148 the CPG in ownership 1st marriage declared a nullity, thus void under
accordance with under article article 40
Article 43(2) to 147 3. 3rd marriage void for not having complied with the
(5) in relation to registration requirements under article 52, which
article 50 only applies to marriages void under article 40 or
marriages voidable under article 45.
Atty. Seña:
These three different columns will show you the three Now let’s go to article 35(4) and correlate this with article
instances under which you would have different subsequent 41. Why? Because Article 41 is an exception. If you can show
marriages. that the subsequent marriage falls under article 41, then it
cannot be considered as bigamous or polygamous.
1st column: Void under article 35(4)
For you to have a marriage that is void under article 35(4), VALID TERMINABLE SUBSEQUENT MARRIAGE
the prior marriage must be valid or atleast presumably valid.
ARTICLE 35(4) ARTICLE 41
There must be no decree of annulment secured for the prior Prior marriage is valid or at Prior marriage is subsisting
marriage and the subsequent marriage does not fall under least presumably valid
article 41.
No decree of nullity is No decree of nullity is
If your marriage is bigamous under 35(4), then the children secured for the prior secured for the prior
born to this marriage are illegitimate and the parties are marriage and the marriage but there is a
governed by co-ownership under article 148. Under article subsequent marriage does court declaration for the
148, if one of the parties is previously married, there would not fall under Article 41 presumptive death of the
be forfeiture because obviously, one of them acted in bad absent spouse
faith.
Children are illegitimate Children are legitimate and
2nd column: Void under article 40 and parties are governed by the parties are governed by
The difference of article 40 is that your prior marriage is void co-ownership under Article the ACP or the CPG
and you did not secure a decree of nullity to dissolve that 148 provided the subsequent
marriage or declare that marriage a nullity. Following Pulido marriage is terminated in
vs People, you will not be liable for bigamy if your contract a accordance with Article 42
subsequent marriage without having your prior void
marriage declared a nullity. But your subsequent marriage Atty. Seña:
will still be declared void under article 40 in relation to The Terminable Subsequent Marriage has a counterpart in
article 53. Civil Code. Under the Civil Code, it was referred to as a
Voidable Bigamous Marriage. It is valid until it is annulled.
The difference of void subsequent marriage under article 40 Pero that’s the catch, you will have to file a petition for
is that the parties do establish a property regime (ACP/CPG). annulment to put an end to the subsequent bigamous
They are not governed by co-ownership under article marriage.

Page 43 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Medyo mahirap yun kasi talagang mag-ffile ka ng petition for
annulment. But the Family Code, it carried over that concept
of subsequent marriage that may be entered into during the
subsistence of a prior valid marriage. Yun nga lang, they
made it easier to put an end to the terminable subsequent
marriage.
Instead of requiring the filing of a petition for annulment of
marriage, you only need to file a notice of reappearance. It
does not have to be filed by the absent spouse himself, it can
be filed by any interested party without prejudice to the
right of the parties of the subsequent marriage to question
the fact of reappearance. Pero, it made it a lot easier. Kaya
terminable subsequent marriage siya.
But the concept remains the same, there would be a prior
subsisting marriage that is presumably valid and yet the
spouse present (the spouse that was left behind) may be
allowed to contract a subsequent marriage.
Make no mistake about if the prior marriage has not been
dissolved pero its effects are essentially suspended and the
suspension is on account of a continuing presumption that
the absent spouse has already died. So try to wrap your mind
around that concept.
There are two marriages in existence but it is the latter
marriage (the one referred to as a terminable subsequent
marriage) which is allowed to have effects. In the meantime,
the prior marriage is suspended at least until there is a notice
of reappearance that is filed, either by the absent spouse or
any interested party.
Now, yung concept natin ng terminable subsequent
marriage, I want you to look at that as “swinging door”. If it
opens, that means that hindi tayo pumasok doon sa
exception. If it swings one way, then you may end up with a
bigamous void marriage. But if it swings the opposite way,
then you may have a valid terminable subsequent marriage.
So it’s an all or nothing proposition. Either you have a valid
marriage or you have a void marriage under the same
circumstances.
Q: What is important for us to have a terminable subsequent
marriage?
A: You have to comply with the requisites.
Q: What are these requisites?
A:
1. The prior spouse had been absent for four
consecutive years unless the disappearance take
place under the circumstances enumerated in Article
391;
Page 44 of 126
● The prior or absent spouse must have been absent
for four consecutive years and if the disappearance
takes place under the circumstances enumerated
under Article 391. (There is danger of death, then
the period is shortened to two years.)
● Circumstances of danger:
Article 391. The following shall be presumed dead for all
purposes, including the division of the estate among the
heirs:
1) A person on board a vessel lost during a sea voyage, or
an aeroplane which is missing, who has not been heard
of for four years since the loss of the vessel or
aeroplane;
2) A person in the armed forces who has taken part in
war, and has been missing for four years;
3) A person who has been in danger of death under other
circumstance and his existence has not been known for
four years.
Q: When there is absence that takes place under these
circumstances, when do we consider the point of death to
have taken place? Would it be at the end of the required
period of two years or would it be at the moment when the
disappearance took place?
A: From the end of the required period.
Atty. Seña:
In one case involving insurance claims (Pantollano vs.
Korphil Ship Manning and Management Corporation G.R. No.
169575), the SC said that if the alleged disappearance took
place on August 2, 1994, then the death would be presumed
to have taken place four years after August 2, 1994 or August
2, 1998. Yung four-year period ditto this is what is provided
under Article 391. That is the correct interpretation kasi we
would not be able to comply with the requirement of the
period unless you wait it out. That’s the reason why we have
that period fixed in the law and that period would be
shortened to two years if you are invoking Article 391 for
purposes of remarriage.
It’s only in relation to Article 41 that we are allowed to file a
Petition for Declaration of Presumptive Death. There is no
other cause of action that will allow us to file a petition for
this purpose. That is not to say that you cannot establish
presumption of death in any other proceedings because you
are allowed to do that. Yun nga lang, if you’re going to invoke
this presumption of death for purposes of opening one
succession, then what you do is make the allegation and you
present your evidence to one of the presumptions of death
in the same proceeding for the settlement of the estate of the
absentee.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: What must you allege without fail if you’re going to
file a Petition for the Decree of Presumptive Death?
A: To avoid having your petition dismissed, you must always
allege that you are filing the petition because you have the
intention to remarry. You must bring it within the scope of
Article 41. If you file a petition for the issuance of a decree of
presumptive death without making that allegation but you
have intentions to remarry or that the petitioner has the
intention to remarry then the petition will be dismissed.
2. The spouse present has a “well-founded belief”that
the absent spouse was already dead; (The good faith
of the absent spouse or the present spouse is
immaterial.)
3. There must be a “summary proceeding” for the
declaration of presumptive death of the absent
spouse; and
4. There is a court declaration of presumptive death of
the absent spouse
Q: What constitutes well-founded belief?
A: You’ll have to admit that the law is anomalous for allowing
the spouse present (spouse that was left behind) to contract
another marriage when there is no certainty that the absent
spouse (spouse who disappeared) is dead. That is why the law
requires that the spouse present must have acted in good
faith. As in fact, the validity of the terminable bigamous
marriage would rise and fall on the basis of good faith or bad
faith of the spouse present.
The good faith or bad faith of the absent spouse and the
subsequent spouse (second spouse) would be immaterial to
the validity of the terminable subsequent marriage.
You’ll have to understand: ‘Yung absent spouse, alam niya
kung nasaan siya. It’s not like he doesn’t know that he is not
missing. He knows; and the absent spouse will always be
married to the spouse present no matter what is done by the
spouse present. Kahit kumuha pa ng decree of presumptive
death si spouse present. Kahit magpakasal pa si spouse
present, absent spouse remains to be married kaya lang
‘yung rights niya and even the effects of his marriage to the
spouse present will be suspended.
Q: Now, what is the basis of good faith?
A: What is required by the law is a well-founded belief that
the absent spouse is already dead. The requirement of the
Supreme Court is there must be an active, positive, and
diligent effort.
And if the spouse present simply says: “I asked around.”, “I
asked his family.”, “I asked his friends” and yet does not even
give details. That will not be considered as sufficient proof
Page 45 of 126
that efforts were exerted, and since that will not be
considered as sufficient, wala kang well-founded belief.
Doon tatayo ‘yung decree of presumptive death. The effect of
having that presumptive death is to establish the good faith
of the spouse present (at least until that point until the
decree of presumptive death is issued); and it is so important
because unless and until that decree of presumptive death is
set aside, there is no evidence that you can present that will
destroy the evidentiary effect of that decree. Tatandaan niyo,
kapag ‘yan ay inissue ng korte, ‘yan ay katunayan na the
court found that you did exert active effort and that you had
a well-founded belief that the absent spouse wals already
dead.
This decree will be issued in a summary proceeding at kapag
sinabi mong a summary proceeding, it is an abbreviated
proceeding. It is not litigious and then once a decree is
issued, it is immediately final and executory because there is
no MR or appeal available.
Q: If you would want to have an extreme example,
halimbawa nilabas na ‘yung decision granting the petition
and declaring that there is presumptive death at pumunta si
absent spouse sa korte at pagdating niya doon mayroon na
talagang decision declaring him presumptively dead. He
cannot do anything about it. Hindi siya pwedeng magfile ng
MR or appeal because by legal fiction, it’s too late. What is his
remedy?
A: To file a petition for certiorari because this is a remedy
that we have in case there is no appeal available.
Q: Kailangan ba laging mag-file ng petition for certiorari
if you have been declared presumptively dead?
A: It depends. If your wife or your husband has not
contracted a subsequent marriage yet, then you would still
have a window whereby you’d be able to establish bad faith
on the part of the parties and render the marriage that they
will be contracting should they go ahead as null and void
because the spouse present would be in bad faith hence you
would not need to file a petition for certiorari. Actual
knowledge that you are alive is enough to place them in bad
faith.
The protection given to the spouse present of the decree of
presumptive death no longer extends to after the decree is
issued. Ibang usapan na ‘yon kasi ang requirement ng batas,
the spouse present must be in good faith up to the time he or
she contracts the subsequent marriage. You appear at the
wedding and shouting na, “buhay ako”. Talaga naming bad
faith na siya. Hindi siya pwede magtago doon sa decree of
presumptive death to claim good faith kasi alam na niyang
buhay ka eh. He or she cannot close her eyes to that reality.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

Q: Kung naikasal na, ano ang gagawin mo?

SANTOS v. SANTOS
A: Kung abogado mo ay graduate ng UST, papayuhan ka:
“huwag ka mag file ng notice of reappearance kasi kapag
Makapal ang muka ng husband. He filed a petition to
nagfile ka ng notice of reappearance, you are conceding the
declare the wife as presumptively dead and he claimed
validity of that subsequent marriage and you do not want to
that the wife had been missing for 12 years, but they were
do that.”
living tofether in the conjugal dwelling. They were
together until shortly before he got married. The wife had
Atty. Seña:
no idea that she was being killed legally speaking by her
You are conceding the validity of that subsequent marriage.
husband. What he did was he did not even give the correct
You do not want to do this because if you conceive to the
address. He did not cause the publication of the petition so
validity of the subsequent marriage, that marriage would
nobody was able to tell the wife. The wife filed a petition
have had effects that shielded more of that marriage is the
for annulment of judgment on the ground of instrinsic
legitimate that would have absolutely community of
fraud. CA said there is no need to file a petition for
properties, they would have conjugal partnership, if there
annulment, you have to file for a notice of reappearance.
are donations propter nuptias these will remain valid unless
the done acted in bad faith.
When she went to SC, SC said do not file for reappearance.
Better to file a decree of presumptive death be set aside.
If you are the absent spouse, you are already killed in the eye
Once set aside, she can now file the petition to hae the
of the law. Then, his kids with the new wife will be that of the
marriage null and void for being bigamous in character.
same level as your own kids. Then, if they will acquire
properties in the subsequent marriage, those properties
during the marriage will also be presumed as either conjugal MODES OF TERMINATING TSM
or community. Would you want that? No. as much as possible
gusto mong lumugmok ng mga pumatay sayo legally. The There are two ways to put an end to a terminable subsequent
advice should be No, you do not want that. You would want marriage:
to declare that marriage a nullity. The first step to doing that 1. Filing a notice of reappearance; or
is to have that decree of presumptive death be set aside 2. Having the subsequent marriage void on the ground
because this is the obvious foundation of good faith. of its bigamous character

So, if you have evidence that somewhere between the time To be clear, these two are not the only ways by which
when the decree was issued and the date of the wedding, you terminable subsequent marriage may be terminated or may
had communication (text, like FB post, or tagged) anything be dissolved. There are other ways. Remember that the
which would prove that the present spouse knew that the mode by which the terminable subsequent marriage is
absent spouse was alive. If you are able to do that, either set dissolved would also determine the consequences that
aside the decree of presumptive death or show evidence that would arise from its dissolution.
between the time that the decree was issued and the time
that the wedding took place, the spouse present knew that MODES OF TERMINATING A TSM AND ITS
the absent spouse was alive, then you will now have basis to CONSEQUENCES
have that marriage declared a nullity for being bigamous in Death The subsequent marriage will
character. be treated like any ordinary
marriage terminated by death
Like a swinging door, if it would not fall in Art. 41, then and since the presumption
automatically, t will be a marriage that is bigamous or relating to the death of the
polygamous in character. absent spouse continues, it is the
present spouse which shall be
The problem is the period for certiorari is too short. This entitled to the funeral and death
supposes that you learned about the decision. But what if it benefits of the spouse present.
was concealed from you? Not just the decision but the fact (SSS v. Vda de Bailon, 2006)
that a proceeding was even filed to have you declared Annulment The subsequent marriage will
presumptively dead. This is what happened in Santos v. be treated as valid until annulled
Santos. and the effects of annulment will
be applied.
Declaration of The effects of nullity of marriage
nullity will be applied depending on the
ground for nullity. But if the

Page 46 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
ground is 35(4), the spouse
present must be shown to have
contracted the marriage in bad
faith.
Filing of Notice of Articles 43 and 44 of the Family
Reappearance Code
DEATH
If the TSM is dissolved by death, then what would happen is
that it will remain to be valid. With the death of the spouse
present, the presumption regarding the death of the absent
spouse would also subsist and could no longer be put to an
end by filing a notice of reappearance because there is no
longer any TSM to put an end to by filing a notice of
reappearance because death had already intervened.
What is the consequence of death?
With the death ending the TSM, the absent spouse will
remain to be presumptively death and this will give way to
the subsequent or second spouse to have the right to receive
whatever death benefits may accrue in favor of the spouse
present. This was the ruling of SC in SSS v. Vda. De Bailon.
*refer to the slides*
ANNULMENT
Similarly, if the subsequent marriage is terminated through
an annulment, then it will be treated as just like any valid
until annulled marriage. You will be applying the effects of
annulment.
DECLARATION OF NULLITY
Q: Can you have the subsequent marriage a nullity on
grounds other than its bigamous character?
A: YES. If the subsequent marriage was conducted without a
marriage license, then it will be null and void or if either
party to the subsequent marriage is psychologically
incapacitated, you will be applying the effects arising from a
nullity under Art. 36
Atty. Seña:
Essentially, co-ownership under Art. 147, and then
legitimate children.
Remember, in real life, hindi porket terminable subsequent
marriage ka, eh hindi na possible na may iba pang
kakulangan sa pagpapakasal ng parties.
Filing of Notice of Reappearance
If the filing is due to this, this carries the implication that the
validity of the terminable subsequent marriage is deemed
conceded by the absent spouse. In which case, we apply the
effects of Art. 43 and 44 of the Family Code.
Page 47 of 126
ONLY EXCEPTION: is if the subsequent marriage is
terminated by filing a notice of reappearance, and both
parties are in bad faith.
Q: Why is it the exception?
A: Because here, the marriage becomes null and void on
account of the bad faith of BOTH parties even though
ordinarily, since the marriage is solved by filing a notice of
reappearance, and deemed conceded by the absent spouse,
that is why this is an exception.
If you file a notice of reappearance, you no longer observe
good faith or bad faith of the parties for purposes of
determining whether the marriage is valid or not, since you
have considered the validity.
BUT, you still look on the bad faith of the parties for purposes
of the economic sanctions under Art. 43 of the Family Code.
For instance: donation propter nuptias will be automatically
revoked if the done acted in bad faith (either spouse present
or the subsequent spouse)
Ordinarily, the bad faith of the spouse present will render the
subsequent marriage null and void, right?
Now, if the absent spouse files a notice of reappearance, we
no longer look at the bad faith of the spouse present to
determine validity kasi conceded na nga.
BUT, we look at the presence of bad faith for economic
sanctions. Donations, splitting of profits.
THERE IS AN EXCEPTION. WHY. (complicate our lives a
little bit more)
Art. 43. The termination of the subsequent marriage
referred to in the preceding Article shall produce the
following effects:
(1) The children of the subsequent marriage
conceived prior to its termination shall be
considered legitimate;
(2) The absolute community of property or the
conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her
share of the net profits of the community property or
conjugal partnership property shall be forfeited in
favor of the common children or, if there are none,
the children of the guilty spouse by a previous
marriage or in default of children, the innocent
spouse;
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
(3) Donations by reason of marriage shall remain
valid, except that if the donee contracted the
marriage in bad faith, such donations made to said
donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of
the other spouse who acted in bad faith as beneficiary in
any insurance policy, even if such designation be
stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage
in bad faith shall be disqualified to inherit from the
innocent spouse by testate and intestate succession.
(n)
Atty. Seña:
As to (5), It is still possible that there will be no succession
between them as husband and wife, but they may be
relatives within the 5th civil degree, so there may still be
intestate succession.
Art. 44. If both spouses of the subsequent marriage acted
in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
dispositions made by one in favor of the other are
revoked by operation of law. (n)
Art. 40. The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage
void. (n).
Art. 35. The following marriages shall be void from the
beginning:
xxx
(4) Those bigamous or polygamous marriages not failing
under Article 41;
Art. 43. The termination of the subsequent marriage
referred to in the preceding Article shall produce the
following effects:
(1) The children of the subsequent marriage conceived
prior to its termination shall be considered legitimate;
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage
Page 48 of 126
in bad faith, his or her share of the net profits of the
community property or conjugal partnership property
shall be forfeited in favor of the common children or, if
there are none, the children of the guilty spouse by a
previous marriage or in default of children, the innocent
spouse;
(3) Donations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in bad
faith, such donations made to said donee are revoked by
operation of law;
(4) The innocent spouse may revoke the designation of
the other spouse who acted in bad faith as beneficiary in
any insurance policy, even if such designation be
stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage
in bad faith shall be disqualified to inherit from the
innocent spouse by testate and intestate succession.
Art. 44. If both spouses of the subsequent marriage acted
in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
dispositions made by one in favor of the other are
revoked by operation of law.
Art. 45. A marriage may be annulled for any of the
following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized
without the consent of the parents, guardian or person
having substitute parental authority over the party, in
that order, unless after attaining the age of twenty-one,
such party freely cohabited with the other and both lived
together as husband and wife;
(2) That either party was of unsound mind, unless such
party after coming to reason, freely cohabited with the
other as husband and wife;
(3) That the consent of either party was obtained by
fraud, unless such party afterwards, with full knowledge
of the facts constituting the fraud, freely cohabited with
the other as husband and wife;
(4) That the consent of either party was obtained by
force, intimidation or undue influence, unless the same
having disappeared or ceased, such party thereafter
freely cohabited with the other as husband and wife;
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

criminally for contracting illegal marriages under Art.350. In

(5) That either party was physically incapable of
addition, your marriage will be null and void under Art. 40
consummating the marriage with the other, and such
in relation to Art.50.
incapacity continues and appears to be incurable; or

(6) That either party was afflicted with a sexually- Article 349. Bigamy. - The penalty of prision mayor shall
transmissible disease found to be serious and appears to be imposed upon any person who shall contract a second
be incurable. 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
Again, ang kaibahan ng Art. 40, sa Art. 35,par.4, your prior
judgment rendered in the proper proceedings.
marriage is void. And Art. 40 does not explicitly provide for
the nullity of the marriage contracted subsequent to a prior
Article 350. Marriage contracted against provisions
void marriage without the prior void marriage being
of laws. - The penalty of prision correccional in its
declared a nullity. In fact, Art. 40 merely establishes the rule
medium and maximum periods shall be imposed upon
that you cannot invoke the nullity of a prior void marriage
any person who, without being included in the provisions
for purposes of remarriage, except on the basis of a decree of
of the next proceeding article, shall have not been
nullity. But Art. 50, makes reference to Art. 40, and makes
complied with or that the marriage is in disregard of a
applicable of Art.43, say for the first paragraph, and Art.44,
legal impediment.
so marriages which are void ab initio, under Art. 40 and
marriages that are annulled under Art. 45.
If either of the contracting parties shall obtain the
consent of the other by means of violence, intimidation or
Now, pay attention to this rule laid down in Art.50, as to what
fraud, he shall be punished by the maximum period of the
should be contained in the final judgment. In Art. 50:
penalty provided in the next preceding paragraph. (RPC)

Art. 50. The effects provided for by paragraphs (2), (3),

Atty. Seña:
(4) and (5) of Article 43 and by Article 44 shall also apply
Now, let’s go to the last type of void subsequent marriage,
in the proper cases to marriages which are declared ab
those which are void under Art.53. Now, sabi natin kanina,
initio or annulled by final judgment under Articles 40 and
para mag-apply yung Art.53, your prior marriage must also
45.
be void. But here, specifically, it must be void under Art.40,
or voidable under Art.45. Why do we say that this is a
The final judgment in such cases shall provide for the
requirement? Kasi, yung nullity under Art.53 precedes from
liquidation, partition and distribution of the
failure to comply with the registration requirements under
properties of the spouses, the custody and support of
Art.52. And this registration requirement in turn under
the common children, and the delivery of third
Art.52, apply in cases of nullity of marriages under Art.40,
presumptive legitimes, unless such matters had been
and annulment of marriages under Art.45. And this will be
adjudicated in previous judicial proceedings.
illustrated by the provisions of Art.50, 51, 52 in relation to
Art. 53.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified
Void marriages must comply with Art. 52. So, eto yung
of the proceedings for liquidation.
sinasabi (refer to slide, Void Marriages must comply with
Art.52). So balikan natin, Ano ba yung Art. 50, 51 and 52?
In the partition, the conjugal dwelling and the lot on
which it is situated, shall be adjudicated in accordance
with the provisions of Articles 102 and 129. Art. 51. In said partition, the value of the presumptive
legitimes of all common children, computed as of the date
of the final judgment of the trial court, shall be delivered
in cash, property or sound securities, unless the parties,
by mutual agreement judicially approved, had already
provided for such matters.

The children or their guardian or the trustee of their

property may ask for the enforcement of the judgment.
To be clear, if we contract a subsequent marriage, without
having your prior void marriage, declared a nullity, you will
no longer be liable for bigamy, but you will be made liable

Page 49 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

The delivery of the presumptive legitimes herein

prescribed shall in no way prejudice the ultimate
successional rights of the children accruing upon the
death of either of both of the parents; but the value of the
properties already received under the decree of
annulment or absolute nullity shall be considered as
advances on their legitime.
Art. 36. A marriage contracted by any party who, at the
time of the celebration, was psychologically incapacitated
to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization.

Art. 52. The judgment of annulment or of absolute nullity LEOUEL SANTOS vs. THE HONORABLE COURT OF
of the marriage, the partition and distribution of the APPEALS AND JULIA ROSARIO BEDIA-SANTOS
properties of the spouses and the delivery of the G.R. No. 112019 January 4, 1995
children's presumptive legitimes shall be recorded in the
appropriate civil registry and registries of property; FACTS:
otherwise, the same shall not affect third persons. Petitioner Leouel, a First Lieutenant in the Philippine
Army, met Julia in Iloilo. The two got married in 1986,
Art. 53. Either of the former spouses may marry again begot a son and lived with Julia’s parents. The spouses
after compliance with the requirements of the occasionally quarrel over a number of things aside from
immediately preceding Article; otherwise, the the interference of Julia’s parents into their family affairs.
subsequent marriage shall be null and void. In 1988, Julia left to work in US as a nurse despite Leouel’s
pleas to dissuade her. Seven months after her departure,
she called her husband and promised to return home
upon the expiration of her contract in July 1989, but she
Atty. Seña:
never did. Leouel got a chance to visit US where he
Go back to that portion of Art. 50, “The final judgment in
underwent a training program under AFP, he desperately
such cases shall provide for the liquidation, partition
tried to locate or somehow get in touch with Julia but all
and distribution of the properties of the spouses, the
his efforts were of no avail. Leouel filed a complaint with
custody and support of the common children, and the
the RTC to have their marriage declared void under
delivery of third presumptive legitimes x x x”. Then, Art.
Article 36 of the Family Code. He argued that failure of
51 (refer to the provision), “in said partition”, meaning to
Julia to return home or to communicate with him for
say, in the partition referred to in Art.50. So, maliwanag, Art.
more than 5 years are circumstances that show her being
51, is in relation to or in furtherance of Art. 50.
psychologically incapacitated to enter into married life.
Then look at Art.52 (see the provision). Again, this would
Julia, in her answer, opposed the complaint and denied its
indicate that Art.52 is in furtherance of Art.51 and Art.50.
allegations, claiming that it was the Leouel who had, in
And again, 51 and 50 apply to what cases? Void marriages
fact, been irresponsible and incompetent. RTC dismissed
under Art. 40 and voidable marriages under Art. 50, Art.45.
the complaint for lack of merit. On appeal, CA affirmed
So, it goes without saying that when you speak of the
RTC.
registration requirements in Art.52, this can only pertain to
the registration of all these items that need to be carried out
ISSUE:
in case of the declaration of nullity of marriage under Art,.40
WON Julia is psychologically incapacitated, which would
or the annulment of a marriage under Art.45.
render her marriage with Leouel void.
That’s why it is clear that Art.53 applies to a situation where
RULING:
the prior marriage is void under Art.40. And because Art.53
Article 36, Family Code. A marriage contracted by any
contemplates a situation where the prior marriage is void
party who, at the time of the celebration, was
under Art.40, then the marriage involved in Art.50 will have
psychologically incapacitated to comply with the
at least to meet the 3rd marriage, kasi for you to have a void
essential marital obligations of marriage, shall likewise
marriage under Art.40, you must have 2 marriages, a first
be void even if such incapacity becomes manifest only
void marriage, and then a second marriage contracted
after its solemnization DECISION: No; Julia is not
without having the prior void marriage declared a nullity,
psychologically incapacitated, which would render her
and then you have a third marriage whereby you had the
marriage with Leouel void since the alleged incapacity
prior marriage declared a nullity under Art.40, but you did
did not pass the tests of gravity, juridical antecedence and
not comply with the registration requirements.
incurability.
ARTICLE 36

Page 50 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

Psychological incapacity must be characterized by (a) appealed to the CA. CA denied the appeals and ruled in
gravity, (b) juridical antecedence, and (c) incurability. favor of the trial court.
The incapacity must be grave or serious such that the
party would be incapable of carrying out the ordinary ISSUE:
duties required in marriage; it must be rooted in the Whether or not opposing or conflicting personalities
history of the party antedating the marriage, although the constitute psychological incapacity.
overt manifestations may emerge only after the
marriage; and it must be incurable or, even if it were RULING:
otherwise, the cure would be beyond the means of the No. There is no clear showing to us that the psychological
party involved. "Psychological incapacity" should refer to defect spoken of is an incapacity; but appears to be more
no less than a mental (not physical) incapacity that of a “difficulty,” if not outright “refusal” or “neglect” in the
causes a party to be truly incognitive of the basic marital performance of some marital obligations. Mere showing
covenants that concomitantly must be assumed and of “irreconcilable differences” and “conflicting
discharged by the parties to the marriage which, as so personalities” in no wise constitutes psychological
expressed by Article 68 of the Family Code, include their incapacity.
mutual obligations to live together, observe love, respect
and fidelity and render help and support. This The Court, in this case, promulgated guidelines in the
psychological condition must exist at the time the interpretation and application of Article 36 of the Family
marriage is celebrated. The factual settings in the case at Code: 1) The burden of proof to show the nullity of
bench, in no measure at all, can come close to the marriage belongs to the plaintiff; 2) the root cause of PI
standards required to decree a nullity of marriage. must be (a) medically or clinically identified (b) alleged
Undeniably and understandably, Leouel stands in the complaint (c) sufficiently proven by experts (d)
aggrieved, even desperate, in his present situation. clearly explained in the decision; 3) it must be existing at
Regrettably, neither law nor society itself can always the time of the celebration of the marriage; 4) it must be
provide all the specific answers to every individual medically or clinically permanent or incurable; 5) it must
problem. Wherefore, his petition was denied. be grave enough to bring about the disability of the party
to assume the marital obligations of marriage; 6) the
Problem, after Santos v. CA, we had Republic v. CA or the
marital obligations must be embraced by Articles 68 to
Molina Guidelines.
71, and Articles 220, 221 and 225 in regard of parents and
their children; 7) interpretation by the National Appellate
REPUBLIC v. CA AND MOLINA Matrimonial Tribunal of Catholic of Church of the
G.R. No. 108763, February 13 1997 Philippines, although not binding, should be given great
respect; and 8) the prosecuting attorney or fiscal and the
FACTS: Solicitor General must appear as counsel for the State.
Roridel and Reynaldo got married in 1985 in Manila.
During the early years of their marriage, Reynaldo
Problem here, masyado naging strict yung SC, and what
showed signs of immaturity and irresponsibility,
happened is, if they cannot comply with all the items in the
observed from his tendency to spend time with his
Molina guidelines, the petition for nullity is denied by the
friends and squandered money with them, his
Supreme Court, even though it can be exhibited that the
dependency from his parents for financial aid and
party, the respondent is definitely psychologically
dishonesty in matters involving finances. Roridel became
incapacitated. Also, for a time, ang nangyari pa, if it’s shown
the sole breadwinner of the family. She then resigned her
that the ground for psychological incapacity also happens to
job in Manila and went to Baguio. Reynaldo left her and
be a ground for legal separation, the automatic reaction of
their child a week later. The couple has been separated
the Supreme Court back then was to deny the petition, saying
for more than 3 years.
that the parties actually have the option to just sue for legal
separation. But as you must know, legal separation does not
Roridel filed a petition to have their marriage void under
really address the problem. Because the problem really here
Article 36, citing Reynaldo's psychological incapacity. She
is that the parties have to be freed from the marriage. And
presented evidence consisting of her own testimony, of
they are not allowed to do that by legal separation, since they
her two friends, a social worker and a psychiatrist.
remain married to one another.
Reynaldo did not present any evidence and appeared
only during the pre-trial. The RTC granted the petition,
declaring the marriage void. The Solicitor General
Atty. Seña:
Tan Andal v. Andal – modified the Molina Case

Page 51 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
TAN-ANDAL V. ANDAL
G.R. No. 196359. May 11, 2021
FACTS:
In December 1995, Rosanna Tan and Mario Victor Andal
got married. The couple had a daughter named Ma.
Samantha. In 2000, they separated, and Rosanna had
sole custody of their daughter. In December 2001,
Mario filed a petition for the custody of their daughter.
In August 2003, Rosanna filed a petition for declaration
of nullity of their marriage, claiming that Mario was
psychologically incapacitated to comply with his
essential marital obligations. She also claimed that
Mario was emotionally immature, irresponsible,
extremely irritable, moody, and psychologically
imbalanced. She also claimed that Mario was using
illegal drugs and was brought into a drug rehabilitation
center twice. He even exposed their daughter to his
drug use. Finally, she claimed that because of Mario’s
irresponsibility, their family business suffered financial
losses and ultimately led to its closure.
In order to prove her case, she presented a psychologist
in order to testify before the court. The psychologist,
after interviewing Rosanna and her daughter Ma.
Samantha, as well as Rosanna’s sister, concluded that
Mario was psychologically incapacitated to perform
essential marital obligations.
The psychologist, however, was not able to interview
Mario because despite several invitations, he did not
appear for the interview. Mario was diagnosed to be
suffering from Narcissistic Antisocial Personality
Disorder and such disorder was found to be grave, with
juridical antecedence, incurable and rendered him
psychologically incapacitated.
The trial court ruled that Rosanna was able to prove her
case and declare her marriage with Mario null and void,
and awarded her custody of their daughter. The Court
of Appeals, however, reversed the ruling of the trial
court and declared the marriage valid and subsisting.
The Court of Appeals ruled on the ground that the
findings of the psychologist was unscientific and
unreliable because Mario was diagnosed without being
interviewed, thus the psychologist was working on
suppositions and second-hand information relayed to
her by one side only. Rosanna then filed a motion for
reconsideration and was subsequently denied.
ISSUE:
Whether or not the marriage is void due to the
husband’s psychological incapacity
Page 52 of 126
RULING:
The Supreme Court declared the marriage of Rosanna
and Mario void ab initio. The Court held that Rosanna
was able to prove with clear and convincing evidence
that Mario was psychologically incapacitated to comply
with his essential marital obligations.
The Court modified the interpretation of the
requirements of psychological incapacity as a ground
for declaration of nullity of marriage found as
previously laid down in the case of Republic v. Molina.
The Court held that psychological incapacity is not a
medical but a legal concept. It refers to a personal
condition that prevents a spouse from complying with
fundamental marital obligations. Psychological
incapacity is neither a mental incapacity nor a
personality disorder that must be proven through
expert opinion. It does not need to be a permanent and
incurable condition; it is incurable, not in the medical,
but in the legal sense. Therefore, the testimony of a
psychologist or psychiatrist is not mandatory.
The Court emphasized that psychological incapacity
consists of “clear acts of dysfunctionality that show a
lack of understanding and concomitant compliance
with one’s essential marital obligations due to psychic
causes.”
Tan-Andal v. Andal
“Psychological incapacity consists of clear acts of
dysfunctionality that show a lack of understanding and
concomitant compliance with one’s essential marital
obligations due to psychic causes. It is not a medical illness
that has to be medically or clinically identified; hence,
expert opinion is not required.”
Malaking issue na dati pa yung expert opinion because in
most cases, the respondent will never allow himself to be
interviewed by the expert/psychiatrist engaged by the
petitioner, maliban na lang kung may collusion. It has been
the bone of contention that whenever a petition for
psychological incapacity is filed and the respondent is
pictured as psychologically incapacitated, and he was
interviewed by the psychiatrist of the petitioner, you could
expect nay an yung sasabihin ‘hearsay lahat ng findings kasi
hindi naman ako nainterview or naexamine, so anong
basehan?’. Also, magastos kumuha ng expert witness for
conducting the examination, preparing the report. Also pay
for the appearance fee. Kung wala kang pera, how can you
afford that. (discriminatory in a sense)
In Marcos v. Marcos, the SC at one point held that there was
no need to be interviewed and no need for expert testimony.
The problem was even with this statement the Molina
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
guideline still exists. In Molina, it was held that the root cause
shall be clinically identified. It was inconsistent.
The petition for declaration of nullity of marriage under Art.
36 (psychological incapacity) becomes antagonistic because
you want to show that the respondent has a mental disorder.
Damay damay because you have to establish juridical
antecedence – that he acquired this disorder because of
circumstances predating the marriage. (i.e. his family like
father is distant, mother is so strict). You can see how
relationships are destroyed because the petitioner would
want to put an end to the marriage and be able to start anew.
Teachings of Tan-Andal v. Andal
(a) The plaintiff-spouse must prove his or her case with
clear and convincing evidence. This is a quantum of
proof that requires more than preponderant evidence
but less than proof beyond reasonable doubt
(b) The second Molina guideline is ABANDONED.
Psychological incapacity is neither a mental
incapacity nor a personality disorder that must be
proven through expert opinion.
(c) Juridical antecedence must still be proven but this may
consist of testimony on the spouse's past experiences
that may have led him or her to his psychologically
incapacitated state.
(d) The incurability laid down in the third Molina guideline
is amended to be in the legal sense, not the medical
sense. (e) The requirement of gravity is retained but
not in the sense that the psychological incapacity must
be shown to be a serious or dangerous illness, but that
"mild characterological peculiarities, mood changes,
occasional emotional outbursts" are excluded.
(e) Not all kinds of failure to meet their obligations to their
children will nullify the vinculum between the spouses.
In each case, it must be clearly shown that it is of such
grievous nature that reflects on the capacity of one of
the spouses for marriage.
TAN-ANDAL v. ANDAL
1. In Tan-Andal v. Andal, the SC clarified that what the
plaintiff must be able to establish here should be more
than preponderance of evidence – it should be by clear
and convincing evidence.
The reason for this is that we have here a presumption
in the law that every marriage is valid. So, to overcome
that presumption, you will need to present clear and
convincing evidence.
2. The second Molina guideline is now abandoned.
Psychological incapacity is determined to be neither a
Page 53 of 126
mental incapacity, nor a personality disorder that must
be proven through expert opinion.
Now, does this mean that you can dispense with proof
altogether? The answer is no. There must still be proof
to the fact of the enduring nature of a person’s
personality called ‘personality structure’, which
manifests itself through acts of dysfunctionality that
undermines the family. For this purpose, you will no
longer need expert witnesses. You only need ordinary
witnesses who were able to see these instances for
themselves.
It will be the judge who will decide if this behavior being
testified on by the witnesses are indicative of a true and
serious incapacity to assume the essential marital
obligations. This is how psychological incapacity
becomes a legal issue.
3. Juridical antecedence must still be proven because it is
required by law. This is what distinguishes
psychological incapacity from divorce. In divorce, you
only need to show the erratic behavior taking place
during the marriage – there is no need to establish
juridical antecedence.
Note: In Tan-Andal, it was found that the husband had a
troubled upbringing. It also appeared that his siblings
were also alcoholics and have a history of drug use.
4. The incurability requirement laid down in Molina has
also been amended. The incurability is now required to
be in the legal sense, and not in the medical sense.
It means that the incurability only has to be shown as to
be true in relation to the other spouse. This is consistent
with how we treat psychological incapacity as a ground
for nullity because we allow people who are found to be
psychologically incapacitated to still remarry. If we
insist that the psychological incapacity should be
incurable in the medical sense, then such person should
no longer be allowed to remarry – such is not the case.
That is why the SC amended the requirement of
incurability. It only has to be relative to the other party.
According to the SC: this means that the incapacity is so
enduring and persistent with respect to a specific
partner and contemplates a situation where the couple’s
respective personality structures are so incompatible
and antagonistic that the only result of union would be
an inevitable and irreparable breakdown of the
marriage.
5. The requirement of gravity is retained but not in the
sense that the psychological incapacity must be shown
to be serious or dangerous. The SC imposed this
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

requirement to exclude those minor characterological faith, in

peculiarities, mood changes, or emotional outbursts. It which case
is an exclusionary requirement. the DPN is
revoked by
6. The marital obligations considered shall include those operation of
between the spouses and, in case there are children, law
those in relation between parents and their children.
NOTE: Questions asked by students.
7. The weight given to the decisions of the National
Appellate Matrimonial Tribunal of the Catholic Church DECLARATION OF PRESUMPTIVE DEATH
in the Philippines shall still be given weight.
Q: The petition for declaration of presumptive death was
Art. 37 & Art. 38 granted for repurposes of remarriage. However, the
property regime of the previous marriage was not
For Articles 37 and 38, you only need to know what they dissolved, and that the presumptive legitimes were
provide. This is because under Art. 5, they are the basis for distributed. But somehow, a subsequent marriage was
determining whether there is legal impediment to the celebrated. What happens?
marriage.
Atty. Seña:
LEGAL CONSEQUENCES OF A VOID MARRIAGE You have to understand that the decree of presumptive
death, it stops with the presumption of death. It will not
GROUND DONATIONS provide for anything else, i.e. it will not declare the first
PROPERTY
FOR FILIATION PROPTER marriage dissolved. It only says that the person is declared
RELATIONS
NULLITY NUPTIAS presumptively dead, nothing else.
May be
revoked This is because the first marriage can always be revived by
without the mere filing of a notice of reappearance (not the
regard to GF reappearance itself) which will also put an end to the
Legitimate
Art. 36 Art. 147 or BF of the subsequent marriage. Since that is the situation, there is no
(Art. 54)
done unless point in declaring it dissolved or in providing for this
made in MS liquidation, distribution, etc.
in which case
it is void This is where the gap in the law exists. We just assume that
Art. 147 the first marriage is merely suspended because the law is
(Non- silent as to what becomes of the first marriage in the
compliance meantime that the terminable subsequent marriage is
Art. 53 Legitimate Same
with Art. 52 subsisting and is yet to be terminated.
is not an
impediment. MIXED MARRIAGE [ART. 26]
Others –
Articles 4 Q: In a mixed marriage, the parties obtained a judicial
Art. 148 (w/
(capacity); Illegitimate Same decree of divorce abroad and there is no record of that
impediment)
35(1), (4); marriage in the Philippines. The Filipino spouse
Art. 37, 38 remarries here in the Philippines without seeking
Others – judicial recognition of her divorce abroad. What is the
Art. 4 status of the second marriage?
(non- Art. 147 (no
Illegitimate Same
capacity), impediment) Atty. Seña:
Art. 35(2), If it is not registered here, the reality is, it should not affect
(3), (4) the second marriage if it was not registered here. Don’t ask,
Remains don’t tell. If it was me, and you tell me that you were married
valid unless and then divorced abroad but neither fact are recorded here
Art. 40 ACP or CPG Illegitimate
the donee in the Philippines, I would advise you to not record it here
acted in bad anymore.

Page 54 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

There is no point. You will only increase your

problems/work because you will be required to register
your previous marriage only to have it canceled due to the
existence of your divorce decree. There is no difference with
the foreign spouse whose marriages are dissolved by a
divorce decree, and both facts are not recorded in the
Philippines. It will be easier to obtain a certificate of capacity
to marry from his embassy instead of going to court and
filing for recognition of foreign judgment.

Page 55 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
SEPTEMBER 12, 2022
GROUNDS FOR ANNULMENT
Art. 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized
without the consent of the parents, guardian or person
having substitute parental authority over the party, in that
order, unless after attaining the age of twenty-one, such
party freely cohabited with the other and both lived together
as husband and wife;
(2) That either party was of unsound mind, unless such party
after coming to reason, freely cohabited with the other as
husband and wife;
(3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the
facts constituting the fraud, freely cohabited with the other
as husband and wife;
(4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely
cohabited with the other as husband and wife;
(5) That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-
transmissible disease found to be serious and appears to be
incurable.
Atty. Seña:
Q: When should these grounds exist?
A: These grounds must already be existing at the time that
the marriage is celebrated.
It is important to point this out because there are certain
grounds here which overlap with the grounds for Legal
Separation.
For Legal Separation, the grounds exist during the marriage
or after the wedding. So if you would want to make out a
case for Legal Separation, the grounds that you are relying
on must be shown to be existing at the time that the parties
wed.
Page 56 of 126
GROUND #1 – LACK OF PARENTAL CONSENT
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized
without the consent of the parents, guardian or person
having substitute parental authority over the party, in that
order, unless after attaining the age of twenty-one, such
party freely cohabited with the other and both lived together
as husband and wife;
Q: Who is required to secure parental consent?
A: A party aged 18 but below 21 must secure parental
consent.
Q: When should parental consent be secured?
A: The parental consent must be submitted together with the
application for a marriage license.
NOTE: Between the ages of 21 and 25, the party is required
to submit parental advice.
Q: If no parental consent is submitted, what will happen
to the application for a marriage license?
A: The marriage license should not be issued.
Q: If it is the parental advice which is missing or which
happens to be unfavorable, what would happen to the
application for a marriage license?
A: The marriage license will still be issued, but it will be
delayed for a period of three (3) months.
Q: How does it happen that even though there was no
parental consent submitted, a marriage license is
nonetheless issued to the parties? Can that happen?
A: Yes, it can still happen. You know how our system works.
Diyan na papasok ang mga fixer, ‘yung mga naglalagay.
Atty. Seña:
And how will that affect the validity of the license? So long as
the license is still issued under the seal of the local civil
registrar in question, then that would still be a valid license.
Ngayon, kung halimbawa ng fake ‘yung license or the license
was just copied from another authentic license, then in that
case, you do not have a valid marriage license. Should the
parties marry, the marriage will be void.
If the situation is one where the license is issued by the local
civil registrar, notwithstanding that they [inaudible] party
required to secure parental consent, to submit [inaudible]
parental consent, the license will still be valid BUT it will be
taken as having been issued with irregularity. And the
irregularity as you know does not affect the validity of the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
marriage but will make those who are responsible for the
irregularity civilly, criminally, and administratively liable.
Kaya pwede talagang mangyari na merong marriage license
kahit na walang parental consent. In which case, the absence
of the parental consent will render the marriage voidable
(valid until annulled).
GROUND #2 – UNSOUNDNESS OF MIND
(2) That either party was of unsound mind, unless such party
after coming to reason, freely cohabited with the other as
husband and wife;
Atty. Seña:
Q: Who is considered to be of unsound mind?
A: A person of unsound mind is someone who does not have
full possession of his mental faculties such as those who are
insane.
This is where we should draw a comparison between
Psychological Incapacity which renders a marriage null and
void, and unsoundness of mind which renders a marriage
voidable.
Q: Which would be worse? Unsoundness of mind or
psychological incapacity?
A: Unsoundness of mind. The person of unsound mind would
have it worse and of course, it goes without saying that a
person of unsound mind is necessarily incapacitated to
discharge his marital duties. Automatic ‘yon. Pero someone
who is psychologically incapacitated is not necessarily
insane.
Have you ever wondered why psychological incapacity will
make the marriage null and void, while insanity will only
make a marriage voidable or valid until annulled? Can we not
argue that a marriage contracted by a person of unsound
mind should be considered as null and void for lack of
consent? Because he could not have possibly consented to
the marriage. There is absence of consent here.
Q: Shouldn’t we consider a marriage contracted by
someone of unsound mind as void for lack of consent
instead of merely voidable?
A: No because there is still the appearance of consent. You
can still hear the person saying “I Do”. Furthermore, the
presumption is always in favor of soundness of mind (wills
and succession). With the appearance of consent, we must
concede that there is consent, only that it is defective. In fact,
if you look at the grounds for annulment, the common
denominator, save for the last 2 grounds, are defective
consent or defective capacity.
Page 57 of 126
GROUND #3 – FRAUD
(3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the
facts constituting the fraud, freely cohabited with the other
as husband and wife;
Q: Would fraud cover any instance of deception?
A: No. Fraud is only limited in the instances provided under
article 46.
Art. 46.
(1) Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving moral
turpitude;
(2) Concealment by the wife of the fact that at the time of
the marriage, she was pregnant by a man other than her
husband;
(3) Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the
marriage; or
(4) Concealment of drug addiction, habitual alcoholism
or homosexuality or lesbianism existing at the time of the
marriage.
No other misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment of
marriage.
Q: What are the circumstances constituting fraud?
A:
(1) Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving moral
turpitude;
(2) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her
husband;
(3) Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the marriage;
or
(4) Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of the
marriage.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
FIRST INSTANCE OF FRAUD
(1) Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving moral
turpitude;
Atty. Seña:
It is quite noticeable that three out of 4 instances of fraud
make use of the term concealment. But for the 1st instance of
fraud, the law uses non-disclosure.
Q: Why is there a different term used for the 1st instance?
A: The 1st instance used “non-disclosure” because the law
imposes the duty to disclose because while conviction is a
matter of public record and therefore cannot be concealed,
the reality is not everyone may know that there is a
conviction, the knowledge of which may only be limited
between the parties. But at the same time, the law cannot
speak of concealment because by legal fiction, the judgement
may be part of public records. It’s out for the world to see. So
to get around that problem, the law states that if you fail to
disclose, then you are committing fraud. So if you are going
to marry someone convicted of murder, no matter what the
instances are, you must disclose the same because it will
have a bearing on your decision whether to marry or not.
“kung alam ko lang na nakapatay pala siya, di na dapat ako
nagpakasal”
SECOND INSTANCE OF FRAUD
(2) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her
husband;
Q: How does concealment happen in the second instance
A: There are 2 situations here:
1. Wife conceals the fact of pregnancy to the
husband. If the husband did not know in the first
place that the wife was pregnant, then it follows that
he would not have suspected that the child was
sired by another man.
2. Husband knew that the wife was pregnant or
even if the wife did not tell him, it was obvious
that the wife was pregnant. In this situation, he
will not be precluded from asking for annulment
simply because he knew that the wife was pregnant.
It must also be shown that apart from knowing that
the wife was pregnant, the husband also knew that
there was no way that the child could have been his
for him to be deprived of the remedy of annulment.
a. Ex. Husband was in Saudi for the past 2 years
preceding the wedding. He only returned on
the wedding day and found that the wife was
already pregnant but he never bothered to ask
Page 58 of 126
why. He cannot later claim that he was
deceived because he should have known that
there is no way the child could have been his.
There is no concealment in this case.
b. Ex. The wife was already pregnant with a child
other than the husband. At the same time, the
husband has been having sex with her. In this
case, the husband may ask for annulment
because he did not know.
Atty. Seña:
He should have known that there’s no way that the child
could have been his. So there can be no concealment to speak
of (inaudible).
Pero kung halimbawa ng nakita niyang buntis na at alam
naman niyang may nangyayari sa kanila, so posible talagang
kaniya yung bata but it turns out that the woman was also
seeing her ex-boyfriend and they too were having sex. So
here, we can still ask for annulment because he did not know
the other guy. And therefore, not knowing the other guy, in
his head there is no other way he could not have been the
father. Na siya lang talaga yung pwedeng maging tatay, yun
ang paniwala niya, but apparently hindi siya kasi the wife
was being unfaithful to him.
We have to tie up this ground for annulment to the action to
impugn legitimate filiation. Kasi tatandaan niyo yung
kwento ng bata sa tiyan nung nanay, eh hindi naman
natatapos sa kasal lang dahil yang batang yan ay isisilang and
will be given the status of a legitimate child. Whose child?
The child of the husband. But the problem is the window for
impugning legitimate filiation is so short. It only ranges from
one year to three years depending on the circumstances.
So balikan natin yung kwento, ordinaryong mag-boyfriend,
ikinasal, malamang kung buntis na yung babae at the time of
the wedding, that child will be born with the husband
around.
Q: So anong period ang iapply natin, under Article 170?
A: It shall be one year counted from the birth of the child.
Q: If that one year period lapses, what would happen?
A: That means that the legitimate status becomes
incontrovertible. It cannot be taken away anymore and the
law as presently written provides for no exceptions.
Now, the ground for annulment here would be fraud
consisting by the concealment of the wife of the fact that she
was pregnant by a man other than her husband.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: So what is our prescriptive period here?
A: The injured party has 5 years to bring an action for
annulment. Five years counted not from the birth of the child
but five years from the discovery of the fraud. So it may
happen that the fraud will be discovered by the husband,
after one year from the date of birth of the child in which
case, the action to impugn has already prescribed.
So forever ng legitimate yung bata, hindi lang legitimate but
legitimate child of the husband. So si husband, wala siyang
kamuang-muang na yung bata ay anak ng ibang lalaki but as
the child grows up, napapansin niya na hindi niya talaga
kamukha at mas kamukha ng ex-boyfriend. So sabihin na
natin, at 3 y/o, the resemblance is uncanny, kung makikita
mo yung picture ng ex-boyfriend nung bata siya,
kamukhang-kamukha yung bata. So what does the husband
do? The husband is able to secure a DNA test secretly. His
cessations are confirmed. So does he have ground for the
marriage to be annulled? Yes. Pasok to sa Art. 46 par. 2. And
if the petition is granted, the marriage would be annulled.
Q: But what happens to the child?
A: The child remains to be the legitimate child of the husband
notwithstanding the fact that the ground for annulment
actually confirmed that he is not even related to the child. So
he ends up with his marriage annulled but with the child
remaining to be his legitimate child under the law.
Atty. Seña:
So may disconnect diba? This is because the period to
impugn filiation does not take into account the
consequences of having the child annulled under Article 46
par. 2. Let that sink in for a bit. Pina-annul mo yung kasal mo
kasi niloko ka ng asawa mo, pinalabas na anak mo yung
panganay niyo and then na-annul yung kasal niyo hindi mo
na asawa yung asawa mo pero yung anak niya sa ibang lalaki
anak niyo pa rin. Now for whatever it’s worth, leaving the
child or allowing the child to remain legitimate is actually
consistent with the effects or legal consequences of
annulment. One of the legal consequences would be that
children conceived or born with the finality of a decree of
annulment would be considered legitimate. But who knows?
The law may be subsequently changed given how
progressive the Supreme Court is at the moment. A case may
be brought before them and they may come up with the
interpretation that would allow the husband to still impugn
the legitimate filiation of the child following the annulment
of the marriage.
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ARTICLE6. PAR (3) CONCEALMENT OF A SEXUALLY
TRANSMISSIBLE DISEASE REGARDLESS OF ITS NATURE
EXISTING AT THE TIME OF THE MARRIAGE
Atty. Seña:
To differentiate this from Article 45 par. (6), what is
punished here is the fact of concealment. That is why it does
not matter what the nature of the sexually transmissible
disease. What we focus on is then concealment.
Unlike in Article 45 par. (6), the law requires that the disease
was serious and appear to be incurable.
ARTICLE 46 PAR. (4) CONCEALMENT OF DRUG
ADDICTION, HABITUAL ALCOHOLISMS,
HOMOSEXUALITY OR LESBIANISM EXISTING AT THE
TIME OF THE MARRIAGE
As for par. (4), it is the fact of concealment of drug addiction,
habitual alcoholism, homosexuality or lesbianism which is a
ground for annulment. Homosexuality, lesbianism, drug
addiction and habitual alcoholism, these are all grounds for
legal separation.
Q: How would you differentiate these four (drug
addiction, habitual alcoholism, homosexuality,
lesbianism) as grounds for legal separation?
A:
ANNULMENT LEGAL SEPARATION
ground for concealment these circumstances per se
would constitute as ground
for legal separation
grounds must be existing they would be sufficient
at the time of celebration of even if they exist only after
the marriage the celebration of the
marriage.
Last paragraph of Art. 46 says that it is important to
remember that no other misrepresentation, character, or
chastity.
Atty. Seña:
In other words, if your bride turns out to be a former
prostitute, then you cannot ask for the annulment of the
marriage on the ground of fraud or if the wife turns out to be
a non-virgin despite her very demure demeanor. You cannot
ask for annulment on the ground that you were duped into
believing that she was as pure as the (inaudible) stone.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

REPUBLIC OF THE PHILIPPINES VS. LIBERTY D.
ALBIOS
G.R. No. 198780; October 16, 2013
FACTS:
Fringer and Liberty Albios got married on October 22,
2004, before the sala of Judge Calo in Mandaluyong City.
2 years after their marriage (December 6, 2006), Albios
filed with the RTC a petition for declaration of nullity of
her marriage with Fringer. According to her, the
marriage was a marriage in jest because she only wed the
American to acquire US citizenship and even arranged to
pay him $2,000 in exchange for his consent. Adding that
immediately after their marriage, they separated and
never lived as husband and wife because they never
really had any intention of entering into a married state
and complying with their marital obligations. The court
even sent summons to the husband but he failed to file an
answer.
marriage. There was a clear intention to enter into a real
and valid marriage so as to fully comply with the
requirements of an application for citizenship. There was
a full and complete understanding of the legal tie that
would be created between them, since it was that precise
legal tie which was necessary to accomplish their goal.
Under Article 2 of the Family Code, for consent to be
valid, it must be (1) freely given and (2) made in the
presence of a solemnizing officer.
A "freely given" consent requires that the contracting
parties willingly and deliberately enter into the marriage.
Consent must be real in the sense that it is not vitiated
nor rendered defective by any of the vices of consent
under Articles 45 and 46 of the Family Code, such as
fraud, force, intimidation, and undue influence. None of
these are present in the case.

Both the RTC and CA ruled in favor of Albios declaring Therefore, their marriage remains valid.
that the marriage was void ab initio for lack of consent
because the parties failed to freely give their consent to
In this case, she entered into an agreement with an American
the marriage as they had no intention to be legally bound
that they would enter into one of these sham marriages. Ang
by it and used it only as a means to acquire American
ginagawa naman ng mga Pilipino talaga sa Amerika for her
citizenship in consideration of $2,000.00.. However, the
to be able to acquire a green card. The problem is, the
Office of the Solicitor General (OSG) elevated the case to
American was not able to deliver his end of the bargain. He
the SC. According to the OSG, the case do not fall within
disappeared, and here she is, she’s stuck. Wala pang Republic
the concept of a marriage in jest as the parties
vs. Manalo noon kaya hindi siya nakapag file ng Divorce.
intentionally consented to enter into a real and valid
marriage. That the parties here intentionally consented
SC rejected her claim that there was no consent. Sabi ng
to enter into a real and valid marriage, for if it were
Supreme Court, there is consent. Motive is different from
otherwise, the purpose of Albios to acquire American
consent. Your motive may have been to acquire a green card
citizenship would be rendered futile.
but the fact is, you still consented to the marriage which is
your stepping stone to getting the green card. You cannot say
ISSUE:
that the marriage is a fraud because precisely you have to
Is a marriage, contracted for the sole purpose of
enter into a valid marriage to get that green card.
acquiring American citizenship in consideration of
$2,000.00, void ab initio on the ground of lack of consent?
SC said: Assuming without conceding that there is fraud
here, it does not fall under any of the instances of fraud in
RULING:
Article 46, and the last paragraph of Article 46 is very
NO. Both Fringer and Albios consented to the marriage.
explicit:
In fact, there was real consent because it was not vitiated
nor rendered defective by any vice of consent.
No other misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute such
Their consent was also conscious and intelligent as they
fraud as will give grounds for action for the annulment of
understood the nature and the beneficial and
marriage
inconvenient consequences of their marriage, as nothing
impaired their ability to do so.
So that is the ruling of Republic v. Albios
That their consent was freely given is best evidenced by
their conscious purpose of acquiring American
citizenship through marriage. Such plainly demonstrates
that they willingly and deliberately contracted the

Page 60 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
CONSENT OF EITHER PARTY WAS OBTAINED BY FORCE,
INTIMIDATION OR UNDUE INFLUENCE
Q: What constitutes force, intimidation or undue
influence?
A:
Force – it must be serious or irresistible
Intimidation – there must be well-grounded fear; Threaten
the other party with harm which would cause him to follow
whatever you tell him to do.
Undue Influence – Emotional blackmail, manipulation, or
abuse upon a hold of a person of you.
Q: If it is a threat to file a case of disbarment against a
lawyer who seduced a woman and got her pregnant?
Would that amount to a threat that may be a ground for
annulment?
A: A threat to enforce a claim and if it happens that a claim is
just or legal in nature. In this case, the filing of a disbarment
case in the form of a threat will not vitiate the disbarment
case.
Atty. Seña:
A threat to enforce a valid right does not amount to
intimidation that will serve a ground for annulment.
That either party was physically incapable of consummating
the marriage with the other, and such incapacity continues
and appears to be incurable.
Q: Ground no. 5 and Ground no. 6 is similar. What is the
similarity?
A: That they cannot be ratified but the action to file
annulment based on this ground may prescribe only. the
right of action will only lapse through prescription. All the
other grounds you have two defenses available: ratification
and prescription. But for grounds in 5 and 6, the only defense
available is prescription.
When the term is defenses; meaning to say, if the petition for
annulment is filed against you, you may invoke either
ratification or prescription to defeat the petition and have it
dismissed. But in 5 and 6, ratification cannot be used as a
defense. It is only limited to prescription.
Q: What is ratification and prescription?
A: ratification has the effect of cleansing the defect of the
marriage. A way to ratify a marriage is through free-
cohabitation, while prescription refers to the period
prescribed by law in which the party is barred from
cleansing the marriage.
Page 61 of 126
Ratification cleanses the marriage defect. For instance, a
marriage is voidable for lack of parental consent.
Q: Under the law, who may ratify the defect of the
marriage?
A: It is the party who requires parental consent.
The 5-year period is material only action to annul. You do not
mention this period in relation to ratification. There is no
deadline for the ratification, but there is a deadline to the
action to annul. Even though, there has been no ratification,
if you have not availed of within the prescriptive period, then
the marriage would forever be valid.
Example:
The party requiring parental consent got married, and then
shortly after turning 21, they had a fight, they separated. But
the party requiring parental consent never filed a petition
for annulment. There is no ratification here because she left
after reaching the age of 21. But since, prescription had set
in before she filed a petition for annulment, it means she can
no longer file for annulment. That marriage is valid forever,
and it can no longer be annulled.
On the other hand, if a party requiring parental consent
decides to cohabit with the other party after reaching 21.
They cohabited for a year. After this, he decided to leave and
filed a petition for annulment. Will this petition prosper?
It is still within the 5-year period from the time the party
requiring parental consent reached 21.
A: the petition will not prosper because the party requiring
parental consent cohabited after reaching the age of 21. The
ratification cleanses the marriage of such defects even if you
still have time left on the prescriptive period you no longer
can file the action because you have cleansed the defect of
the marriage by ratification.
Recap:
Even if you still have some time left in the prescriptive
period, if there is ratification, you can no longer have the
right to file an action for annulment. Similarly, even though
you did not ratify. If you did not take any action within the
prescriptive period, then you can no longer ask the
annulment for the simple reason that the action had already
prescribed.
Understand the interplay between ratification and
prescription.
The thing with annulment is that it matters who is doing the
ratification and who is seeking the annulment.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

Q: For the healthy spouse not suffering from STD, to have

GROUND WHO MAY RATIFY WHO MAY ANNUL
the right to file a petition for annulment, is it required
Lack of Party requiring The parent whose that he not know of the condition of the other spouse
parental consent by consent was not prior to the marriage?
consent cohabiting after secured at any time A: It is not required for her to know the same.
reaching the age of before the party
21 requiring consent Even if he knew before the marriage that his partner is
reaches 21; ridden with this serious and incurable STD, they still have
The party requiring the right to ask for annulment within 5 years from the
parental consent celebration of marriage. This ground cannot be subject by
within 5 years after ratification by cohabitation, and an action for annulment
reaching 21. may only be barred by prescription.
Insanity Party of unsound The party of
mind unsound mind It is because the healthy spouse has an instinct to survive,
during a lucid and may think of not spending the rest of their life with such
interval or after a person. Sex is a vital part of marriage. STD is a sword of
regaining sanity; Damocles hanging on the life of the healthy spouse, that
The sane spouse every time they have sex with the other spouse, they are at
who had no risk, and you cannot have that. That will drive the healthy
knowledge of the spouse to be unfaithful. This brings about problems. Why
other spouse's make the parties go through that, right.
insanity or the
guardian of the So why give only 5 years? Because it is enough time for the
insane spouse at party to think for themselves. And to remove uncertainty on
any time before the the sick spouse. At some point, there should be stability in
death of either their relationship. They would have to live with their
party. condition.
Vitiated Aggrieved party The aggrieved
Consent party within five Ratification is always grounded on knowledge. Full
years from the time knowledge.
the vice of consent
ceased. CONSEQUENCES OF ANNULMENT

Q: On the ground of insanity, why is it that the sane party EFFECTS OF ANNULMENT
cannot ratify? Absolute Community of
A: Because the sane party’s consent is already perfect. There Property or Conjugal
is no defect in such consent. Property Relations Partnership of Gains will be
dissolved and liquidated with
Atty. Seña: provisions for forfeiture
The prescription for the ground of insanity will be at anytime Legitimate unless legitimate
before the death of either party. filiation is impugned in a
Filiation of Children
timely manner if the ground
For vitiated consent (Fraud, Force, Intimidation, Undue is 46(2) in relation to 45(3)
Influence) the party who ratifies is the party whose consent Guilty spouse disqualified to
Succession
is vitiated. Similarly, the aggrieved party has the right to inherit
initiate the proceedings within 5 years from the vice of Innocent spouse may revoke
consent ceases. designation of guilty spouse
Insurance Policy
as beneficiary even if
For communicable disease, we know that it is not subject to irrevocable
ratification. The injured party has 5 years from the DNP may be revoked when
celebration of marriage to file for a petition for annulment. the marriage is annulled, and
Donation Propter
the donee acted in bad faith:
Nuptias
(86(3)) (NB: if the ground Is
lack of parental consent, the

Page 62 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
DNP may be revoked even if
the there is no decree of
annulment and regardless of
the GF or BF of the donee.)
Maternal Preference Rule
Custody of Children
applies
Goes to the spouse with
whom majority of the
Conjugal Dwelling
children choose to remain
(Arts. 102 and 129)
1. Property Relations
a. Community Property
b. Conjugal Partnership of Gains
2. Filiation – the children will only be legitimate,
unless filiation is impugned in a timely manner, if
the ground is Art.46 par.2, in relation to Art.45,
par.3, which is fraud consisting of the concealment
by the wife that she is pregnant by other than the
husband at the time of the wedding.
Art. 46. Any of the following circumstances shall
constitute fraud referred to in Number 3 of the preceding
Article:
(2) Concealment by the wife of the fact that at the time of
the marriage, she was pregnant by a man other than her
husband;
Art. 45. A marriage may be annulled for any of the
following causes, existing at the time of the marriage:
(3) That the consent of either party was obtained by
fraud, unless such party afterwards, with full knowledge
of the facts constituting the fraud, freely cohabited with
the other as husband and wife;
3. Insurance Policy – the innocent spouse may revoke
the designation of the guilty spouse as beneficiary
even if the same has been designated as irrevocable.
4. Donation Propter Nuptias – there is a conflict
between Art.43 par.3 and Art.86 par.3
Art. 43. The termination of the subsequent marriage
referred to in the preceding Article shall produce the
following effects:
(3) Donations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in bad
Page 63 of 126
faith, such donations made to said donee are revoked by
operation of law;
Art. 86. A donation by reason of marriage may be revoked
by the donor in the following cases:
(3) When the marriage is annulled, and the donee acted
in bad faith;
Atty. Seña:
Art.43,par.3, the donation propter nuptias remains valid
unless the donee acted in bad faith, in which case, the
donation will be revoked by operation of law. But in
Art.86,par.3, there is a need to file a petition to revoke, and it
must be shown that the donee acted in bad faith if the ground
for revoking the donation propter nuptias is annulment.
Take Note: Since Art.86,par.3 comes later than Art.43,par.3
and applies specifically to annulled marriages, then Art.
86,par.3 prevails.
Another important point: Lack of parental consent is also a
ground for annulment, but for some reason it is treated
separately from annulment as a ground to revoke a
donation propter nuptias under Art. 86.
Atty. Seña:
Lack of parental consent is also a ground for annulment but
for some reason, it is treated separately from annulment as
a ground to revoke donation propter nuptias under Art. 86.
We must make a distinction if your ground for annulment is
lack of parental consent, then you may revoke the donation
propter nuptias even if there is no decree of annulment and
regardless whether the donee acted in good faith or bad
faith.
Q: What if there is a decree of annulment for lack of
parental consent, can we still use the same?
A: Yes, but if for example you do not have a decree of
annulment, this will now relevant – the ground of parental
consent for the revocation of donation propter nuptias
because it does not require a decree of annulment and
without regard to the good faith or bad faith of the donee.
CUSTODY OF THE CHILDREN
Legitimate Children – maternal preference rule under 7
years of age
Q: Why is it not tackled in void marriages?
A: For void marriages, the general rule is that the children
would be illegitimate. For illegitimate children, parental
authority resides in the mother. The father has only
visitation rights.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
CONJUGAL DWELLING
Atty. Seña:
Since we have community property or conjugal partnership
of gains, we would be applying Arts. 102 and 129, which both
pertain to liquidation proceedings for both regimes.
Part of liquidation proceedings would be allotting the
conjugal dwelling in favor of either of the spouses.
- rule being we give it to the spouse with whom
the majority of the children choose to remain.
- Liyamado ang nanay if majority of the children
are below 7 years old
Note: In legal separation – although we still apply this rule
of the conjugal dwelling going to the spouse with whom the
majority of the children choose to remain, there is a
provision that custody of the children would be awarded to
the innocent spouse. (the law tilts the advantage in favor of
the innocent spouse)
REMARRIAGE
Parties may remarry and they must comply with the
provisions of Art. 52 (registration requirements)
LEGAL SEPARATION
Benefits:
1. Regime of separation of property
2. Forfeiture against the guilty spouse
3. If there is a will or testamentary dispositions made
by the innocent spouse in favor of the guilty spouse,
this could be revoked by operation of law. Offending
spouse will be disqualified from inheriting from the
innocent spouse.
Art. 55. A petition for legal separation may be filed on
any of the following grounds:
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common child,
or a child of the petitioner;
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the petitioner, to
engage in prostitution, or connivance in such corruption
or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if pardoned;
Page 64 of 126
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or
abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include
a child by nature or by adoption. (9a)
Q: If there are grounds common for nullity, annulment
and for legal separation?
A: For the possibility of commonality of grounds among
nullity, annulment, and legal separation, there are only four
matters – habitual alcoholism, drug addiction, lesbianism
and homosexuality. These are the only possible common
grounds.
However, we cannot really say that they are actual common
grounds. Because for psychological incapacity as a ground
for nullity, homosexuality and lesbianism may constitute the
personality structure of a person (based on Tan-Andal). In
turn, alcoholism and drug addiction may be the symptoms of
the dysfunctionality.
When it comes to annulment, it is not these mentioned
grounds per se will be the ground for annulment. Rather, it
is the concealment of the habitual alcoholism, drug
addiction, etc. that constitutes the ground for annulment.
For legal separation, although the grounds would
themselves be sufficient to support the petition, there is no
need to show that they are the root cause of the
psychological incapacity. Their very existence will be
sufficient to support a petition for legal separation.
So, we really could not say that there are any common
grounds for nullity, annulment, and legal separation.
SEXUAL INFIDELITY
Atty. Seña:
The term sexual infidelity was intended to replace adultery
and concubinage from the Civil Code.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: What would be the reason for the need to replace
adultery and concubinage with sexual infidelity?
A: It is because there is an apparent inequality between men
and women when it comes to being convicted for
concubinage and adultery, respectively.
The purpose is to put the parties on equal footing because it
is more difficult to prove concubinage, as it is defined very
strictly in the law. Unlike for adultery where the scope of the
law is very broad – any act of sexual intercourse of the
woman with a man other than her husband would be
adultery. For the man, these circumstances must be show to
exist: 1) having sexual intercourse under scandalous
circumstances; 2) cohabiting with a woman in any place; 3)
bringing home the mistress to the conjugal dwelling. As you
can see, there is an unfair advantage on the part of the man,
because he can be unfaithful to his wife, so long as he does
not commit any of the foregoing acts.
That is why sexual infidelity put in place, as it is applicable to
both parties and there is no need of a conviction.
PERVERSION
Q: When do we have perversion?
A: The law does not expressly provide for such instances.
What we should consider is the standard of the parties as to
what may be considered perverse. So long as both parties are
in agreement, no matter how far the act departs from what
is supposed to be the norm or the community standard, it
cannot be sexual perversion.
For example, if only one of the spouses is insistent and the
other is resisting, then we can say that the latter can cry
sexual perversion.
SEXUAL PERVERSION
The act departs from what is supposed to be the norm or
community standard, it cannot be a sexual perversion. It
goes without saying that it only involves the two parties.
Unless there are killings or violence, that is when the
community will be involved and we now have to impose the
standards of the community. If it is a day-to-day thing, or
something that they just want to explore, then they just go
by their standards.
What is wrong is if only one is insistent and the other is
resisting. Once one forces the other party to do something
that goes against what the aggrieved party is the norm, that
is when the latter can cry sexual pervsion.
Page 65 of 126
ABANDONMENT
Q: When is there abandonment?
A: When one spouse leaves the other spouse without the
intention to return.
Q: How do we know that the spouse who left has no
intention of returning?
A: When a spouse abandons a conjugal dwelling for at least
3 months and fails to give information as to his whereabouts
without justifiable cause, this will constitute abandonment.
DEFENSES AGAINST LEGAL SEPARATION
Q: What are the defenses against legal separation?
A: The defenses are as follows:
(1) Consent;
This simply means that the innocent spouse has given the
other spouse permission to commit an act that will
constitute a ground for legal separation.
(2) Condonation;
The innocent spouse forgives the guilty spouse after the
commission of any of the grounds of legal separation.
(3) Connivance;
It is short of an agreement wherein one of the spouses
facilitates the commission of any of the grounds of legal
separation, without [the other] actually participating in the
commission of the ground.
(4) Collusion;
There is also an agreement to the commission of any of the
grounds.
(5) Mutual guilt;
Both spouses are at fault and they have both committed acts
that are ground for legal separation.
(6) Prescription
The action has already prescribed.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
SEPTEMBER 16, 2022
EFFECTS OF LEGAL SEPARATION
Art. 63. The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately from each
other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership
shall be dissolved and liquidated but the offending spouse
shall have no right to any share of the net profits earned by
the absolute community or the conjugal partnership, which
shall be forfeited in accordance with the provisions of Article
43(2);
(3) The custody of the minor children shall be awarded to
the innocent spouse, subject to the provisions of Article 213
of this Code; and
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate succession.
Moreover, provisions in favor of the offending spouse made
in the will of the innocent spouse shall be revoked by
operation of law.
Atty. Seña:
Once the petition for Legal Separation is filed, then the
parties will be allowed to live separately from one another
and then the custody of children, their support, the support
of the parties, the administration of conjugal
properties/community properties, these will have to be
governed by any written agreement between the parties. If
there’s none, by the order of the court.
Q: Why is it relevant that the parties are allowed to live
separately?
A: Because under the law if you leave the conjugal
dwelling/family abode, without any justifiable reason, your
right to support will be cut off. Pero if we have that
permission from the law to live apart from one spouse, once
the petition for Legal Separation is filed, then there could be
no doubt that you would still be entitled to be supported.
Q: Why is this important?
A: It is important because maintaining a household is
expensive. Realistic lang talaga na magkaroon ka ng
expectation for continuous support.
Once the petition is filed, the Court is supposed to conduct a
cooling-off period.
Q: What is the purpose of this cooling-off period?
A: This is provided in the law to afford the parties time to
think as well. Kasi minsan kapag nadadala na ng bugso ng
damdamin, nagfa-file agad ng petition sa korte. E kapag
minsan kapag na-issue na ‘yung decree of legal separation
and then the parties reconcile, matrabaho pa rin to undo
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whatever has been done. At least they will have that window
to rethink their options and see whether they can give the
marriage a try without having to resort to legal separation.
Q: What is the exception to this? When do we not observe
the cooling-off period?
A: If the ground constitutes violence directed either against
the petitioner or a child of the petitioner or a common child,
under the VAWC, there would be no cooling-off period.
Atty. Seña:
It is also possible that even though the petition has been filed
or sometimes even after the decree of legal separation has
been issued, the parties may find themselves reconciling
which is well and good. We are all for the protection of the
family.
Q: If there is reconciliation that happens, what happens
to the pending petition or to the decree of legal
separation?
A:
If the petition is pending / still undergoing trial – petition
will be terminated at whatever stage the petition may still
be.
If there is already a decree of legal separation – the
decree will be set aside.
Supposing a different event takes place, hindi reconciliation,
something more morbid, halimbawa one of the parties dies
during the pendency of the petition for legal separation and
let’s say it is the innocent spouse who dies, then the petition
will have to be terminated.
Q: Can the heirs of the innocent spouse who died insist that
the petition be continued all to the end obtaining a finding as
to the guilt of the spouse and as whether legal separation is
warranted, so that they may exclude the guilty spouse
from succession to the estate of the innocent spouse?
A: No. It will not be allowed because a petition for legal
separation is personal to the parties (husband and wife), and
accordingly if one of the parties dies, the petition will be
terminated.
Atty. Seña:
Yes. In a case decided by the Supreme Court, the Court said
that a petition for legal separation is personal. The right of
action dies with the parties.
Q: What is the remedy if there is danger of death for the
innocent spouse to protect her heirs?
A: The innocent spouse may disinherit the guilty spouse. In
fact, in the moment that a ground for legal separation is
provided by the guilty spouse, it may serve you well to
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
execute a last will and testament disinheriting the guilty
spouse on that ground. Because for purposes of disinheriting
a legal spouse, the only requirement is that there must be a
ground.
Q: Aside from setting aside the decree, what else may be
the effect of reconciliation of the parties?
A: If there is a final decree of legal separation, it shall be set
aside but the separation of property and any forfeiture of the
share of the guilty spouse shall subsist unless they agree to
revive their former property regime.
Atty. Seña:
There is an option to revive the former property regime. But
this time around, it will be different. The parties will be given
more autonomy to determine which of their separate
properties that have been adjudicated in her favor would be
put back into that former property regime. The implication
would be there would be separate properties awarded to
them under the decree of legal separation that they may opt
to keep even though they decide to revive the former
property regime. But to do so, apart from filing the necessary
motion in Court, they will also have to provide the Court with
the list of creditors and their addresses.
Q: Why do the spouse have to provide the Court with the
list of creditors and their addresses?
A: To protect the interests of creditors.
Atty. Seña:
You have to understand that the community property and
conjugal properties, they do not answer for the personal
obligations of the husband and the wife save for those
instances provided as exceptions in the law. (See
enumeration and type it down.) These are the only
exceptions.
So all other personal obligations, these cannot be satisfied
using community property or conjugal properties. Eh
ngayon, nung nagkaroon ng decree of legal separation,
nagkaroon ng liquidation of properties and the properties
were divided between the husband and the wife, you can
imagine that the spouses worked on with their lives. They
administer properties adjudicated to them. They dunk these
properties in relation to third persons, siguro ibinenta,
kinolateral or subject to contracts with third persons.
Q: What will happen to these obligations that they have
to risk to third persons affecting these properties if
these properties would be recontributed back to the
property regime and would be transformed to the
conjugal or community properties.
A: They would now be beyond the reach of the creditors of
the husband and the wife. Yung mga personal creditors nila.
Kaya ang gagawin, bago mapayagang irevive yung property
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regime at maihalo itong mga separate properties nila, notice
will have to be given to these creditors so that they may be
(inaudible). Kasi baka may mga nakasanla na sa kanila, so
their rights would have to be protected.
It is very clear from the law that the only option is to revive
the former property regime and if any discretion was given,
the discretion would just be in determining which of the
separate properties would form part of the property regime
revived.
Kaya lang, dun sa rules of legal separation promulgated by
the Supreme Court. The option is much broader dahil the
option includes the right to adopt a new property regime.
Q: Can you give me two reasons why we cannot allow this
option given under the rules on legal separation to be
applied?
A:
1. The Family Code is a substantive law. The rules on legal
separation is procedural law. Substantial law cannot
prevail over remedial law much less procedural law
can amend substantive law.
2. The other possible property regimes which could have
been adopted are not allowed to commence at any time
aside from the beginning of the marriage. (Because if
you are going to adopt a new property regime that
would basically make the property regime commence
other than the beginning of the marriage. And the
Family Code proscribes that.)
Article 63. The decree of legal separation shall have the
following effects:
The spouses shall be entitled to live separately from each
other but the marriage bonds shall not be severed;
The absolute coomunity or the conjugal partnership shall
be dissolved and liquidated but the offending spouse
shall have no right to any share of the net profits earned
by the absolute community or the conjugal partnership,
which shall be forfeited in accordance with the
provisions of Article 43(2);
The custody of the minor children shall be awarded to the
innocent spouse subject to the provisions of Article 213
of this Code; and
The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent spouse
shall be revoked by operation of law. (106a)
Atty. Seña:
Ito ‘yung mga consequences that most persons are not
familiar with. That is why it is easy for them to dismiss legal
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
separation as a useless remedy kasi ang tao laging naka focus
lang sa – “makakapag-asawa pa ba ako ulit o hindi?”,
“makakapag-boyfriend ba ako o hindi?”.
Ang sagot ko sa parehas na tanong ay hindi dahil you remain
married to the other spouse so since negative ‘yung sagot sa
mga tanong na ‘yon, they don’t even bother to consider pero
if they would be properly apprised, they would realize that
having the decree of legal separation would actually protect
them.
Unang una, there is forfeiture, and although, as we have
discussed before, the forfeiture is limited in the share in the
net profits, you will not walk away empty handed naman eh
(in all probability).
Net profits has been defined before in the case of Quiao vs.
Quiao. This pertains to the difference between the value of
the community property at the end of the marriage and value
of the community property at the beginning.
In the case of Absolute Community of Property
So, if you started with just PhP 4 million. Bakit kayo may
community property agad na PhP 4 million kakakasal niyo
pa lang? Kasi ‘yung properties ninyo prior to the marriage,
nagtatransform ‘yan kapag kinakasal kayo – automatic na
magiging community property na ‘yan. Kaya meron na
kayong community properties at the beginning.
At the end, if you have let’s say PhP 10 million, so what would
be the difference of PhP 10 million and PhP 4 million? It
would be PhP 6 million, which shall represent the net profits.
So, if there would be forfeiture, the share that would be
forfeited would just be the share in the PhP 6 million. It will
not be the share in the PhP 10 million. So, si guilty spouse,
maaari pa siyang magshare doon sa PhP 4 million na capital.
Meron pa siyang PhP 2 million na pwede makuha. Pero ‘yung
PhP 3 million share niya na dapat doon sa net profits, wala
na ‘yon. It will be forfeited in favor of the common children,
legitimate children from a prior marriage, or in favor of the
innocent spouse.
In the case of Conjugal Partnership of Gains
Ngayon, kung ang pinag-uusapan natin ay CPG, medyo
dehado dito si guilty spouse. Pwede talaga siya ma-zero kasi
sa CPG, malamang kesa hindi, walang conjugal properties at
the beginning of the marriage. Dahil hindi naman
nagtatransform ang mga properties prior to the marriage to
conjugal properties eh because under the CPG regime,
properties own prior to the marriage remain to be the
properties of the spouses.
Page 68 of 126
So, kung halimbawa ng nag-execute sila ng antenuptial
agreement adopting CPG as their property regime without
providing any property to originally form part of the
conjugal partnership. Ang value ng conjugal partnership nila
at the beginning of the marriage will be PhP 0.
And at the end of the marriage, sabihin natin naka PhP 10
million sila, neto na ‘yon. Bayad na lahat ng obligasyon. PhP
10 million less PhP 0 will be PhP 10 million. That PhP 10
million in this case would constitute the profits. So, dito mas
matindi ‘yung forfeiture against kay guilty spouse kasi wala
talaga siyang maiuuwi sa assets kaya nga magkaiba ‘yung
computation provided by law under ACP and CPG.
Q: Is it possible that there will be conjugal properties at
the beginning of the marriage?
A: The answer is YES because the parties in their antenuptial
agreement can always provide for their separate properties
to form part of the CPG upon the celebration of the marriage.
Atty. Seña:
Bakit ako nagdidiscuss ng ganito? I’m trying to make you see
na hindi porke mayroong forfeiture, parating magiging zero
si guilty spouse. Posible pa rin na may makuha siya.
Another important point, dito sa Legal Separation, parang
the Court has already made the decision for the children in
terms of with which parent they will be going, syempre mag-
aapply pa rin tayo ng maternal preference rule for children
below 7 years of age, pero for children that are 7 years and
above, ordinarily they will be allowed to make a choice. But
for legal separation, it is different. The law says that custody
of the children will be given to the innocent spouse. And this
tilts the advantage in favor of the innocent spouse insofar as
the award of conjugal dwelling is concerned.
But for children 7 years and above, ordinarily they will be
allowed to make a choice.
But for legal separation it is different. In legal separation, the
law says the custody of children will be given to the innocent
spouse. This tilts the advantage in favor of the innocent
spouse in so far as the award of the conjugal dwelling is
concerned. The conjugal dwelling will be given to the spouse
to whom majority of the children decided to stay.
Let’s say the innocent spouse is the wife. They had five
children who are under 7, the others are still minor but
above 7 years of age. Two of the minors are automatically
with the wife. Husband could have a chance if the other
children will choose him. But the law says, the children do
not need to choose because automatically it is with the
innocent spouse. 2+3 all with innocent spouse. If you would
apply this provision awarding the conjugal dwelling to the
spouse to whom majority of the children choose to remain,
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
the conjugal dwelling will be awarded to the innocent
spouse.
This is but just because the conjugal dwelling represents
familiarity for the children. If you will uproot them or allow
them to choose and they decide to go with the guilty spouse,
you will be uprooting them from the environment that they
had grown up in. their school, neighbors, friends, and
environment will be changed. This is why we have these
provisions under the law.
Another important effect is successional rights. The guilty
spouse cannot inherit by intestate succession and operation
of law. In fact, testamentary dispositions in favor of a guilty
spouse are revoked by operation of law.
Study the obligation between husbands and wife. Because
these are inherent. You can see these from your parents
(giving salary to spouse, etc) these are things that are natural
to you.
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
This is a significant aspect because under Art. 1 This is the
only area in the marriage which may be the subject of an
agreement because the nature, consequences, and incidents
of marriage are governed by law and cannot be the subject
of stipulation.
Q: What is our default property regime?
A: Absolute community of property.
Q: Prior to the FC, what was the default property regime?
A: Conjugal partnership of gains.
Q: Why did we shift from conjugal partnership of gains
to absolute community of property?
A: First, in CPG, the concept is that the properties acquired
before marriage consist of the separate property of the
spouses. On the other hand, absolute community property
even properties acquired by the spouses prior the
celebration of marriage forms part of the community of
property. In a sense, adopting the community of property as
the default regime is more inclined with the concept of
marriage as a concept of permanent union between the
husband and wife in a sense that even their previous
properties that they had acquired forms part of the
community property which would later on be the benefit of
the family.
Atty. Seña:
The problem is in conjugal partnership of gains, the spouses
here retain their separate and distinct personalities as
property owners. They are treated as partners and they
retain their patrimony very clearly. The properties they own
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prior to the marriage destined to be their properties, and
when they enter into the marriage, the only rights that would
be acquired over the conjugal partnership would be the
separate property, the right to usufruct. Right to the fruits,
income or use of those properties. Thereafter, in so far as
they are concerned, during the marriage, their right to
dispose of their separate properties and use those proceeds
to buy a new property, it is recognized under the law on
conjugal partnership that. These acquisitions would still be
separate property that is very different from the community
property.
In the community property regime, the parties are merged
into one. This is the embodiment of “what is yours is mine,
and what is mine is yours.” The properties prior to the
marriage are transformed into community property by
virtue of the celebration of the marriage. Then, if you
inherited from your parents before you got married will
form part of the community property which will enable your
husband to have rights over the property inherited.
As a parent, I am working hard to leave something to my
children.
If things do not work out between them, what will happen?
The properties I worked hard for and which my daughter
inherited will be part of the community property which will
be inherited by her and this complete stranger.
But, that will be consistent with the total merger of the
personalities between the husband and the wife. That is
what the Code Committee wanted, to there be a unity
between the personalities between the husband and the
wife, iisa na sila.
That could be good if everything is equal. Equal and
pagmamahal, equal ang pagsusumikap, equal and
pagpupundar. But the problem in this world is, marami ang
manggagamit. Masama ang palad, mas marami ang
nagpapagamit.
Marriage is based on emotions, and you are blinded. When
you marry, that is the height of the point of your emotions to
the other party.
When your parents would like you to sign an antenuptial
agreement, surely, you would be hurt, that your love is
insulted. But, your parents only have the best in your
interest. I have seen this play out so many times. People are
in love today, and 5 years down the road, they cannot stand
each other. At the end, one regret remains. Why did they not
sign an antenuptial agreement?
You are lawyers, therefore, more will be expected from you.
That is why you should end up with lawyers as well. If you
do not end up with a lawyer, then, they won’t understand
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
and they will feel insulted if you want to enter into an
antenuptial agreement.
NEVER bring up the antenuptial agreement weeks or days
from the wedding.
If by then you cannot agree, split up. It will be painful, but
you can recover in 6 months. Better than to live with a
headache and expenses to nullify.
Mamaya biruin ka ng tadhana, pag-kasal mo eh saka mo
makita ang the one.
Considering that the default property regime is Absolute
Community of Property system, the parties will be governed
by this even if there is no antenuptial agreement.
Q: Would it make sense if the parties are going to adopt
ACP and still enter into an antenuptial agreement?
A: Yes. Opting to choose ACP and still enter into an
antenuptial agreement makes sense so that they may add
stipulations on what properties they choose to be excluded
from the ACP.
Atty. Seña:
They may choose to expand the ACP. They can say that these
XX properties are going to be separate, or the fruits of these
separate properties shall be considered as my separate
properties.
This is because there is no provision in the Family Code for
the acquisition of properties using the separate properties of
the parties concerned. But, you can provide for that in the
antenuptial agreement. It would serve the parties well, even
if they still choose ACP in the antenuptial agreement.
But you can provide for that in the ante-nuptial agreement.
Kaya it will still serve the parties well. For them to execute
an ante-nuptial agreement, even though they may be also
adopting the absolute community of property in the ante-
nuptial agreement.
REQUISITES FOR THE VALIDITY OF ANTE-NUPTIAL
AGREEMENT
1. in writing
2. signed by the parties
3. executed before the celebration of marriage
4. in order to bind 3rd persons, it must be registered to
the proper civil registry
Q: What would the proper civil registry be?
A: The local civil registry where the marriage contract was
recorded.
Page 70 of 126
Q: Why there?
A: Because when you file the marriage certificate, there is a
portion wherein the parties would have to fill up, and they
will have to state whether or not they executed an ante-
nuptial agreement. Remember, the ante-nuptial agreement
must be executed prior to the marriage. And if they click yes,
then the ante-nuptial agreement should be attached to the
marriage certificate, which will be submitted to the local civil
registrar of the place where the wedding was celebrated.
Now, in addition to the local civil registrar of the place where
the marriage is celebrated, where else must the ante-nuptial
agreement be recorded?
Student’s Answer: In case it involves property, it must also
be recorded in the registry of properties where the property
is located.
Atty. Seña:
Yes, it must also be recorded in those places where there are
real properties affected by the ante-nuptial agreement.
Q: Is registration a requirement for validity?
A: Registration is not a requirement for validity. It is a
requirement to make the ante-nuptial agreement binding
upon third persons.
Q: So if there is no registration, what will happen? What
will be the status of the property regime of the parties?
A: If there is no registration, the status of the marriage
settlement of the parties will still be absolute community of
property or what they elected to be in the marriage
settlement. However, such property relations will not be
binding upon 3rd persons, but would be binding upon
themselves.
Q: So if 3rd persons are not bound, then what would be
the implication of them being not bound, by whatever
property regime was agreed upon by the parties in the
ante-nuptial settlement?
A: If they are not bound by the property regime that the
parties selected in their ante-nuptial agreement, then it is
not known that the parties have an ante-nuptial agreement.
And insofar as these 3rd persons are concerned, the parties
are governed by the default property regime, which is the
absolute community of property system.
Q: Supposing that the ante-nuptial agreement was agreed or
entered into by the parties orally, and then they got married.
And let’s say they agreed upon the complete separation of
property regime. What would be the effect of the fact that
they never reduced their agreement in writing, on the
property regime that they elected?
A: The complete separation of property regime.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: What would be the effect of the fact that they never
reduce their agreement in writing on the property
regime that they elected?
A: This will render the marriage settlement void – then we
will apply the default property regime which is Absolute
Community Property.
Atty. Seña:
The requirement that the ante-nuptial agreement be in
writing is necessary for its validity. If not, it will be null and
void.
Q: Will we adhere to the same rule under the Civil Code?
A: The Statute of Frauds (SOF) applies to, agreement entered
into in consideration of marriage. The effect of non-
compliance with SOF will render the agreement
unenforceable. It will be valid once ratified by the parties.
Two distinct effects of the ante-nuptial agreement if
executed orally under the Civil Code:
- Valid but unenforceable for its non-compliance with
the SOF.
- Unenforceable contracts may be ratified through the
execution of its terms and conditions. If it is partially
executed, it is already ratified and it’s no longer
unenforceable.
- Then, when you have a valid contract that is no
longer unenforceable, then the law affords you the
right to compel the other party to reduce it in the
proper form.
If you have a contract that is unenforceable under the Statute
of Frauds – you cannot introduce oral evidence, oral
testimony to prove the existence of the contract, because the
law says that should be in writing.
Atty. Seña:
If you insist on enforcing your agreement, what will happen
is you will go to court to file an action to enforce the terms of
your agreement but the adverse party will have you action
dismissed or in case you reach trial, they can object to your
presentation of evidence. This is because of the
unenforceable nature of the contract – there being no
written agreement. Unless the adverse party fails to object to
your presentation of oral evidence, then their objection shall
be deemed waived. In that sense, we may say that there is
ratification due to the failure to object.
In the case at hand, however, the applicable mode of
ratification is partial performance. The parties may enter
orally into this antenuptial agreement adopting the
complete separation of property regime and then they abide
by this agreement throughout their married life. Now, that is
sufficient ratification even without a written document
because under the Civil Code, the requirement that the
Page 71 of 126
antenuptial agreement being in writing is not a necessity for
its validity, but only for its enforceability.
In the Family Code, however, it is different. For example, the
parties entered into an agreement adapting the complete
separation of property regime. After the marriage, they
complied with this agreement. But should one of them die
and dissolve the marriage, that party cannot insist that his
properties be excluded from the estate of the deceased
spouse on the premise that their property regime is the
complete separation. The presumption is that any property
acquired during the marriage is part of the community
property.
Q: Apart from selecting the property regime that will be
governing the parties, what else may be stipulated
under the antenuptial agreement?
A: They may include donations propter nuptias.
Q: If they will include such donations in the antenuptial
agreement, will there be any forms that must be
observed or would there be any limitations that must be
adhered to?
A: Yes, the donations propter nuptias must follow the
formalities of ordinary donations under the Civil Code. As
such, the formalities under the CC must then extend to the
formalities of the antenuptial agreement.
Atty. Seña:
Before, we said that in terms of form, the antenuptial
requirement is only required to be in writing. There is no
need for notarization. But if you include a DPN in the
antenuptial agreement, and the donation of a real property,
then the instrument for the donation and acceptance of the
real property must be notarized.
So, the antenuptial agreement that was before only required
to be in writing, must now be notarized as well. The
instrument and donation must be included in the antenuptial
agreement or at least in a separate public instrument that is
referred to in the antenuptial agreement and also attached
in the same agreement.
QUESTION ABOUT ANTENUPTIAL AGREEMENTS
Q: With regard to antenuptial agreements, since these
agreements may have legal force on matters other than
property regimes, may they function as holographic will
somehow?
[Since it can be a source of rights for matters other than
property relations, may it vest property rights to a
relative, specifically a sister?]
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Atty. Seña:
Strictly speaking, since holographic wills are supposed to be
the more lenient form of wills, there is no problem in
executing a holographic will within the confines of the
antenuptial agreement. The only problem there are the
requirements of a holographic will: the entire holographic
will should be entirely written, dated, and signed by the
testator only. There is also the participation of the other
party, the future spouse.
It would probably depend on how you formulate the
antenuptial agreement. There should be a portion pertaining
to the holographic will that states that the testator and the
future spouse are the only ones who gave their signatures;
that the other party is not included. In this case, it begs the
question that why do you need to place the will within the
agreement in the first place.
Perhaps, instead, you can make a reference to the
holographic will. For example, you can state that you are
excluding a specific property from the community property
that you are going to form with your future husband because
you have executed a holographic will on [date] where you
gave this property by way of legacy or devise to your brother
or sister. That is a more practical approach.
DONATIONS PROPTER NUPTIAS
Q: What are the formalities of a donation?
Atty. Seña:
It can be executed in a separate public instrument so long as
it is referred to in the donation. Furthermore, you will have
to attach that separate public instrument to the ante-nuptial
agreement containing the donation propter nuptias.
Q: Are there any limitations that should be observed?
A: Yes, there are limitations:
1. It would depend on who will donate the said
property. For example, if the parties executed an
ante-nuptial agreement other than a property
regime of absolute community property, the
spouse cannot give 1/5th of his property to the
other spouse.
2. The person who will donate shall ensure that he will
leave sufficient properties to himself to answer for
his needs, support, and support of those he is
obligated to support under the law.
3. The usual limits of inofficiousness will apply.
Atty. Seña:
In other words, the limits pertaining to ordinary donations
will apply. What is peculiar under the Family Code, if you are
making a donation propter nuptias in the marriage
Page 72 of 126
settlement and you are a property regime other than the
absolute community of the property system, you cannot
donate more than 1/5th of your present properties.
However, if you make the donation propter nuptias outside
of the marriage settlement, the limitation will not apply.
Instead, only the limitations of ordinary donations will
apply.
The only plausible reason for this rule is that the members
of the code committee did not want to reduce the antenuptial
agreement into an ordinary contract wherein it was as
though the parties haggled their way into veering away from
the absolute community of property regime. We have to
realize that when they use another property regime, the
future spouse who has more money will be prejudiced.
Potentially, the other spouse who has nothing may walk
away with half of the properties of the other spouse. In that
context, it would be attractive to one of the parties to
convince the other to use another property regime other
than the ACP.
For example, in the marriage settlement, there is a donation
propter nuptias attached. This implies that one of the parties
only agreed to the marriage because “sinuhulan siya” or that
she was bribed. It reduces marriage into a monetary
transaction which goes against the concept of merging
personalities in marriage.
Another peculiarity is that if you are going to provide for
other stipulations and/or admissions not related to the
marriage per se, you can only do so in the marriage
settlement. For example, you want to clarify that you already
had a child, and that is your way of making your spouse
recognize the child; this would force her to acknowledge and
include the child in your estate in case something
unfortunate happens to you.
Furthermore, the beauty of this is that since it is not related
to the marriage nor is it conditioned upon the happening of
the marriage, should the marriage be rendered void or if the
marriage does not take place, then the antenuptial
agreement including the donations propter nuptias therein
will be void. However, the stipulations not related to the
marriage will survive, which may be used as a claim for
illegitimate filiation in the future.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
SEPTEMBER 23, 2022
DONATIONS PROPTER NUPTIAS
Art. 82. Donations by reason of marriage are those which are
made before its celebration, in consideration of the same,
and in favor of one or both of the future spouses.
Donations propter nuptias – donations made in
consideration of marriage. This must be executed before the
marriage.
Q: Who may be a donor in a donation propter nuptias?
A: Anybody may be a donor of donation propter nuptias. In
fact, even the parties may act as donors towards one another.
Atty. Seña:
This is significant because once there is a marriage, then the
parties can no longer make donations to one another. There
will be a prohibition against donations being made between
the spouses. And this prohibition even extends to those who
are living together as husband and wife without the benefit
of marriage.
Q: What is the exception to this rule?
A: Moderate gifts given on the occasion of family rejoicing.
Art. 87. 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.
Atty. Seña:
What is moderate would be relative. It depends on the
standing or the capacity of the parties. A Ferrari may be
moderate for a multi-billionaire, but definitely extravagant
or luxurious to a middle income family.
We have a similar prohibition between the spouses insofar
as sales are concerned. Spouses are also not allowed to sell
to one another. And again, this prohibition extends to those
living together as husband and wife without the benefit of
marriage.
‘Yun nga lang, pagdating sa sales, the law recognizes an
exception. The exception being that the spouses may sell to
one another if they are governed by the complete separation
of property regime or if there has been a judicial separation
of property decree during the marriage.
Page 73 of 126
We do not have that kind of exception when it comes to
donations. Kasi sa Family Code, we only have one exception:
moderate gifts on the occasion of family rejoicing.
PROHIBITION AGAINST DONATION BETWEEN PARTIES
LIVING TOGETHER AS HUSBAND AND WIFE WITHOUT
THE BENEFIT OF MARRIAGE
Atty. Seña:
This is significant because apparently, kung kayo ay mag-
boyfriend lang and you have not taken your relationship to
that next level where you are living together as husband and
wife without the benefit of marriage. ‘Yun kasing
cohabitation nasa gitna ‘yan ng ordinary boyfriend-
girlfriend relationship and then ‘yung being legally married.
If mag-boyfriend/girlfriend lang kayo, then there really is no
prohibition nor any limitation with regard to your capacity
to gift one another. Wala tayong dapat pag-usapan diyan
maliban na lang dun sa usual limitation of inofficiousness,
need to make the reservation sufficient to support himself
and those people entitled to receive support from you.
Pero ‘yung kapag kayo ay nag-level up to that stage where
you are not just ordinary boyfriend and girlfriend anymore
because you are cohabiting, then it would appear that you
will now be hindered by the prohibition against donations.
That’s another reason kung bakit hindi dapat kayo mag-
cohabit as husband and wife without the benefit of marriage.
Kasi maha-hamper ‘yung capacity niyo to donate to one
another.
We also need to clarify that not all gifts between parties in a
romantic relationship would qualify as a donation propter
nuptias. By the term itself, the donation is considered to be
one of propter nuptias because it is made in consideration of
marriage.
Kung wala namang kinalaman sa marriage ‘yung iyong
regalo, then that could just be an ordinary gift. We will not
treat it as a donation propter nuptias.
A very obvious example would be kapag nag-propose si
lalaki at nagbigay ng engagement ring. The engagement
ring would have all the characteristics of a donation propter
nuptias. It is a gift given out of liberality, given before the
wedding, given by one party to the other party, in
consideration of marriage. Ano pa bang mas lilinaw sa mga
katagang “Will you marry me?”, ‘di ba?
We have to remember na kung absolute community of
property ‘yung magiging property regime ng mag-asawa,
then that engagement ring would still form part of the
community property. At kapag naghiwalay sila, kasama ‘yan
sa hahatiin.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Para dun sa mga babae na niregaluhan ng pagkamahal-
mahal na engagement ring, ang gawin ninyo mag-execute
kayo ng antenuptial agreement and then ilagay niyo dun na
excepted at hindi magiging part of community property
‘yung engagement ring. Para sa’yong-sa’yo lang siya.
E kasi akala niyo naging galante nang todo si
boyfriend/fiancé, e hindi niyo alam nag-aral ng batas so sabi
niya okay lang gumastos kasi 50% naman nito magiging sa
akin din kung sakaling magkahiwalay kami in the future, so
okay na investment ito. Tip lang ‘yan sa ating mga
kababaihan.
Q: Would it matter who is making the donation propter
nuptias insofar as determining what properties may be
the subject of donation?
A: Yes. Because if a 3rd person would donate a property in
favor of either spouse, he is only limited to donating his
present property. But for donations between future spouses,
they may donate their future properties.
Q: When you donate future property, when does this
take effect?
A: At the time of death of the spouse.
Atty. Seña:
So this takes the form of a donation mortis causa because it
takes upon after death.
Q: Why does a donation of future property take effect
upon death?
A: Because such donation is governed by testamentary
succession. The law explicitly states that in case of donation
propter nuptias of future property, the same shall be
governed by testamentary succession.
Atty. Seña:
So it may be a donation propter nuptias but in reality, it is a
testamentary disposition. Furthermore, since it takes effect
upon death, a donation propter nuptias on future properties
must abide by the formalities of a last will and testament. So
an antenuptial agreement will be changed. The marriage
settlement must be executed in the form of a last will and
testament.
This is also additionally significant because this is a
provision which has done away with contractual succession.
Under the civil code, you can make a donation propter
nuptias involving future property and there was no
requirement back then that it follow the formalities of a last
will and testament. The result of this would be a donation
mortis causa contained in an instrument which is not a last
will and testament that is merely written or notarized. That
is contractual succession because we allowed testamentary
disposition to be contained in an ordinary contract. This was
Page 74 of 126
changed by the FC because of the requirement that the
formalities of a last will and testament be observed.
Q: What about the limitations?
A:
1. 1/5
2. Limitation on inofficiousness – if the donor would
have compulsory heirs, the donated property
cannot exceed the free portion
3. He must always reserve enough for his own support
and those legally entitled to receive support from
him.
GROUNDS FOR REVOKING DONATION PROPTER
NUPTIAS
Art. 86. A donation by reason of marriage may be
revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared
void ab initio except donations made in the marriage
settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent
of the parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted
in bad faith;
(4) Upon legal separation, the donee being the guilty
spouse;
(5) If it is with a resolutory condition and the condition
is complied with;
(6) When the donee has committed an act of ingratitude
as specified by the provisions of the Civil Code on
donations in general.
First Ground: Nullity or Non-celebration of the marriage
XPN:: Those instances when we do not need to file an action
to revoke and this would apply if the ground for nullity of the
marriage or non-happening of the marriage and the
donation propter nuptias was contained in the ante-nuptial
agreement.
In which case, the donation propter nuptias would be
rendered void just like the marriage settlement containing
the same.
Second Ground: Lack of Parental Consent
Third Ground: Ground of Annulment
Lack of parental consent is also a ground for annulment.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: How would we distinguish this ground of lack of
parental consent for revoking the donation propter
nuptias from the ground of annulment also as a ground
for revoking a donation propter nuptias?
A: Compare paragraph 2 & 3. In paragraph 2 – It’s enough
that you show that there was lack of parental consent.
Atty. Seña:
Going back, for paragraph 2, we do not need a decree of
annulment. We only need to show that the marriage was
celebrated without parental consent, and you don’t even
need to establish the bad faith of the done, it does not matter
whether the done acted in bad faith or not.
But if you go to paragraph 3, not only that you need the
decree of annulment, you’re also going to show that the
donee acted in bad faith. So, ano ‘yung mas madali? It’s easier
to obtain a revocation of a DPN under the ground of lack of
parental consent. That is how you make a comparison.
Insofar as paragraph 3 is concerned, we also need to make a
qualification because Article 86, Paragraph 3 is contrary to
Article 43, Paragraph 3, which the law makes applicable to
annulment of marriages kasi sa Article 43, Paragraph 3, what
is the Rule? The rule is that DPN will remain valid unless the
donee is shown to have acted in bad faith. If donee acted in
bad faith, then the DPN is deemed revoked by operation of
law (by operation of law – no need to file an action to revoke)
which is contradictory to Article 86, Paragraph 3 provides.
Kasi dito, there was an annulment, the donee acted in bad
faith but the DPN will not be revoked by operation of law.
Instead, you need to go to court and file an action to revoke.
Magkaiba ‘yon.
But since Article 86, Paragraph 3 appears latter in the law,
then authorities are one in saying that we’ll need to make
Article 86, Paragraph 3 prevail over Article 43, Paragraph 3.
If it is with a resolutory condition and the condition is
complied with
A resolutory condition is an event upon the happening of
which, rights or obligations are extinguished.
ACTS OF INGRATITUDE
Q: What are these acts of ingratitude that would also
qualify as grounds for revoking a DPN?
Article 765. The donation may also be revoked at the
instance of the donor, by reason of ingratitude in the
following cases:
Page 75 of 126
(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
Atty. Seña:
Take note of the qualifications.
SYSTEM OF ABSOLUTE COMMUNITY
Absolute Community of Property is the default property
regime, and that means that even if the parties do not
execute an antenuptial agreement or should they execute
one but it turns out to be null and void, they will still be
governed by the ACP because it is the default property
regime.
Q: Could you name me the only instance when the
default property regime that would apply to the parties
getting married under the FC is not the ACP?
A: If the prior marriage is dissolved by death and the
surviving spouse remarries without liquidating the existing
property regime of that prior marriage, the law provides that
the subsequent marriage contracted by the surviving spouse
shall be governed by a complete separation of property by
default.
This is the exception.
As a concept, understand the ACP system effectively calls for
the merger, not just of the personalities of the husband and
wife as a consequence of their marriage, but also of their
patrimonies. This is extensive merger of patrimonies in ACP.
This is because essentially properties acquired prior to the
marriage and properties acquired during the marriage are
ACP.
Unlike in CPG, the spouses are allowed to retain as theirs the
properties they have prior to the marriage. It is symbolic
because in CPG even if they are married somehow, they
retain their separate identities through their properties
which allows them to retain as their separate and exclusive
ownership.
But in ACP, there is transformation. The properties that they
acquired prior to the marriage are transformed upon the
marriage into community property. This would even include
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
properties which you inherited from your parents prior to
the marriage. Since you inherited this prior to the marriage,
once married these properties will become community
property as oppose to the properties you inherit during the
marriage. Because if you inherited properties during the
marriage, they are separate properties. There is a difference.
In CPG, the properties you inherit prior to the marriage and
properties you inherit during the marriage, they would be
separate properties.
We add the presumption that the law has provided.
What is this presumption?
A: Property acquired during the marriage is considered to be
community property. If you want to take out this property
from the absolute community of property system. You have
to show that the property falls under the exception. If you
cannot show that the properties fall under the exception,
then it is very simple, the presumption subsists, you are not
able to rebut the presumption.
Take for instance, property that you inherited during the
marriage. How do you take this?
A: Under the law, this is an exception. This is considered to
be separate property. Let us say, you inherited a diamond
ring that is vintage. You do not want it that much because di
na uso. What do you do? Sell it. Then the proceeds from the
sale, you use it to buy a different property such as a car, or
small piece of land. Logic will tell you that that property you
acquired using the proceeds of that sale of diamond ring,
shall be considered as your separate property as well.
Because it seems that you only changed the separate
property you first had. Problem is since this property, the
parcel of land was acquired during the marriage, then the
presumption is that it was acquired using community funds.
In other words, that property is community property.
As we said, if we wanted excluded from community
property, we need to show it falls under the exceptions. But
if we would look at the exceptions, there seems to be none
that would exclude the property from the scope of the
community property system.
Art. 92. The following shall be excluded from the
community property:
(1) Property acquired during the marriage by gratuitous
title by either spouse, and the fruits as well as the income
thereof, if any, unless it is expressly provided by the
donor, testator or grantor that they shall form part of the
community property;
(2) Property for personal and exclusive use of either
spouse. However, jewelry shall form part of the
community property;
(3) Property acquired before the marriage by either
spouse who has legitimate descendants by a former
Page 76 of 126
marriage, and the fruits as well as the income, if any, of
such property.
Q: What are these exceptions? Does it have in such
enumeration the exclusion of the properties bought
using the proceeds of the separate property (diamond
ring) from the scope of community property system?
A: If you would look at the provision, it seems that there is
nothing here that would exclude the proceeds of the
diamond ring from the coverage of the community property
system. This is unlike in the case of CPG. In CPG, there is an
exception there. It says property bought by either spouse
using their exclusive funds would be considered to be their
separate property. We do not have a counterpart provision
for ACP for that.
The conclusion is the presumption cannot be rebutted. The
presumption, therefore, remains. The presumption is that it
is part of community property. This is the approach that we
will have to use.
No. 1 in the exception is: as may otherwise be provided in the
marriage settlement. This is what we were emphasizing
before.
Section 2. What Constitutes Community Property
Art. 91. 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)
Art. 92. The following shall be excluded from the
community property:
(1) Property acquired during the marriage by gratuitous
title by either spouse, and the fruits as well as the income
thereof, if any, unless it is expressly provided by the
donor, testator or grantor that they shall form part of the
community property;
(2) Property for personal and exclusive use of either
spouse. However, jewelry shall form part of the
community property;
(3) Property acquired before the marriage by either
spouse who has legitimate descendants by a former
marriage, and the fruits as well as the income, if any, of
such property. (201a)
Art. 93. Property acquired during the marriage is
presumed to belong to the community, unless it is proved
that it is one of those excluded therefrom. (160) chan
robles virtual law library
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

Atty. Seña the properties that were left behind, shall be distributed to
As may otherwise be provided in the marriage settlement. It his heirs. The same goes to the Absolute Community of
may still serve you some good to execute an antenuptial Property.
agreement since it could provide for additional exemptions
in the marriage settlement. Properties existing during the marriage shall be made to
answer for the obligations of the family. Once all of these
GR: Community property shall consist of all the property obligations have been satisfied, the remaining properties
owned by the spouses at the time of the celebration of the will be divided between the spouses.
marriage or acquired thereafter.
Q: What are these charges upon and obligations on the
XPNS: absolute community property system?
1. Otherwise provided in marriage settlements. A:
2. Property acquired during the marriage by
gratuitous title by either spouse, and the fruits as
Section 3. Charges and Obligations of the Absolute
well as the income thereof, if any, unless it is
Community
expressly provided by the donor, testator or grantor
that they shall form part of the community property;
Art. 94. The absolute community of property shall be
(Donations, etc.)
liable for:
XPN to XPN: The grantor can always direct
(1) The support of the spouses, their common children,
otherwise.
and legitimate children of either spouse; however, the
3. Property for personal and exclusive use of either
support of illegitimate children shall be governed by the
spouse. However, jewelry shall form part of the
provisions of this Code on Support;
community property;
(2) All debts and obligations contracted during the
XPN to XPN: Jewelry
marriage by the designated administrator-spouse for
4. Property acquired before the marriage by either
the benefit of the community, or by both spouses, or
spouse who has legitimate descendants by a former
by one spouse with the consent of the other;
marriage, and the fruits as well as the income, if any,
(3) Debts and obligations contracted by either spouse
of such property.
without the consent of the other to the extent that the
family may have been benefited;
Atty. Seña:
(4) All taxes, liens, charges and expenses, including major
As to properties acquired before the marriage, the law
or minor repairs, upon the community property;
admits of a very narrow exemption. Provided that such
(5) All taxes and expenses for mere preservation made
property shall be separate property of the other spouse. It
during marriage upon the separate property of either
must be shown that such spouse has legitimate descendants
spouse used by the family;
by the former marriage. If not, then, the properties acquired
(6) Expenses to enable either spouse to commence or
prior to such marriage shall form part of the community
complete a professional or vocational course, or other
property.
activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they
When the law speaks of obligations on the community
have redounded to the benefit of the family;
property, the law speaks also of advances made from the
(8) The value of what is donated or promised by both
community property on personal obligations of either
spouses in favor of their common legitimate children for
spouse. The community property is a separate entity na
the exclusive purpose of commencing or completing
pinagkakautangan, as separate entity na kailangang bayaran
a professional or vocational course or other activity
for specific obligations.
for self-improvement;
(9) Ante-nuptial debts of either spouse other than
The truth is, in any community property system, wala yang
those falling under paragraph (7) of this Article, the
pinagkaiba from the estate of a deceased person. In an estate
support of illegitimate children of either spouse, and
of a deceased person, it would comprise of obligations which
liabilities incurred by either spouse by reason of a
survive death. When a person dies, the totality of his rights
crime or a quasi-delict, in case of absence or
and obligations shall be known as patrimony. And then,
insufficiency of the exclusive property of the debtor-
when he dies, this will be filtered. HOW? Death extinguishes
spouse, the payment of which shall be considered as
some of the rights and obligations. Whatever survives, shall
advances to be deducted from the share of the
form part of the estate. The estate shall then continue the
debtor-spouse upon liquidation of the community;
personality of the deceased, for a limited purpose of settling
and
his obligations. Once the obligations have been settled, then

Page 77 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
(10) Expenses of litigation between the spouses unless
the suit is found to be groundless.
If the community property is insufficient to cover the
foregoing liabilities, except those falling under
paragraph (9), the spouses shall be solidarily liable
for the unpaid balance with their separate
properties.
Atty. Seña:
Art. 94(1) - The law excludes the support for illegitimate
children. This falls on the personal obligation, separate, of
the other spouse or the debtor spouse. As you know, when
we get to Art. 94(9), the support of these children may fall to
those that can be charged against the community property
in case of absence or insufficiency of the properties of the
debtor spouse.
Art. 94(2, 3, 7) - Note that debts and obligations contracted
during or before the marriage would require the presence of
any of the following: (1) authority; (2) benefit to the family;
(3) consent of both spouses (we do not pay attention if there
was benefit); (4) unilateral consent but coupled with benefit
to the family.
When you look at an obligation, you would have to
determine whether these conditions that we have identified
are present. If present, the obligations will have to be
charged to the community property.
The Supreme Court has also come out with a guideline to
determine when we consider an obligation as beneficial to
the family.
Simple guideline: if you can show that the obligation is
contracted in relation to or in connection with the livelihood,
the profession or business of the debtor-spouse, then we
presume that the same redounded to the benefit of the
family. But of the obligation is contracted without any
relation or connection to the livelihood or the business of the
debtor-spouse, as for instance, he agreed to act as surety to
accommodate a friend or a co-employee, then we do not
presume the benefit to exist, and whoever insist on making
the community property liable, must show that benefit
redounded to the family. That is on the assumption that we
do not have mutual consent.
Remember: It’s only mutual consent which will negate the
need to show benefit to the family. Because you have to look
at par.2, even if there’s a designated administrator spouse,
even if he has authority, his authority must always be
exercised for the benefit of the family.
Art. 94(4) - Then, no.4 is a given, the community property
will have to be spent on by the community funds.
Page 78 of 126
Art. 94(5) - For no.5 to apply, for the community property
to be liable for taxes and expenses for mere preservation on
the separate property of either spouse, we have to show that
that separate property is being used by the family. We do not
have that qualification in the counterpart provision for
conjugal partnership. Why not? Because in the conjugal
partnership, it is a given that the partnership has the right of
usufruct over the separate properties of the spouses. So, it
follows, the separate property, but subject to use by the
conjugal or the family or the conjugal partnership, but not so
in absolute community of property. That’s why, if you’re
going to claim expenses for taxes, for preservation, we have
to satisfy the condition that the separate property is being
used by the family.
Art. 94(6) - Then, no. 6, you cannot place with no.8. In no.6,
expenses to enable either spouse to commence or complete
a professional or vocational course, so this can pertain to
either of the spouses. But if you go to no.8, the value of what
is donated or promised by both spouses in favor of their
common legitimate children for the exclusive purpose of
commencing or completing a professional or vocational
course or other activity for self-improvement.
*Atty: Skip par.9 in the meantime*
Art. 94(10) - No.10. Expenses of litigation between the
spouses unless the suit is found to be groundless. Remember,
if the suit is between the spouses, then necessarily, may
mananalo and matatalo dyan. So, if the person who files the
suit should have his suit dismissed, that means, his
petition/complaint is groundless. He cannot recover his
expenses for litigation, however, the other party would be
fended against this groundless suit, should he able to charge
his expenses to the community funds as well. ‘Cause it’s
unfair that the other party was dragged to litigate against
this groundless suit and then he will have to shoulder his
expenses.
Art. 94(9) - Par. 9 contains the personal obligations which
by way of exception may be charged to the community
property. Why emphasizing that it is by way of exception?
Because:
GR: the personal obligations of the spouses are their burden
alone to carry. They cannot pass it on to the community
property.
XPN: Par. 9 creates 3 exceptions:
1. ante-nuptial debts which did not redound to the
benefit of the family
2. support of illegitimate children
3. liabilities arising from delicts or quasi-delicts
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
These are the only exceptions provided in the law.
What does it mean that these are the exceptions?
Because if you incur a personal obligation, meaning to say,
it’s not a community obligation, it’s not chargeable to the
community properties, then you will have to pay off this
obligation using your separate or personal property, and if
the obligation cannot be shown to be falling under par.9, and
that the condition under par.9 (Atty was interrupted) . So, if
he cannot show that the personal obligation falls under
par.9, and that the conditions under par.9 are met, then what
will happen would be that the creditor would have to run
after the debtor-spouse. And should the debtor spouse not
have any property to pay the creditor, then that would be the
loss of the creditor, wala na siyang pwedeng habulin. He will
simply have to write off the indebtedness.
What are those personal obligations that are not
covered by Art. 94(9)?
1. if the debtor-spouse contracted the obligation
because he agreed to act as surety or as guarantor
by way of accommodation to a friend or co-
employee.
What will happen here is, wala naman siyang natanggap dun
sa proceeds, napahiya na lang siya, napapirma na lang siya
dun sa promissory note, ginawa siyang co-maker or pina
pirma ng contract of guarantee, and in all likelihood, ginawa
niya to without getting the consent of, let’s say, the wife.
Atty. Seña:
Pinapirma sya ng Contract of Guaranty and in all likelihood,
ginawa niya to without getting the consent of the wife.
Since this has no connection with his business, we will not
presume that it redounded to the benefit of the marriage.
Since, the spouse did not give her consent, then this shall not
be considered an obligation chargeable to the community.
The only possible way that this can still be chargeable to the
community if it falls under the personal obligation
chargeable to the community under par. 9 of Art. 94.
XPNs:
1. Ante-nuptial agreements which did not redound to
the benefit of the family
2. Support if illegitimate children
3. Liabilities arising from delicts or quasi-delicts
*not included is the liability for acting as an accommodation
guarantor or accommodation surety.
The creditor trying to get payment from the debtor spouse
who acted as surety or guarantor, has no recourse if the
debtor spouse has no property left, insofar as the community
property is concerned. (Art. 94)
Page 79 of 126
Gambling debt – cannot be enforced against the community
property.
While Art. 94 and Art 121 (CPG), seems to limit support
under par. 9 to the support of illegitimate children, note that
in Art. 197 (provisions on support), Legitimate ascendants,
descendants, brothers or sisters, legitimate or illegitimate,
are also entitled to be supported and the right of support
may also be enforced against the Community Property or
Conjugal Partnership of Gains.
1. Support of Illegitimate Child against the CP – only
has to be insufficiency or absence of personal
property on the part of debtor spouse.
2. Support of legitimate ascendants, descendants,
brothers or sisters, legitimate or illegitimate – only
enforce to CP in case of absence of separate
property on the part of debtor spouse.
Art. 94, par. 9 - …the payment of which shall be
considered as advances to be deducted from the share of
the debtor-spouse upon liquidation of the community;
This shows that the personal creditor of the debtor spouse
does not have to wait until the community property is
liquidated to collect.
EX: Kunwari nakasagasa si debtor spouse and you have to
pay Php1M in damages, community funds will be used to
pay-off the damages.
At the end of the marriage, when the community property is
being dissolved, whatever share is adjudicated in favor of the
debtor spouse, this will be reduced by the Php1M that was
paid using community funds to satisfy his civil liability
arising from the delict he committed.
Art. 94 …If the community property is insufficient to
cover the foregoing liabilities, except those falling under
paragraph (9), the spouses shall be solidarily liable for
the unpaid balance with their separate properties
Q: Would there be an instance where one spouse may be
made liable with his separate property for the personal
obligation of the other spouse?
A: No, under no instance where one spouse will be made to
pay for the personal obligation of the other spouse using
his/her separate property.
The closest that the law gets to making the separate property
of one spouse liable to the personal obligations of the other
spouse is par. 9 of Art. 94. (the last paragraph shuts down any
possibility of that happening)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
SOLIDARY LIABILITY OF THE SPOUSES
Q: When will there be solidary liability on the part of the
spouses?
A: this will apply when the community property is not
enough to satisfy all of the obligations under Art. 94. That
means that either one of the spouses may be held liable for
the entire obligation.
In accordance with the law on solidary obligations, the
paying co-debtor will have the right to ask for
reimbursement – to ask for the share of the co-debtor. In this
case, one spouse will have the right to be reimbursed by the
other spouse.
What the law did is to make it easier for creditors to collect.
Instead of going after multiple parties, they may go after a
single party only for the satisfaction of their total claim.
LIQUIDATION OF THE ABSOLUTE COMMUNITY OF
PROPERTY
Art. 102. Upon dissolution of the absolute community
regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all
the properties of the absolute community and the
exclusive properties of each spouse.
(2) The debts and obligations of the absolute community
shall be paid out of its assets. In case of insufficiency of
said assets, the spouses shall be solidarily liable for the
unpaid balance with their separate properties in
accordance with the provisions of the second paragraph
of Article 94.
(3) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall be
divided equally between husband and wife, unless a
different proportion or division was agreed upon in the
marriage settlements, or unless there has been a
voluntary waiver of such share provided in this Code. For
purpose of computing the net profits subject to forfeiture
in accordance with Articles 43, No. (2) and 63, No. (2), the
said profits shall be the increase in value between the
market value of the community property at the time of
the celebration of the marriage and the market value at
the time of its dissolution.
(5) The presumptive legitimes of the common children
shall be delivered upon partition, in accordance with
Article 51.
Page 80 of 126
(6) Unless otherwise agreed upon by the parties, in the
partition of the properties, the conjugal dwelling and the
lot on which it is situated shall be adjudicated to the
spouse with whom the majority of the common children
choose to remain. Children below the age of seven years
are deemed to have chosen the mother, unless the court
has decided otherwise. In case there is no such majority,
the court shall decide, taking into consideration the best
interests of said children.
As you can see in the steps, there is no difference with the
dissolution of the estate of a deceased person.
First, we start with an inventory of the properties –
separating the properties of the community property from
the exclusive properties of the husband and the wife. In this
step we see that there are three patrimonies in the marriage:
1. Patrimony of the community property system;
2. Patrimony of the husband; and
3. Patrimony of the wife
Note: it is also possible for properties being co-owned by the
husband and wife, without it being a property of the
community property system (i.e., donations in favor of the
husband and wife during the marriage)
Now, after making an inventory of all the properties involved
in the marriage, we will now have to satisfy the debts and
obligations of the ACP.
Q: What do you use to pay all these obligations?
A: First, the assets of the community property system. Then,
should there be unpaid balance after exhausting the
community property, the spouses will be solidarily liable
with their separate properties.
After satisfying all the obligations of the community
property, the next step would be to return whatever remains
of the exclusive properties of the spouses after they are used
to pay the obligations of the community property.
Now, Art. 102(4) refers to the net assets of the community
property. It is different from net profits. Net assets are what
remains after paying off the obligations, while net profits are
defined as the difference between the value of the
community property at the end of the marriage and the value
of the same at the beginning of the marriage.
Paragraph 4 also tells us that another item that may be
subject of stipulation in the MS would be the proportions of
sharing of net assets between the spouses which may be
different from the default 50-50.
Paragraph 5 calls for the delivery of the presumptive
legitimes of common children, in accordance with Art. 51.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

Q: When do you apply paragraph 5 of Art. 102? of the wife, it will not be considered a community obligation
A: You only apply it in case of annulment. under Art. 94.

XPN: in case of declaration of nullity under Art. 40. The
reason for this is that a property regime that may be subject
to liquidation only exists in void marriages if the ground is
Art. 40. In all other grounds, there is no property regime,
only co-ownership under Art. 147 or Art. 148.
As a community obligation, it may be enforced against the
community property. Perhaps the mortgage might cease to
exist, but there may still be a writ of execution issued in
order to satisfy the loan and the same may be applied to the
same parcels of land that were given by way of mortgage.

Atty. Seña:
Par. 6 in relation to legal separation, the law provides that
children are deemed to have chosen to stay with the
innocent spouse. This tilts the scales in favor of the innocent
spouse when it comes to getting the conjugal dwelling
because the law has made the decision for the children. This
is peculiar to legal separation.
PNB V. REYES JR.
In other words, the same parcel of land whose mortgage was
nullified may still be made to answer for the same obligation
but for a different ground [not through foreclosure of a
mortgage, but through levy of execution].
The takeaway would be that the mortgage will be null and
void by the lack of consent of the husband. However, the
obligation will qualify as a community obligation that may
be enforced against community property.

Atty. Seña:
This involves a marriage governed by conjugal partnership,
but the principle discussed here also applies to ACP.

In this case, the wife forged the signature of the husband on

a promissory note that she obtained from the PNP and the
real estate mortgage that she constituted on the conjugal
parcels of land to secure the loan. The mortgage was later
foreclosed and the properties were sold to PNB in 2017. In
2018, the husband filed a complaint to annul the real estate
mortgage and cancel the certificates of sale.

The issue here is what is the status of the mortgage.

Since the mortgage is an encumbrance that was constituted

on conjugal properties without the consent of the husband,
then there can be no gainsaying that they will be null and
void. One cannot dispose of and/or encumber conjugal or
community property without the consent of the other
spouse.

However, insofar as the loan is concerned, the presumption

that the loan redounded to the benefit of the family if the
obligation is contracted in relation to the livelihood, the
profession, or the business of the debtor-spouse, applies.

In Art. 94 in relation to the conditions, you only have to look

for either:
1. authority coupled with benefit;
2. mutual consent even without benefit; or
3. collateral consent coupled with benefit.

In this case, there is only consent on the part of the wife but
not on the part of the husband. However, in view of the
presumption that the loan redounded to the benefit of the
family because it was contracted in relation to the business

Page 81 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
SEPTEMBER 30, 2022
CONJUGAL PARTNERSHIP OF GAINS
Atty. Seña:
The Conjugal Partnership of Gains was the default property
regime under the Civil Code. But the Family Code changed
that when it adopted the Absolute Community of Property
system as the default property regime. But even then, the
conjugal partnership of gains would still hold the distinction
of being the only property regime that can be adopted if the
parties would execute an ante-nuptial agreement.
Kasi as compared to Community Property Regime, you know
very well that this is the default property regime. So even
without an ante-nuptial agreement, this will be applied to
the parties.
When it comes to the Complete Separation of Property
system, this may be adopted after the marriage. Either
voluntarily or for cause or as a consequence of legal
separation even.
Pero ‘yung conjugal partnership, kapag hindi ka nag-execute
ng ante-nuptial agreement, there’s no way that this will be
made to apply to you.
The first step would be determining what are considered to
be exclusive properties under the Conjugal Partnership of
Gains:
Art. 109. The following shall be the exclusive property of
each spouse:
(1) That which is brought to the marriage as his or her own;
(2) That which each acquires during the marriage by
gratuitous title;
(3) That which is acquired by right of redemption, by barter
or by exchange with property belonging to only one of the
spouses; and
(4) That which is purchased with exclusive money of the
wife or of the husband.
Atty. Seña:
So these items are found in Art. 109, and immediately the
distinction or the differences with community property
would stand out. For one, we do not have a provision under
the community property system which recognizes as
separate properties owned by the parties prior to the
marriage. I think I mentioned to you that under the ACP
regime, the properties owned by the parties prior to the
marriage undergo transformation. If the groom becomes
the husband because of the marriage, the separate
properties that they owned prior to the marriage are also
transformed into community property. Kaya sa ACP,
madalas kaysa hindi, mayroon tayong community property
Page 82 of 126
existing at the beginning of the marriage. Dahil the
properties owned by the parties prior to the marriage are
transformed.
Only exception would be if either or both of the parties
would have legitimate descendants from a previous
marriage. In which case, the properties that they owned
prior to this marriage would be their separate property.
Sa conjugal partnership, iba. The properties owned by the
parties prior to the marriage remain to be their separate
properties.
Q: What will be contributed to the conjugal partnership?
A: Only the net fruits and the net income of the separate
properties.
Kaya nga pagdating naman sa conjugal partnership (I think
Atty. was referring to ACP?), madalas at halos walang
okasyon na the properties at the beginning of the marriage
would be zero.
The only time when we will have conjugal properties
existing at the time/at the beginning of the marriage would
be when the parties execute an ante-nuptial agreement and
apart from electing the conjugal partnership of gains, also
contributed their separate properties into the conjugal
partnership. Doon lang tayo magkakaroon ng conjugal
properties existing at the time of the marriage.
Q: Is this relevant?
A: Yes, this can be relevant when it comes to forfeiture. Kasi
‘yung forfeiture sa conjugal partnership that will apply to the
profits (in conjugal partnership) that will be equivalent to
the net assets or whatever remains after all of the obligations
of the conjugal partnership have been satisfied.
And significantly, sa conjugal partnership, the term used is
just “profits” hindi “net profits.” Hindi katulad sa community
property. Kasi nga, wala tayong value for the conjugal
properties at the beginning. So there is nothing to deduct
from the profits at the end or the net assets at the end.
If there will be forfeiture, the forfeiture will apply to the
remaining assets. Posibleng ma-zero si guilty si spouse.
Q: Kailan hindi maze-zero si guilty spouse?
A: Kung halimbawa ng nangyari ‘yung sinasabi nating
exception kanina that the parties executed an ante-nuptial
agreement and contributed separate properties belonging to
them prior to them to the conjugal partnership. In which
case, may value na tayo at the beginning.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
At kapag tayo ay nag-compute na ng forfeiture, we will now
be using the computation for net profits under community
property.
You will deduct the value of the conjugal properties at the
beginning from the value of the conjugal properties at the
end. The difference will be the subject of forfeiture.
Another point, under Art. 109 (4), we have that provision
recognizing that property which is purchased with the
money belonging to the exclusive funds of either the
husband or the wife would be considered as separate
property as well. We do not have a counterpart provision
for this in the Absolute Community of Property system.
So diba, may question tayo noong nakaraan. Paano kung the
wife inherited jewelry during the marriage that’s considered
to be by gratuitous title and therefore separate property of
the wife. Hindi niya type ‘yung jewelry na minana niya so
now she has money.
She uses that money from the proceeds of the sale of her
inheritance to buy something else for herself. The question
how should that property be treated? If this is a CPG, the
property she bought will be her exclusive property. But if it
is ACP, we have to take a different approach. First is we apply
the presumption that everything that is acquired by onerous
title during the marriage is community or conjugal property.
Since we were not able to refute the presumption, the
presumption subsists. That property bought using the
proceeds from the sale of her separate property would now
have to be considered as community property as well.
On the presumption of nature of property that is acquired
during the marriage, ang dapat nating tignan dito would be
the time acquisition was made. And when we say acquisition,
it should be acquisition of ownership.
Q: What are the different modes of acquiring ownership
A: By:
1. Occupation
2. Prescription
3. Donation
4. Intellectual creation
5. Succession
Atty. Seña:
When we speak of acquisition by onerous title, it would be
acquisition by tradition or delivery. And there are different
ways of delivery.
Apart from application of presumption, the vesting of
ownership would also matter under article 180 when we are
dealing with property bought on installments using both
exclusive and conjugal funds. Kasi titignan natin when
ownership was vested.
Page 83 of 126
So what should we consider? Example, the parties executed
a contract of sale and the same was in a public instrument
but delivery was not made until after the marriage. So the
question is when was delivery made? Was it during the
marriage or prior? Because delivery would signify transfer of
ownership. You ought to know at this point that execution of
a public instrument is also a mode of delivery unless the
contrary is provided for by the seller or unless the seller is
not in control of the property subject of contract to sell
(jurisprudence). In those two instances, we cannot say that
delivery was made through the execution of a public
instrument. We have to wait for actual delivery.
Similarly, registration is not a mode of acquiring ownership.
It is simply a proof of ownership. You may have acquired
ownership long before the property was registered in your
name. It may happen that you bought the land but you never
got around in registering until after the wedding. By then,
the register of deeds would issue the title in your name and
describe you as being married. So long as the married is
good, wala ka problema dyan. Eh paano pag nagkaroon na
kayo ng problema and nagbibilangan na kayo ng properties.
It would now become material to you whether or not that
title would signify the time and date you acquired
ownership. The answer is no because registration is not a
mode of acquiring ownership. Moreover, the inclusion of
your spouse’s name in the title preceded by the phrase
“married to” has been held by the SC as being descriptive
only in character. So you would classify that property as your
separate property. But of course it would be a different
matter if your property regime is ACP because in such a case,
even if you acquired ownership over the property before or
during the marriage, it would not matter. The property
would form part of the community property regime.
PROPERTY DONATED BY WILL TO THE SPOUSES
Q: How would we treat these properties?
A: These properties would be treated as exclusive properties
of the spouse for whom it was donated to. However, if such
will gives (nacut)
Art. 113. Property donated or left by will to the spouses,
jointly and with designation of determinate shares, shall
pertain to the donee-spouses as his or her own exclusive
property, and in the absence of designation, share and
share alike, without prejudice to the right of accretion
when proper.
Atty. Seña:
Compare this with article 109(2)
Art. 109. The following shall be the exclusive property of
each spouse:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
xxx
(2) That which each acquires during the marriage by
gratuitous title;
xxx
Article 109(2) speaks of property acquired by gratuitous
title by each spouse. But in article 113, the property was
acquired by gratuitous title by both spouses. The
significance would be: in 109(2), wala tong pinagkaiba sa
provisions on absolute community of property acquired
during the marriage by either spouse would be considered
as separate or exclusive property.
But in Article 113 speaks of property donated to both
spouses jointly, either with the designation of determinate
shares or without. Pero ang takeaway niyo dapat dito is that
if property is in fact donated to the spouses jointly, then they
become co-owners of that donated property as their
separate property. So makikita niyo na posible pala na ang
ating spouses ay maaaring maging co-owners of property
which will not form part of the conjugal partnership. They
co-own it as their separate property and all because that
property was donated to them jointly.
This provision also recognizes accretion.
Q: What do you understand by accretion?
A: In the context of donation, accretion would be the right of
a co-donee or co-heir to receive that part which the other co-
donee or co-heir refuses to receive. Kasi if you are a named
donee, a named heir, legatee or devisee, you are not forced
to accept the donation or disposition in your favor. You
always have the option to refuse.
Atty. Seña:
Yun nga lang in case of a joint donation or a joint
testamentary disposition, accretion is possible and we have
a peculiar rule when it comes to husband and wife acting as
donees or heirs, legatees or devisees. The husband and wife,
the default rule is that there will be accretion unless the
grantor provides otherwise. In all other cases, where the
donees are not husband and wife, where the heirs, legatees
or devisees are not husband and wife, no accretion is the
default rule unless the grantor provides that there will be
accretion.
Supposing that there is accretion, then the result will be the
accepting spouse would now become owner of the entire
donated property. In which case, the entire donated
property would be his or her separate property, not included
in the conjugal partnership of the property.
Page 84 of 126
Article 115. Retirement benefits, pensions, annuities,
gratuities, usufructs and similar benefits shall be
governed by the rules on gratuitous or onerous
acquisitions as may be proper in each case. (n)
Q: How do we determine the character of the benefits
mentioned in Article 115?
A: Tignan how was this acquired, if it is gratuitous or
onerous.
Atty. Seña:
Mahirap na kasi siya ma-imagine ngayon because of the
mandatory retirement law. And the law itself provides for
benefits that must be received pero previously when we did
not have the law, then we will have to rely on what would the
employment contract provides for or what would the
collective bargaining provides for. Posible kasi na
participatory or non-participatory yung kanilang retirement
program. Pag non-participatory, sagot lahat ng kumpanya.
And in that sense, we consider it a benefit of the
employment, then pwede pa rin siyang iconsider na born of
one’s employment parang lumped together with one’s salary
and other employment benefits and therefore, that will form
part of the conjugal partnership.
Pero kung participatory siya, that means that a portion is
subsidized gratuitously by the employer, the rest would be
through contributions from the employee himself then to
that extent that we can consider it as onerous, then it will be
conjugal in character.
Pero kung talagang walang retirement program yung
kumpanya, wala sa collective bargaining agreement or baka
hindi pa talaga entitled yung empleyado, pero out of
humanitarian considerations, nagdecide magbigay yung
employer, then we can consider it as entirely gratuitous. And
we get why is it entirely gratuitous kasi hindi naman siya
entitled doon, kasi hindi pa naman siya nag-contribute.
Talagang kawanggawa lang binigay ng employers sa kaniya,
siguro naaawa. So in that case, we will treat it as separate
property because it was acquired through gratuitous title.
Q: What the law considers to be conjugal property?
A: Article 116
Article 116. All property acquired during the marriage,
whether the acquisition appears to have been made,
contracted or registered in the name of one or both
spouses, is presumed to be conjugal unless the contrary
is proved. (160a)
Article 117. The following are conjugal properties:
(1) Those acquired by onerous title during the
marriage at the expense of the common funds, whether
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
the acquisition be for the partnership, or for only one of
the spouses;
(2) Those obtained from the labor, industry, work or
profession of either or both of the spouse;
(3) The fruits, natural, industrial, or civil, due or
received during the marriage from the common
property, as well as the net fruits from the exclusive
property of each spouse;
(4) The share of either spouse in the hidden
treasure which the law awards to the finder or owner of
the property where the treasure is found;
(5) Those acquired through occupation such as
fishing or hunting;
(6) Livestock existing upon the dissolution of the
partnership in excess of the number of each kind brought
to the marriage by either spouse; and
(7) Those which are acquired chance, such as
winnings from gambling or betting. However, losses
therefrom shall be borne exclusively by the loser-spouse.
(153a, 154, 155, 159)
Atty. Seña:
Art. 117(1) - First, those acquired at the expense of the
common fund. We need this qualification because the law
provides in Article 113 that those properties acquired using
the exclusive funds of the spouses would be their separate
property. So ito yung necessary consequence niyan, if the
funds used which is conjugal in character, then the
acquisition would be considered as conjugal in character as
well.
Art. 117(2) - Then for paragraph 2, makikita niyo those
obtained from the labor, industry, work or profession.
Meaning to say salaries and wages or any work product,
conjugal yan kasi yun yung essence ng conjugal partnership
that parties are allowed to retain their patrimonies, their
properties but in return the conjugal partnership will have
the right to usufruct over their separate properties and in
addition whatever they produce from their work or industry,
that would belong to conjugal partnership as well.
The CPG will have the right of usufruct over their separate
properties and in addition, whatever they produce through
their work or industry shall belong to the conjugal
partnership.
Art. 117(3) - And now for paragraph 3, this is a given,
syempre sab inga natin – may right of usufruct nga but note
that the right of the conjugal partnership insofar as the fruits
of the exclusive property of the spouses are concerned
would be the net fruits.
Q: So, what is it that the owner spouse is allowed to
deduct from the fruits? Bakit siya naging net fruits? Ano
ang binawas?
Page 85 of 126
A: Expenses incurred in administering the property.
(4) The share of either spouse in the hidden treasure
which the law awards to the finder or owner of the
property where the treasure is found;
Atty. Seña:
This share would pertain either as finder or owner of the
property where the treasure is found. We have to remember
that the term ‘hidden treasure’ is a legal term. It is defined in
the law so you have to know if what is involved is a hidden
treasure in the first place.
(5) Those acquired through occupation such as fishing or
hunting (Atty. Seña: Still a product of the spouses’ work or
industry);
(6) Livestock existing upon the dissolution of the
partnership in excess of the number of each kind brought
to the marriage by either spouse; and
(7) Those which are acquired by chance, such as
winnings from gambling or betting. However, losses
therefrom shall be borne exclusively by the loser-spouse.
Now, in addition to what the law has enumerated, there are
also the so-called special kinds of conjugal partnerships.
1. Property bought on installments using commingled funds
(Art. 118)
Q: What is the rule here?
Art. 118. Property bought on installments paid partly
from exclusive funds of either or both spouses and partly
from conjugal funds belongs to the buyer or buyers if full
ownership was vested before the marriage and to the
conjugal partnership if such ownership was vested
during the marriage. In either case, any amount advanced
by the partnership or by either or both spouses shall be
reimbursed by the owner or owners upon liquidation of
the partnership. (n)
Atty. Seña:
Kanina we were speaking of property becoming the co-
owned property of the spouses without forming part of the
conjugal partnership if the property was acquired by
gratuitous title made in favor of both of the spouses during
the marriage.
Article 118 is another instance where it is possible that the
spouses may become co-owners of separate property that is
property not forming part of the conjugal partnership. How?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Maaari kasi class, that prior to getting married, the parties
are already planning their future together. Kapag medyo
matagal na kayo nagdadate, darating ‘yung punto na
magkakaroon kayo ng joint funds. Maaaring you are saving
up for a house and lot at hindi niyo kaya bayaran ng isang
bagsakan so you decided to pay it by installment.
If the title to the property is transferred to them prior to the
marriage (or the unit is delivered to them), at since dalawa
silang naghuhulog sa installment, ang ibig sabihin n’on ay
they are co-owners of that property even prior to the
marriage. The marriage between them will not change the
character of that property because this would fall under
Article 118.
You might say – “Eh ma’am, papaano niyo naman po nalaman
na this would be purchased through exclusive and conjugal
funds? – eh malamang kesa hindi, since installment ‘to, it
means that they are still working for the payment that they
are going to make. So, salaries ang gagamitin nila dito,
And your salaries, that would also be transformed once you
get married. If prior to the marriage, your salary was your
exclusive property. After the marriage, your salary becomes
conjugal funds. So, kung pagkukuhanan pa din ng bayad dito
sa hinulugang property ‘yung salary ninyo, and that means,
the payments that you will be making during the marriage
would now be sourced from conjugal funds.
So, kung halimbawa, that ownership is shown to have vested
prior to the marriage and the properties are now considered
as the co-owned separate properties of the spouses, then the
spouses will have to reimburse the conjugal partnership for
the payments that were made on the property during the
marriage.
Q: Paano ba ‘yung sinasabi natin na reimbursement?
A: That only means that the conjugal partnership will be
credited with the amount corresponding to the payments it
had advanced. Bakit? Kasi ‘yung credit na iyon, that signifies
the obligation of the spouses to the conjugal partnership.
Partnership and you know very well that credit is property.
This adds value to the conjugal property.
Q: Should you still pay for it?
A: No. what will happen is when the time comes that the
conjugal partnership properties will now be partitioned
between the parties. The value of what was paid will simply
be deducted from what was actually received form the
spouses.
Page 86 of 126
If husband received 1M as his share in the conjugal
partnership. The advance (50K) will be deducted from the
1M. Husband will only receive 950,000.
RECEIVABLES
Art. 119. Whenever an amount or credit payable within
a period of time belongs to one of the spouses, the sums
which may be collected during the marriage in partial
payments or by installments on the principal shall be the
exclusive property of the spouse. However, interests
falling due during the marriage on the principal shall
belong to the conjugal partnership.
In addition to the special conjugal property under Art. 118,
we also have the receivables under Art. 119.
What is the rule in so far as receivables is concerned?
A: The rule is when it is payment on the principal, it should
belong to the owner-spouse. If it is payment on the interest,
it should belong to the conjugal property.
Atty. Seña:
If it is payment on the interest, it is clear that this is an
income. But if it is payment on the principal of the obligation,
then that would simple be a return on the capital. That is not
income.
Pay attention to the last sentence in Art. 119: interests falling
due during the marriage on the principal shall belong to the
conjugal partnership
Interests falling due during the marriage which is not paid
until after marriage, that would still be credited during the
conjugal partnership. In other words, we will look not at the
time when the interest was paid, but look at when the
interest fell due.
It is possible that the interest fell due during the marriage
but the debtor did not pay. You cannot control the debtor. If
the debtor does not pay, then he does not pay. But it would
be unfair for the conjugal partnership to be denied this
interest which is income just because payment was not made
in a timely manner.
If the debtor pays after dissolution of conjugal partnership,
so long as it fell due during the marriage, the conjugal
partnership would still be entitled to that amount.
IMPROVEMENTS
Art. 120. The ownership of improvements, whether for
utility or adornment, made on the separate property of
the spouses at the expense of the partnership or through
the acts or efforts of either or both spouses shall pertain
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
to the conjugal partnership, or to the original owner-
spouse, subject to the following rules:
When the cost of the improvement made by the conjugal
partnership and any resulting increase in value are more
than the value of the property at the time of the
improvement, the entire property of one of the spouses
shall belong to the conjugal partnership, subject to
reimbursement of the value of the property of the owner-
spouse at the time of the improvement; otherwise, said
property shall be retained in ownership by the owner-
spouse, likewise subject to reimbursement of the cost of
the improvement.
In either case, the ownership of the entire property shall
be vested upon the reimbursement, which shall be made
at the time of the liquidation of the conjugal partnership.
Another special conjugal property would be the
improvements introduced through the joint efforts of the
spouses or at the expense of the conjugal funds.
The rule is when the cost of the improvement and the
increase in the value of the property is greater than the value
of the property at the time of their improvement, it shall
belong to the conjugal partnership of gains. However, the
owner-spouse shall be subject to reimbursement by the
conjugal partnership.
Atty. Seña:
There are certain requisites that must be met:
1. We are dealing with improvements that are
introduced on separate properties of spouses.
- It is possible that this pertains to separate
property of only one of the spouses, or co-
owned by the spouses as their separate
properties. Bottom line: the property must
belong to either or both of the spouses.
2. The improvements must be introduced at the
expense of conjugal funds and/or the acts or
efforts of either or both of the spouse
- What is there was no money applied, but
introduced improvements because of the
efforts alone of the spouses, will Art. 120 apply?
YES, because the efforts of the spouses, their
industry, this too are owned by the conjugal
partnership
3. That the improvements here are for utility or
adornment
- Useful or luxurious improvements. In which
case, we will have to measure this in the
definition of the law as to what constitutes
useful or luxurious improvements
FORMULA:
If the cost plus the increase on value that the property gets
would be more than the property at the time of the
Page 87 of 126
improvement and the entire property meaning to say the
separate property and the improvements would belong to
the conjugal partnership of gains.
But otherwise, then the entire property meaning to say the
separate property plus the improvements belong to the
original owner-spouses.
Q: When will the ownership over the entire property
vest?
A: It will vest at the time where there is reimbursement.
Either to the conjugal partnership or to the owner-spouse/s.
Q: When should reimbursement be made?
A: Reimbursement should be made at the time that the
conjugal partnership of gains is liquidated. Remember, there
would only be reimbursement if the improvement is still
existing at the time of liquidation. If the improvement has
been destroyed or is lost at the time of liquidation, then we
will not speak of reimbursement anymore. We will not speak
of Art. 120 anymore.
In the meantime that there is no reimbursement, remember,
the liquidation of our conjugal partnership takes place in
case of: death, annulment, legal separation. So, there would
be this period of time where there is no reimbursement yet,
and there is no vesting of ownership over the entire property
either in the conjugal partnership or to the owner spouse or
spouses.
Q: What will be the status of the property?
A: The law says, the original owners will retain ownership.
So far as separate properties are concerned, it will remain
under the ownership of the owner spouse or spouses.
Atty. Seña:
Insofar as improvements are concerned, it will be owned by
the conjugal partnership. This is important especially if you
put it with the obligations which are chargeable against the
conjugal partnership.
When you have creditors of the conjugal partnership who
want to be paid, and they saw the property which the
spouses built a house on, and they want to get the property
and levy on it, have it executed, the owner spouse of the lot
on which the house was built can resist.
If they want to get it, they have to get the house only, and not
the lot since it is a separate property. Then, the creditor
might say that “Sure, but under Art. 120, based on the value
and every other consideration, the entire property belongs
to the conjugal partnership,” and the owner spouse says,
“Maybe, maybe not. But, there has been no reimbursement
yet. There can only be reimbursement at the time of
liquidation, eh wala pa ngang liquidation. And so, I retain
ownership over the lot. And since this is my separate
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

property and you have not shown that there is not enough
conjugal properties to satisfy the conjugal obligation in your
favor, you cannot run free my separate property yet.”
The spouses will only be solidarily liable for their separate
properties in case of insufficiency of conjugal properties to
answer for conjugal obligations. That is the effect of lack of
reimbursement YET. The owner spouse can actually
desist/resist(?).
Atty. Seña:
But you can say that the provisions of builder in good faith
applies to those who believe that they actually own the
property. True, but jurisprudence also laid down exceptions
which includes that where the building was done at the
behest or permission of the owner, then we can apply the
provisions of builder in good faith.
These same charges are also included in the ACP.

At the time there is liquidation, or a day before the conjugal

Section 4. Charges Upon and Obligations of the
partnership is terminated, the house was gutted by fire.
Conjugal Partnership
Here, we lose the reimbursement. There can no longer be
any demand for the value of improvement since the fire
Art. 121. The conjugal partnership shall be liable for:
happened.
(1) The support of the spouse, their common children,
It is also possible that the thrust of the question is the nature
and the legitimate children of either spouse; however, the
of the property wherein the improvement is introduced.
support of illegitimate children shall be governed by the
provisions of this Code on Support;
Caltex v. Reyes, what property is involved? The Sps. Built
something on the property
(2) All debts and obligations contracted during the
belonging to the mother of the wife. Then, after the
marriage by the designated administrator-spouse for the
improvements were introduced, the mother of the wife died,
benefit of the conjugal partnership of gains, or by both
and the wife got the property by virtue of gratuitous title.
spouses or by one of them with the consent of the other;
Q: Do we apply Art. 120 here?
(3) Debts and obligations contracted by either spouse
A: NO. One of the requirements of the law is that the property
without the consent of the other to the extent that the
on which the improvements were introduced should be the
family may have benefited;
separate property of the Sps. At the time the improvements
were introduced in this case, the property did not belong to
(4) All taxes, liens, charges, and expenses, including
either of the Sps. It belonged to a third person (mother of
major or minor repairs upon the conjugal partnership
wife).
property;
Q: Who will now own the improvement?
(5) All taxes and expenses for mere preservation made
A: What should be applied is the ordinary rules of accession.
during the marriage upon the separate property of either
BPS. Builder in good faith. The lot here would be the
spouse;
principal, and the improvement shall be the accessory. The
owner would have the option to appropriate the
(6) Expenses to enable either spouse to commence or
improvements OR sell the property to the builder. That is
complete a professional, vocational, or other activity for
how we resolve the issue.
self-improvement;

(7) Antenuptial debts of either spouse insofar as they

Q: Would the rule apply to the owner in good faith since
have redounded to the benefit of the family;
the builder thought he is the owner of the property?
A: True. BUT, jurisprudence states that if the builder was
(8) The value of what is donated or promised by both
ALLOWED by the owner to build, then we can apply the
spouses in favor of their common legitimate children for
provisions of BPS in good faith. We apply the law on
the exclusive purpose of commencing or completing a
property, specifically the rules on accession. The spouses
professional or vocational course or other activity for
here are considered as builders in good faith, and, the rights
self-improvement; and
and obligations to the wife who is now the owner of the
property shall be determined by the provisions in builder in
(9) Expenses of litigation between the spouses unless the
good faith.
suit is found to groundless.

Page 88 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
If the conjugal partnership is insufficient to cover the
foregoing liabilities, the spouses shall be solidarily liable
for the unpaid balance with their separate properties.
The same charges that we studied for community property
are also the charges that we would be making against the
conjugal partnership – the support of the spouses, their
common children, legitimate children of either spouse, but
the support of legitimate children shall be governed by the
provisions of the common support. But you know that the
support of legitimate children will fall under the personal
obligations of the spouses.
You can be asked in the examination: husband and wife; the
husband was previously married; that prior marriage was
declared a nullity under Art.36; he had one child from that
marriage; the child stays from the mother, but the child is
sickly and required hospitalization, where the bill reached
1M pesos.
Q: You might be asked, can the hospital run after the
conjugal property?
A: Yes, because a child born to a marriage void under Art.36
is, by way of exception, legitimate, so papasok siya sa par.1,
the support of that child is chargeable to the conjugal
partnership of gains. (then the same thing, debts and
obligations)
Pay attention to par.5, all taxes and expenses for mere
preservation made during the marriage upon the separate
property of either spouse. If you would recall, in the absolute
community of property, there was requirement in the
counterpart provision, that the separate property be shown
to be used by the family. Dito wala, kasi nga, it should be
given that the separate property is subject to the right of
usufruct in favor of the conjugal partnership. Now, the rest
would be the same, only the personal obligations that we had
under Art.94 is no longer found in Art.121. Instead, we find
it under Art.122.
Art. 122. 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.
Neither shall the fines and pecuniary indemnities
imposed upon them be charged to the partnership.
However, the payment of personal debts contracted by
either spouse before the marriage, that of fines and
indemnities imposed upon them, as well as the support of
illegitimate children of either spouse, may be enforced
Page 89 of 126
against the partnership assets after the responsibilities
enumerated in the preceding Article have been covered,
if the spouse who is bound should have no exclusive
property or if it should be insufficient; but at the time of
the liquidation of the partnership, such spouse shall be
charged for what has been paid for the purpose above-
mentioned.
Atty. Seña:
What Changed? Bakit kelangan nasa Art. 122 etong personal
obligations?
Because in conjugal partnership, there is this added
condition that must be hurdled before personal obligations
may be charged to the conjugal partnership. What is that
added condition?
In addition to showing that the debtor spouse does not have
any or has insufficient separate properties to pay off his
personal obligations. It must further be shown that all of the
obligations under Art.121 have been paid. This is the added
condition.
In that case, since we have that added condition for conjugal
partnership, does it mean that the personal obligations will
only be paid if the conjugal partnership has already been
liquidated? Why?
Because logic dictates that we will only know if all the other
obligations have been paid, under Art.121 if we have a
liquidation proceeding. Kasi all of the creditors will be
gathered. They will be heard, they will be paid out, parang
nakapila. So pag maliwanag na, saka palang pwedeng sabihin
na etong personal obligations na ang bayaran kasi bayad na
lahat ng obligations under Art,.121. However, Art.122 is not
saying the same, because Art.122 echoes what Art.94 says,
that whatever payments are made by the conjugal
partnership for gifts, this will be considered as advances. The
law will not speak of advances if the creditor would have to
wait until there is liquidation to be paid. That’s why
advances, meaning, it was already paid before liquidation.
So, the creditor of these personal obligations will not have to
wait until there is liquidation.
However, if you are the creditor, you might say, “para naman
tayong naglolokohan atty, pano ko naman mapapatunayan
na bayad na yung lahat ng pinagkakautangan nila under
Art.121, hindi ko naman alam kung meron silang
pinagkakautangan in the first place? And if may
pinagkakautangan man, hindi ko alam ang detalye. At kung
alam ko man yung detalye, hindi ko po alam kung totoo yan
o hindi.” So, it’s like an empty provision, because as per your
creditor, “I will never be able to satisfy that condition.”
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Well, that may be true, but here is where the combination of
substantive and procedural law will enter. You have to avail
of the remedies under the Rules of Court, modes of
discovery. Magpapadala kayo ng written interrogatories.
You may start with a Request for Admission. You may put
your allegation in your complaint, saying that there are no
obligations under Art.121, or if any, all of this have been paid.
Respondent spouses will surely answer, defending the
conjugal partnership, saying that that is not true, and they
still have unpaid obligations, and their properties are not
sufficient. So, what will you do? Written Interrogatories,
provide for details, or request for admission, admit that
there are no obligations, because that can also be a trap. If,
for example, they don’t respond with the prescribed period
under the law, they may be deemed to have admitted what
you’re requesting them to admit. In any event, either you get
the admission or you get the information that you require to
establish the fulfillment of the conditions.
Q: What are the personal obligations being discussed
here?
A:
Still the same:
1. support of illegitimate children
2. ante-nuptial debts which should not redound to the
benefit of the family
3. fines arising from delicts and quasi-delicts
And just like for community property, the support of
legitimate ascendants, descendants, whether legitimate or
illegitimate, brothers and sisters, whether legitimately or
illegitimately related, they also pay the charge to the
conjugal partnership. Yun nga lang, sa support of other
relatives, you will have to show that there is just, there is
absence of separate property. Mere insufficiency will not be
enough. You have to show absence.
Sa support of other relatives, you will have to show that
there is absence of separate property. Mere insufficiency will
not be enough.
LIQUIDATION OF CONJUGAL PARTNERSHIP OF GAINS
Section 7. Liquidation of the Conjugal Partnership
Assets and Liabilities
Art. 129. Upon the dissolution of the conjugal
partnership regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all
the properties of the conjugal partnership and the
exclusive properties of each spouse.
(2) Amounts advanced by the conjugal partnership in
payment of personal debts and obligations of either
Page 90 of 126
spouse shall be credited to the conjugal partnership as
an asset thereof.
(3) Each spouse shall be reimbursed for the use of his or
her exclusive funds in the acquisition of property or for
the value of his or her exclusive property, the ownership
of which has been vested by law in the conjugal
partnership.
(4) The debts and obligations of the conjugal partnership
shall be paid out of the conjugal assets. In case of
insufficiency of said assets, the spouses shall be solidarily
liable for the unpaid balance with their separate
properties, in accordance with the provisions of
paragraph (2) of Article 121.
(5) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.
(6) Unless the owner had been indemnified from
whatever source, the loss or deterioration of movables
used for the benefit of the family, belonging to either
spouse, even due to fortuitous event, shall be paid to said
spouse from the conjugal funds, if any.
(7) The net remainder of the conjugal partnership
properties shall constitute the profits, which shall be
divided equally between husband and wife, unless a
different proportion or division was agreed upon in the
marriage settlements or unless there has been a
voluntary waiver or forfeiture of such share as provided
in this Code.
(8) The presumptive legitimes of the common children
shall be delivered upon the partition in accordance with
Article 51.
(9) In the partition of the properties, the conjugal
dwelling and the lot on which it is situated shall, unless
otherwise agreed upon by the parties, be adjudicated to
the spouse with whom the majority of the common
children choose to remain. Children below the age of
seven years are deemed to have chosen the mother,
unless the court has decided otherwise. In case there is
no such majority, the court shall decide, taking into
consideration the best interests of said children.
Atty. Seña:
Walang pinagkaiba sa Community property except for
provisions that are peculiar in the CPG.
After par. (4)
If this happens, usually that would be the end of it. Kasi the
fact that the conjugal partnership had to call in separate
properties of the spouses would indicate that the conjugal
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
partnership no longer has any properties. But assuming na
meron pa, we would just observe the rest of the steps. Rest
of the steps would be similar to what we observed in
Community Property.
Par. (7)
The net remainder would be equivalent to its net profits. Eto
na rin yung paghahatian ng spouses equally. Unless, there
has been a different agreement as to proportion, there has
been a waiver or there is forfeiture. The forfeiture is applied
in the profits but if you have conjugal properties existing at
the beginning of the marriage, then we would have to apply
the definition of net profits under Art. 94 (deduct the value
at the beginning from the value at the end)
PROVISIONS COMMON TO ACP and CPG
1. Administration and enjoinment of the community
properties and conjugal properties:
a. Civil Code – husband was deemed the administrator
b. Family Code – both spouses enjoy powers of
administration
2. Encumbering or disposing community and conjugal
properties
– consent of BOTH spouses must be secured
If one part does not consent – transaction will be VOID but it
can be considered a continuing offer which may ripen into
a contract once it is accepted before the offer is withdrawn.
Note: Law does not consider this as a ratification of the
contract that was only consented to by one of the spouses.
We can’t speak of ratification because the contract is a
nullity. A void contract can never be the subject of
ratification. Instead, what will happen here, if there is
acceptance prior to withdrawal of the offer, then the
contract, the new valid contract would be considered to have
arisen at the time when there was acceptance. It does not
retroact to the time when the first contract was executed.
One case penned by J. Caguioa Validity of a sale of land that
the husband made without the wife’s consent. In this case,
the Supreme Court held that such disposition is no longer
considered void, but only voidable – valid until annulled. The
reason given is that, under the law, the remedy of the wife
whose consent was not secured by the husband is to seek the
annulment of the contract within 10 years from the time of
execution of the contract and during the marriage. SC said, if
the contract was truly void, then the remedy of annulment
would not have been available. If annulment, the contract
subject of the annulment was valid until annulled.
(prevailing rule) This only applies to dispositions or
Page 91 of 126
encumbrances of conjugal property made under the Civil
Code.
If the encumbrance or disposition is made under the Family
Code, then that contract is null and void.
3. Grounds for termination
Art. 99. The absolute community terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the
marriage under Articles 134 to 138.
Art. 126. The conjugal partnership terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the
marriage under Articles 134 to 138.
Atty. Seña:
Although you may notice that the general rule may be that
the dissolution of the conjugal partnership or the community
property would coincide with the dissolution or termination
of the marriage, that is not always true.
Because in case of legal separation, the marriage continues
to subsist, but the legal separation may bring about the
dissolution of the conjugal partnership or the community
property.
Another important point is that the nullity of the marriage is
a ground for terminating the ACP or the CPG. But we have to
remember that this is limited to only one instance – that is
when the nullity is brought about by Art. 40.
If the nullity precedes from Art. 40, then that is the only time
that there is a valid property regime rising from a null and
void marriage.
Another common provision would be that the separation in
fact between the spouses will not have any effect on the CPG
or the ACP. Why is this significant? It is because people
normally just leave and separate with their spouse without
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

undergoing the proper process for legal separation and

cohabitation and owned in common, without the consent
dissolution of the property regime.
of the other, until after the termination of their
cohabitation.
The separating spouses does not realize that any property
that he or she may acquire after leaving the other spouse will
When only one of the parties to a void marriage is in good
still form part of the conjugal or community property – even
faith, the share of the party in bad faith in the co-
if they have been separated for so long and without
ownership shall be forfeited in favor of their common
communication. Eventually, when said spouse dies, the other
children. In case of default of or waiver by any or all of the
spouse will still have a claim from the properties earned by
common children or their descendants, each vacant share
the estranged spouse.
shall belong to the respective surviving descendants. In
the absence of descendants, such share shall belong to the
REGIME OF SEPARATION OF PROPERTY
innocent party. In all cases, the forfeiture shall take place
upon termination of the cohabitation. (144a)
When it comes to the separation of property regime, the
distinctive characteristic of this property regime is that it is
the only regime that may be adapted after the wedding.
Art. 148. In cases of cohabitation not falling under the
preceding Article, only the properties acquired by both of
Separation of property may be sought by the parties by
the parties through their actual joint contribution of
grounds specified by the law or by voluntary agreement.
money, property, or industry shall be owned by them in
However, if they do so voluntarily, they may only do so once
common in proportion to their respective contributions.
and if they decide to abandon it and return to their former
In the absence of proof to the contrary, their
property regime, they may no longer ask for it again unless
contributions and corresponding shares are presumed to
for certain causes.
be equal. The same rule and presumption shall apply to
joint deposits of money and evidence of credit.
If the spouses will adopt separation of property regime
through the antenuptial agreement and they do not go all the
If one of the parties is validly married to another, his or
way, meaning to say that it is partial. Then whatever it is that
her share in the co-ownership shall accrue to the absolute
they will not be placing under the separate property regime,
community or conjugal partnership existing in such valid
those properties will be governed by the ACP which is the
marriage. If the party who acted in bad faith is not validly
default property regime (Art. 144, FC).
married to another, his or her shall be forfeited in the
manner provided in the last paragraph of the preceding
PROPERTY REGIMES OF UNIONS WITHOUT MARRIAGE
Article.
OR UNDER A VOID MARRIAGE
The foregoing rules on forfeiture shall likewise apply
Art. 147. When a man and a woman who are capacitated even if both parties are in bad faith. (144a)
to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or
Atty. Seña:
under a void marriage, their wages and salaries shall be
Essentially, what we have here is co-ownership, under Sec.
owned by them in equal shares and the property acquired
147 and 148. It is a special kind of co-ownership.
by both of them through their work or industry shall be
governed by the rules on co-ownership.
In ordinary co-ownership, a co-owner has the right to
dispose of his share in the property without the consent of
In the absence of proof to the contrary, properties
the other co-owners. However, in co-ownership under Art.
acquired while they lived together shall be presumed to
147 and 148, during the cohabitation, one of the parties is
have been obtained by their joint efforts, work or
still cohabiting, they cannot dispose of their share in the co-
industry, and shall be owned by them in equal shares. For
owned property without the consent of the property.
purposes of this Article, a party who did not participate
in the acquisition by the other party of any property shall
Furthermore, the relationship may not last forever; the co-
be deemed to have contributed jointly in the acquisition
ownership might outlive the relationship. Though the
thereof if the former’s efforts consisted in the care and
relationship has already ceased, they would still be co-
maintenance of the family and of the household.
owners of the properties they acquired during the
cohabitation.
Neither party can encumber or dispose by acts inter vivos
of his or her share in the property acquired during

Page 92 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

For example, Maria and Pedro bought a dog. Even when the
relationship of this couple falls apart, what subsists is their
co-ownership of the dog.

However, in Art. 147 and 148, the co-ownership itself

undergoes a transformation once the parties have stopped
cohabiting. The special co-ownership Art. 147, wherein any
party cannot dispose of their share in the co-owned property
without the consent of the other, now becomes an ordinary
co-ownership; this means that they may now dispose of their
share without the consent of the other.

However, this only applies with the assumption that the

other party recognizes the co-ownership. You will only apply
these provisions if one of the parties are insisting that
he/she solely owns all the properties. Otherwise, there is
nothing to talk about. In other words, you only apply these
provisions [Art 147 & 148] in situations wherein the co-
ownership is being contested.

Page 93 of 126
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
OCTOBER 3, 2022
Atty. Seña:
Let’s recap. Remember, if the occasion arises for Art. 147 or
Art. 148 to be applied then that means the parties are no
longer together and worse, they are not in agreement as to
what they co-own and what they separately own. Kasi kung
okay pa sila, hindi natin pag-uusapan itong co-ownership at
kung okay sila kahit hiwalay sila, there will be no need for
Art. 147 or Art. 148 to be applied to determine the rights and
obligations. Because they will be able to talk things through.
One obvious problem that may arise in case of the
relationship going south is that one of the parties would
deny that there is co-ownership. How will that party do it?
By saying that there is no cohabitation in the first place. Kasi
tandaan niyo, cohabitation is a legal term and that would
require more than just staying together in one place,
sleeping over, or having sexual intercourse. Cohabitation
actually means you are deporting yourselves as husband and
wife. You have built a life together where you are supposed
to be life partners. More than just staying in one house, that
may entail having a joint bank account or having joint
investments, buying the house and lot that you are living in.
Then siguro ‘yung bills niyo, credit card statements naka-
address sa bahay kung saan nagsasama kayo. So that would
show cohabitation.
Ang problema kasi nga sa generation ninyo, we’ve come up
with these no-label relationships. Why is this a problem? E
mahirap nan gang masabi kapag ang dalawang tao ay mag-
boyfriend at girlfriend if they will not admit to the same edi
mas lalo nang mahirap if the parties would live together
under this no-label relationship. That may prove to be an
issue in trying to determine or establish the presence of co-
ownership under Art. 147 and Art. 148.
Kaya usually ang nangyayari, if a claim is to be made for the
partition of co-owned properties, the proceeding becomes
two steps:
1. To establish that a co-ownership actually exists
under Art. 147 or Art. 148;
2. Partitioning the co-owned properties. Partition
can be judicial partition or voluntary partition (by
agreement).
Sa 147, it is more generous than 148. Because in 147, we
have co-ownership over the salaries and wages of the
parties. There is also a presumption that whatever was
acquired during the union of the parties, was acquired
through their joint efforts. And should that presumption be
refuted, meaning to say that the other party would be able to
show that no actual monetary contribution was made by the
party who simply stayed at home, then that stay-home party
Page 94 of 126
may actually claim that his contribution consisted in taking
care of the household of the family.
Now, that kind of quantification for taking care of the
household, that co-ownership over salaries and wages,
that presumption that anything acquired during the
union was acquired through joint efforts – all of these
are not found in the co-ownership under Art. 148. Kaya
nga mas generous si Art. 147.
In Art. 148, you have to prove actual contribution. If there
is none, then the property only pertains to the party who
contributed to its acquisition.
Q: When do we apply Art. 147?
A: We apply Art. 147 to those unions involving a man and a
woman (kita niyo kung gaano ka-OC ‘yung Family Code sa
paglilimita ng unions/marriage sa opposite-gendered
parties?) kahit sa 147, sinasabi a man and a woman
exclusively living with one another without the benefit of
marriage or under a void marriage with no impediment.
Q: Ano ‘yung mga posibleng void dito?
A: Art. 36, Art. 53, Lack of Marriage License, Lack of
Authority of the Solemnizing Officer, Lack of Consent.
Art. 4. The absence of any of the essential or formal
requisites shall render the marriage void ab initio, except as
stated in Article 35 (2).
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
An irregularity in the formal requisites shall not affect the
validity of the marriage but the party or parties responsible
for the irregularity shall be civilly, criminally and
administratively liable.
Art. 36. A marriage contracted by any party who, at the time
of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage,
shall likewise be void even if such incapacity becomes
manifest only after its solemnization. (As amended by
Executive Order 227)
Art. 52. The judgment of annulment or of absolute nullity of
the marriage, the partition and distribution of the properties
of the spouses and the delivery of the children’s presumptive
legitimes shall be recorded in the appropriate civil registry
and registries of property; otherwise, the same shall not
affect third persons. (n)
Art. 53. Either of the former spouses may marry again after
compliance with the requirements of the immediately
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
preceding Article; otherwise, the subsequent marriage shall
be null and void.
Atty. Seña:
All others not falling under 147, would fall under 148. And
there is also forfeiture that may be meted out against the
party acting in bad faith in both cases. Pero sa 148, may
added layer.
Q: What is that added layer?
A: If one of the parties happens to be validly married to
another, then his share will be forfeited in favor of the
property regime in that existing marriage.
Before we leave Art. 147 and Art. 148, I would like to
emphasize that the co-ownership under both 147 and 148 is
not your ordinary co-ownership. Kasi sa ordinary co-
ownership, kasi sa ordinary co-ownership, any of the co-
owners may dispose of his share in the co-ownership
without the consent of the others. That can be done anytime
unless the subject of the co-ownership happens to be
personal in character.
GR: The consent of the co-owners is not required.
XPN: Unless the subject of the co-ownership happens to be
personal in character.
Pero sa 147 or 148, the parties cannot dispose of their share
in the co-ownership without the consent of the other during
the cohabitation. So long as the cohabitation subsists.
Ngayon kapag nag-break na sila, if they are no longer
cohabiting with one another, then that means that the co-
ownership would still subsist; the co-ownership would
actually outlive the relationship. At that point, the co-
ownership will be transformed into an ordinary co-
ownership. What does that mean? Pwede nang mag-
dispose even without the consent of the other party.
QUESTION ABOUT ART. 147
Q: With regard to Art. 147, is there an instance wherein
the cohabitating couple are already establishing or
talking about their separate properties during their
cohabitation, that they no longer need to wait for
liquidation to give proof over which properties belong
to them? [That there is a recognition that this property
is yours, or is mine].
Atty. Seña:
Yes, this is allowed. They can create a simple document that
acknowledges the fact that the property was bought by
him/her using his own funds and that such property belongs
to him/her exclusively.
Page 95 of 126
However, although this is the right thing to do, couples do
not usually do this due to their emotions; sometimes you feel
shame when talking about money.
PATERNITY AND FILIATION
Q: What is paternity?
A: It is the civil status of a father in relation to the child
(Rabuya, PFR, 2017). It is from the point of view of the father.
Q: What is filiation?
A: The civil status of a child in relation to his or her parents
(Rabuya, PFR, 2017). It is the relationship of the child with
the parents.
Art. 163. The filiation of children may be by nature or by
adoption. Natural filiation may be legitimate or
illegitimate.
Atty. Seña:
Filiation can either be by nature or by adoption. Filiation by
nature may either be legitimate or illegitimate.
Let’s have a definition of legitimate and illegitimate filiation.
Art. 164. Children conceived or born during the marriage of
the parents are legitimate.
Children conceived as a result of artificial insemination of
the wife with the sperm of the husband or that of a donor or
both are likewise legitimate children of the husband and his
wife, provided, that both of them authorized or ratified such
insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be
recorded in the civil registry together with the birth
certificate of the child. (55a, 258a)
Art. 165. Children conceived and born outside a valid
marriage are illegitimate, unless otherwise provided in this
Code.
Atty. Seña:
For legitimate filiation, it is enough that either conception or
birth takes place within a valid marriage.
For an illegitimate child, that child is conceived and born
outside a valid marriage. Conception and birth takes place.
Kasi if either conception or birth takes place within a
marriage, negated na ‘yung possibility of illegitimate
filiation. Because that child would be considered as a
legitimate child.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
To say “outside of a valid marriage” is broad enough to
include being conceived and born to a void marriage. And to
this, we only have two exceptions.
Q: What are these exceptions?
A: The law says that if a child is conceived or born before the
finality of the decree of nullity under article 36, that child is
legitimate by way of exception. Similarly, a child born to the
marriage that is void under article 53 would be considered a
legitimate child.
Q: There is a guy who got his gf pregnant. He married
her. The child was born after marriage. What is the
status of the child?
A: The child would be legitimate because it is enough that
either conception or birth takes place during the marriage.
Q: Let us say that masyado na malaki tiyan ng babae.
Hindi na magandang magmartsa sa simbahan. So they
wait until after the child is born to get married. What
would be the status of that child?
A: The child would be legitimated. The child was born
illegitimate but the subsequent marriage of his parents
would make him legitimate, subject to the condition that the
parents are not suffering any impediment at the time of
conception, except for the instance of minority.
Atty. Seña:
The family code has endeavored to keep up with the modern
times. And proof that it is doing so can be found in its
definition of children conceived through artificial
insemination in the definition of legitimate children.
Q: Can you tell us more about legitimate children
conceived through artificial insemination?
A:
Art. 164. Children conceived or born during the
marriage of the parents are legitimate.
Children conceived as a result of artificial insemination
of the wife with the sperm of the husband or that of a
donor or both are likewise legitimate children of the
husband and his wife, provided, that both of them
authorized or ratified such insemination in a written
instrument executed and signed by them before the birth
of the child. The instrument shall be recorded in the civil
registry together with the birth certificate of the child.
Atty. Seña:
There is an instrument authorizing or ratifying artificial
insemination. This instrument may be executed either
before or after insemination because the law speaks of
authorizing or ratifying. But that is not the concern of the
law. The law only requires that it be executed before the
birth of the child. The provision of article 164(2) actually
Page 96 of 126
allows a child who is not related to the husband at all to be
considered as his legitimate child. Because as defined in 164,
the sperm that may be used may belong to the husband,
donor or both. What happens here is the eggs of the wife will
be fertilized using the sperm of the husband, donor, or a
combination of both. Once the egg is fertilized, the child
would be conceived. Paternity is determined by whose
sperm was used. So if the eggs are fertilized by a man other
than the husband, the child would not be that of the husband
but that of the donor’s. But due to this instrument
authorizing or ratifying the artificial insemination, then that
child would now be considered as the legitimate child of the
husband.
Ang hindi palang pinagtutuunan ng pansin ng family code is
surrogacy. They use the womb of another woman who
carries the child to term. If done here, who should be the
parents of the child? Biologically, you can prove that the
child was conceived using the sperm of the husband. But
when it comes to the identity of the mother, the problem is
the child did not come from the womb of the wife. Nothing in
our law as of yet defines surrogacy that will allow the wife
to claim maternity. The child is therefore an illegitimate child
of the husband with the surrogate.
Whoever gave birth to you, that woman will be your mother.
QUESTION ABOUT SURROGACY
Q: With regard to surrogacy, we mentioned that the child
born from a surrogacy procedure will be considered as
a child of the surrogate mother. Furthermore, if the
father recognizes the child as his, then that father will be
considered the illegitimate father of that surrogate
child. Will there be an obstacle for the husband and wife
to jointly adopt this surrogate child?
Atty. Seña:
None, there would be no obstacle. In fact, what most people
do is simulate the birth of the child and just make it appear
that the child was born to the husband and wife. Most people
go abroad in the USA, wherein the registration is facilitated
easily because surrogacy is recognized in that country. Thus,
they have no issue with naming the child to be that of the
husband and the wife.
Technically and biologically, that child is the child of the
husband and the wife. The surrogate only provided the
womb, but the egg and the sperm cells are provided by the
couple. However, at this point, our law has not yet
recognized surrogacy. We still have not yet abandoned the
concept that the mother would be the woman who gave birth
to the child. When it comes to the mother, we don’t even
think of using DNA tests because we base everything on the
concept that whoever gave birth is the mother of the child.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: What happens if the husband and wife failed to
institute this instrument authorizing or ratifying the
artificial insemination?
A: Since under the facts of what we are discussing, the child
is without doubt conceived through artificial insemination
then the failure of the husband and the wife to execute the
instrument ratifying or authorizing the artificial
insemination should have the effect of making the child
illegitimate.
Q: In that case, what remedy can the husband and wife
do to remedy the situation?
A: Adoption for the purpose of improving the status of the
child from illegitimate to legitimate.
Atty. Seña:
Of course parang napaka-cumbersome naman na you have
to adopt your own child just to improve his status from
illegitimate to legitimate arising from your failure to execute
a simple instrument. So siguro mas praktikal na gawin is to
execute the instrument and ante-date the same. Pero since
mga abogado tayo, hindi natin tuwirang iaadvice sa mga
kliyente natin kasi you are circumventing the law, you are
committing falsification pero hindi niyo rin maipagkakaila
na yan yung practical na approach. So meron kayong
dilemma, legal ethics vs. practicality. What will you do? Pag
minsan, pwede nyo namang banggitin lang sa kliyente niyo.
Sometimes in your practice, you’d come across situations
where the legal option may not be the most practical option
and sometimes the situation of your client may not allow him
to afford any prolonged litigation or prolonged procedure.
Under the Family Code, the status of a legitimate child is not
a mere presumption unlike in the Civil Code. In Civil Code,
you are only presumed to be legitimate while in Family Code,
you are given that status outright from birth. And the thing
is, if the same is not impugned in a timely manner by the
right person then your status as a legitimate child would
become incontrovertible. It can no longer be questioned.
Q: Who has the right to impugn legitimate filiation?
A: Husband and not father. Because if the action to impugn
is successful, then that child becomes a stranger to the
husband. (Hindi yung maddemote siya from legitimate to
illegitimate. But from legitimate to stranger) But in so far as
the wife is concerned, she remains to be the mother of the
child but the child would be the illegitimate child of the
mother.
Only the husband may impugn but under certain
circumstances, the heirs of the husband are given these right
of action.
Q: When will this happen?
A: Article 171
Page 97 of 126
Article 171. The heirs of the husband may impugn the
filiation of the child within the period prescribed in the
preceding article only in the following cases:
(1) If the husband should die before the expiration
of the period fixed for bringing his action;
(2) If he should die after the filing of the complaint,
without having desisted therefrom; or
(3) If the child was born after the death of the
husband. (262a)
Q: The law only limits the grounds for impugning
legitimate filiation. What are these grounds?
A. Article 166
Article 166. Legitimacy of a child may be impugned only
on the following grounds:
(1) That 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:
(a) The physical incapacity of the husband to have
sexual intercourse with his wife;
(b) The fact that the husband and wife were living
separately in such a way that sexual intercourse
was not possible; or
(c) Serious illness of the husband, which absolutely
prevented sexual intercourse;
(2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the
husband, except in the instance provided in the
second paragraph of Article 164; or
(3) That in case of children conceived through artificial
insemination, the written authorization or
ratification of either parent was obtained through
mistake, fraud, violence, intimidation, or undue
influence. (255a)
Atty. Seña:
You can divide the grounds into three:
1. Physical Impossibility
2. Biological or scientific reasons that the child is not
of the husband
3. Vitiation of the consent to the artificial insemination
Atty. Seña:
Here, you can see the grounds, and you can divide this into
three (3). If you look at paragraph 1, it speaks of physical
impossibility but note that the physical impossibility here
only has to arise during the first 120 days of the 300 days
immediately preceding the birth of the child.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: So, how come we only need the impossibility to be
within the first 120 days of the 300 days immediately
preceding the birth of the child?
A: The first 120 days represents the period of conception. If
you deduct 120 days from 300, you are left with 180 days
which represents 6 months, and 6 months would be the
shortest period of gestation.
The reason for the impossibility should be any of the
following:
1. Physical incapacity of the husband to have sexual
intercouse with his wife;
2. The fact that the husband and wife were living
together in such a way that sexual intercourse was
not possible
3. Serious illness of the husband which absolutely
prevent a sexual intercourse.
Atty. Seña:
If you may recall, I once discussed with you this case of
Concepcion vs. Court of Appeals.
CONCEPCION v. CA
G.R. No. 123450 | 31 August 2005 | CORONA, J.
This involved a wife who contracted a subsequent
bigamous marriage, and in that subsequent bigamous
marriage, a child was born. Kaya lang si second husband,
ang ginawa niya, he had the subsequent marriage
declared void because it was bigamous in character, and
this angered the wife. What she did was – to ask that she
be given sole custody of the child on the premise that the
child was illegitimate.
The second husband was not happy about that, and he
wanted to have joint parental rights. In a twist neither of
them anticipated, the Supreme Court said that the child
was born during the subsistence of the first marriage and
no action to impugn his legitimate filiation was ever
brought by the first husband, and so far, this child
remains to be, in the eyes of the law, the legitimate child
of the husband.
Now, of course, the wife and the second husband are one
is saying na that is impossible because during that time,
the wife was no longer living with the first husband. They
were living separately and she was living with the second
husband.
Sabi ng Supreme Court – Even then you were living in the
same city, municipality, it was not physically impossible
for you to meet up and have sexual intercourse. Kasi
Page 98 of 126
‘yung kailangan mo lang ipakita ‘yung impossibility in the
first 120 days, kaya lang SC overlooked the fact that there
was emotional hindrance.
We go to the next ground:
2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the
husband, except in the instance provided in the second
paragraph of Article 164
Atty. Seña:
Dito papasok ‘yung mga DNA evidence natin to show that the
child is a stranger to the husband. The only exception being
is if the child was conceived through artificial insemination
using the sperm of the donor. In that case, any scientific test
would show that the child biologically would not be the child
of the husband. So exception ‘yan.
3) That in case of children conceived through artificial
insemination, the written authorization or ratification of
either parent was obtained through mistake, fraud,
violence, intimidation, or undue influence. (255a)
Atty. Seña:
Paragraph 3 speaks of vitiation of consent to the AI. Note that
while the law speaks of vitiation of consent of either the
husband or the wife, it’s only the husband who is given the
right to bring the action to impugn the legitimate filiation.
Q: Now, we want to understand why is that the case?
That it is only the husband who is given the right to bring
the action to impugn filiation?
A: We have to understand in the context that the sperm used
was that of another man and not of the husband kas nga if it
was his sperm that was used, it’s very unlikely that he would
go to the extent of impugning the filiation of the child while
the child was actually his.
So, we have to correlate paragraph 3 from paragraph 2 in
that a ground for impugning legitimate filiation is if we can
show for biological or other reasons that the child is not the
child of the husband, then the exception would be, if the child
was conceived by AI using the sperm of a donor, then
exception to the exception would be paragraph 3. That the
sperm of the donor was used and then the consent of either
spouses was vitiated through mistake, fraud, violence,
intimidation, or undue influence.
Q: Now, in that case, we still have to ask that it is only the
husband that is given the right of action to impugn the
filiation even if it were the consent of the wife that was
vitiated?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
A: Even if the consent of the wife to the AI was vitiated, the
fact remains that the child is still her child kahit illegitimate
pa. It will be no different from a situation where the mother
gets pregnant because she was (inaudible) or sexually
assaulted.
Atty. Seña:
But it is a different thing for the husband. If the husband’s
consent was vitiated then the sperm of another man was
used, we cannot say that he agreed on the artificial
insemination where the sperm of another man was used to
get his wife pregnant.
In that case, the child would be a stranger to him. We cannot
use as a basis the instrument authorizing or ratifying the
artificial insemination.
To emphasize how very strictly the law enforces this rule
that the right to impugn legitimate filiation is reserved to the
husband. In the case where the daughters themselves
wanted to establish their illegitimate filiation with a man
other than their mother’s husband, SC denied their attempt
because what happened in that case is that these 2 daughters
were born to a married couple. The husband treated them as
his own because he believed that they were his daughters
but as it turns out the wife was having an affair with another
man who happened to be rich. The husband eventually died
and when the other man also died, the daughters found out
that he actually executed something in writing which
acknowledged his paternity. They used this to go to court
and establish their illegitimate filiation with him. The judge
did not allow them to present the evidence saying it was
immaterial. The reason why it was immaterial is that they
were not allowed to prove their illegitimate filiation because
proving their illegitimate filiation with this man would be
tantamount into impugning their legitimate filiation with the
husband of their mother and they cannot do that because it
is only the husband who may impugn their illegitimate
filiation.
Another important point, this limitation that the law
imposes regarding this action to impugn, this only applies if
the child in question is not the biological child of the husband
but is the biological child of the wife.
If the child in question is not the biological child of both the
husband and the wife, then we do not apply Art. 166.
When can this happen? We have a child who was never
legally adopted.
Example: Mr. Mosones was raised by Ms. Lim and Mr. Awid
as their own child but for some reason they never wanted to
legally adopt him. In their old age, Mr. Lim and Mr. Awid
passed away. The relatives of the spouses began to reclaim
Page 99 of 126
their estate and began plotting to get rid of Mr. Mosones by
getting him out of the way.
What can they do? They decided to show that he was a total
stranger to the spouses. Mr. Mosones said they cannot do
that because it is only my father who can bring action to
impugn my filiation because that is what they are doing they
are trying to impugn the legitimacy. But Mr. Mosones would
not be correct because of the limitation under Art. 166 will
not apply in this case since he is not the biological of both the
spouses.
The right to action was given to the husband and declared
that under circumstances, the heirs of the husband may file
the action.
Art. 166. Legitimacy of a child may be impugned only on
the following grounds:
(1) That 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:
(a) the physical incapacity of the husband to have sexual
intercourse with his wife;
(b) the fact that the husband and wife were living
separately in such a way that sexual intercourse was not
possible; or
(c) serious illness of the husband, which absolutely
prevented sexual intercourse;
(2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the
husband, except in the instance provided in the second
paragraph of Article 164; or
(3) That in case of children conceived through artificial
insemination, the written authorization or ratification of
either parent was obtained through mistake, fraud,
violence, intimidation, or undue influence.
Q: But what is the prescriptive period to impugn
legitimate filiation?
A: The action to impugn filiation may be raised within the
period from 1-3 years. 1 year is the husband is in the same
city/municipality at the time of birth. 2 years if the husband
is in the Philippines but in a different city/municipality at the
time of birth. 3 years if the husband is outside the
Philippines.
Q: How do we reckon the period? From what point do we
start counting the period?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
A: The reckoning period must be from the knowledge of the
birth of the child or from the time that its birth is recorded
in the civil registry. If the birth was unknown or concealed,
the period shall be reckoned from the discovery or
knowledge of the birth of the child or of the fact of
registration of said birth whichever is earlier.
Atty. Seña:
When it comes to annulment on the ground of fraud
consisting in the deceit committed by the wife that she was
pregnant by another man at the time of the marriage. There
seems to be a conflict between the period to ask for
annulment and the period to impugn the legitimate filiation.
As we have said, the time to annul is too long in cases where
the wife is pregnant by another man. It is 5 years from the
time of discovery of the fraud. So, it is possible that the
period to impugn the legitimate filiation may have already
prescribed before the fraud was discovered by the husband.
The ending is you would have a marriage that is annulled
because of the infidelity or indiscretion committed by the
wife and yet the very reason why the husband may have
sought the annulment, the child would still remain to be his
legitimate child. It is a little annulment. He is stuck with this
child who caused him this marriage only because the period
to impugn such child’s filiation had long passed even before
he knew of the indiscretion. This is the incongruity of the
law.
The period of 1-2-3 years are relatively short periods.
Q: Why does the law seem to be in a hurry to bar the right
of action given to the husband to impugn the legitimate
filiation?
A: For the stability of the life of the child, to protect the child.
Atty. Seña:
It is not the fault of the child. The child has no say on the
circumstances that which he was born. Hindi niya pinili na
mapanganak to these parents. So, as far as the law is
concerned, the sooner that any questions regarding the
child’s filiation are precluded from being raised, the better
for the child. If you put yourself in that situation, that the
period to impugn were any longer, then the child will be
growing up insecure with regard to his status. This is his
whole world which can turn upside down.
One day, you are the child of Dean Divina. After several years,
if the period to bring an action to impugn is longer, biglaang
hindi ka pala legitimate child. By that time, nakakaintindi ka
na. Before apelyido mo is Divina, now, hindi na pwede. That
can be traumatic for the child. The sooner that uncertainty is
removed, the better for the child.
Page 100 of 126
Art. 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 their 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. Provided, the father has the right to
institute an action before the regular courts to prove
non-filiation during his lifetime. The legitime of each
illegitimate child shall consist of one-half of the legitime
of a legitimate child. (as amended by R.A. 9255)
Q: If we have a putative father who acknowledged the
filiation of the child, does the father have the option of
later on, proving non-filiation?
A: The putative father may institute an action within his
lifetime which challenges the filiation of such child under
Art. 176, FC.
Atty. Seña:
Art. 176, FC was amended by RA No. 9255 which is
significant. Under the FC, the illegitimate child has no choice
but to use the surname of the mother even if the putative
father has consented to the use of his surname. Of course,
before the putative father may be named in the birth
certificate.
A birth certificate has all the details and information of the
child. Name of the mother, father, the birth date, birthplace,
etc. If the parents are not married, the name of the father will
be left blank, and the child would not use the surname of the
father.
Unless the father gives consent. He gives consent, at the back
of the birth certificate where the putative father shall affix
his signature with a declaration that he is recognizing or
acknowledging the paternity of the child, and consents to the
use of his surname by the child.
Hindi lang pwede na doon lang ang pirma. Pwede din in any
other private or public instrument. But what I mentioned
above is the most convenient way of doing so.
Under RA No. 9255, the fact that the putative father
acknowledged or recognized the child, will not put him in
estoppel, and can later on question the legitimate filiation,
and prove non-filiation. He has that right of action. The law
will not want to punish him, nagpaka-lalaki na siya at
pinanindigan na ang bata, even if we say he has doubts. So,
he should not be denied that right to question the filiation
should it turn out na hindi pala siya ang tatay ng bata.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
The difference here from the husband, we have short periods
of 1, 2, and 3 yrs, but as to the putative father, he has his
entire lifetime to do so in bringing the action.
The law is very strict in granting this right of action to
impugn legitimate filiation. When the law says that it is only
the husband or his heirs who can file cases, it is strictly
applied and cannot be circumvented.
In one case, when the children themselves were trying to
establish their illegitimate filiation with a man other than the
husband of their mother, how? They wanted to be included
in the succession to the estate of this man, as they had
evidence to show that this man had acknowledged that they
were his children. Apparently, this man and their mother
had an affair while their mother was married. Since the
mother was married, the children were presumed by
everyone around them to have been sired by the husband,
including the husband himself. Nung nalaman nilang hindi
nila tatay yung namatay na husband but was in fact, another
man who has money, they wanted to participate as his heirs,
but in doing so, they must establish their filiation.
The Supreme Court said no, you cannot establish illegitimate
filiation with the deceased. That is immaterial evidence(?).
They are not allowed to impugn their legitimate filiation. If
they go to establish illegitimate filiation with another man,
this means, they are saying that they are not the children of
the husband of their mother. It is a way of impugning their
legitimate filiation and the law does not give them that right
of action. Such is only given to the husband.
This only applies if the child in question is the biological child
of the wife, and not of the husband. If the child is not the
biological child of both husband and wife, then, we do not
apply the limitation under Art. 166.
What do we mean?
EXAMPLE:
We have Ms. Cruz is an ampun-ampunan ni Mr. Perez and Ms.
Wei, but she was not legally adopted. But, people have
known that she is the legitimate child of Ms. Perez and Ms.
Wei. And when both of them pass away, what will Ms. Wei
and Mr. Perez’s relatives do? They will gang up on Ms. Cruz,
and they will prove that she is a stranger to both Ms. Wei and
Mr. Perez. Being a stranger, she will have no successional
rights to their estate.
Can Ms. Cruz say, “You cannot impugn my legitimate filiation
anymore, that right of action has not just prescribed, but it
has died with my father, Mr. Perez.” But the thing is,
legitimation does no apply here since Ms. Cruz is not the
biological child of Ms. Wei, the wife. The theory of the
relatives for wanting her out, is that she is not the biological
Page 101 of 126
child of the husband and the wife. So, we will not apply Art.
166 which limits the right of action with the husband.
The status already exists, but proving that such status exists
is another thing.
QUESTION ABOUT ART. 166 (2)
Q: Is it valid that the basis would be a visual search of the
child which would lead to the conclusion that this child
is not of the same ethnicity as the husband and wife? Do
we stick with the DNA evidence?
Atty. Seña:
Perhaps if you are able to show some study or scientific
journal that says that if the child turns out to be of different
ethnicity in terms of appearance, this would say that the
child is not the child of the parents. If you possess a medical
journal or medical authority, then you can pass it off as a
scientific or biological reason.
However, if you purely rely on visual appreciation, i.e. the
parents have Filipino features but your child has Chinese
features, it will not fly because it is possible that within your
lineage, you have ancestors that are Chinese. The law
requires a scientific basis.
Furthermore, you cannot just go to court and file a petition
to demand that a DNA test be conducted to establish filiation.
You first must establish a basis, i.e. you have to show that the
child is a child of the respondent by showing that you had
sexual relations during the time that conception may have
happened.
Q: How do we establish legitimate filiation? When will
the need to prove legitimate filiation arise? How is it
proven?
A:
Chapter 2. Proof of Filiation
Art. 172. The filiation of legitimate children is
established by any of the following:
(1) The record of birth appearing in the civil register or a
final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and signed
by the parent concerned.
In the absence of the foregoing evidence, the legitimate
filiation shall be
proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
(2) Any other means allowed by the Rules of Court and
special laws. (265a, 266a, 267a)
Atty. Seña:
First tier provides for the record of birth or a final
judgement, and the admission of legitimate or illegitimate
filiation in a public document or a private handwritten
instrument and signed by the parent concerned.
Second Tier includes open and continuous possession of the
status of a legitimate child; or Any other means allowed by
the Rules of Court and special laws.
Both classes may be used to prove legitimate or illegitimate
filiation. Insofar as the legitimate child is concerned, he has
his whole lifetime to prove. Should he die during minority or
state of insanity, his heirs will have 5 years from his death to
establish legitimate filiation.
Should he die during minority or state of insanity, then
there’s 5yrs from his death to establish his legitimate
filiation.
For illegitimate filiation, it’s the same thing, the same proof
would be acceptable, but if evidence relied upon falls under
the 2nd tier, then the illegitimate child must bring his action
within or during the lifetime of the putative parent.
Those illegitimate filiation, remember that, an unsigned but
handwritten instrument, acknowledging filiation would still
be admissible if it is accompanied by other relevant and
competent evidence.
Q: What are those other relevant and competent
evidence?
A:
1. the possession of the status of an illegitimate child
2. DNA Test
AQUINO v. AQUINO
This was discussed in relation to Art.4 – retroactive effect of
the Family Code. As said, the Family Code cannot be said to
have retroactive effect because it will impair rights.
In Aquino v. Aquino: Angela was the daughter of Arturo.
Arturo, on the other hand, was the son of Miguel. Arturo
predeceased Miguel, and in fact, Arturo died even before
Angela was born. So she never saw her father. She was never
taken care of by her father. Arturo supposedly died with the
intention of marrying Angela’s mother. That is why after
Arturo died, Miguel, the grandfather, took care of Angela
even while she was still in her mother’s womb. And that
Page 102 of 126
continued even after her birth. She was treated as a
grandchild be Miguel. And in fact, before Miguel died, he left
behind an instrument, a set of instructions whereby he left a
commercial lot to Angela, and the income from this
commercial lot had since been delivered to Angela. And
eventually, Miguel died. And when Miguel died, Angela
decided that she still wanted to be part of the succession to
the rescissual estate that he left behind. And she claimed that
she has the right to represent her father Arturo to the
succession to the estate of Miguel.
2 problems of Angela:
1. There was no birth certificate, no public or private
instrument whereby Arturo acknowledged
paternity
2. If she was going to rely on other means of proving
her illegitimate filiation, then the Family Code says
that she could have only done so during the lifetime
of Arturo, so barred na siya under the Family Code
Assuming that she was able to prove her illegitimate filiation,
it will be all for naught, because Art.992 of the Civil Code bars
her from inheriting from the legitimate relatives of her
illegitimate parent (there’s no such thing as an illegitimate
parent; but Atty is using that term for convenience only). So,
even if they let her establish her filiation, wala din
mangyayari because of the Iron Curtain Rule under Art.992.
Article 992. Civil Code. 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. (NCC)
But the Supreme Court, in a Motion for Reconsideration, filed
by Angela from the previous ruling dismissing her petition,
decided to revisit the assumptions which provided for the
basis of the Iron Curtain Rule in Art.992. The Supreme Court
said that it's high time that we abandon the presumption that
non-marital children, meaning to say, illegitimate children
are born of illicit relations, because that is the presumption.
And because of that presumption, the law has also assumed
that the legitimate family would hate the illegitimate child.
And the illegitimate child would resent the illegitimate
family because the illegitimate child is considered to be an
outsider. And based on these assumptions of antagonism on
both sides. The law says, they would not want to inherit or
succeed each other. Yun yung pinakabasehan. But, in Aquino
v. Aquino, the Supreme Court took that back. Because SC
said, it’s possible that a non-marital child was simply born to
parents who did not want to get married, even though they
were capacitated to get married. Or, as in this case, the
parents have the intention to get married, but something
happened, which prevented them from getting married. Or,
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

possible that the non-marital child was born because of a

However, illegitimate children may use the surname of
sexual assault committed against the mother.
their father if their filiation has been expressly
recognized by their father through the record of birth
Supreme Court’s Point: In all these instances where we have
appearing in the civil register, or when an admission in a
a non-marital child not born of illicit relation, we cannot say
public document or private handwritten instrument is
that there is hatred against the child coming from the
made by the father. Provided, the father has the right to
legitimate family, most especially, not from the grandparent.
institute an action before the regular courts to prove non-
That is now removed. But, the SC is not prepared to totally
filiation during his lifetime. The legitime of each
do away with the Iron Curtain Rule, because to be honest
illegitimate child shall consist of one-half of the legitime
about it, wala silang legal basis. Because Art. 992 is still the
of a legitimate child. (as amended by R.A. 9255)
law. No amount of justification can change the very clear
language of Art.992. Even if we say it’s unfair, because under
The legitime of each illegitimate child shall consist of one-
Art.992 hindi pwede i-represent ng illegitimate child yung
half of the legitime of a legitimate child. Except for this
legitimate parent to the succession, to the estate of the
modification, all other provisions in the Civil Code
legitimate grandparent.
governing successional rights shall remain in force.
But, the same law allows both legitimate and illegitimate
children to represent the illegitimate parent to the The Supreme Court said, Angela was born during the Civil
succession to the estate of the grandparent. So, instead of Code, so therefore, provisions of the Civil Code shall apply. In
going against the provisions of Art.992 and saying outright Civil Code, it says, if the parent of an illegitimate child were
that there is no more Iron Curtain Rule, the Supreme Court to die during the time that the child was still a minor, then
said in Aquino v. Aquino, that we will not apply Art.992, that illegitimate child will have four years from the time that
instead, what we’ll apply is Art.982, wherein grandchildren she attained her age of majority to bring an action.
inherit by right of representation without any distinction as
to filiation. So that is enough to sustain the case of Aquino. In this case, Angela made her claim on the last day of that 4-
yr period from the time she turned 21. She turned 21 in
1999. In 1999, we already have a Family Code, and in 1999,
Article 982. The grandchildren and other descendants
we already have RA 6809, lowering the age of majority from
shall inherit by right of representation, and if any one of
21 to 18yo.
them should have died, leaving several heirs, the portion
pertaining to him shall be divided among the latter in
Atty. Seña:
equal portions. (NCC)
It is true that she has been enjoying the open and continuous
status of an illegitimate grandchild. She does not have the
Clear na. Ang problema na lang ngayon is proving the recognition from the father, the father having died before
filiation of Angela. Kasi clear na naman yung law under she was born. Hindi natin pwede doon ipasok, hindi
Art.176 (Atty. may be referring to Art.175 FC), if you’re going pwedeng gamiting ebidensya. So, anong evidence ang
to prove your illegitimate filiation, you must do so during the pwedeng gamitin. Sabi ng Supreme Court, DNA evidence
lifetime of the putative parent if you’re relying on 2nd tier would be acceptable. In this case, if it’s no longer possible to
evidence. obtain any DNA sample from the putative father, then DNA
samples from the other relatives of the father may be used.
Art. 175. Illegitimate children may establish their
SC has declared that there will be right of representation in
illegitimate filiation in the same way and on the same
favor of Angela under Art. 982 but this is subject to her being
evidence as legitimate children.
able to prove her illegitimate filiation. The case was
remanded to the trial court for reception of DNA evidence.
The action must be brought within the same period
specified in Article 173, except when the action is based
on the second paragraph of Article 172, in which case the
ILLEGITIMATE CHILDREN
action may be brought during the lifetime of the alleged
parent.
Q: What are the rights given to an illegitimate child?
A: The rights of an illegitimate child are:
Art. 176. Illegitimate children shall use the surname and
1. Principally use the surname of the mother
shall be under the parental authority of their mother, and
2. May use the surname of the father if the illegitimate
shall be entitled to support in conformity with this Code.
filiation has been expressly recognized by the father
through a record of birth appearing at the civil

Page 103 of 126

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
registrar or if there is an admission of paternity
made by the putative father in a public document or
a private handwritten instrument
3. Entitled to support from parents
4. Considered compulsory and legal heirs with respect
to parents
Atty. Seña:
Although R.A. 9255 only speaks of an admission in a public
document or private handwritten instrument without
explicitly requiring that the same be signed by the father, it
has already been held that the requirement of signature also
applies to these proofs of filiation recognized under R.A.
9255.
An illegitimate child is supposed to use the surname of the
mother but they may as other option use the surname of the
father who has recognized their filiation.
Q: What about the legitimate child?
A: The law says that he must principally use the surname of
the father. But, this does not preclude the option of using the
surname of the mother.
This is because the law states that the use of the father’s
name is only principally which does not necessarily mean
that it is exclusive and it is also provided that they have the
option to use the mother’s surname.
In Alanis III v. CA, the Supreme Court held that the legitimate
child may opt to use the mother’s surname instead of the
father’s particularly in a case where the father had
practically abandoned the legitimate child and it was the
mother who single-handedly raised the child.
The court pointed out that the law only speaks of principal
use in relation to the surname of the father. And principal is
not equivalent to exclusive use.
LEGITIMATED CHILDREN
Q: What are legitimated children?
A:
Art. 177. Children conceived and born outside of
wedlock of parents who, at the time of conception of the
former, were not disqualified by any impediment to
marry each other, or were so disqualified only because
either or both of them were below eighteen (18) years of
age, may be legitimated. (as amended by R.A. 9858)
Art. 178. Legitimation shall take place by a subsequent
valid marriage between parents. The annulment of a
viodable marriage shall not affect the legitimation.
(270a)
Page 104 of 126
Art. 179. Legitimated children shall enjoy the same
rights as legitimate children. (272a)
Art. 180. The effects of legitimation shall retroact to the
time of the child's birth. (273a)
Art. 181. The legitimation of children who died before
the celebration of the marriage shall benefit their
descendants. (274)
Art. 182. Legitimation may be impugned only by those
who are prejudiced in their rights, within five years from
the time their cause of action accrues. (275a)
Q: What should we inquire into in determining whether
there is a possibility of legitimation?
A: We look at the time of conception because it is required
that there should be no impediment for the parties to marry
each other at the time of the conception of the child.
Atty. Seña:
It is also required that there would be a valid subsequent
marriage. If the subsequent marriage happens to be VOID,
then the legitimation will cease to have any effect and the
child will revert to being ILLEGITIMATE.
Note: However, if the subsequent marriage turns out to be
VOIDABLE, valid ‘til annulled, then the legitimation will
remain, it will subsist.
Ex:
Pedro and Maria, (boyfriend and girlfriend) had a child out
of wedlock. They subsequently got married and after getting
married they had two (2) more children. After 10 years, they
decided that they were not suited for each other so Pedro
files for a petition for declaration for nullity and avails of Art.
36.
Q: What will be the status of their three (3) children?
A: The first child is illegitimate. The legitimation of the first
child would become ineffective because of the nullity of the
subsequent marriage.
As for the two children, they would be legitimate since a
marriage that is subsequently nullified under Art. 36 shall
produce legitimate children.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
OCTOBER 7, 2022
Domestic Administrative Adoption and Alternative Child
Care Act
R.A. 11642
RA 11642 took effect on January 28, 2022 with the goal of
making domestic adoption proceedings simpler and less
costly. The law also seeks to streamline alternative child care
services. (from the Revised Domestic Adoption Guidelines
issued by the Supreme Court, June 21, 2022)
National Authority for Child Care (NACC)
Section 5. National Authority for Child Care (NACC). – The
Inter-Country Adoption Board (ICAB) is hereby reorganized
to a one-step quasi-judicial agency on alternative child care,
known as the National Authority for Child Care (NACC),
attached to the DSWD.
All duties, functions, and responsibilities of the ICAB, the
DSWD, and those of other government agencies relating to
alternative child care and adoption are hereby transferred to
the NACC.
The Department of Budget and Management (DBM), in
coordination with the ICAB and the DSWD, shall formulate a
cohesive organizational structure with corresponding
plantilla positions responsive to fulfill the functions and
divisions of the NACC as stipulated under this Act.
Section 6. Jurisdiction of the NACC. – The NACC shall have the
original and exclusive jurisdiction over all matters
pertaining to alternative child care, including declaring a
child legally available for adoption; domestic administrative
adoption; adult adoption; foster care under Republic Act No.
10165, otherwise known as the “Foster Care Act of 2012”;
adoptions under Republic Act No. 11222, otherwise known
as the “Simulated Birth Rectification Act”; and inter-country
adoption under Republic Act No. 8043, otherwise known as
the “Inter-Country Adoption Act of 1995”. The NACC shall
also have the authority to impose penalties in case of any
violation of this Act.
Atty. Seña:
The NACC is supposed to exercise all powers and functions
relating to alternative child care including declaration of a
child as legally available for adoption and then foster care,
kinship care, family care or residential care.
The Inter-Country Adoption Board (ICAB) has also been
included in the setup of the NACC. Wala na tayong Inter-
Country Adoption Board (ICAB), it is now part of the NACC.
The NACC oversees both domestic and inter-country
adoption.
Page 105 of 126
Q: Would there be any court participation?
A: Meron pa rin naman, but it would be by way of appeal
from the decisions rendered by the NACC on Petitions for
Adoption filed with the same.
Section 9. Regional Alternative Child Care Office (RACCO). –
There shall also be a Regional Alternative Child Care Office
(RACCO) created for each region of the country, which shall
be headed by a Regional Alternative Child Care (RACC)
officer.
The RACCO is tasked to ensure a well-functioning system of
receipt of local petitions for CDCLAA and adoption, and other
requests regarding alternative placement and well-being of
children.
The RACCO shall have dedicated personnel who shall
exclusively handle each of the following:
(a) Issuance of the CDCLAA;
(b) Domestic administrative adoption;
(c) Inter-country adoption;
(d) Foster care;
(e) All other forms of alternative care including family-
like care, kinship care, and residential care; and
(f) Rectification of simulated birth pursuant to Republic
Act No. 11222.
There shall be an RCPC installed in each RACCO which shall
be supervised by the RACC officer. It shall be composed of a
multidisciplinary group including a child psychiatrist or
psychologist, a medical doctor, a member of the Philippine
Bard, an adoption social worker and a representative of an
NGO involved in child welfare: Provided,That no member of
the group shall have relations with the child or PAP being
matched.
Section 25. Case Study. – No Petition for Adoption shall be
processed by the NACC or its RACCs unless an adoption
social worker of the NACC, the social service office of the
LGU, or any child-placing or child-caring agency, has made a
case study of the adoptee, the biological parents as well as
the adopters, and has submitted the report and
recommendations on the matter to the respective RACCO as
among the supporting documents of the petition, and the
NACC for the issuance of the Certificate of Adoption.
At the time of preparation of the prospective adoptive child’s
case study, the concerned adoption social worker shall
confirm with the Philippine Statistics Authority (PSA) the
real identity and registered name of the prospective adoptee.
If the birth of a prospective adoptee was not registered with
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
the PSA, it shall be the responsibility of the said social
worker to ensure that said prospective adoptee is registered.
The case study on the prospective adoptive child shall
establish that said child is legally available for adoption and
that the documents to support this fact are valid and
authentic.
Further, the case study of the prospective adopters shall
ascertain their genuine intentions and that the adoption is in
the best interest of the child. If the adoption social worker
determines that the adoption shall redound to the best
interests of the child, a recommendation shall be made to the
RACCO or the NACC for the petition to be granted; otherwise,
a denial thereof shall be recommended. Upon discovery of
new information that would warrant denial of the petition to
protect the best interest of the child, the said social worker
is duty bound to report the same to the RACCO or the NACC.
The case studies and other relevant documents and records
pertaining to the adoptee and the adoption shall be
preserved with confidentiality by the NACC.
Atty. Seña:
You must know that the NACC would have this so called
Regional Offices. The Petition for Adoption will actually be
filed with the Regional Offices of the NACC. There would be
internal procedure within the office of the Regional
Alternative Child Care Office (RACCO) and at the end of that
procedure, a recommendation will be made by the RACCO to
the NACC as to whether the Petition for Adoption should be
granted or not.
But at the core of these proceedings would be the Case Study
Report prepared by the social worker.
WHO MAY ADOPT
Section 21. Who May Adopt. – The following may adopt:
(a) Any Filipino citizen at least twenty-five (25) years of age,
who is in possession of full civil capacity and legal rights; has
not been convicted of any crime involving moral turpitude;
is of good moral character and can model the same; is
emotionally and psychologically capable of caring for
children; at least sixteen (16) years older than the adoptee;
and who is in a position to support and care for adopted
children in keeping with the means of the
family: Provided, That the requirement of sixteen (16)-years
difference between the age of the adopter and the adoptee
may be waived when the adopter is the biological parent of
the adoptee, or is the spouse of the adoptee’s parent;
Page 106 of 126
(b) The legal guardian with respect to the ward after the
termination of the guardianship and clearance of financial
accountabilities;
(c) The legal guardians with respect to the foster child;
(d) Philippine government officials and employees deployed
or stationed abroad: Provided, That they are able to bring the
child with them; and
(e) Foreign nationals who are permanent or habitual
residents of the Philippines for at least five (5) years
possessing the same qualifications as above stated for
Filipino nationals prior to filing of the
petition: Provided, That they come from a country with
diplomatic relations with the Republic of the Philippines and
that the laws of the adopter’s country will acknowledge the
Certificate of Adoption as valid, acknowledge the child as a
legal child of the adopters, and allow entry of the child into
such country as an adoptee: Provided, further, That
requirements of residency may be waived for the following:
(1) A former Filipino citizen, habitually residing in the
Philippines, who seeks to adopt a relative within fourth (4th)
civil degree of consanguinity or affinity; or
(2) One who seeks to adopt the legitimate child of the
Filipino spouse; or
(3) One who is married to a Filipino citizen and seeks to
adopt jointly with the spouse a relative within the fourth
(4th) degree of consanguinity or affinity of the Filipino
spouse.
Spouses shall jointly adopt, except in the following cases:
(a) If one spouse seeks to adopt the legitimate child of the
other; or
(b) If one spouse seeks to adopt own illegitimate
child: Provided, That the other spouse has signified consent
thereto; or
(c) If the spouses are legally separated from each other.
Q: How do you understand qualified adopter?
A: Anybody, as long as the qualifications are met.
Atty. Seña:
Sec. 21 of RA 11642 tells us WHO may adopt under the law.
And as you can see, the list here would be similar to the list
that we had under the old law (Domestic Adoption Law).
a) The first qualification would be any Filipino
citizen who is at least 25 years of age.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Now, the underlined portions in the copy of the law on my
screen would indicate the portions that were changed in the
new law. Because in the old law, the qualification was that
any Filipino citizen of legal age, there was no minimum
age for adoption, but now we do. It is 25 years of age.
And then, as you can see, the requirement of good moral
character, this is now further qualified by the requirement
that the petitioner must be able to model the same.
The rest would be carried over from the old law.
The 16-year age gap, it is maintained in the new law, as well
as the instances when this may be dispensed with. The 16-
year age gap may be dispensed with if the adopter
happens to be the biological parent of the adoptee or is
the spouse of the adoptee’s parent.
b) Second qualified adoption would be the legal
guardian with respect to the ward. In the old law,
we only had the qualification guardian. The
guardian was not described as the legal guardian.
This again is a change introduced by the new law.
c) The legal guardians with respect to the foster
child. Because foster care is also covered in the new
law.
d) Philippine government officials and employees
deployed or stationed abroad provided that
they are able to bring the child with them.
This would pertain to an instance of inter-country adoption
or adoption that is carried out abroad.
Atty. Seña:
In the old law, foreigners are referred to as aliens. But in the
new law, they are referred to as foreign nationals.
Under the old law, the residency requirements was three
continuous years of residency prior to the filing of a petition
for adoption which must be maintained throughout until the
finality of the decree of adoption. This has been substantially
changed. Under the new law, we require that the petitioner
be a permanent or habitual resident of the Philippines
atleast 5 years prior to the filing of the petition.
The requirement that a certificate of capacity to adopt be
submitted or presented was already dispensed with under
the new law. Because that proved to be problematic.
Nagrereklamo ang mga foreign nationals who are filing their
petitions here because their governments were refusing to
issue these certificates of capacity to adopt since such
certification requires a proceeding for adoption. It should be
a finding of law that this person has the capacity to adopt.
This is not just like a CENOMAR na basta lang maiissue
Page 107 of 126
without judicial proceedings. To address this, the new law
did away with such certification. What is left is the proof of
the law of the adopter’s country will acknowledge the
certificate of adoption as valid, would acknowledge that the
child is the legal child of the adopter, and allow the entry of
the child into such country.
The requirements are strict to protect the child. Because if
you will not insist that a decree of adoption obtained here is
enough to create a legal relationship of parent and child
between the adopter and the adopted, that child may
become vulnerable to human trafficking. Kasi ang
mangyayari nyan, pagkalabas ng pilipinas at hindi
nirerecognize ng foreign country yung decree of adoption,
then that child would be entering that country as a stranger
to the foreign adopter. That translates to the absence of any
obligation on the part of the foreign national towards that
child. No obligation and accountability. It would make it
easier for him to abandon the child. Sana nga abandon lang
in a public place. Pero malamang ang gagawin non is to
abandon the child in the care of people who would want to
take advantage of him by submitting the child to slavery,
prostitution, etc. That is what we are trying to prevent. We
can prevent this by insisting that the moment a decree of
adoption is issued here, they are parent and child no matter
where they would go, including the country of the foreign
national.
The new law also provides for the instances when you can
do away with the requirement of residency. In the old law,
the requirements that may be done away with are residency
+ submission of the certification of capacity to adopt. But
since we no longer have the latter requirement, we will only
focus on the requirement of residency.
Q: When can residency be dispensed with?
A: The same instances provided in the old law appear in the
new law with certain changes.
Atty. Seña:
When it comes to the former Filipino citizens seeking to
adopt a relative by consanguinity or affinity within the
fourth civil degree, we have that requirement that he must
be habitually residing in the Philippines. Wala tayong
ganiyang requirement sa old law.
For paragraph a & b (see slide), naka-underline yung word
na “child” because under the old law, there were
sons/daughter. And bakit yun yung ginagamit ng batas
noon? Dahil those were the instances where the age of the
adopted did not matter. Meaning to say if you are adopting a
son/daughter, it is not a requirement that the son/daughter
be a minor or be someone who although being over 18 but if
he is not able to take care of himself. Kaya son/daughter. Sa
new law, ang ginagamit na is “child”.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: Does it follow that in the new law we are limiting
these instances, to those cases where the adopted is a
minor?
A: No, kasi if you would look at Section 4, paragraph h of the
new law, it defines what a child is. A child is someone who is
under 18 or maybe over 18 but is not able to care for himself
but it also adds that where warranted that the term child
may even include an adult son, daughter or offspring. So,
pasok pa rin yun dating paggamitsa lumang batas ng term na
son/daughter because of this definition found in Section 4
(h).
Section 4 (h) of R.A. 11642
(h) Child refers to a person below eighteen (18) years of
age or a person eighteen (18) years of age or over but
who is unable to fully take care or protect himself or
herself from abuse, neglect, cruelty, exploitation, or
discrimination because of physical or psychosocial
disability or condition: Provided, That for the purpose of
this Act, where relevant, a child shall also refer to an adult
son, daughter, or offspring;
Atty. Seña:
If you are married, you know very well that the rule is that
you must jointly adopt with your spouse subject to the
exceptions provided in the law. Under the old law, we only
have two exceptions also enumerated in the new law as
provided in Section 21(e)(3)(a & b) but the new law
provides for an additional instance when the spouses may
not jointly adopt and that is in case they are legally separated
from each other. So possible that even though the spouses
are legally separated from each other, it’s possible for one of
them to have a legitimate child even though that child is a
stranger to the other spouse.
Section 21. (e) Foreign nationals who are permanent or
habitual residents of the Philippines for at least five (5)
years possessing the same qualifications as above stated
for Filipino nationals prior to filing of the petition:
Provided, That they come from a country with diplomatic
relations with the Republic of the Philippines and that the
laws of the adopter’s country will acknowledge the
Certificate of Adoption as valid, acknowledge the child as
a legal child of the adopters, and allow entry of the child
into such country as an adoptee: Provided, further, That
requirements of residency may be waived for the
following:
(1) A former Filipino citizen, habitually residing in the
Philippines, who seeks to adopt a relative within fourth
(4th) civil degree of consanguinity or affinity; or
Page 108 of 126
(2) One who seeks to adopt the legitimate child of the
Filipino spouse; or
(3) One who is married to a Filipino citizen and seeks to
adopt jointly with the spouse a relative within the fourth
(4th) degree of consanguinity or affinity of the Filipino
spouse.
Spouses shall jointly adopt, except in the following cases:
(a) If one spouse seeks to adopt the legitimate child
of the other; or
(b) If one spouse seeks to adopt own illegitimate
child: Provided, That the other spouse has signified
consent thereto; or
(c) If the spouses are legally separated from each
other.
Q: So bakit ito significant?
A: Kasi we all know that if the spouses are legally separated,
they remain married to one another and therefore, any
offspring that they may have with other people, would be
illegitimate. So dati, automatic na but if one of the legally
separated spouses were to have an offspring not related to
other spouse, that offspring would have to be illegitimate.
But since, the new law allows the adoption by one of the
spouses alone of a child and that child by virtue of that
adoption becomes the legitimate child of the adopting legally
separated spouse, then hindi na automatic na illegitimate
and sino mang offspring na mahgkakaroon yung ating legally
separated spouse kasi through adoption it’s possible that the
offspring may be legitimate.
WHO MAY BE ADOPTED
Section 22. Who May Be Adopted. – The following may
be adopted:
(a) Any child who has been issued a CDCLAA;
(b) The legitimate child of one spouse by the other
spouse;
(c) An illegitimate child by a qualified adopter to improve
status of legitimacy;
(d) A Filipino of legal age if, prior to the adoption, said
person has been consistently considered and treated by
the adopters as their own child for a period of at least
three (3) years;
(e) A foster child;
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
(f) A child whose adoption has been previously
rescinded;
(g) A child whose biological or adoptive parents have
died: Provided, That no proceedings shall be initiated
within six (6) months from the time of death of said
parents; or
(h) A relative of the adopter.
Atty. Seña:
The first qualified adoptee is a child who has been issued a
Certificate of Declaring the Child as Legally Available for
Adoption. That is a similar requirement under the old law.
Before you can adopt a child, there must be a proceeding
where by the child is declared as legally available for
adoption. Kaya nga lang, here, consolidated na yung ating
procedure that declaration is made by the NACC itself. Then,
similarly, yung mga naka-underline na child under the old
law, that used to be son/daughter.
Atty. Seña:
Now, for paragraph C, an illegitimate child by a qualified
adopter to improve the status of legitimacy.
(c) An illegitimate child by a qualified adopter to improve
status of legitimacy;
Q: Is it a requirement that the qualified adopter here
would be the parent of the illegitimate child?
A: No, because the power to improve the status of a person
from illegitimate to legitimate is not limited to the putative
parent. Any qualified adopter may do that.
Q: Why do we say this?
A: Because the law precisely makes use of the term ‘qualified
adopter’ kasi kapag naka-limit lang ‘yan sa putative parent
edi sana ‘yun nalang ‘yung sinabi ng batas, and then letter D,
the term used here before was ‘person’ pero ngayon, it is
now ‘Filipino of legal age’.
(d) A Filipino of legal age if, prior to the adoption, said
person has been consistently considered and treated by
the adopters as their own child for a period of at least
three (3) years;
Under the old law, the treatment should have been received
by the adopted since minority pero sa new law, kailangan
lang natin ng period for at least three (3) years.
(e) A foster child;
Page 109 of 126
(f) A child whose adoption has been previously
rescinded;
(g) A child whose biological or adoptive parents have
died: Provided, That no proceedings shall be initiated
within six (6) months from the time of death of said
parents; or
(h) A relative of the adopter.
Atty. Seña:
All of this are also found in the old law and letter H, this
would be a new addition.
Q: Whose consent is necessary to the adoption?
SECTION 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 treated 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.
Atty. Seña:
Again, basically, the new law follows the same rules under
the old law. Now, of course, if you are going to get the
consent of the adoptee, then he will thereby know about his
adoption and here, it is important to emphasize that the new
law has adopted the policy of adoption-telling or disclosing
the fact of adoption to the adopted because studies have
shown that it is better if the adopted were to be apprised of
his status as an adopted child early on rather than finding
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
about it later in life. If you would slowly introduce the truth
to him, he would have time to adjust.
Under the law, the adoption-telling must be accomplished as
soon as possible. It becomes mandatory before the adopted
reaches the age of 13. Mas mapapaaga pa ‘yan if you filed a
petition for adoption at the time when the child to be
adopted is aged 10 and above kasi you have to get his
consent, and to get his consent, kailangan sabihin mo
sakanya ang totoo.
The biological parent of the child, if known, or the legal
guardian with the proper government instrumentality
which has the cause of the child must give his consent.
But if you are dealing with a Filipino of legal age, and that
person has been treated as their own child by their adopters
for at least 3 years, then there is no need to get the consent
of the biological parents of that Filipino of legal age.
This is the same rule under the old law. But in the old law, it
was not very categorical. We had to make that deduction on
our own. In the old law it only states that the biological
parent of the child. We only concluded that the biological
parent of an adopted of age would not be included because
the law made use of the term child.
The rest is just the same (c).
But in (d), we have a qualification. Before our qualification is
if the illegitimate children are living with the adopter. Then
their consent must be secured. Under the old law we have an
additional qualification over whom the adopter exercises
parental authority. It is either they are living with the
adopter or adopter exercises parental authority over them.
Remember than even though children under 10 are not
required to execute a written consent, the law still requires
that they be counseled and consulted. This is consistent with
the policy of adoption telling.
EFFECTS OF ADOPTION
ARTICLE V
EFFECTS OF ADOPTION
Section 41. Legitimacy. – the adoptee shall be
considered the legitimate child of the adopter for all
intents and purposes and as such in entitled to all the
rights and obligations provided by law to legitimate
children born to them without discrimination of any
kind. To this end, the adoptee is entitled to love, guidance,
and support in keeping with the means of the family. The
legitimate filiation that is created between the adopter
and adoptee shall be extended to the adopter’s parents,
adopter’s legitimate siblings, and legitimate descendants.
Page 110 of 126
The adopter is also given the right to choose the name by
which the child is to be known, consistent with the best
interest of the child.
Section 42. Parental Authority. – Upon issuances of the
Order of Adoption, adoption shall cease as alternative
care and becomes parental care. Adoptive parents shall
now have full parental authority over the child. Except in
cases where the biological parent is the spouse of the
adopter, all legal ties between the biological parents and
the adoptee shall be severed and the same shall then be
vested on the adopters.
In case spouses jointly adopt or one spouse adopts the
legitimate child of the other, joint parental authority shall
be exercised by the spouses.
Section 43. Succession. – In testate and intestate
succession, the adopters and the adoptee shall have
reciprocal rights of succession without distinction from
legitimate filiations. However, if the adoptees and their
biological parents have left a will, the law on
testamentary succession shall govern. (R.A. 11642)
This is one area made a very substantial change.
You already know about how the decree of adoption creates
a legal relationship between the adopter and adopted. At
least under the old law, that was the case. That is why it may
happen that the adopter may have other children but if he is
adopting then the adopted would be a stranger to the other
children of the adopter because the law only creates a
relationship between the adopter and the adopted. This also
gave rise to some very unclear consequences.
For instance, if you are going to adopt an illegitimate child
for purposes of improving his status in life, then the law says
his ties to his biological relatives would be severed. The
question that arose then, he becomes a legitimate child by
adoption but does that mean that he becomes a stranger to
his biological siblings, aunts and uncles? It did not make any
sense. Why would the law want to make the child a
legitimate and then a stranger to all his relatives.
Now, the new law says that the legitimate filiation that is
created between the adopter and the adoptee should be
extended to the adopter’s parents, adopter’s legitimate
siblings, and adopter’s legitimate descendants. It is now
clear.
The rest of the effects would be the same.
This is similar with succession. The reciprocal rights of
succession will exist between the adopters and the adoptee
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
and only way by which the adoptee may still inherit from his
biological parents would be through testamentary
succession.
Adoption may also be rescinded. The grounds are the same
as those found under the old law.
Section 47. Grounds for Rescission of Administrative
Adoption. – The adoption may be rescinded only upon the
petition of the adoptee with the NACC, or with the
assistance of the SWDO if the adoptee is a minor, or if the
adoptee is eighteen (18) years of age or over but who is
incapacitated or by his or her guardian on any of the
following grounds committed by the adopter(s):
(a) Repeated physical or verbal maltreatment by the
adopter despite having undergone counseling;
(b) Attempt on the life of the adoptee;
(c) Sexual abuse or violence; and,
(d) Abandonment and failure to comply with parental
obligations.
Adoption, being in the best interest of the child, shall bot
be subject to rescission by the adopter. However, the
adopter may disinherit the adoptee for causes provided in
Article 919 of the Civil Code of the Philippines.
The adoptee is given the right to rescind because adoption is
made for the best interest of the child, and not to the adopter.
The adoptee cannot be subject to many rejections.
Section 53. Effects of Rescission. – If the petition for
rescission of adoption is granted, the legal custody of the
NACC shall be restored if the adoptee is still a child. The
reciprocal right and obligations of the adopters and the
adoptee to each other shall be extinguished.
In cases when the petition for rescission of adoption is
granted and the biological parents can prove that they are
in a position to support and care for the child and it is in
the child’s best interest, the biological parents may
petition the NACC for the restoration of their parental
authority over the child.
The NACC shall order the Civil Registrar General to cancel
the amended birth certificate and restore the original
birth certificate of the adoptee.
Succession rights shall revert to its status prior to
adoption, but only as of the date of the approval of the
petition for rescission of adoption. Vested rights acquired
prior to rescission shall be respected.
Page 111 of 126
All the foregoing effects of rescissions of adoption shall be
without prejudice to the penalties imposed under the
Revised Penal Code if the criminal acts are properly
proven.
ARTICLE VII
VIOLATIONS AND PENALTIES
Section 54. Violations and Penalties. –
(a) The penalty of imprisonment ranging from six (6)
years and one (1) day to twelve (12) years or a fine of not
less than Fifty thousand pesos (P50,000.00), but not more
than Two hundred thousand pesos (P200,000.00), or
both, at the discretion of the court shall be imposed on any
person who shall commit any of the following acts:
(1) Obtaining consent for an adoption through
coercion, undue influence, fraud, improper material
inducement, or other similar acts;
(2) Noncompliance with the procedures and
safeguards provided by the law for adoption; or
(3) Subjecting or exposing the child to be adopted to
danger, abuse, or exploitation.
(b) Any person who shall cause the fictitious registration
of the birth of a child under the name of a person who is
not the child’s biological parent shall be guilty of
simulation of birth, and shall be imposed the penalty of
imprisonment from eight (8) years and one (1) day to ten
(10) years and a fine not exceeding Fifty thousand pesos
(P50,000.00).
(c) Any physician, midwife, nurse, or hospital personnel
who, in violation of their oath of profession, shall
cooperate in the execution of the abovementioned crime
shall suffer the penalties herein prescribed as well as the
penalty of permanent disqualification from the practice of
profession following relevant prescription of the law and
governing authorities.
(d) Any person who shall violate regulations relating to
the confidentiality and integrity of records, documents,
and communication of adoption petitions, cases, and
processes shall suffer the penalty of imprisonment
ranging from one (1) year to one (1) day to two (2) years,
or a fine of not less than Five thousand pesos (P5,000.00)
but not more than Ten thousand pesos (P10,000.00) or
both, at the discretion of the court.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

A penalty lower by two (2) degrees than the prescribed for shall include expenses in going to and from school, or to
consummated offenses under this Article shall be imposed and from place of work. (290a)
upon the principals of the attempt to commit any of the
acts herein enumerated. Acts punishable under this
Atty. Seña:
Article, when committed by a syndicate and where it
You must be familiar with this since you are still dependent
involves a child shall be considered as an offense
on support from your parents.
constituting child trafficking and shall merit the penalty of
imprisonment from twenty (20) years and one (1) day to
Support comprises everything indispensable for sustenance,
forty (40) years.
dwelling, clothing, medical attendance, education and
transportation.
Act punishable under this Article are deemed committed
by a syndicate if carried out by a group of three (3) or
Support necessitates capacity and need.
more persons conspiring or confederating with one
another in carrying out any of the unlawful acts defined
Even if you are still working, you may still ask for support in
under this Article.
the form of transportation from your parents to get you to
and from work.
An offender who is a foreign national shall be deported
immediately after service of sentence and perpetually
Two conditions for Support:
denied entry to the country.
1. Necessity
2. Capacity
Any government official, employee, or functionary who
shall be found guilty of violating any of the provisions of
Necessity will make support due. If you do not establish
this Act, or who shall conspire with private individuals
necessity, then it cannot be said that support will be due. You
shall, in addition to the above-prescribed penalties, be
establish necessity by making demand. Demand means you
penalized in accordance with existing civil service laws,
need support, and if you do not make a demand, you have no
rules and regulations: Provided, That upon the filing of a
need of support, and no support will be due to you.
case, either administrative or criminal, said government
official, employee, or functionary concerned shall
EXAMPLE:
automatically be suspended until the resolution of the
You go pregnant and you were prevented from asking
case.
support from the man who got you pregnant. Now you say
you will raise the child on your own. Later, you had a change
Under this Act, adoption discrimination acts,
of heart. Mahal ang diaper, gatas, bayad sa yaya. Ikaw
including labelling, shaming, bullying, negative
nagtitipid nang todo, at si boyfriend lagi bago ang damit,
stigma, among others, are prohibited. Any person who
gadgets, kasi wala siyang sinusportahan.
shall commit said adoption discrimination acts shall be
penalized with a fine of not less than Ten thousand pesos
Ikaw nagtitipid ka ng todo para makabili ka ng pampers,
(P10,000.00) but not more than Twenty thousand pesos
gatas. Tapos si boyfriend palaging bago ang damit, gadgets
(P20,000.00), at the discretion of the court.
kasi wala siyang sinusuportahan. So, sabi mo, kelangan
singilin ko siya lahat ng nagastos ko dati. Problem, you did
SUPPORT not make any demand for support, and so, there is no legal
basis for you to ask for accrued support.
TITLE VIII
Lesson: Kahit pa nasaktan yung pride mo kasi hindi ka
SUPPORT
pinakasalan, you still make a demand for support just to
obligate him, so that in the future, when you feel like making
Art. 194. Support comprises everything indispensable for
his life miserable, you can always bring out this list of all the
sustenance, dwelling, clothing, medical attendance,
indebtedness that he owes you by way of accrued support.
education and transportation, in keeping with the
financial capacity of the family.
Remember: No matter how much you demand for support, if
The education of the person entitled to be supported
the person obligated does not have the capacity, there is
referred to in the preceding paragraph shall include his
nothing to be given to you. That’s why the amount of support,
schooling or training for some profession, trade or
it never really comes final, because it’s always open to
vocation, even beyond the age of majority. Transportation
adjustments, depending on the need, depending on the
capacity.

Page 112 of 126

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Yung mga bagong hiwalay, gusto talaga makipaghiwalay,
they will agree to any amount of monthly support. But later
on, they will ask for an adjustment. Biglang di na kaya kasi
kulang na sweldo niya at kulang na properties. Whether or
not he is saying the truth, the fact remains that the amount
of support is always subject to adjustment.
Another Important Point of Support: Who are the people
obligating to give support to one another?
This always begins with the:
1. spouses
2. the legitimate ascendants, and descendants
3. the parents, and their legitimate children, and the
legitimate and the illegitimate children of the latter
4. the parents, and their illegitimate children, and then
the legitimate and the illegitimate children of one
another
5. brothers and sisters
Art. 195. Subject to the provisions of the succeeding
articles, the following are obliged to support each other
to the whole extent set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the
legitimate and illegitimate children of the latter;
(4) Parents and their illegitimate children and the
legitimate and illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of full or
half-blood
Art.195(3&4) - you would notice that this carved out an
exception in the legitimate line established between
ascendants and descendants as people obligated to support
each other. Diba sa direct line from descendants to
ascendants, for the obligation, the right to support exist, the
relationship must be legitimate.
But there is a portion that is infiltrated by the illegitimate
line. This is the portion from point A, the grandparents, to
Point B, the grandchildren. So from Point A to Point B, from
grandparent to grandchildren, there will be the right and the
obligation to support, regardless of filiation. Kaya sabi ng
batas, the parents and their legitimate children, and then, the
legitimate or illegitimate children of the latter, and then, the
parents and their illegitmate children and the legitimate or
Page 113 of 126
illegitimate children of the latter. What does this
approximate?
This approximates the right of representation that we have
in succession. Why? Because they involved the same people,
grandchildren representing their parent to the estate of their
grandparents. So same lang dito sa right of support.
But, the difference here in the right of support, both
legitimate and illegitimate children of legitimate parents
may ask for support from the legitimate grandparents,
unlike in succession.
Unlike in succession, before we had the ruling, wherein the
illegitimate grandchild cannot represent the legitimate
parent to the estate of the legitimate grandparent. But, the
illegitimate grandchild of the illegitimate parent can
represent the illegitimate parent to the succession to the
estate of the legitimate grandparent.
Aquino v. Aquino, changed that, one of the reasons cited by
the ponente is this provision in Art. 195. SC said that kung
pinapayagan na magkaroon ng obligation to support
between grandparents and legitimate and illegitimate
grandchildren of their legitimate or illegitimate children,
then this shows the inclination of the law to do away with the
barring effect of illegitimate filiation. (Iron curtain rule under
Art. 992)
If filiation is established, support would flow as a matter of
course. Obligation to support will also be automatic. But if
filiation has not been established then we cannot say for
certain that there is the obligation to support. If you are
going to ask for support, you must first establish your
illegitimate filiation. You must first file a petition to compel
recognition against the putative father. Once done, then file
an action for support.
But, as we know given how slow things get in our courts,
kawawa naman yung illegitimate child kasi kailangan muna
niyang mag antay ng judicial decree whereby he is
recognized as a an illegitimate child of the putative father
before he can proceed to getting support.
SC said, is to file directly an action for support and then just
integrate in the action the petition to compel recognition.
Kasi it is given that filiation is one of the things that you must
establish in your action for support.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
PARENTAL AUTHORITY
TITLE IX
PARENTAL AUTHORITY
Chapter 1. General Provisions
Art. 209. Pursuant to the natural right and duty of
parents over the person and property of their
unemancipated children, parental authority and
responsibility shall include the caring for and rearing
them for civic consciousness and efficiency and the
development of their moral, mental and physical
character and well-being. (n)
Art. 210. Parental authority and responsibility may not
be renounced or transferred except in the cases
authorized by law. (313a)
Art. 211. The father and the mother shall jointly exercise
parental authority over the persons of their common
children. In case of disagreement, the father's decision
shall prevail, unless there is a judicial order to the
contrary.
Children shall always observe respect and reverence
towards their parents and are obliged to obey them as
long as the children are under parental authority. (311a)
Art. 212. In case of absence or death of either parent, the
parent present shall continue exercising parental
authority. The remarriage of the surviving parent shall
not affect the parental authority over the children, unless
the court appoints another person to be the guardian of
the person or property of the children. (n)
Art. 213. In case of separation of the parents, parental
authority shall be exercised by the parent designated by
the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit. (n)
Art. 214. In case of death, absence or unsuitability of the
parents, substitute parental authority shall be exercised
by the surviving grandparent. In case several survive, the
one designated by the court, taking into account the same
consideration mentioned in the preceding article, shall
exercise the authority. (355a)
Art. 215. No descendant shall be compelled, in a criminal
case, to testify against his parents and grandparents,
except when such testimony is indispensable in a crime
against the descendant or by one parent against the
other. (315a)
Page 114 of 126
Totality of the rights and obligations that parents have
towards their children. Obligations outweigh the rights
because the obligations are never-ending.
Q: Who exercises parental authority?
A: If the child is legitimate, it will be both the husband and
wife – they enjoy joint parental authority. Although in case
of disagreement, it will be the decision of the father which
prevails (Art. 211, FC).
However, if the child is illegitimate, then parental authority
resides in the mother.
Q: If so, what rights does the father have over his
illegitimate child?
A: None. The father has no parental authority whatsoever.
For a long time, even substitute parental authority was not
recognized to be possibly exercised by the father. Not until
the case of Masbate v. Relucio (G.R. No. 235498, July 30, 2018).
Atty. Seña:
Jurisprudence taught us that even though the putative father
has no parental authority, he has what is called visitation
rights – he is entitled to visit his child. But as the SC claimed,
it is not actually a right but rather an obligation to visit his
child and spend time with him.
Another important point when dealing with an illegitimate
child is that there is no need to invoke the maternal
preference rule. Because it is solely the mother that has
parental authority of the child, regardless of age.
Q: If the mother happens to be unavailable for whatever
reason, who shall exercise parental authority?
A: Under the law, we have the concept of substitute parental
authority. It is to be exercised by the following:
1. The maternal grandparents;
2. The eldest brother/sister, who is at least 21 years of
age; and
3. Actual custodian of the child, who is at least 21 years
of age.
Note: No mention of the father at all.
SUBSTITUTE PARENTAL AUTHORITY
Chapter 2. Substitute and Special Parental Authority
Art. 216. In default of parents or a judicially appointed
guardian, the following person shall exercise substitute
parental authority over the child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
(2) The oldest brother or sister, over twenty-one years of
age, unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one years of
age, unless unfit or disqualified.
Whenever the appointment or a judicial guardian over
the property of the child becomes necessary, the same
order of preference shall be observed. (349a, 351a, 354a)
Art. 217. In case of foundlings, abandoned neglected or
abused children and other children similarly situated,
parental authority shall be entrusted in summary judicial
proceedings to heads of children's homes, orphanages
and similar institutions duly accredited by the proper
government agency. (314a)
Art. 218. The school, its administrators and teachers, or
the individual, entity or institution engaged in child are
shall have special parental authority and responsibility
over the minor child while under their supervision,
instruction or custody.
Authority and responsibility shall apply to all authorized
activities whether inside or outside the premises of the
school, entity or institution. (349a)
Art. 219. Those given the authority and responsibility
under the preceding Article shall be principally and
solidarily liable for damages caused by the acts or
omissions of the unemancipated minor. The parents,
judicial guardians or the persons exercising substitute
parental authority over said minor shall be subsidiarily
liable.
The respective liabilities of those referred to in the
preceding paragraph shall not apply if it is proved that
they exercised the proper diligence required under the
particular circumstances.
All other cases not covered by this and the preceding
articles shall be governed by the provisions of the Civil
Code on quasi-delicts. (n)
Atty. Seña:
There is no mention of the putative father for dealing with
illegitimate children. What follows is the brother or sister
whose age is 21 y/o, then followed by the actual custodian of
the child who is at least 21 y/o.
However, in Masbate v. Relucio, we had a father who was
given custody of an illegitimate child after the mother went
away. However, the grandparents forcibly took the child
back from him with the false pretense that they are only
Page 115 of 126
“borrowing” or fetching the child; but the child was never
returned to the custody of the said father.
Hence, the putative father filed a petition for writ of habeas
corpus in relation to the custody of minor children because
he wanted to take back custody of the child. However, it is
clear that the law does not give him any right to custody or
to the exercise of parental authority over the child.
However, the Supreme Court treated the putative father as
the person who had actual custody, thus, making him third
in rank behind the grandparents. So, what he has to do is go
to court and show that:
1. He had actual custody;
2. The mother was unfit; and
3. The child is better off with him than with the
grandparents.
If he is able to discharge all of these requisites, then he may
retain custody of the child and exercise parental authority
over the child, pursuant to the provisions of the law of
substitute parental authority.
Furthermore, Justice Bernabe, the ponente of the case, stated
that the usual scenario is that the putative father will
disappear from the life of the illegitimate child once his
relationship with the mother has soured. However, this case
is different as he is actively pursuing custody of his child.
Because of this, the Supreme Court felt that his efforts should
be recognized and rewarded.
Q: What happens if a legitimate child is left by the
mother with her parents because she has to go abroad
and work? Would the putative father have right of
custody over the child?
A: Yes, a father has standing to claim substitute parental
authority. The father may claim substitute parental
authority in his capacity as the actual custodian of the child
if he is in actual custody of the child. He must also show that
the mother is unfit and that it would be in the best interest
of the child to stay in his custody rather than the
grandparents.
Under the law, the father still could not exercise even
substitute parental authority. However, in the case of
Masbate v. Relucio, the SC held that the father may be able to
exercise substitute parental authority if the father was the
actual custodian of the child and it may be shown that it may
be in the best interest of the child to remain with him, instead
of the grandparents.
The SC held that the father may claim substitute parental
authority in his capacity as the actual custodian of the child
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

because the father, in this case, was in actual custody of the

child. Moreover, the father must show that the mother is
unfit and that it would be in the best interest of the child to
stay with him rather than with the grandparents. Therefore,
an illegitimate father has standing to claim substitute
parental authority.

OTHER MATTERS: PARENTAL AUTHORITY

Atty. Seña:
You have to know the grounds of termination of parental
authority.

Parents are the natural legal guardians of their children.

Thus, they need not be appointed by the court. But, if they
are going to exercise their parental authority in relation to
properties belonging to their children, they must post a
bond.

They should file a petition that does not contain a prayer for
their appointment as guardian, but only to fix the bond. The
court will then issue an order fixing the amount of the bond.
Thereafter, the parents should post the bond in the amount
fixed by the court. The court will then issue an order which
will be presented to the insurance company. Finally, the
proceeds will then be released to the parent.

For instance, if the minor child is a beneficiary under an

insurance policy. It is likely that the insurance company
would require that the parent post a bond as a condition for
releasing the proceeds to the parent.

Page 116 of 126

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
OCTOBER 10, 2022
II. PROPERTY
Q: How would you define property?
A: [no definition provided by Atty. Seña]
From the book of Rabuya (2017):
The term “property” under the Civil Code refers to things
which are susceptible of appropriation. Hence, even in the
juridical sense, not all things may be considered as property.
This much is clear from the very provision of Art. 414 of the
New Civil Code. Pursuant to said article, it is essential that a
thing must be susceptible of appropriation before it can
be considered as property. Things, which cannot,
therefore, be subjected to human control by reason of sheer
physical impossibility are not considered as property.
From the book of Rabuya (Pre-Bar Reviewer in Civil Law,
2021):
Properties are things which are capable of satisfying human
wants and are susceptible of appropriation.
Q: What do you mean by appropriation?
A: Act of taking a thing for one’s own use. Act of taking, act of
apprehending, for the purpose of subjecting it to one’s own
use.
Article 414. All things which are or may be the object of
appropriation are considered either:
(1) Immovable or real property; or
(2) Movable or personal property.
Atty. Seña:
The classification into a movable and immovable property is
just one of the several classifications of property. Although
arguably, it may be the most important classification.
Q: How does the Civil Code define immovable and
movable properties?
A: It defines immovable properties by enumerating what
may be considered as immovable properties under Art. 415
such that if the object or the thing has been
defined/determined to be a property (meaning to say it has
all the requisites that will make it property) then it can either
be immovable or movable.
From the book of Rabuya (Pre-Bar Reviewer in Civil Law,
2021):
Requisites of Property
1. Utility – the capacity to satisfy human wants;
2. Individuality and substance – having a separate
and autonomous existence; and
3. Susceptibility of being appropriated.
Page 117 of 126
Atty. Seña:
If it does not fall under the enumeration under Art. 415, then
our conclusion is that it is not immovable property. In which
case, it will now be considered as movable property by virtue
of Art. 416 (1). Art. 416 (1) says that whatever is not included.
And Art. 415 shall be considered as [inaudible].
Essentially, Art. 415 is a filter. When you have an object and
the same has been determined to be property, and you want
to classify as either movable property, the first thing you do
is you apply Art. 415.
If it does not fall under the enumeration in Art. 415, then the
conclusion is that it is not immovable property. Therefore, it
may be movable property under Art. 416 (1). Sabi ko nga,
Art. 415 would be some kind of filter that will allow us to
classify property as either immovable or movable.
Now, with regard to Art. 415 itself, you have to pay attention
to each of the enumerated properties thereunder because
there are a lot of qualifications and nuances. And I’ve said
this before, the devil is in the details. Doon kayo madadale sa
qualifications at sa nuances ng batas.
Immovable Property
Article 415. The following are immovable property:
(1) Land, buildings, roads and constructions of all kinds
adhered to the soil;
(2) Trees, plants, and growing fruits, while they are attached
to the land or form an integral part of an immovable;
(3) Everything attached to an immovable in a fixed manner,
in such a way that it cannot be separated therefrom without
breaking the material or deterioration of the object;
(4) Statues, reliefs, paintings or other objects for use or
ornamentation, placed in buildings or on lands by the owner
of the immovable in such a manner that it reveals the
intention to attach them permanently to the tenements;
(5) Machinery, receptacles, instruments or implements
intended by the owner of the tenement for an industry or
works which may be carried on in a building or on a piece of
land, and which tend directly to meet the needs of the said
industry or works;
(6) Animal houses, pigeon-houses, beehives, fish ponds or
breeding places of similar nature, in case their owner has
placed them or preserves them with the intention to have
them permanently attached to the land, and forming a
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
permanent part of it; the animals in these places are
included;
(7) Fertilizer actually used on a piece of land;
(8) Mines, quarries, and slag dumps, while the matter thereof
forms part of the bed, and waters either running or
stagnant;
(9) Docks and structures which, though floating, are
intended by their nature and object to remain at a fixed place
on a river, lake, or coast;
(10) Contracts for public works, and servitudes and other
real rights over immovable property.
Article 416. The following things are deemed to be personal
property:
(1) Those movables susceptible of appropriation which are
not included in the preceding article;
(2) Real property which by any special provision of law is
considered as personalty;
(3) Forces of nature which are brought under control by
science; and
(4) In general, all things which can be transported from place
to place without impairment of the real property to which
they are fixed.
Article 417. The following are also considered as personal
property:
(1) Obligations and actions which have for their object
movables or demandable sums; and
(2) Shares of stock of agricultural, commercial and industrial
entities, although they may have real estate.
Article 418. Movable property is either consumable or
nonconsumable. To the first class belong those movables
which cannot be used in a manner appropriate to their
nature without their being consumed; to the second class
belong all the others.
ARTICLE 415
(1) Land, buildings, roads and constructions of all kinds
adhered to the soil;
Page 118 of 126
This is the first example of a nuance. If a building is made of
light materials such as bahay kubo, and it is not buried in the
soil, it is not immovable property because it is not adhered
to the soil.
(2) Trees, plants, and growing fruits, while they are attached
to the land or form an integral part of an immovable;
Under the chattel mortgage law (now repealed by PPSA),
growing crops are considered to be personal property for
purposes of chattel mortgage.
(3) Everything attached to an immovable in a fixed manner,
in such a way that it cannot be separated therefrom without
breaking the material or deterioration of the object;
This is immobilization by destination. Note that paragraph 3,
all that matters is the manner of incorporation. It must be
done in a fixed manner. There must be permanence. Because
you cannot separate what has been attached without
damage or deterioration. We do not consider who owns the
immovable, authorship, and who made the incorporation.
The only thing we consider is that it was made in a fixed
manner and the standard is you cannot separate them
without damage or deterioration.
Compare this with paragraph 4
(4) Statues, reliefs, paintings or other objects for use or
ornamentation, placed in buildings or on lands by the owner
of the immovable in such a manner that it reveals the
intention to attach them permanently to the tenements;
Here, we consider authorship or who made the replacement
which must be the owner of the immovable. And here, there
is no explicit requirement that attachment be made in a fixed
manner unlike in par. 3 that it cannot be separated without
damage. For par. 4, it is enough that the attachment was
made in such a manner that reveals the intention to attach
them permanently to the tenements. In this paragraph, short
of attaching permanently is the standard of immoblization.
Q: Why is it that in par. 4, we are not required to make
attachment permanent?
ARTICLE 415
Par. 3 Par. 4
Everything attached to an Statues, reliefs, paintings
immovable in a fixed or other objects for use or
manner, in such a way that ornamentation, placed in
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

it cannot be separated
therefrom without
breaking the material or
deterioration of the object;
Atty. Seña:
buildings or on lands by the
Sa paragraph 4, we do not require it be the owner of the
owner of the immovable in
statute, the reliefs, the paintings who must make the
such a manner that it
immobilization by destination. Ang hinihingi lang ditto, it
reveals the intention to
should be owner of the immovable. That is what I mean by
attach them permanently
authorship.
to the tenements;

-requires permanent -no requirement of Q: Sino ba ang kinakailangan na mag-lagay ng statutes,

attachment permanent attachment;
-the law is content that it is
attached in a manner in
which it reveals the
intention to attach them
permanently
-instead of actual
permanent attachment, the
law accepts manner which
shows intention to attach
them permanently
Q: What could be the reason for this lowered standard?
A: You have to look at the objects that is supposed to be
attach or supposed to be place in buildings or on lands here,
the paragraph speaks of statutes, reliefs or paintings. These
are works of art and in all likelihood, they are valuable. So if
you require that it be attached to the wall permanently or
that they be bolted to the floors permanently, then that
would imply that should it be removed or taken out of the
building or the land, the damage would be suffered by them.
Attaching them permanently would cause them damage
once they were taken out or brought out of the building to
which they are placed. Kaya in lieu of permanent attachment,
the law is content with seeking authorship by the owner of
the immovable plus the placement indicating the intention
to place them permanently to protect the statute, reliefs and
paintings and other objects for use or ornamentation.
Q: How do we know that there is the intention to attach
them permanently to the tenements if hindi sila
nakapako, nakadikit or nakabolt sa surface?
A: An example can be cited of the Spolarium sa National
Museum. Makikita niyo pagpasok pa lang sa main entrance,
nandun na yung pagkalaki-laki at magandang painting ni
Juan Luna. And you know and you can tell that spot is
intended to be its permanent spot even though it’s not
attached or bolted to the wall, it’s not pasted to the wall kasi
nga doing so will damage this masterpiece. Pero pano natin
masasabi that there is the intention or permanence here?
For one, naka cordon off yung painting and then, you have
the spotlights fixed na naka-focus sa painting, highlighting
the painting, so that tells us that this is the spot intended for
the Spolarium to occupy in a more or less permanent
manner. And in this regard, we can say that it has been
immobilised by its destination.
reliefs and paintings, etc.
A: Under the law, it must be the owner of the immovable.
Article 415 paragraph (5). Machinery, receptacles,
instruments or implements intended by the owner of the
tenement for an industry or works which may be carried
on in a building or on a piece of land, and which tend
directly to meet the needs of the said industry or works;
Q: What do we consider here?
A: We do not consider permanence of attachment. Ni wala
ngang attachment na kailangan dito. We have to show that
these instruments, these implements must meet the needs of
the industry or works which may be carried out in the
building or a piece of land.
Q: What about authorship? What does the law require
about authorship?
A: Dito ang kailangan, the person who must place the
implements, the receptacles, etc. is the owner of the
tenement.
Example:
In a hotel business, if you are letting out rooms in a hotel, are
you in a business that can be carried out in a building? Yes.
Q: Would the beds, tables, chairs that you place in the
hotel, do these things meet the needs of your hotel
guests?
A: Yes.
Q: Do we conclude that the beds, chairs, furniture, etc.
Have they been immobilized under par. 5?
A: It depends on the ownership of the building housing the
hotel. Because the law requires that it should be the owner
of the tenement which places these machinery, receptacle,
instruments, etc. This means that the owner of the business
must also own the building in which it is carrying out the
work or the business.
Atty. Seña:
The law requires the owner of the tenement that places all
the machineries, receptacles, and instruments, etc, so that
means the owner of the business must also own the building
in which it is carrying out the work or the business.

Page 119 of 126

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Now, kung halimbawa, pinag-uusapan natin ‘yung Jollibee sa
Asturias, na sarado na ngayon, so by the same token, the
tables, chairs, plates, spoons, all of this may be considered
immobilized under paragraph 5 except that the owner of the
Jollibee in Asturias is obviously not the owner of the
building, it is only renting the building. When it is only
renting the building, it does not own the tenement, so we
cannot apply paragraph 5 here. Why not? Because of the
requirement that the machineries, receptacles, and
instruments must be intended by the owner of the tenement.
Now, let us go to paragraph 6:
(6) Animal houses, pigeon-houses, beehives, fish ponds
or breeding places of similar nature, in case their owner
has placed them or preserves them with the intention to
have them permanently attached to the land, and
forming a permanent part of it; the animals in these
places are included.
Now, if you would measure paragraph 6 against paragraph
3, you might think that paragraph 6 repeats paragraph 3
because paragraph 6 also speaks of permanent attachment
pero the authorities are one in saying that the focus here
really would be the immobilization of the animals which are
housed in these contractions.
(7) Fertilizer actually used on a piece of land
(8) Mines, quarries, and slag dumps, while the matter
thereof forms part of the bed, and waters either running
or stagnant
Q: Do you have any idea what mines, quarries, and slag
dumps are?
A: These are minerals that are still under the surface of the
land. So long as they are not harvested yet from the
underground, then they will still form part of the land and by
extension, they are considered to be immovable property.
(9) Docks and structures which, though floating, are
intended by their nature and object to remain at a fixed
place on a river, lake, or coast
(10) Contracts for public works, and servitudes and
other real rights over immovable property. (334a)
Q: Now, these properties enumerated may further be
classified into four depending on the manner of
immobilization. What are these different manners of
immobilization?
Page 120 of 126
A:
(1) Immovable by Nature
(2) Immovable by Incorporation
(3) Immovable by Destination
(4) Immovable by Analogy or Law
Q: What will be considered as immovable by nature?
Which paragraphs?
A: Paragraphs 1,2, and 8.
Q: What would be the so called ‘rex vinta’ or immovables
by incorporation?
A: Paragraphs 1, 2, 3, 4, and 6.
Q: What will be considered as immovable by
destination?
A: Paragraphs 4, 5, 6, 7, and 9
Q: What will be considered as immovable by analogy?
A: Paragraph 10
Now, sabi ko sa inyo kanina, Article 415 would be some kind
of a filter, and such approach was applied by the Supreme
Court in the case of Laurel vs. Abrogar.
LAUREL VS. ABROGRAR
In Laurel vs. Abrogar, PLDT wanted to prosecute those
people who were diverting the international long
distance call business of PLDT. So, ‘yung calls na dapat
papasok doon sa gateway ng PLDT and for which PLDT
could have charged fees were diverted by these people.
The calls which was supposed to enter the gateway of
PLDT for which PDLT could have charged fees for were
diverted by these people. This resulted in losses
suffered by PLDT because they were deprived of their
business.
*you cannot appreciate how much losses was suffered
because now you can communicate with other at minimal
cause such as on viber* Back in the day, the only means
of communicating with your loved ones abroad was
through the landline. If you would call long distance
through the landline, most of the time, the parties
conversing is in a hurry because it was very expensive.
Every minute counts. This is the reason why OFWs before
resulted to cassette tapes where they used it to record
their long messages instead of writing it. These tapes will
be sent to the Philippines. There were no emails before,
just air mail which will be received after 2 weeks. This is
very unthinkable because in your generation if you’re late
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
for a day it is as if your news is too late. Here it is 2 weeks
and through air mail which is expensive. Now, if you
would send it through ordinary mail, it will be sent for a
month.
In the case, the charges were very exorbitant. There
were individuals who discovered the magic jack. This
would be something you plug into your system and
you’d be able to make long distance calls for free. A lot
of people used this. Unknown to everyone, what is
actually happening is they are using the gateway and
facilities of PLDT and when they were making long
distance calls, it does not reach the gateways which it
was supposed to be chargeable by PLDT.
PLDT filed criminal cases. They really did not want these
people to be sent to jail, but they wanted to set an
example. If no one will be punished, same act will be
repeated which will result to their further losses.
At first, SC sustained the dismissal because according to
SC: this cannot be theft because we are speaking of
business here. What you are complaining is you were
stolen of a business, and business is not a personal
property. It is not among those listed under Art. 416 and
Art. 417. So, you cannot charge them of theft.
In theft, it involves taking of personal property for
personal gains. But PLDT filed a motion for
reconsideration. In their MFR, they were able to
convinced the SC that it is possible for the crime of theft
to be committed here.
Why? Because according to them, this business that we are
speaking of cannot be found in Art. 415, but there is no
question that business is considered property. You can even
sell your business and be covered under sales law. According
to them, it is without question a property. Since it is not
found in Art. 415, we have to apply Art. 416 (1).
In Art. 416 (1), if it is not under Art. 415, then it is necessarily
a personal property. With that kind of argument, SC said it is
possible for the engagement of crime of theft in this case. It
is logical.
CHAPTER 2
MOVABLE PROPERTY
Art. 416. The following things are deemed to be personal
property:
(1) Those movables susceptible of appropriation which
are not included in the preceding article;
Page 121 of 126
(2) Real property which by any special provision of law is
considered as personal property;
(3) Forces of nature which are brought under control by
science; and
(4) In general, all things which can be transported from
place to place without impairment of the real property to
which they are fixed. (335a)
Art. 417. The following are also considered as personal
property:
(1) Obligations and actions which have for their object
movables or demandable sums; and
(2) Shares of stock of agricultural, commercial and
industrial entities, although they may have real estate.
(336a)
Q: Under Art. 416(3), what are forces of nature which
can be controlled using science that can be considered
as personal property?
A: Solar power. Energy converted to electricity to power our
homes.
Atty. Seña:
Yes, electricity of all kinds. These are examples of Art.
416(3).
Q: When you own a share of stock of the DMCI, the
developer of real estate, how would you treat that share
of stock? Personal or Real Property?
A: Shares of stock of agricultural, commercial and industrial
entities, although they may have real estate, as under Art.
417.
Atty. Seña:
Yes, even though the company works in real estate, the
shares of stock is a personal property.
Art. 418. Movable property is either consumable or
nonconsumable. To the first class belong those movables
which cannot be used in a manner appropriate to their
nature without their being consumed; to the second class
belong all the others. (337)
Personal property in turn, is classified into two:
1. Consumable
2. Non-consumable
Q: How would you define consumable properties?
A: Consumable properties are those which cannot be used
without being consumed.
Atty. Seña:
It cannot be used without being consumed.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

The Civil Code defines simple loans or mutuum using the

terms consumable and fungible, interchangeably. BUT,
Art. 423. The property of provinces, cities, and
consumable and fungible are NOT THE SAME.
municipalities is divided into property for public use and
patrimonial property. (343)
Q: What is a fungible property?
A: It is something that with consumption, the parties intend
Art. 424. Property for public use, in the provinces, cities,
to replace the property with the same kind.
and municipalities, consist of the provincial roads, city
streets, municipal streets, the squares, fountains, public
Atty. Seña:
waters, promenades, and public works for public service
Fungible properties are those properties which are
paid for by said provinces, cities, or municipalities.
susceptible to substitution or those that can be replaced.
All other property possessed by any of them is
Q: Given the obligation created under a simple loan or
patrimonial and shall be governed by this Code, without
mutuum, what is a term more appropriate to use in a
prejudice to the provisions of special laws. (344a)
simple loan or mutuum? Is it consumable or fungible?
A: It would be fungible. The obligation to return the thing
Art. 425. Property of private ownership, besides the
does not require the very same thing, but only an equivalent
patrimonial property of the State, provinces, cities, and
or a substitute.
municipalities, consists of all property belonging to
private persons, either individually or collectively.
Atty. Seña:
(345a)
The more appropriate term is fungible. Because what is a
loan or mutuum? To deliver to your bailor something of the
same kind, quantity, or quality. Property is either:
1. Public Dominion
You do not have to give back what you have received. You 2. Private Ownership
only have to replace it. It doesn’t matter if it is consumable
or non-consumable. Q: What is the definition for properties of public
dominion?
A: Under the law, those which are used for:
CHAPTER 3
1. Public use
PROPERTY IN RELATION TO THE PERSON TO WHOM
2. Public Service
IT BELONGS
3. Furtherance of National Wealth
4.
Art. 419. Property is either of public dominion or of
Actually, the law does not define what property of public
private ownership. (338)
dominion is. And according to Senator Tolentino, it is
actually appropriate, because property of public dominion
Art. 420. The following things are property of public
does not really belong to anyone. It belongs to everyone. It is
dominion:
not correct to say that it is owned by the State, because it
only pertains to the State, under the Regalian Doctrine.
(1) Those intended for public use, such as roads, canals,
rivers, torrents, ports and bridges constructed by the
And under Art. 420, property of public dominion would
State, banks, shores, roadsteads, and others of similar
include:
character;
1. those intended for public use;
2. those which without being for public use
(2) Those which belong to the State, without being for
are intended for public service;
public use, and are intended for some public service or
3. or those intended for the development of
for the development of the national wealth. (339a)
national wealth.
Art. 421. All other property of the State, which is not of
the character stated in the preceding article, is
patrimonial property. (340a)

Art. 422. Property of public dominion, when no longer

intended for public use or for public service, shall form
part of the patrimonial property of the State. (341a)

Page 122 of 126

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
PATRIMONIAL PROPERTY
On the other hand, the State also has patrimonial property.
Article 420. The following things are property of public
dominion:
(1) Those intended for public use, such as roads, canals,
rivers, torrents, ports and bridges constructed by the
State, banks, shores, roadsteads, and others of similar
character;
(2) Those which belong to the State, without being for
public use, and are intended for some public service or
for the development of the national wealth.
Q: What is patrimonial property?
A: Properties owned by the State in its private capacity.
These patrimonial properties are no different from the
ownership of private persons and entities, in that these
properties may be acquired by prescription, unlike
properties of public dominion. Because the properties of
public dominion, no matter how long a private individual
may have been occupying or in possession of the same, it
does not matter, because prescription will not run to give the
individual in possession ownership over the property of
public dominion.
Now, private entity or the private individual will only have a
shot at acquiring ownership of public dominion if he is able
to complete the acquisitive prescriptive period after the
property of public dominion has been declared as
patrimonial property of the State. And for this to happen,
what must be done?
Q: What must take place for property of a public
dominion to become patrimonial property?
We’re speaking of property which started as property of
public dominion. Since under the law, the patrimonial
property of the State may be of two things: a. it can be
patrimonial from the beginning; or b. property of public
dominion from the beginning, but it became a patrimonial
property. So the question is to the 2nd instance, where we
came from property of public dominion, and it became a
patrimonial property. How does this happen?
Art. 422 tells us that if property of public dominion is
withdrawn from public service or public use, the it becomes
patrimonial property. So the question is: what do you mean
from withdrawing from public service or public use?
Page 123 of 126
Article 422. Property of public dominion, when no
longer intended for public use or for public service, shall
form part of the patrimonial property of the State.
A: It means that the State has declared the property as
alienable and disposable.
Atty. Seña:
First, before going to the declaration of alienable and
disposable, firstly, for property to be classified as
patrimonial property, when it was previously property of
public dominion. The law requires that there should be a law
enacted by Congress or a Presidential Proclamation under
those circumstances that the president is so authorize, which
would declare that property of public dominion as
patrimonial property. Meaning to say, withdrawing it from
public use or public service.
ALIENABLE AND DISPOSABLE
This specifically applies to lands owned by the State. And in
the Constitution, there are lots or different kinds of lands
that can be owned by the State, like, mineral lands, forest
lands, agricultural lands, etc. Of all those lands, only
agricultural lands may be classified as alienable and
disposable.
Atty. Seña:
Papaano yung magiging process. Let us say you have forest
land or unclassified land, then automatic it is property of
public dominion and automatic there is no chance for this
land to be sold or alienated, much less acquired by
prescription. Para tayo magkaroon ng chance na mabili ito,
then these lands must first be classified as Agricultural
Lands (first step). Only agricultural lands may be classified
as alienable and disposable.
From agricultural land we now can classify them as alienable
or disposable.
Q: What is the effect of classifying agricultural land as
alienable and disposable? Is this enough to make
patrimonial property?
A: No there should be a further declaration by the State that
it is patrimonial property.
Atty Seña:
Because even though it was declared as A&D, that
agricultural land would still be land of public domain. Ang
effect lang is that the State has now authority to sell this
land. But it remains to be public domain.
It will only stop from being public domain if:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
1. It is declared patrimonial in character – its
withdrawn from public use, public service or from
the development of national wealth.
2. It is disposed or alienated by the State in accordance
with the classification
*until any of this happens, and that remains property of
public domain which cannot be acquired by prescription.
In Dream Village Neighborhood Association v. Bases
Conversion Development Authority (BCDA), the SC
rejected the claim of the Neighborhood Association kasi
yung Fort Bonifacio kung matatandaan niyo BGC na ngayon,
it is one big are of military land. Then the law, R.A. 7227 was
enacted and the military base was declared alienable and
disposable. Yun nga lang nakalagay din sa batas that it will
be sold for purposes of using the proceeds of the sale for the
conversion of the former American bases in Clark and Subic.
When the residents occupying some portions of the base
went to the SC to say that they have been in continuous,
open, exclusive, possession for the purposes of acquiring
(inaudible) sabi nila the land become alienable and
disposable upon the effectivity of R.A. 7227.
SC said even though it became alienable and disposable, you
cannot still argue that you have acquired it by acquisitive
prescription because it did not became patrimonial in
character. Hindi naman Nawala yung kanyang public use,
public service or purpose for the development of national
wealth. In fact, yung pagbebentahan nito ay gagamitin for a
public purpose (expenses for Subic and Clark bases).
This property will only become patrimonial the moment it is
sold to a private entity as authorized under R.A 7227. And
because of that there will be no occasion for them to have
occupied the property in its patrimonial character for them
to have basis of acquiring said property.
The moment na maibenta ‘dun pa lang magiging patrimonial.
Pag nabenta na at na transfer na ang ownership, they can no
longer claim that they are still in possession. Balewala ‘din
yung occupation nila prior to the sale dahil that property has
not become patrimonial in character, still property of public
domain – so, prescription does not run.
If property of public domain, which has been declared
alienable and disposable cannot be acquired by acquisitive
prescription because it is not patrimonial in character. Will
it be correct to say that there is no other means by which
this property may be acquired through possession by a
private individual?
A: No, there is still another way through confirmation of an
imperfect or incomplete title. Under the provisions of CA
141., specifically Sec. 48(b).
Page 124 of 126
DREAM VILLAGE NEIGHBORHOOD ASSOCIATION v.
BASES CONVERSION DEVELOPMENT AUTHORITY
(BCDA)
RULING:
In Heirs of Mario Malabanan v. Republic, it was pointed
out that from the moment R.A. No. 7227 was enacted, the
subject military lands in Metro Manila became alienable
and disposable. However, it was also clarified that the
said lands did not thereby become patrimonial, since the
BCDA law makes the express reservation that they are to
be sold in order to raise funds for the conversion of the
former American bases in Clark and Subic. The Court
noted that the purpose of the law can be tied to either
"public service" or "the development of national wealth"
under Article 420(2) of the Civil Code, such that the lands
remain property of the public dominion, albeit their
status is now alienable and disposable. The Court then
explained that it is only upon their sale to a private
person or entity as authorized by the BCDA law that they
become private property and cease to be property of the
public dominion: For as long as the property belongs to
the State, although already classified as alienable or
disposable, it remains property of the public dominion if
when it is "intended for some public service or for the
development of the national wealth.
Thus, under Article 422 of the Civil Code, public domain
lands become patrimonial property only if there is a
declaration that these are alienable or disposable,
together with an express government manifestation that
the property is already patrimonial or no longer retained
for public service or the development of national wealth.
Only when the property has become patrimonial can the
prescriptive period for the acquisition of property of the
public dominion begin to run. Also under Section 14(2)
of Presidential Decree (P.D.) No. 1529, it is provided that
before acquisitive prescription can commence, the
property sought to be registered must not only be
classified as alienable and disposable, it must also be
expressly declared by the State that it is no longer
intended for public service or the development of the
national wealth, or that the property has been converted
into patrimonial. Absent such an express declaration by
the State, the land remains to be property of public
dominion.
JUDICIAL CONFIRMATION OF TITLE
Under Sec. 48 of Commonwealth Act (CA) No. 141, judicial
confirmation of title may be applied for acquisition of
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
agricultural lands which have been declared as alienable and
disposable (A&D).
Q: How do we apply this?
A: By filing a petition for the confirmation of an incomplete
or imperfect title under Sec. 48(b), CA 141.
1. The land is alienable and disposable property of the
public domain;
2. The applicant and its predecessor in interest have been
in open, continuous, exclusive, notorious possession and
occupation of the land under a bona fide claim of
ownership; and
3. The occupied the land since June 14, 1945 or earlier
(this requirement has been amended by RA 11573)
Q: Who may file such petition?
A: A Filipino citizen who has been in open, continuous,
exclusive, and notorious possession of A&D lands of the
public domain since June 12, 1945 or earlier under a bona
fide claim of ownership immediately preceding the
application for confirmation of title.
Note: RA 11573 has amended Sec. 48 of CA 141. The period
of occupation to be observed is now fixed at 20 years
immediately preceding the filing of the petition for
confirmation of title, and no longer since June 12, 1945 or
earlier.
Q: Does the land need to have already been declared as
A&D when the petitioner starts occupying the same?
A: The SC ruled in the negative. What is only necessary is that
the land is already declared to be A&D at the time the
application is filed.
Atty. Seña:
So, this means that the petitioner may have started
occupying the property at the time that the land has not been
declared as A&D – that is okay. What is important is the
application must be filed at the time the land is already
classified as A&D.
Q: Now, do we apply the same rule if we’re dealing with
acquisition of patrimonial property of the government
through prescription?
A: No, the declaration of land being A&D matters in this case.
Under the law, you cannot have prescription running against
the State over property of the public domain.
Atty. Seña:
For example, if you will occupy forest land, it does not matter
how long you have occupied that land and no matter how
exclusive it is, it does not matter. It is a property of public
dominion and may not be acquired by prescription. Suppose
said land is then declared to be patrimonial property of the
State. Then, that will be the reckoning point when
Page 125 of 126
prescription may run from the state – back to zero ka kahit
gaano katagal yung nagging occupation mo before.
Unlike in confirmation of imperfect title where the material
fact is that the land is declared as A&D before the application
for confirmation.
Q: How do we prove that the property is alienable and
disposable in character?
A: You must get a certification from the Sec. of DENR, that the
land is alienable and disposable. You must also get a
certification of CENRO to the extent that the land is alienable
and disposable.
Atty. Seña:
You cannot paraphrase these requirements because the
Supreme Court held that if you fail to comply with these
proofs as laid down in Republic v. TAL Properties, then your
petition for confirmation of complete or imperfect title will
have to be denied. This is a crucial element showing that the
land is alienable and disposable.
To prove this, you have to present a copy of the original
classification approved by the Sec. of the DENR. This copy
should be certified as a true copy by the legal custodian of
the official records of the DENR.
You must also present a certificate of land classification
status issued by either the CENRO or PENRO based on the
land classification approved by the DENR. This is required
because the classification as provided by the DENR may have
been issued many years ago. This is to ensure that the status
has remained the same. The CENRO and PENRO function as
an update to the original classification.
These two documents must be presented. The failure to do
so will warrant the denial of the petition. Lastly, property in
the public domain cannot be sold, not even by the
government.
Q: Pertaining to RA 11573, in our earlier discussion, it
was mentioned that the possession must date back as
early June 12, 1945. However, in RA 11573, it has
already dispensed with the requirement that the
possession should date back to June 12, 1945, but rather
20 years?
A: In this case, we will follow what the present law says, but
the principle remains the same.
UNCLASSIFIED LANDS
For example, there is a piece of land that is unclassified land
[if it is unclassified land, it is automatically the property of
public domain or forest land]. For some reason, a homestead
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

patent was issued over this forest land. This homestead

patent became the basis for the issuance of a TCT.

The title becomes incontrovertible after the lapse of 1 year.

However, the Supreme Court has consistently held that this
will not hold true if what is involved is property of public
dominion. No title may be acquired over the sale even if it is
the government who issued the homestead patent.

The Supreme Court has repeatedly stated: unclassified lands

until released and rendered open to disposition shall be
considered as inalienable lands of the public domain. If it
cannot be shown that it has been sold or so released from
public use or public service, then whatever possession or
title may have been acquired over this may not ripen into
legal ownership.

Page 126 of 126

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
DISCUSSION OF PRELIMINARY EXAMINATION
PART I
Q: STATE WHETHER THE FOLLOWING IS COMMUNITY
PROPERTY, CONJUGAL PROPERTY OR SEPARATE
PROPERTY OF PARTIES WHO GOT MARRIED ON AUGUST 2,
1988 WITHOUT AN ANTE-NUPTIAL AGREEMENT.
1. A car worth Php 1 million which the wife acquired during
the marriage, for her exclusive use during the marriage and
using her salary.
Answer: Conjugal Property
2. A house built during the marriage on a lot inherited by
the husband before the wedding. Th e spouses used the
proceeds of the Php 5 Million loan they jointly obtained
from the bank to build the house on the lot. The
improvement saw the value of the property increase from
Php 12 Million to Php 15 Million.
Answer: Separate Property of the Husband
5M – Conjugal funds, Improvements increasing the value of
property from 12M to 15M
Cost + Increase in value
5M + 3M = 8M < 12M
House will be separate property of the husband but will be
subject to his obligation to reimburse the conjugal
partnership.
3. A gratuitous separation package received by the husband
from his former employer only because the latter felt sorry
for him aft er he had to be fi red following an accident that
left him unable to work about a month into his
probationary employment.
Answer: Separate Property of the Husband
He is not entitled to the gratuitous separation package
4. The proceeds of an insurance policy on the life of the
husband which the wife received after the husband passed
away.
Answer: Separate Property of the Wife
No marriage to speak of, no CPG, being dissolved by death
5. Hidden treasure which the wife found in a parcel of land
she bought during the marriage using her exclusive funds.
Answer: Conjugal Property
Page 1 of 128
FOR QUESTIONS 6 TO 10, STATE WHETHER THE
MARRIAGE IS VALID,VOIDABLE OR VOID.
6. Anna and Jerod got married in 2004. Two years later,
Jerod obtained a judicial decree nullifying their marriage for
psychological incapacity. As soon as the decision nullifying
his marriage to Anna became final, Jerod married Ida
without complying with the provisions of Article 52.
Answer: Valid
Marriage void under Art. 36 is not required to comply with
the provisions of Art. 52.
7. A marriage solemnized by a municipal judge who was
also the one who notarized the affidavit of cohabitation of
the parties who have been living together as husband and
wife for the last ten years immediately preceding the
wedding.
Answer: Valid
The act of the judge notarizing the affidavit of cohabitation
would just be an irregularity, but it may make him
administratively liable for his actions.
8. A marriage between a Filipino and an American
solemnized by the vice-consul of the Philippines in his office
in Los Angeles, CA
Answer: Void
The authority of the vice-consul is only to solemnize
marriages between Filipino citizens. We cannot factor in
good faith here because it is a matter of law.
9. A marriage in articulo mortis where the party at the point
of death survived.
Answer: Valid
10. A marriage solemnized by a Quezon City RTC Judge at
the UP Town Center upon the request of the parties who
sent him a letter via e-mail for that purpose.
Answer: Valid
The non-compliance by the parties with the requirement
that the request should be verified would just be considered
an irregularity affecting the authority of the solemnizing
officer.
FOR QUESTIONS 11 TO 20, FILL IN THE BLANKS WITH
THE CORRECT ANSWER.
11. The doctrinal ruling in Republic vs. Manalo effectively
gives a Filipino the right to file for divorce in a mixed
marriage.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
12. A putative father of an illegitimate child who has
acknowledged paternity of the latter may nonetheless prove
non-filiation within his lifetime.
13. The amount of support is determined by necessity and
capacity.
14. Aquino v. Aquino teaches us that an illegitimate child
may now represent her putative parent in the succession of
the estate of her grandfather, notwithstanding the
provisions of Art. 992.
15. Under RA 11642, a prospective adopter must be at least
25 years of age.
16. The declaration of nullity of marriage shall only bring
about the dissolution of the absolute community of
property, if the ground for nullity is Art. 40.
17. The status of a mortgage executed by the husband in
1986 on conjugal property, without consent of the wife, is
voidable.
18. A petition to have the absent spouse declared
presumptively dead would be dismissed unless there is
allegation that the present spouse intends to remarry.
19. The disclosure of adoption shall be mandatory before
the adoptee reaches the age of 13.
20. If a terminable subsequent marriage were to be
dissolved by the death of the spouse-present, his death
benefits shall pertain to the subsequent/present spouse.
21. The quantum of evidence that must be discharged by
the petitioner seeking to nullify a marriage under Art. 36 is:
Answer: B) Clear and convincing evidence
22. A wife who is presumptively death at the instance of the
husband who living with her in the conjugal dwelling until
the day he contracts a subsequent marriage, a month after
securing the decree must:
Answer: B) File a petition for certiorari for the
judgment declaring her presumptively dead. Once
successful, she can ask for the nullity of the subsequent
marriage for being bigamous.
23. If the wife avails of option B in the preceding number,
any donations propter nuptias made by the husband to the
second wife in the marriage settlement will:
Answer: A) Will remain valid and subsisting.
24. A subsequent marriage will be null and void under Art.
35, par. 6, and Art. 53, if the prior void marriage is:
Page 2 of 128
Answer: D) Declared null and void under Art.40,
but did not comply with Art. 52
25. The children conceived and born before the marriage
that was subsequently annulled under Art. 45 are:
Answer: C) Legitimated
26. A petition for support brought by a girl claiming to be a
love child of her mother and respondent must be:
Answer: B) Dismissed for lack of cause of action
because she is not allowed to impugn her legitimate
filiation.
27. An unpublished law that was passed by both houses of
congress and signed by the president is:
Answer: Valid but ineffective for lack of
publication.
28. Miguel was able to secure a decree of annulment of his
marriage to Wendy five years after filing the same on the
ground of fraud. Wendy hid the fact that she is pregnant
with the child of another man, Peter, at the time she married
Miguel. The child named Althea and was treated by Miguel
as his own. DNA test results, however, confirm that Althea
was not Miguel’s child at all. Which of following statements
is true?
Answer: A) Althea remains the legitimate child of
Miguel because her legitimate filiation has become
incontrovertible.
29. The putative father of a legitimate child aged 10 may
exercise:
Answer: C) Substituted parental authority in his
capacity as the actual custodian of the child if the mother is
unfit and it is shown that it would be in the best interest of
the child if he will be given custody over the grandparents.
30. The wife forge the signature of her unemployed
husband on a promissory note covering the loan she
obtained from PNB for her printing business, as well as on
the real estate mortgaged that she constituted on three
parcels of land to secure the same. The parcels of land were
acquired during the marriage, but there is no proof that the
money used to purchase them was conjugal. The mortgage
was foreclosed and the properties were sold to PNB. A
certificate of sale was issued to PNB on Sep. 19, 2017. On
Sep. 22, 2018, the husband filed a complaint to annul the
real estate mortgage and cancel the certificate of the sale.
Assuming the mortgage is nullified, what properties may be
levied upon execution to answer for the obligation?
Answer: D) Conjugal properties and in case of their
insufficiency, the separate properties of the spouses.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
PART II
FACTS:
Pedro and Maria, aged 18 and 27, were set to become
parents to their first child. They wanted to get married
before their child was born but Pedro's parents refused to
give their consent to the marriage, saying that he was way
too young. Instead, they donated Php 5 Million to Pedro and
Maria's unborn child to convince them that they did not
have to rush getting married to be able to take care of their
baby. Pedro and Maria accepted the donation on behalf of
their child, but proceeded to secure a license anyway, using
a fixer to facilitate the issuance of a marriage license to
them even though they did not submit any supporting
documents as required by law.
Before the wedding, Pedro and Maria were urged by Maria's
parents to execute an ante-nuptial agreement. Maria had
inherited 300 shares of stocks of XYZ Realty Corporation
from her grandparents. The shares which are worth Php5
Million are Maria's only property. Pedro did not show it to
Maria's parents but when the two of them were alone, he
told Maria that he felt insulted by the suggestion. To
appease him, Maria donated 1/3 of her inheritance to Pedro
by endorsing and delivering the certificates of stock for 100
of her 300 shares to him.
Pedro and Maria executed the ante-nuptial agreement the
day before the wedding with Maria's parents acting as
witnesses. Apart from declaring that the parties were
adopting the Conjugal Partnership of Gains as their
property regime, the written ante-nuptial agreement also
made mention of the donation as follows: "Prior to the
execution of this Ante-Nuptial Agreement, Maria donated
100 shares of XYZ Realty Corporation to Pedro in
consideration of their upcoming marriage."
On the day of the wedding, Pedro's parents rushed to stop
the ceremony but they were held up in traffic and failed to
reach the church until after the parties have said their "I
dos." When they got there, Pedro and Maria were standing
at the altar in front of the officiating priest with their
principal sponsors standing around them. Pedro's mother
managed to drag him away from the altar anyway and his
father forced him to into their car. They drove away, leaving
Maria and everyone else behind. Needless to say, the parties
were not able to sign the marriage certificate. This also
meant that the ante-nuptial agreement was never
registered with the local civil register.
Maria, who was on her 26th week of pregnancy, got so
distressed that she started labor. Her parents rushed her to
the hospital where she gave birth to a baby girl, who, sadly,
died after two hours from delivery. The hospital bill for both
Maria and the baby reached Php 2 Million.
Page 3 of 128
The time apart from Maria and the loss of their child led
Pedro to the realization that he no longer wanted to stay
married. Thus, shortly before his 20th birthday, Pedro, with
the assistance of a lawyer from the public attorney's office
filed a petition to annul his marriage to Maria.
a. What is the status of the marriage – valid, voidable
or void? Explain your answer. (10%)
Answer: It is voidable for lack of parental consent.
Note: Atty. Seña stated that there is a need to address the
fact that the license was obtained through a fixer and
without supporting documentation, which is a mere
irregularity and has no bearing to the validity of the
marriage. There is also a need to point out that there is also
no signed marriage certificate, and the way to do that is to
say that the marriage certificate is not an essential or
formal requisite so its absence does not affect the validity of
the marriage.
b. How will you rule on Maria’s Motion to Dismiss
Pedro’s petition for annulment? (5%)
Answer: The best answer for this would be to say that you
are going to deny Maria’s motion to dismiss because the
only reason why the right of action under the Civil Code was
limited to the parents during the time the party in question
was still between the ages of 18 and 21, is that under the
Civil Code, legal age was 21 and the party in question would
not have the standing to go to court on his own. However,
that no longer holds true because under RA 6809, the age of
majority is already 18. And while the law has retained the
requirement of parental consent for parties getting married
between the ages of 18 and 21, said party is nonetheless
capacitated for all other acts under the law – including the
filing of his own petition for annulment.
c. What property regime governs the parties? (10%)
Answer: Absolute Community of Property. The parties
did execute an antenuptial agreement where they elected
the Conjugal Partnership of Gains as their property regime.
But as you must note, the antenuptial agreement was not
participated in by the parents of Pedro. And under the law,
if a party is between 18 and 21, his parents or guardians
must be made parties to the antenuptial agreement.
Otherwise, the same would be void.
So since, the antenuptial agreement is void due to lack of
participation by the parents of Pedro, then the parties will
be governed by the default property regime under the
Family Code.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
d. While Pedro’s petition for annulment was pending, his
parents died. He then agreed to file a joint petition with
Maria for the voluntary dissolution of their property
regime and for the separation of their common
properties in accordance with law. The court approved
the dissolution of their property regime and you are
now asked to liquidate and distribute the properties
between the parties.
Liquidate and distribute the properties between the
parties. (15%)
The Court approved the dissolution of their property
regime. They are now asked to liquidate and to distribute
the parties. The parties are governed by Absolute
Community Property.
They now take into consideration of the fact that the
donation by the parents of Pedro to their child who died a
few hours after birth will now revert to Pedro’s parents.
When Pedro’s parents died during the time of petition of
annulment was pending, then Pedro inherited that was
donated to the child. This [P5M that reverted back to his
parents] now would be his separate property.
Maria has shares of stocks prior to the marriage. That
would convert to community property after the marriage.
Maria will not have any separate property. The shares of
stock would be community property.
The donation to Pedro of the shares of stocks prior to the
marriage would be null and void. This is because since the
value of the shares of stock exceeded P5,000, the law
requires that the same be in writing, but it was not. There
was only delivery of the certificates of stocks endorsed by
Maria in favor of Pedro.
There was also the issue relating to the limitation that
would have made to apply: to what may be donated by
Maria to Pedro. It should have been addressed by saying
that the limitation would not apply since the donation was
not made in the marriage settlement.
For the obligations of the community property, we have
P2M representing the hospital bills incurred for Maria and
the child. This is to be deducted from the P5M worth of
shares that became community property such that the net
assets of the absolute community property will be P3M
which will be divided between Pedro and Maria [P1.5M
each].
In distributing the community property, P1.5M will go to
Maria. While Pedro will get the other P1.5M which when
Page 4 of 128
added to the separate of the P5M, will add up to the total of
P6.5M.
Q: Supposing that the petition for annulment is eventually
granted by the court and Pedro proposes marriage to Rose
who accepts. They later obtain a marriage license as soon as
the judgment granting the petition becomes final and
executory. What will be the status of the marriage to
Rose?
Answer: The marriage will be void under Art. 53
for non-compliance to the requirements of Art. 52. Art. 52
applies to voidable marriages that had been annulled.
Q: Pedro and Rose got along well within the first few years
of the union. Rose stayed home and took care of the
children while Pedro worked in sales. Using his salary,
Pedro purchased a property worth P3M. Their relationship
soured after the first child fell ill and Pedro could not cope
with the stress. They separated and Pedro stopped giving
support to Rose. Rose had to depend on her mother, a
well-known socialite who was in to vlogging. Pedro put the
house and lot in the market. Upon learning of this, Rose
wrote Pedro to demand that she be given half of the
proceeds. Pedro refused. Decide the matter.
Answer: To decide this, you must first determine
the property regime between the properties, which is
co-ownership under Art. 147, because of non-compliance to
Art. 52 is not considered an impediment. Hence, they are
not under any impediment to marry each other.
Under Art. 147, we have co-ownership which has the
presumption of acquisition using joint efforts and we also
have the recognition of the care of children and
maintenance of the household as valid contribution to the
effort to acquire.
However, those other matters need not be invoked since it is
clear from the problem that Pedro used his own salary to
obtain the house and lot. Art. 147 explicitly provides that
there will be co-ownership over the salaries of the parties.
This should be the main argument.
Since the property was bought using the salary of Pedro,
and that salary is considered co-owned by them, then the
property should be considered as co-owned by parties. In
this case, Rose is entitled to receive half of the proceed of
the sale.
Q: Name the people and order in which they are
obligated to give support to the children of Rose and
Pedro.
Answer: You have to remember that these children
of Rose and Pedro having been born to a void marriage
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

would ordinarily be considered as illegitimate children. But

the nullity is based on Art. 53, which would be one of the
two exceptions whereby legitimate children may be born to
a null and void marriage. Since they are legitimate, the
following should be obligated to support to them:
1. Rose and Pedro
2. Legitimate ascendants (Rose’s parents
since Pedro’s parents are dead).

Q: Hiro married Suki. Hiro then filed for a petition of

declaration of nullity on the ground of absence of a
marriage license. While this petition was pending, Hiro
contracted a second marriage with Bea. When Suki learned
of this, she filed a criminal complaint with the prosecutor
for bigamy against Hiro. The information for bigamy against
hero was subsequently filed in court.

(a) Hiro filed for a motion for suspension of the

criminal case on the ground that the nullity of the
marriage was a prejudicial question. Should the motion
be granted?

Answer: Pursuant to the Pullido case, it should be

granted since it constituted a prejudicial question.

Q: (b) Assume that the motion was not granted. During

the pendency of the criminal case, judgment was
entered declaring the marriage between Hiro and Suki
as void because of the absence of a marriage license.
Will the judgment exonerate Hiro from criminal
liability?

Answer: Yes, pursuant to the Pullido doctrine, it no

longer matters when the decree of nullity was obtained.
Whether it was obtained prior or after the subsequent
marriage, it would still exonerate the accused of criminal
liability.

Page 5 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
FINALS PERIOD
OWNERSHIP
Q: What is ownership?
A: Ownership is an independent right of exclusive
enjoyment and control of the thing for the purpose of
deriving therefrom all advantages required by the
reasonable needs of the owner (holder of the right) and the
promotion of the general welfare but subject to restrictions
imposed by law and the right of others. (Rabuya, Property
2017).
Article 427. Ownership may be exercised over things or
rights.
Ownership may be exercised over things or over rights. As
far as rights go, this may either be a real right or a personal
right.
Q: How would you differentiate personal and real right?
A:
Real right has no definite passive subject (debtor) and it is
enforceable against the whole world. It is enforceable
against the whole world, regardless of whether you have an
agreement with them e.g. usufruct, ownership, possession.
Ownership is the best example of a real right.
Personal right has a definite passive subject and is
enforceable against a particular person. The object of a
personal right can only be a prestation and cannot be
enforced against persons who are not privity to the
transaction e.g. rights of a buyer – the right to demand
delivery from seller.
Example of a real right:
I am an owner of a vehicle and my name is imprinted on the
original certificate of registration and OR. And then I sold it
to another person (buyer). The buyer executed a deed of
sale. If the ownership of the vehicle is already transferred to
the buyer, then it does not create a personal right, but a real
right.
In that case, there is a real right created. This is because
there has been delivery. In fact, the delivery here was
constructive, through the execution of the notarized deed of
sale. It is still possible for the seller to resell the property
and be able to deliver it anew (a second time) to a third
person. If the seller does this, the original buyer (the first
buyer) can run after the second buyer because he will be
enforcing his real right of ownership.
Page 6 of 128
Compare this to a situation where the deed of sale was not
embodied in a public instrument, such that we cannot speak
of constructive delivery. And then the seller resells the
vehicle to a third person. This time around, the seller
delivers the vehicle.
Q: What will be your remedy now? Can you run after the
third person (the second buyer)?
A: No. In this case, he only has a contract of sale and
therefore he only acquires a personal right to demand
delivery from the seller. Since that is the nature of his right,
he cannot go after the third person kasi walang privity of
contract kaya hindi mo pwedeng i-enforce ‘yun.
CONSEQUENCES/ATTRIBUTES OF OWNERSHIP
1. The right to enjoy and dispose the property
Article 428. The owner has the right to enjoy and dispose
of a thing, without other limitations than those established
by law.
The owner has also a right of action against the holder and
possessor of the thing in order to recover it.
2. The right to abuse the property
This will exhibit or showcase the extent of the owner’s right
to use. Essentially, with the right to abuse, he can do
whatever he wants with the property. He may use it in any
manner that he may deem to be fit and no one will question
him about this. Unless, such use already prejudices or
injures another person.
Article 431. The owner of a thing cannot make use thereof
in such manner as to injure the rights of a third person.
Example: Ikaw ang may-ari ng kotse, pero burara ka, hindi
ka maingat sa gamit. Kapag may lubak, hindi mo
dinadahan-dahan, talagang raragasa ka pa sa lubak. Hindi
ka maingat sa pagmamaneho kung saan-saan sumasabit ang
kotse mo. Will there be anyone who can stop you from
being so careless with your vehicle? None. It is well within
your right to abuse, so to speak, your property. The only
limitation here would be if that abuse would already
prejudice third persons. ‘Yun ‘yung extent.
3. The right to recover the property
Contemplates that the real owner of the property is entitled
to enforce his or her rights against any other person. He has
the right to file an action before the court. The purpose of
the right of action is to recover possession or ownership
over the property.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: Where can we find this right to recover/which
article?
A: Art. 428 - The owner has also a right of action against
the holder and possessor of the thing in order to recover it.
Q: If you are going to bring an action to recover, what
must you allege in your complaint?
A: You have to allege the: (1) identity of the property; and
(2) one’s title to the subject property.
Article 433. Actual possession under claim of ownership
raises disputable presumption of ownership. The true
owner must resort to judicial process for the recovery of the
property.
Article 434. 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.
4. The right to exclude others from the property
Article 429. The owner or lawful possessor of a thing has
the right to exclude any person from the enjoyment and
disposal thereof. For this purpose, he may use such force as
may be reasonably necessary to repel or prevent an actual
or threatened unlawful physical invasion or usurpation of
his property.
5. The right to enclose or fence the property
Article 430. 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.
6. The right to compensation in case of eminent
domain
Article 435. No person shall be deprived of his property
except by competent authority and for public use and
always upon payment of just compensation.
Should this requirement be not first complied with, the
courts shall protect and, in a proper case, restore the owner
in his possession.
Article 436. When any property is condemned or seized by
competent authority in the interest of health, safety or
security, the owner thereof shall not be entitled to
compensation, unless he can show that such condemnation
or seizure is unjustified.
Page 7 of 128
7. The right to the surface, the subsurface, and the
space above land
Article 437. The owner of a parcel of land is the owner of
its surface and of everything under it, and he can construct
thereon any works or make any plantations and excavations
which he may deem proper, without detriment to
servitudes and subject to special laws and ordinances. He
cannot complain of the reasonable requirements of aerial
navigation.
8. The right to hidden treasure
Article 438. Hidden treasure belongs to the owner of the
land, building, or other property on which it is found.
Nevertheless, when the discovery is made on the property
of another, or of the State or any of its subdivisions, and by
chance, one-half thereof shall be allowed to the finder. If the
finder is a trespasser, he shall not be entitled to any share of
the treasure.
If the things found be of interest to science or the arts, the
State may acquire them at their just price, which shall be
divided in conformity with the rule stated.
Article 439. By treasure is understood, for legal purposes,
any hidden and unknown deposit of money, jewelry, or
other precious objects, the lawful ownership of which does
not appear.
9. The right to accession
Article 440. The ownership of property gives the right by
accession to everything which is produced thereby, or
which is incorporated or attached thereto, either naturally
or artificially.
ELASTICITY OF OWNERSHIP
Elasticity of ownership means that the owner may strip
himself of most, if not all, of these attributes or
consequences of ownership and yet he would remain to be
the owner of the property. Because what remains with him
is the naked title.
In other words, no matter how many attributes you take
out, how many attributes you dispose of, so long as the title
remains with you then you are still the owner of the
property.
Q: How does an owner dispose of all of these attributes?
A:
a) Pwede siyang magkaroon ng usufruct, mawawala
sa kanya ‘yung possession and right to the fruits.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

b) Maaari siyang mag-execute ng SPA, mawawala sa ACCION ACCION ACCION

kanya ‘yung right to dispose, right to encumber. INTERDICTAL PUBLICIANA REIVINDICATORI
c) Pwede siyang mag-execute ng mortgage. A
d) Pwede siyang mag-create ng servitude. What is sought to What is sought to Cause of action is
be recovered is the be recovered is the issue of
All of which would be a limitation on his ownership. But his material or legal possession if ownership as an
title will never be affected until and unless his title is physical dispossession lasts incident of
transferred. You must identify the property and establish possession. for more than 1 possession.
your title. The law also says that the plaintiff must rely on year up to 10
the strength of his title, not on the weakness of the Note: This only years. Remedy in case 10
defendant’s claim. covers years already
dispossession that Who has the better lapsed.
Q: How do you identify the properties sought to be does not exceed right of possession
recovered? more than 1 year.
A: Note: if
1. Clearly establish in the complaint the identity of dispossession lasts
the property by evidence. for more than 10
a. For land under Torrens system, identify it years, legal
by its TCT number, indicate where it is possession is lost
located and technical description.
b. For personal property, such as a motor
vehicle, you go by the make of the vehicle,
model, color, plate number, chassis number
The first two actions (interdictal and publiciana) need not
etc.
be filed by the owner. It is enough that you are a possessor.
But in accion interdictal, it must be filed by the owner
2. Establish your title to the property.
Irrelevant sa Accion Interdictal ang ownership. Let’s say
No matter how weak the title of the defendant is, if your
you are the lessor and you are the owner of the property
own evidence does not establish your title to the property,
and you are leasing it out, kaso biglang nainis ka doon sa
then your action will be dismissed.
lessee mo. What you do is you forcibly evict your lessee
even though the contract of lease is still subsisting kahit
It may happen that you file an action, your evidence and
hindi pa expired yung period of lease.
title happens to be a deed of sale executed by a person
whose not registered owner of the parcel of land and the
Q: What can your lessee do?
defendant does not even answer the complaint. The judge
A: Your lessee can file Accion Interdictal against you.
will dismiss the case even though the defendant did not file
an answer because he will look at your evidence to
Q: What about the fact that you are the owner?
establish your right to recover.
A: It’s not (inaudible) in this situation. Kasi ang
pinag-uusapan lang natin dito is who is entitled to the
The only time the defendant’s title will be looked into is
possession of the property and here we have a contract
when the burden of proof is shifted to the defendant. Until
saying that it is the lessee who is entitled to the possession
you are able to do that, the defendant need not lift a finger
of the property until the expiration of the contract lease.
because under the law, your case will rise and fall on the
strength of your evidence, not on the defendant’s weakness.
Ngayon kung lumagpas sa one year bago nag-file yung
lessee mo, Accion Publiciana na yung ifa-file niya dapat kasi
Different actions for recovery of property:
more than one year na. But still, same rule will apply. Your
lessee will still have the better right of possession as against
1. Real property
you because may contract, buhay pa yung contract of lease.
a. Accion interdictal
b. Accion publiciana
Q: Where should an Accion Publiciana be filed?
c. Accion reivindicatoria
A: RTC – above Php 400,000
MTC – Php 400,000 and below
2. Movable property
a. Replevin

Page 8 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
R.A. 7691 expanded the jurisdiction of the MTC and in
addition provided for incremental increases of its
jurisdictional values where the maximum is Php 400,000.
Q: Since Accion Publiciana may be recognizable by the
MTC and it is also the MTC which has exclusive
jurisdiction over Accion Interdictal. Would it be correct
to say that these two actions before the MTC are
interchangeable?
A: No. because Accion Publiciana is an ordinary proceeding
while Accion Interdictal is a Summary Proceeding.
There is a world of difference between a Summary
Proceeding and an Ordinary Proceeding. If it’s summary
then it is abbreviated and the judgment that would be
rendered in favor of the plaintiff at the end of the trial, this
requires posting of the bond and the deposit of monthly
rentals for compensation for the use of the property in
order to perfect the appeal.
On appeal to the RTC, if the RTC were to sustain the decision
of the MTC, then that decision would be immediately
executory. There’s no legal injunction that may be issued to
enjoin its tenureship.
Pwedeng tumagal yung liquidation ng 5 years sa RTC level
pa lang then another 2-3 years sa Court of Appeals and
kung aabot pa ng Supreme Court, we’re looking at 10-15
years. In the meantime, what’s happening to the property?
The property will still be in the possession of the defendant.
Nagagastusan yung plaintiff pero hindi niya pa rin
narerecover yung property niya. Yun yung downside. And
this is the reason why plaintiffs who are suing to recover
their properties would always want to sue for Accion
Interdictal rather than filing Accion Publiciana or an Accion
Reindivicatoria.
Yung Accion Reindivicatoria, there is a ruling saying that it
is an action to recover ownership. But this is really not
accurate. Yung mga naunang authorities sa Civil Law like
sila Justice Caguioa, they would say that it’s not action to
recover ownership because ownership has not been lost,
it’s actually an action to vindicate ownership by recovering
possession as an incident of ownership.
Accion Interdictal, itself may be further classified into two:
1. Forcible Entry
2. Unlawful Detainer
Q: How would you distinguish the two in terms of
prescription?
A: Forcible Entry – Within one year from the
dispossession
Unlawful Detainer - Within one year from the last
demand
Page 9 of 128
Q: Which would the two would be more flexible in
terms of prescription?
A: Unlawful Detainer. Kasi dito parang meron kang
moving deadline. You would always count the one year
period from the last demand and effectively you may end up
having more than one year to file the action kasi moving nga
yung deadline mo.
You have to remember that the subsequent demands must
not be mere reiterations of the prior demands because if it
can be shown that it is simply a mere reiteration then the
period will be counted from the time of the last demand
reiterated in the subsequent demand.
Example:
This is simple but for actual lawyers who do not know this
rule and they would even use the very word that the law
proscribes. Example is they would write “we write in
connection with our demand letter dated ____ and we are
reiterating the demand made in that letter and they file the
action within one year from this last demand reiterating the
previous demand.
Kaya lang it so happened that the action is also filed beyond
one year from the first demand reiterated in the subsequent
demand. In other words, pasok dun sa one year counted
from the subsequent reiterating demand kaya lang lagpas
na sa one year pag dun mo binilang from the original
demand letter. Pero since reiteration lang yung last demand,
we do not consider that as a subsequent demand. The
ending is prescribed na yung Accion Interdictal. If they
would still want to file an action, they would still have to do
so in Accion Publiciana. What will you give up in filing
Accion Publiciana? You’ll be giving up Summary
Proceedings.
Kaya there are people who would still insist on suing for
Accion Interdictal specifically, Unlawful Detainer even
though the start of the dispossession was through force,
intimidation, threat or stealth. Kahit na wala silang ground.
In one case, the plaintiffs alleged that they were
dispossessed by the defendant who entered their property
surreptitiously, so by stealth. After that, they discovered
their presence and they did not do anything. They only went
to court five years after the defendant has entered their
premises kasi dun lang nila kinailangan yung property. Kaya
lang, what they filed was an action for Unlawful Detainer.
They counted it from the day that they made the demand
upon the defendant to vacate. Kung bibilangin mo naman
dun sa petsa kung kailan sila nag-demand to vacate upon
the defendant, pasok naman siya dun sa one-year period.
Pero kung bibilangin mo from the time of the forceable
entry or from the time of surreptitious entry, lagpas na sa
one year.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: How should the court act on the Motion to Dismiss
filed by the defendant? Should it be granted or should it
be denied?
A: The motion must be granted.
Q: How should the court act on the motion to dismiss
filed by the defendant? Should it be granted or should it
be denied?
So, we have a plaintiff whose land was taken over
surreptitiously by the defendant. Now, they find out but the
plaintiff does not do anything. He only acts several years
down the road when he has need for the property. So, he
makes a demand for the defendant to vacate, and then
within one year from the making of demand, he files an
action for unlawful detainer. So, the situation here is this –
there was stealth dispossession five (5) years before but the
action filed was for an unlawful detainer and it was filed
within one (1) year from the time demand to vacate was
made. Defendant files a motion to dismiss saying that the
court does not have jurisdiction over the action but it
should be an action for forcible entry which has already
been prescribed.
How would you rule on the motion to dismiss? What is
the proper action that should be filed in this case?
Should it be for forcible entry or unlawful detainer?
A: It should be an action for forcible entry because the
nature of your action is defined by the allegations that you
make in the complaint. So, since the plaintiff made this
allegation na pinasok ‘yung property niya through stealth,
then they did not do anything, and then later on sabi niya –
“parang tinolerate nalang namin eh and then we filed this
action after filing a demand to vacate”.
Based on those allegations themselves, it should be for
forcible entry, and that action has lapsed because they
brought the action five (5) years after the surreptitious
entry in the property, and that cannot be remedied by
saying that you tolerated the possession subsequently kasi
what you consider here is how the possession begun.
Q: What could the plaintiff have done differently to have
this case tried under the Rules on Summary Procedure?
A: You can simply not allege the part that there was
possession through stealth. He could have left that out at
pinanindigan nalang niya na tolerated possession ‘to.
Parang ang dali na isuppress. But hopefully more of you
would see the problem and say, ano ba ang dapat gawin?
Should I already give up the idealism I have as a young
Thomasian lawyer? Dapat bang maging practical para sa
client or office? How do you decide that?
Page 10 of 128
I am never one to ask a question, and leave it unanswered.
Just in case you are handling a question like this and should
you choose, the approach would be legal. Look at the
evidence we have. Maybe your client said there was forcible
entry sa umpisa pero wala naman siyang evidence. The
evidence she has is the ocular inspection in the property
and nakita mow ala itong bakod and it is open for everyone.
The neighbors are nagsasampay, nagtatanim nagpapagala
ng kalabaw. It is open for everyone. If that is the evidence
you have, you could say that this is the state of the property.
Anyone can enter and impliedly allowed to enter. This is
also what happened to the defendant. He entered upon
implied tolerance and implied permission kasi walang
bakod.
Because of this, pwede mo na panindigan yung theory mo
na tolerated possession, and pwede mo na isustain yung
theory mo na unlawful detainer case.
Did you suppress anything? No. You merely used the
evidence available to you. In reality, you will try and you will
win or lose your case based on whatever evidence you have.
There are a lot of gray areas. Kaya kung maiipit kayo dun na
kayo sa light gray. Yung malapit-lapit sa tama. It is an
everyday battle to always choose right, and it becomes
harder when you see that choosing right is not being done
by everyone. Those who are not choosing right all the time,
they are getting all these material successes.
In unlawful detainer, the possession was lawful at the start
and it only became unlawful. If the possession was based on
a contract, madali natin mapinpoint kelan siya naging
unlawful. Essentially when the defendant has lost his right
to stay in possession under the contract. It can be by reason
of expiration of the term of the contract or because he had
committed a breach of a contract which justified its
termination.
But in tolerated possession, look at the time when demand
is made because tolerance of possession carries with it the
implied promise on part of the defendant that he would
vacate once demanded to by the plaintiff.
So, if a demand was made for him to vacate, and he does not
heed to the demand. Then from that time on, the possession
becomes unlawful. At bibilang na tayo ng ating one year
period to file an action for unlawful detainer.
ASSURANCE FUND UNDER THE TORRENS SYSTEM
Section 93. Contribution to Assurance Fund. Upon the
entry of a certificate of title in the name of the registered
owner, and also upon the original registration on the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
certificate of title of a building or other improvements on
the land covered by said certificate, as well as upon the
entry of a certificate pursuant to any subsequent transfer
of registered land, there shall be paid to the Register of
Deeds one-fourth of one percent of the assessed value of
the real estate on the basis of the last assessment for
taxation purposes, as contribution to the Assurance Fund.
Where the land involved has not yet been assessed for
taxation, its value for purposes of this decree shall be
determined by the sworn declaration of two disinterested
persons to the effect that the value fixed by them is to
their knowledge, a fair valuation.
Nothing in this section shall in any way preclude the
court from increasing the valuation of the property
should it appear during the hearing that the value stated
is too small.
The Torrens system has an impact in ownership.
The rule says you cannot transfer what you do not have.
Meaning to say, if you are not the owner of the property, if
you have no rights whatsoever to the property, then
whatever transfer you make will be for naught because your
transferee will not be acquiring ownership, will not be
acquiring right because you the, transferor, did not have
them in the first place.
But the rules are changed if the property is covered by the
Torrens system. Because in Torrens system protection is
given to buyers in good faith and for value.
Q: What is this protection?
A: They will always be allowed to rely on what appears on
the title and as well as what does not appear. If the property
is registered in the name of the seller, and there is no
annotation whatsoever of any contract or encumbrance,
that would negate that statement or declaration of
ownership, then that buyer would be acquiring that
property in full ownership subject to no encumbrances.
This may happen even if the title holder has no actual right.
SPS. ESTREANOPOLLUS V. REGISTERED OF DEEDS OF
LEGASPI
The registered owner is based abroad, but he has an agent
in the Philippines who handled his affairs. But unknown to
him, this agent has succeeded in having his property
covered by the Torrens system transferred to his name.
After having it registered in his name, he was able to
transfer it to a third person, A, then A transferred it to
another person, B.
Page 11 of 128
He only found out years after. In Torrens system, you only
have 1 year to run after the transferee of a fraudulent
transfer under the Torrens system. Beyond 1 year, the title
becomes incontrovertible. Di mo na pwede bawiin. This is
what happened in this case.
Q: What is the Assurance Fund?
A: The Assurance Fund is a long-standing feature of our
property registration system which is intended “to relieve
innocent persons from the harshness of the doctrine that a
certificate is conclusive evidence of an indefeasible title to
land x x x.” The right to claim from the Assurance Fund is
governed by Section 95 of the “Property Registration
Decree,” i.e., Presidential Decree No. (PD) 1529.
Basically, this is a feature of the Torrens System where there
is a fund dedicated to address the right to be indemnified of
innocent persons who have been prejudiced by the doctrine
that the Torrens Certificate is a conclusive evidence of
indefeasible title to land.
The right to claim under the Torrens Systems / Assurance
Fund is governed by Section. 95.
Q: Who can file a claim against the AF?
A:
Section 95. Action for compensation from funds. – A
person who, without negligence on his part, sustains loss or
damage, or is deprived of land or any estate or interest
therein in consequence of the bringing of the land under the
operation of the Torrens system or arising after original
registration of land, through fraud or in consequence of any
error, omission, mistake or misdescription in any certificate
of title or in any entry or memorandum in the registration
book, and who by the provisions of this Decree is barred or
otherwise precluded under the provision of any law from
bringing an action for the recovery of such land or the
estate or interest therein, may bring an action in any court
of competent jurisdiction for the recovery of damages to be
paid out of the Assurance Fund. (P.D. 1529)
CONDITIONS FOR RECOVERY AGAINST THE ASSURANCE
FUND
In Register of Deeds of Negros Occidental v. Anglo, Sr. 56
(Anglo, Sr.), the Court held that "[b]ased solely on Section
95 of Presidential Decree No. 1529, the following conditions
must be met: First, the individual must sustain loss or
damage, or the individual is deprived of land or any estate
or interest. Second, the individual must not be negligent.
Third, the loss, damage, or deprivation is the consequence of
either (a) fraudulent registration under the Torrens system
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
after the land's original registration, or (b) any error,
omission, mistake, or misdescription in any certificate of title
or in any entry or memorandum in the registration book.
[And] [f]ourth, the individual must be barred or otherwise
precluded under the provision of any law from bringing an
action for the recovery of such land or the estate or interest
therein."
All of these conditions are simple enough. But in the case of
Sps Estreanopollus, SC said the interpretation of Condition
No. 3 (a), the title must be already been transferred to an
innocent purchaser for value in order for the owner to
recover from the assurance fund.
It means if the title is still in the name of the usurper, the
person who defrauded the owner, then he cannot go after
the assurance fund yet. His remedy is to go after the
usurper. Hindi pa naman papasok dito yung application
nung doctrine of indivisibility of the title. It comes in when
the usurper is able to transfer the title to an innocent
purchaser for value. That is the very important condition.
In the words of SC, they said an action against the
Assurance Fund on the ground of fraudulent administration
under the Torrens System after the last original registration
may be brought only after the claimants property is
registered in the name of innocent purchaser for value.
Q: Against whom should the claim from the Assurance
Fund be filed?
A: You have to file it against the Register of Deeds, National
Treasurer, and other person or persons. SC said the phrase
other person or persons should include the usurper. As in
fact, the recovery from the Assurance Fund, requires that
the writ of execution should first be issued against the
usurper and shall remain unsatisfied.
The Supreme Court said that the right to claim from the
assurance fund would only come into play in the execution
stage. If the writ of execution returns unsatisfied, that is the
time that you go after the assurance fund. You first get a
writ of execution issued on the assurance fund for purposes
of obtaining indemnity. This is a departure from the
previous doctrine that in order to claim from the assurance
fund, the usurper must first be declared insolvent. The
Supreme Court said, there is no need for a declaration of
insolvency, it is sufficient to have an unsatisfied writ of
execution.
PRESCRIPTIVE PERIOD FOR CLAIMING AGAINST THE
ASSURANCE FUND
The prescriptive period in claiming against the assurance
fund is pegged by the law at six (6) years, reckoned at the
Page 12 of 128
time when the right for bringing such action first
occurred. But, the law is really silent as to when this right
to bring an action occurs.
For the longest time, the Supreme Court has held that if an
action is premised on fraud affecting property covered by
the Torrens system, then, knowledge of that fraud is
deemed to have taken place upon the registration of the
property. Registration here is constructive knowledge.
Q: Should the 6-year period be counted solely from the
time of registration of the title in the name of the first
innocent purchaser for value?
A: No. The Supreme Court said, we will count the 6-year
period from the time of registration and of actual
knowledge. This departs from the previous rule that says
that registration amounts to construction notice, and
registration is where we count the period. Here, it needs
registration AND actual knowledge.
In this particular case, the first registration in the name of
the first innocent purchaser for value took place in 2001.
But, the plaintiffs did not know about it until in January
2008. When they did know about it, they acted immediately,
and filed a case in May 2008. However, May 2008 is more
than 6 years away from 2001. So, prescribed na dapat ang
claim against the assurance fund if we base the registration.
However, the abide by the new ruling where it should be
registration and actual knowledge. We count 6 years from
January 2008. Since the case was filed in May 2008, it is
well within the prescriptive period.
Why did the Supreme Court depart from their old rule?
They said, in those cases where we equated registration
with constructive knowledge, we did so because we wanted
to protect the innocent purchaser for value. In this
particular case where it is centered on the right to claim
from the assurance fund, there is no danger of prejudicing
an innocent purchaser for value. That being the case, there
is no need to peg the prescriptive period from the time of
registration alone. Because here, we are trying to protect
the right of the defrauded owner.
RECONCILE the right of the owner to exclude all others
from the property, as well as exercise the right to self help,
or the doctrine of self help.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

DOCTRINE OF SELF-HELP
Art. 429. The owner or lawful possessor of a thing has
the right to exclude any person from the enjoyment and
disposal thereof. For this purpose, he may use such force
as may be reasonably necessary to repel or prevent an
actual or threatened unlawful physical invasion or
usurpation of his property. (n)
Art. 433. Actual possession under claim of ownership
raises disputable presumption of ownership. The true
owner must resort to judicial process for the recovery of
the property. (n)
Basically, in the Doctrine of Self Help, you put the law in
your hands. But, when you say that, the plaintiff must let the
courts decide instead of taking the law in his hands. May
inconsistency.
your bag, can you now still exercise this doctrine of self
help?
A: No. Sufficient time has lapsed, and as far as the world is
concerned, he is already the owner of such property. He
now enjoys the presumption that he has the right to
possession of such property. Your only option is to go to
court.
PRINCIPLE OF STATE OF NECESSITY
Art. 432. The owner of a thing has no right to prohibit
the interference of another with the same, if the
interference is necessary to avert an imminent danger
and the threatened damage, compared to the damage
arising to the owner from the interference, is much
greater. The owner may demand from the person
benefited indemnity for the damage to him. (n)

Another qualification in the right of the owner to exclude all

Q: Where do we draw the line? Until what point is it
others in his property is the principle of state of necessity.
okay for the plaintiff to protect his property and take
such actions as may be necessary either to repel
In Art. 432, you need to remember that there must be
dispossession or to recover?
objective existence of the danger.
A: If the disturbance or the attempts to dispossess have not
been successful but are continuing (open gate, attempt to go
Example:
over the bakod), these are disturbances, then you are
If it is subjective, like if akala lang niya na may sunog, at
allowed to take action as may be necessary to repel the
pinilit niyang ipapasok ang volunteer fire truck, and nayupi
intrusion, the disturbance, the attempts at dispossessing
ang gilid ng kotse, and turns out, wala naman palang sunog.
you. Once you are dispossessed, you only have a small
This is not an act of necessity.
window within which to act and to try and recover
possession.
Here, the owner can get damages from the actor himself.
Example:
Requisites of state of necessity:
Nag-mall ka sa Rockwell, and you decided to eat. Linapag
1. there is a situation of grave peril, an actual or
mo gamit mo sa la mesa, and a thief comes over, grabs your
imminent danger, either upon the person of the
bag, and runs off with it. What will you do? You cannot just
actor or a third person or their property;
say to your friends, “Stay there, magsasampa ako ng kaso,”
2. interference is necessary to avert such danger;
right? That is not your instinct. You may immediately run
3. threatened damage, compared to the damage
after the thief and chase him across Rockwell.
arising to the owner from the interference, is much
greater; and
However, hanggang kailan kayo maghahabol? If this can still
4. state of necessity is not brought about by the
be resolved, you can still continue. The fact that he is still
intentional provocation of the party invoking the
running along, holding your bag, that is an admission on his
same (Rabuya, 2021)
part that it does not belong to him. And why are you
running? Because it is your bag.
RIGHT TO SURFACE AND AIRSPACE
Q: If you lose sight of him and you cease pursuing him,
and days may pass by, and nagkasalubong ulit kayo with Art. 437. The owner of a parcel of land is the owner of its

Page 13 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
surface and of everything under it, and he can construct
thereon any works or make any plantations and
excavations which he may deem proper, without
detriment to servitudes and subject to special laws and
ordinances. He cannot complain of the reasonable
requirements of aerial navigation. (350a)
LEVISTE MANAGEMENT SYSTEM, INC. v. LEGASPI
TOWERS 200, INC., and VIVIAN Y. LOCSIN and PITONG
MARCORDE
G.R. No. 199353, April 4, 2018
FACTS:
Legaspi Towers is a condominium building located at
Paseo de Roxas, Makati City. It consists of seven (7)
floors, with a unit on the roof deck and two levels above
said unit called Concession 2 and Concession 3. The use
and occupancy of the condominium building is governed
by the Master Deed with Declaration of Restrictions of
Legaspi Towers (hereafter “Master Deed”) annotated on
the transfer certificate of title of the developer, Legaspi
Towers Development Corporation.
Concession 3 was originally owned by Leon Antonio
Mercado. On 9 March 1989, Lemans, through Mr. Conrad
Leviste, bought Concession 3 from Mercado.
Sometime in 1989, Lemans decided to build another unit
(hereafter “Concession 4”) on the roof deck of Concession
3. Lemans was able to secure the building permit for the
construction of Concession 4 and commenced the
construction thereof on October 1990. Despite Legaspi
Corporation’s notice that the construction of Concession
4 was illegal, Lemans refused to stop its construction.
Lemans filed the Complaint with the RTC, praying among
others that a writ of mandatory injunction be issued to
allow the completion of the construction of Concession 4.
The RTC found the application of Article 448 of the Civil
Code and the ruling in the Depra vs. Dumlao to be proper.
It ordered defendant Legaspi Towers 200, Inc. to exercise
its option to appropriate the additional structure
constructed on top of the penthouse owned by plaintiff
Leviste Management Systems, Inc. within sixty [60] days
from the time the Decision becomes final and executory.
Should defendant Legaspi Towers 200, Inc. choose not to
appropriate the additional structure after proper
indemnity, the parties shall agree upon the terms of the
lease and in case of disagreement, the Court shall fix the
terms thereof.
On May 26, 2011, the Court of Appeals, acting on the
consolidated appeals of LEMANS and Legaspi Towers,
Page 14 of 128
rendered its Decision affirming the decision of the RTC of
Makati City.
ISSUE:
Whether Article 448 and 546 of the Civil Code and are
applicable to the parties’ situation.
RULING:
We are constrained to deny the Petition of LEMANS in
view of our ruling that the doctrine in Depra and Articles
448 and 546 of the Civil Code were improperly applied in
these cases.
Firstly, it is recognized in jurisprudence that, as a general
rule, Article 448 on builders in good faith does not apply
where there is a contractual relation between the parties.
Morever, in several cases, this Court has explained that
the raison d’etre for Article 448 of the Civil Code is to
prevent the impracticability of creating a state of forced
co-ownership:
The raison d’etre for this provision has been enunciated
thus: Where the builder, planter or sower has acted in
good faith, a conflict of rights arises between the owners,
and it becomes necessary to protect the owner of the
improvements without causing injustice to the owner of
the land. In view of the impracticability of creating a state
of forced co-ownership, the law has provided a just
solution by giving the owner of the land the option to
acquire the improvements after payment of the proper
indemnity, or to oblige the builder or planter to pay for
the land and the sower the proper rent. He cannot refuse
to exercise either option. It is the owner of the land who
is authorized to exercise the option, because his right is
older, and because, by the principle of accession, he is
entitled to the ownership of the accessory thing.
In the case at bar, however, the land belongs to a
condominium corporation, wherein the builder, as a unit
owner, is considered a stockholder or member in
accordance with Section 10 of the Condominium Act, The
builder is therefore already in a co-ownership with other
unit owners as members or stockholders of the
condominium corporation, whose legal relationship is
governed by a special law, the Condominium Act.
It is a basic tenet in statutory construction that between a
general law and a special law, the special law prevails.
Generalia specialibus non derogant. The provisions of the
Civil Code, a general law, should therefore give way to the
Condominium Act, a special law, with regard to
properties recorded in accordance with Section 4 of said
Act. Special laws cover distinct situations, such as the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

necessary co-ownership between unit owners in

condominiums and the need to preserve the structural
integrity of condominium buildings; and these special
situations deserve, for practicality, a separate set of rules.
Articles 448 and 546 of the Civil Code on builders in good
faith are therefore inapplicable in cases covered by the
Condominium Act where the owner of the land and the
builder are already bound by specific legislation on the
subject property (the Condominium Act), and by contract
(the Master Deed and the By-Laws of the condominium
corporation). This Court has ruled that upon acquisition
of a condominium unit, the purchaser not only affixes his
conformity to the sale; he also binds himself to a contract
with other unit owners.
In accordance therefore with the Master Deed, the
By-Laws of Legaspi Towers, and the Condominium Act,
the relevant provisions of which were already set forth
above, Legaspi Towers is correct that it has the right to
demolish Concession 4 at the expense of LEMANS.
Indeed, the application of Article 448 to the present
situation is highly iniquitous, in that an owner, also found
to be in good faith, will be forced to either appropriate
the illegal structure (and impliedly be burdened with the
cost of its demolition) or to allow the continuance of such
an illegal structure that violates the law and the Master
Deed, and threatens the structural integrity of the
condominium building upon the payment of rent. The
Court cannot countenance such an unjust result from an
erroneous application of the law and jurisprudence.
Adding another floor may put the entire bldg., may
comprise the structural integrity of the entire bldg. So,
there’s really a cause for concern, but aside from that, from
safety concerns, there is also legal issue.
Q: Is it true that he is the owner of the space above this
unit?
A: No. In Art. 437, that right is given to the owner of the
parcel of land. In a condominium, the owner of the land on
which the condo bldg. stands is the Condominium
Corporation. So if there is anyone who can claim ownership
over the space above the condo bldg., it would be the Condo
Corp.
Secondly, if we apply the condominium law, a unit is defined
to be limited to the four (4) walls of the same, to the
windows, to the floors and anything that is not contained by
these walls, doors, windows, would be common area
belonging to everyone.
So, in this case, he cannot claim that the space belongs to
him, because it’s excluded in the definition under the
Condominium Act, as to what a unit includes. Again, in the
Condominium Act, a unit includes the 4 walls, the ceilings
and the doors of the same.
Eminent Domain (not discussed)
HIDDEN TREASURE
Art. 438. Hidden treasure belongs to the owner of the
land, building, or other property on which it is found.
Nevertheless, when the discovery is made on the
property of another, or of the State or any of its
subdivisions, and by chance, one-half thereof shall be
allowed to the finder. If the finder is a trespasser, he shall
not be entitled to any share of the treasure.
If the things found be of interest to science of the arts, the
State may acquire them at their just price, which shall be
divided in conformity with the rule stated.
Art. 439. By treasure is understood, for legal purposes,
any hidden and unknown deposit of money, jewelry, or
other precious objects, the lawful ownership of which
does not appear.
Remember the requisites. Also, the probable questions here
would be determining whether the finder is an agent of the
owner, in this case, he would not be entitled to any share, or
if he is a trespasser. In this case, he also would not be
entitled to any share.
Q: When does one become an Agent?
A: If his services are hired for the express purpose of
finding the hidden treasure.

Q: When does one become a Third Person?

ARTICLE 437. The owner of a parcel of land is the
A:
owner of its surface and of everything under it, and he
1. If he is not a trespasser.
can construct thereon any works or make any
2. If he is a lessee who happens to stumble
plantations and excavations which he may deem proper,
upon a hidden treasurer
without detriment to servitudes and subject to special
3. If he is a usufructuary
laws and ordinances. He cannot complain of the
reasonable requirements of aerial navigation.

Page 15 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
4. If he is some other kind of laborer whose
services were not engaged for the purpose of
finding the hidden treasure.
ACCESSION
Art. 440. The ownership of property gives the right by
accession to everything which is produced thereby, or
which is incorporated or attached thereto, either naturally
or artificially.
Q: Is accession a mode of acquiring ownership?
A: No. It is only an incident of ownership.
CLASSIFICATION OF ACCESSION
1. Accession Discreta – produced by the property.
2. Accession Continua – attached or incorporated
to the property.
Accession Discreta would refer to the fruits. And the rule
regarding the fruits is simple. The fruits shall belong to
the owner.
When we speak of fruits, this would include natural,
industrial and civil fruits. (Art. 441, NCC)
Art. 442. Natural fruits are the spontaneous products of the
soil, and the young and other products of animals.
Industrial fruits are those produced by lands of any kind
through cultivation or labor.
Civil fruits are the rents of buildings, the price of leases of
lands and other property and the amount of perpetual or
life annuities or other similar income.
GR: The owner is entitled to the fruits.
XPNs:
1. The fruits will belong to the lessee;
2. The fruits will belong to usufructuary;
3. The fruits will belong to antichretic creditor.
4. Possession in good faith.
In instances 1-3, where we apply the exception rather than
the general rule, there really is no controversy. Because the
roles and the rights of the parties are well-defined from the
outset. Hindi katulad sa possession either in good faith or in
bad faith.
Kasi tatandaan niyo, the moment we are identifying
someone as a possessor in good faith (PGF) or a possessor
in bad faith (PBF), that presupposes that there is a person
Page 16 of 128
that has defeated them in their possession. You will only
speak of them [PGF and PBF] if they have been ousted from
possession.
Doon papasok itong mga rules natin regarding Accession
Continua and Accession Discreta. Because we have to
determine what the rights and obligations of the parties are.
Hindi katulad sa lessee, usufructuary, antichretic creditor,
maliwanag. Kasi wala namang controversy. Dito, where
there is an issue of between the lawful owner versus the
possessor of the property, this will be among those things
that will have to be threshed out between them.
What happens to the fruits that may have been received
while the possessor was enjoying the possession? What
happens to the fruits that are still standing? Who gets them?
Will there be any obligation to indemnify or reimburse?
Dapat ganoon parati ‘yung mindset niyo na nagkaroon ito
ng controversy that is why we make a determination of who is
considered to be a PGF or a PBF.
Q: Who is a possessor in good faith?
A: A possessor in good faith is one who possesses the
property in the concept of an owner, claims that the
property is his and he has the legal title thereto. He must
also not be aware of any defect in his title. Because he may
be possessing in the concept of an owner, but if he is aware
that he does not really have any right to the property and he
is in fact, really a usurper, ang tawag natin sa kanya a
possessor in bad faith.
Q: Why are emphasizing that the possessor must be a
possessor in the concept of an owner?
A: Because if he is simply possessing in the concept of a
holder, then he recognizes that the better right of
possession lies elsewhere and not with him. In which case,
we do not need to apply these rules on Accession Discreta
or Accession Continua.
But that said, let me remind you as well that down the
discussion, we will be making an important qualification
regarding this requirement that the possessor in good faith
must be in the concept of an owner. May qualification na
ginawa ang Supreme Court through jurisprudence.
RULES REGARDING THE FRUITS
Let us tackle the rules that would apply when it comes to
fruits produced by a certain property. Let me just point
out that Accession Discreta would involve a situation
where the principal is not necessarily land. Kasi sa
Accession Discreta, may refer to the young of animals, it can
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

refer also to civil fruits, pwedeng rental of a vehicle, hindi reimbursed for luxurious expenses but has limited right of
lang ‘yun. removal.

But if we speak of Accession Continua, the principal Rights and obligations of parties in case fruits are still
there would always be land. ungathered or attached to the soil/trees.

Another point, when it comes to the fruits, we need to Art. 545. If at the time the good faith ceases, there should
approach this using an outline where we define the stage in be any natural or industrial fruits, the possessor shall have
which the fruits exist. It is either the fruits have been a right to a part of the expenses of cultivation, and to a part
gathered and harvested or the fruits are still standing of the net harvest, both in proportion to the time of the
(tumutubo pa sa lupa o sa mga puno). And these stages will possession.
determine what the rights and obligations of the parties are,
with good faith and bad faith factored in. The charges shall be divided on the same basis by the two
possessors. …
Rights and obligations of parties in case of fruits
received by a possessor in good faith prior to the legal
Q: What are the rights and obligations of the parties in
interruption of his possession.
this case?
A: Under Article 545, the parties (possessor in good faith
Q: What does the law mean of “legal interruption of his
and owner) may share in the expenses of cultivation as well
possession”?
as in the harvest of the fruits. They can share
A: “legal interruption of his possession” pertains to the
proportionately. But the owner is given the option to allow
service of summons when the complaint has already been
the possessor to finish cultivation, gathering and harvesting.
filed. But jurisprudence also dictates that it is without
In exchange, he is not anymore liable for expenses for
prejudice to the actual knowledge of the possessor in good
cultivation, gathering and harvesting.
faith for them to be in bad faith.
Should the owner opt for this formula and the possessor
When service of summons is made imputing the right of the
refuses, then the possessor has the right to be indemnified
possessor to the property, that puts him on notice that he
in any other manner.
has defects on his title. Apart from legally interrupting him,
it puts him in bad faith.
Justice Caguioa has interpreted this to mean that the owner
in that situation will get the entirety of the fruits without
But it must be recognized that defect in title would not arise
need of indemnifying the possessor for them. Yun ay if he
solely from receipt of summons. There are several instances
exercises the option to forego for the segregation of the
which may give rise to this awareness.
harvest and then the possessor refuses to exercise by the
- Ex. Nakakita ka ng document proving that your title
owner of said option.
is a forgery. So kahit wala pa summons, aware ka na
may defect ang title mo.
Meron tayong konting problema dito sa Accession Discreta,
involving standing crops or standing fruits. This will apply if
Receipt of summons puts an end to your good faith because
the principal happens to be land, and the crops or the fruits
it makes you aware that there is a defect in your title. The
are still attached to the soil or plants or trees, kasi this
law would cut off the right of the possessor in good faith to
would be very similar to planting and sowing.
receive the fruits from the property at the point when he is
served with summons.
If you have fruits still attached to the ground or trees, how
do we differentiate them from a situation where the
He gets to keep the fruits that he received prior to legal
principal is land and the activity by way of accession
interruption of his possession.
continua is planting and sowing. And it becomes important
because we are to apply different sets of rules.
Q: Is he required to indemnify the owner for the fruits
he received?
Q: Dito sa ungathered fruits, what article do we apply?
A: No.
A:
Q: Is the owner required to indemnify him?
A: Yes. Possessor in good faith is entitled to reimbursement ARTICLE 545. … The owner of the thing may, should he
of necessary and useful expenses, both with right of so desire, give the possessor in good faith the right to
retention and limited right of removal. No right to be finish the cultivation and gathering of the growing fruits,

Page 17 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
as an indemnity for his part of the expenses of cultivation
and the net proceeds; the possessor in good faith who for
any reason whatever should refuse to accept this
concession, shall lose the right to be indemnified in any
other manner. (452a)
Q: Sa accession continua, the planting and sowing, what
do we apply?
A: Art. 448
ARTICLE 448. The owner of the land on which anything
has been built, sown or planted in good faith, shall have
the right to appropriate as his own the works, sowing or
planting, after payment of the indemnity provided for in
articles 546 and 548, or to oblige the one who built or
planted to pay the price of the land, and the one who
sowed, the proper rent. However, the builder or planter
cannot be obliged to buy the land if its value is
considerably more than that of the building or trees. In
such case, he shall pay reasonable rent, if the owner of the
land does not choose to appropriate the building or trees
after proper indemnity. The parties shall agree upon the
terms of the lease and in case of disagreement, the court
shall fix the terms thereof. (361a)
Q: How do we determine which Article to apply, Art. 545
or 448?
A: Look first in Article 444.
ARTICLE 444. Only such as are manifest or born are
considered as natural or industrial fruits.
With respect to animals, it is sufficient that they are in the
womb of the mother, although unborn. (357)
We are concerning ourselves only with the products of the
soil, kasi dun lang naman magkaka-overlap with Art. 448.
Maliwanag sa Art. 444 that fruits are only deemed to exist if
they are only manifest. So there must be showing.
Q: When are they considered showing?
A: Justice Caguioa said we have to distinguish as well if
we’re dealing with single crops which perish after having
been harvested like rice then they are deemed to be existing
or manifest the moment the seedling sprout from the
ground. We do not need to see the grains. So the moment
you have this, these seedlings sprouting from the ground,
then the fruits are manifest. So, we will treat them as fruits
governed by Article 545.
But when it comes to plants or trees which exist over a
period of years and which yield fruits periodically. For
example, yung puno ng manga, taon and binubuhay niyan
and every so often within a year, magkakaroon yan ng
Page 18 of 128
bunga. So what has been planted are simply mango trees,
then the Article that we would be applying would not be
Art. 545, it will be Art. 448. This would be considered as
planting. Pero the moment that there are fruits appearing
on the trees, then this will be a case of Accession Discreta
and we will be applying Article 545.
If the fruits are still standing, they have not been harvested
yet, we apply Art. 545 and the same rules with regard to
necessary expenses, useful expenses and luxurious
expenses would also be applicable.
Q: What would be the rules in a situation where a
possessor is in bad faith?
A: In approaching this, we will to observe the same outline.
First, we go by the stage of the fruits, halimbawa, the fruits
has been received and the possessor is in bad faith.
Q: What would be the rights and obligations of the
parties?
A: If the possessor is in bad faith and he already received
the fruits, he will have to account for all the fruits that he
has received as well as to all the fruits which the owner
would have received during the time that he was in
possession.
He would have to account for all the fruits that he has
received as well as all the fruits which the owner could have
received given the time he was in possession. Sabi ng batas
kahit wala kang natanggap pero magpapakita na dapat may
natanggap ‘yung owner had the property been properly
made use of then you will be liable for the fruits that they
could have received. Ganoon ka-extensive.
Q: What will be the obligations of the owner to the
possessor in bad faith in this situation where fruits
have been received and must now be accounted for the
owner?
A: The owner will be liable for the expenses of production,
gathering, and cultivation under Article 443, and this is
because Art. 440 does not make any distinction between a
possessor in good faith and a possessor in bad faith. In
addition, the owner will also be liable for necessary
expenses because the law does say that necessary expenses
shall be paid to every possessor, but if the possessor is in
bad faith, he will not have any right of retention. So, a
possessor in bad faith will not be entitled to useful
expenses, but he will have the same limited right of removal
when it comes to luxurious improvements.
Article 440. The ownership of property gives the right by
accession to everything which is produced thereby, or
which is incorporated or attached thereto, either naturally
or artificially. (353)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Article 443. He who receives the fruits has the obligation
to pay the expenses made by a third person in their
production, gathering, and preservation. (356)
Now, insofar as fruits which are still pending are concerned,
then what will apply here will be Art. 449.
Article 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.
There would be no rights under Article 443 because there
has been no gathering yet. Makikita niyo it becomes crucial
to a possessor in bad faith whether the fruits have been
gathered or harvested kasi if there has been gathering or
harvesting, then Article 443 comes into play, but if there has
been none, then Article 449 applies and he will not be
entitled to any reimbursement insofar as the expenses for
the fruits are concerned. Ang pinaka-opportunity nalang
niya would be necessary expenses again without any right
of retention, and then limited right of removal for luxurious
improvements.
Q: We have been talking about the limited right of
removal pertaining to luxurious improvements, and
sabi natin this applies in both instances where the
possessor is in good faith or if the possessor is in bad
faith. Now, when will this limited right of removal of
luxurious improvements exist?
A: The limited right of removal would exist if: (1) the
luxurious improvement may be removed without damage to
the principal; and (2) lawful possessor does not choose to
appropriate the luxurious improvement because the
exercise by the lawful possessor of this option will defeat
the right of removal provided by law to the possessor.
There are two conditions. It is not enough that the
improvement may be removed without damage to the
principal. It must further be shown that the lawful
possessor does not decide to appropriate the
improvements because if he decides to appropriate then
the right of removal cannot be exercised anymore.
Do you see how the right of removal gives right in
indirect manner to the right of possession whether in
good faith or in bad faith to be reimbursed in luxurious
improvements?
Lumilitaw lang yung right to be reimbursed because the
general law, there is no right to be reimbursed for
luxurious expenses, lumalabas lang ito if it becomes
Page 19 of 128
necessary for the lawful possessor to defeat the right of
removal.
Why am I emphasizing this?
Because you may find yourself ask a question that the
possessor has introduced luxurious improvements which
interested the lawful possessor. But he did not have any
budget or money to appropriate this.
Q: What would your advice the client? What would be
the best way for him to be able to get this without
having to pay?
A: First, determine if it is something that can be removed
without damage because otherwise if it cannot be
removed without damage, then it is settled it is now
yours. Hindi na matatanggal.
Secondly, if upon examination it appears that it can be
removed without damage to the principal, do not make
the offer right away. Wait for the possessor to indicate
that he wants to remove because it is possible that it
might have slipped his mind na pwede palang tanggalin
or even though he knows it can be removed, he is not
interested in which case you get to save your money
because you do not have to defeat his right of removal.
Q: That said, can we say that the right of removal
given to a possessor in bad faith and that given to a
possessor in good faith are exactly the same?
A: No, because the amount in which the lawful possessor
will have to pay the possessor in good faith differs to the
amount where he has to pay the possessor in bad faith.
The possessor in good faith is entitled to the amount
expended for the impvement. For the possessor in bad
faith, it would have to be the value of the improvement at
the time that the lawful possessor has entered into
possession of the property.
Q: Which is lower?
A: The latter. The value at the time the possession is
reacquired by the lawful possessor because depreciation
has already set in. it is lower. And rightfully so because
hindi mo naman pwede ipantay yung possessor in good
faith sa possessor in bad faith. Mas mataas dapat yung
rights of the possessor in good faith.
Just to complete. In useful improvements, there is a right
to be reimbursed given to possessor in good faith. This is
with the right of redemption. Possessor in bad faith,
none at all.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
But possessor in good faith is also given a limited right of
removal. Similar conditions: he must be able to remove
improvements without damage to the property and
lawful possessor does not appropriate the useful
improvement. But, in useful improvement, the basis
according to law should there be amount expended for
the improvement or the increase in value. But this has
also been modified by jurisprudence. According to SC,
the basis for the useful improvement when it comes to
indemnification should be the prevailing market value of
the improvement.
ACCESSION CONTINUA
BUILDING, PLANTING OR SOWING
For accession continua, we may further divide this into
two.
1. Accession continua in relation to a immovable
property
a. Industrial – building, planting, and
sowing.
b. Natural
NB: The principal here is always land. There is always a
presumption that whatever is built, planted or sown in
the property is presumed to have been made by the
owner himself.
2. Accession continua in relation to personal
property
It can also be said that there are three permutations
available in accession continue industrial:
1. Owner of the land acting as BPS, but using the
materials belonging to another person;
2. Owner of the property, and another person who
builds, plants, and sows on the property of said
owner;
3. Three people acting as the owner; builder, planter,
sower; and as the owner of the materials.
FIRST:
OWNER IS THE BPS, AND USES THE MATERIALS
BELONGING TO ANOTHER PERSON.
Q: What are the rights and obligations of the parties
here?
A:
Page 20 of 128
Art. 447. The owner of the land who makes thereon,
personally or through another, plantings, constructions
or works with the materials of another, shall pay their
value; and, if he acted in bad faith, he shall also be obliged
to the reparation of damages. The owner of the materials
shall have the right to remove them only in case he can do
so without injury to the work constructed, or without the
plantings, constructions or works being destroyed.
However, if the landowner acted in bad faith, the owner
of the materials may remove them in any event, with a
right to be indemnified for damages. (360a)
If both the land owner and the owner of the materials acted
in good faith, the land owner has the right to appropriate
what he has built, planted, or sown. The land owner cannot
be liable for damages. However, the landowner must pay
the corresponding value of the materials used to the owner
of the materials. Also, as provided, the landowner has the
option to just return the materials to the owner of the
materials if the materials can be returned in the exact same
form and substance without causing injury to the land.
If both the land owner and owner of the materials acted in
bad faith, the bad faith of one party will be neutralized by
the bad faith of the other, and in such case, the landowner
and the owner of the materials shall be treated in good
faith.
If the landowner is in bad faith, and the owner of the
materials acted in good faith, the landowner is
automatically liable for damages, and the owner of the
materials has the right to demand the value of the materials
plus damages and demand the return of the accessory thing
if it resulted to the destruction of the land.
If the landowner is in good faith, and the owner of the
materials is in bad faith, there is no right to apply Art. 447,
and the applicable rule shall be Art. 455.
As you can see, napaka-simple ng rules, and it depends on
the good faith and the bad faith of the parties.
If the owner acted in good faith, his liability shall only be to
reimburse the owner of the materials for the value of the
materials. If he is in bad faith, he should also be liable for
damages.
If the landowner is in good faith, the owner of the materials
can only ask for the right of removal if to do so will not
injure the principal.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

If the owner acted in bad faith, then the owner of the GF BF

materials will be entitled to exercise the absolute right of (1) Appropriate the Loses his materials plus
removal. materials of the OM-BF damages.
without paying indemnity.
On the other hand, if it is the owner of the materials who (2) The owner can ask that
acted in bad faith, then he is still deemed to have lost his the materials to be removed
materials without any right to be reimbursed therefore, as and that his land be restored
well as be liable for damages. to its prior condition.
BF GF
Q: Why would the owner of the materials be liable for Pay for the value plus (1) Absolute right of removal
damages and what possible damage would he cause the damages. of his materials.
owner, considering that siya na nga ang nawalan at (2) Entitled to damages.
nagamit na ang materials niya, but shall still be liable
for damages? Why? How come the law imposes Absolute right of removal
damages on the owner of the materials? – even if the construction or
the principal suffers damage
A: Because it is possible that the owner wanted to use a or destruction
certain brand. When the owner of the materials lost the
materials, he is liable for damages, why? Because the owner SECOND:
may want to use a certain brand for the steel bars, walls, BUILDER, PLANTER, OWNER HAPPENS TO BE A
cement. If the owner of the materials will replace the DIFFERENT PERSON
materials on site for whatever reason. For example, nag
magandang-loob siya na mas maganda ang materials niya. One who is in possession of the property, in a concept of an
Still, that would cause the owner to undo everything that owner, and to be in good faith, he must not be aware of any
defect in his title.
has been done. The owner wants a particular brand, and
undoing everything entails additional expense, additional
delay in constructions. So here, we see how the owner of Article 448. The owner of the land on which anything
has been built, sown or planted in good faith, shall have
the materials shall be made liable for damages no matter
the right to appropriate as his own the works, sowing or
what his motive what his motive may be. planting, after payment of the indemnity provided for in
articles 546 and 548, or to oblige the one who built or
Definitely, if his materials were sub-standard, then the more planted to pay the price of the land, and the one who
that he is liable. Because if they are substandard, then there sowed, the proper rent. However, the builder or planter
is intent to sabotage the construction. cannot be obliged to buy the land if its value is
considerably more than that of the building or trees. In
Point: Di porque nawalan ka, that will already preclude you such case, he shall pay reasonable rent, if the owner of
from damages. Kasi pwedeng nawalan ka, pero mas malaki the land does not choose to appropriate the building or
pa yung pwedeng mawala doon sa lawful possessor. trees after proper indemnity. The parties shall agree
upon the terms of the lease and in case of disagreement,
the court shall fix the terms thereof.

OWNER OF MATERIALS Naturally, if you are possessing in the concept of a holder,

LAND OWNER (LO-BPS)
(OM)
Both in GF
Pay for the value of the Limited right of removal.
materials that he used.
Limited right of removal
– no injury must be
caused to the
constructions.
such as a lessee or usufructory, you cannot invoke the
provisions of Art. 448, etc. You cannot claim to be a
possessor in good faith, because the possession is not in the
concept of an owner.
RULINGS ON POSSESSION IN GOOD FAITH
(Application of Art. 448)
Supreme Court has come up with rulings to the effect that
this definition of possessor in good faith may be extended to

Page 21 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
include those people who, while not possessing in the
concept of an owner, nonetheless, built on the property,
with the consent, with the knowledge of the lawful owner.
This is a big qualification, because even those who
recognize the ownership of the property in other people,
they will be allowed to invoke Art.448.
SPS. MACASAET V. SPS. MACASAET
In this case, the married couple, they were actually
invited by the parents of the husband to build on the
property belonging to said parents. So they built, and
the construction was on the knowledge and approval of
the parents. And later on, relationship soured between
the parties, and the parents wanted to evict/oust the
couple from the property. The couple said that they will
leave, but they are asking for reimbursement, since they
have the Right of Retention.
If you are going to apply the general rule, that would not
be true, because they knew all along that ownership of
the lot belongs to the parents, and not in them. And they
recognized it. So what was their possession?
It should be possession only in the concept of the holder,
but Supreme Court applied Art. 448 here. Because the
children occupied the lots, upon the invitation of their
parents, who certainly knew and approved of the
construction, of the improvements introduced thereof.
That is why, the petitioners may be deemed to have
been in good faith, when they built the structures of the
lots.
JAVIER V. JAVIER
The father allowed the son to build on property
belonging to him. Supreme Court also applied Art. 448.
COMMUNITIES CAGAYAN V. SPS. NANOL
Supreme Court also applied Art.448, to order the Real
Estate Company to reimburse the spouses it entered the
Contract to Sell for the present value of the house that
they constructed, on the rationale that they were
invited, under Art.448.
Page 22 of 128
SPS. BELVIS V. EROLA,
JULY 2019
Supreme Court said that There are cases for Art. 448 of
the Civil Code was applied beyond the recognized and
limited definition of good faith. For example, cases
wherein the builder has constructed improvements on
the land of another with consent of the owner.
The Court has ruled therein that the structures from
builder in good faith, in those cases that the owners
knew, and approved of the construction and
improvement of the property.
This is very telling. Despite being a possessor by mere
tolerance, the Deped was considered as a builder in
good faith, since Zepeda permitted the construction of
the bldg. and improvements to conduct classes on his
property. Hence, Art. 448 applies.
Q: What if the Builder, Planter or the Sower happens to
be a Co-Owner of the property, would we still be
applying Art.448?
A: Supreme Court is consistent, if the property involved is
co-owned, and the builder, planter or sower is the co-owner,
the we do not apply Art.448, because Art.448 presupposes
that the building, planting or sowing is done on the
property belonging to another.
In a co-ownership, every co-owner is the owner of the
entire property effectively. Until there is partition there is
no saying which portion would belong to him eventually;
that is why he is allowed to make use of the entire property
no matter how small or big his share is. So long as the use of
the property is in accordance with its purpose.
It's different though when there has been partition. If there
has been partition and it is shown that there was
encroachment on the share that has been assigned to
another co-owner, then Art. 448 may rightfully apply.
Article 448. The owner of the land on which anything has
been built, sown or planted in good faith, shall have the
right to appropriate as his own the works, sowing or
planting, after payment of the indemnity provided for in
articles 546 and 548, or to oblige the one who built or
planted to pay the price of the land, and the one who
sowed, the proper rent. However, the builder or planter
cannot be obliged to buy the land if its value is
considerably more than that of the building or trees. In
such case, he shall pay reasonable rent, if the owner of the
land does not choose to appropriate the building or trees
after proper indemnity. The parties shall agree upon the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

terms of the lease and in case of disagreement, the court (3) Can compel the BPS to
shall fix the terms thereof. (361a) buy/lease the land, with
right to damages in all three
RIGHTS AND OBLIGATIONS OF THE PARTIES cases.
DEPENDING ON THE GOOD FAITH OR BAD FAITH.
When the law used the word
BUILDER, PLANTER, ‘compel,’ we do not apply the
LAND OWNER (LO) qualification that in case of a
SOWER (BPS-OM)
BPS-GF, we factor the value of
Both in GF
the land vis-à-vis the value of
Choice between: Must wait for the decision of the works.
(1) Appropriating the works, the owner, but if it takes too
BF GF
sowing or planting AFTER long, he may go to court to
the payment of necessary, compel the owner to make The BPS will be considered
and where appropriate, the choice. as the agent of the owner.
useful and luxurious The LO will be
expenses; and considered as the BPS
himself and the BPS, the
(2) Obliging the BP/S to pay owner of the materials.
price/rent for the land
except where the value of the The LO must pay for the
land is considerably more value of the materials plus
than the value of the damages subject to the
building or the trees, in absolute right of the BPS to
which case rent will be paid. remove the materials plus
damages.
(The only option of the LO-GF
is to appropriate The LO becomes a LO-BF
whatever has been built). once he becomes aware that
building, planting, sowing is
being
GF BF
carried on his property, and
(1) Can appropriate the Loses his materials plus he does not do anything
works, without any damages. about it.
obligation to indemnify the
BPS except for production He has no right to be
Discussion on Both in GF:
expenses under Art. 443, reimbursed.
necessary expenses and
We notice that that the law actually makes a distinction
luxurious expenses (at their Except: Art. 443, necessary
between building and planting on one hand and sowing on
value at the time the owner expenses and luxurious
the other, when it comes to the option of the owner to sell
enters possession); or expenses (note the
or to rent. If its building or planting the option is to sell. If
requirements for the
sowing, it is to rent out the portion of the (inaudible)
(2) Can compel the BPS to reimbursement of luxurious
possessor.
remove the works; or if we expenses).
are dealing with Planting or
Q: Why is this?
Sowing, and there has been
A: This is because building and planting are permanent in
gathering or harvesting of
nature as compared to sowing wherein it is only temporary
the fruits, Art. 443 comes
character of whatever it is that is sown to the property.
into play.
Kaya rent lang. There is no need to actually require the
acquisition of the property by the possessor.
Note: This is the only remedy
not given when both LO and
There are two options given to the owner.
BPS are in GF.

Page 23 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
1. To appropriate the works, sowing, planting after
payment of the necessary, and when appropriate,
useful and luxurious expenses.
2. Oblige the BPS to pay the price or the rent for the
land, except where the value of the land is
considerably more than the value of whatever is
built, planted or sowed.
Q; How come the choice is given to the owner, and not to
the possessor?
A: The owner has the older right that is why he is given the
option, the right to choose between these two options.
Q: The option to ask for the removal of whatever was
planted, built, or sown in his property is not included in the
choices. Is this absolute that the owner cannot ask for
the removal of the improvements in case both parties
are in good faith?
A: No, it is not absolute. If he chose to sell and then the
builder, planter or sower was not able to deliver on the
purchase price, then he may ask for the removal of the
improvement; but not until then.
Q: Supposing that the owner is taking his time making
the decision. He is not electing any option, what can be
done by the possessor? Can he make the decision for
the owner?
A: No, he cannot make the decision for the owner. The only
thing he can do is to go to court to compel the landowner to
make a decision.
Q: Through what kind of action?
A: Specific Performance
It also goes without saying that the court cannot make that
decision for the owner. The most the court could do is to
compel the owner to make the decision.
Q: Supposing that the owner decides to appropriate,
does this mean that the owner will automatically
acquire ownership over the works, the planting or
sowing?
A: No. There is a need to first pay the necessary, useful, and
even the luxurious expenses, if applicable.
Q: Let us concede that he will not immediately acquire
ownership of the works. Can it be said that he will be
entitled to obtain possession over the property or the
improvements right away?
A: No. He cannot get the possession since the BPS in GF has
the right to retain the property until the payment of
necessary and useful expenses.
Page 24 of 128
Do you understand why the owner needs to ask for the
delivery of possession to him? Because in this situation, the
one who is in present possession is the BPS – kaya nga siya
nakapag-build, plant, or sow kasi nasa kanya yung
possession.
That is also why the law grants the possessor in GF the right
of retention. Because it gives him leverage to guarantee the
payment of necessary and useful expenses. And this right of
retention has already been interpreted by the SC to include
not only the improvements, but the property as well.
However, we have to make a qualification. If the only thing
that exist in the property are luxurious improvements, then
it may be argued that the owner will be entitled to acquire
possession immediately. Because apart from the fact that
there is no right of retention associated with luxurious
improvements, there is also no right of reimbursement (Art.
545).
But if there is a limited right of removal involved, it will now
be a different matter. There will now be a necessity for
reimbursement to defeat the limited right of removal given
to the possessor
Q: Now, what should be the basis for the reimbursement
for necessary and useful expenses?
A: For necessary expenses, the actual expenses incurred.
For useful improvements, it should be the prevailing market
value.
Q: Supposing that the option chosen by the owner was
to sell the land. What should be the basis for the price
of the land?
A: It should be the current market value, reckoned at the
time the choice to sell was made by the landowner.
Q: What about the other situation, wherein the
landowner is in good faith, while the BPS acted in bad
faith, what will be the rights and obligations of the
parties?
A: The landowner has the option to either:
(a) Appropriate the works without any obligation to
indemnify the BPS, except when the expenses for the
production is under Art. 443 [necessary and
luxurious expenses] by which the value will be based
on the fair market value at the time that the
landowner owners the possession;
(b) Compel the BPS to remove the works;
(c) Compel the BPS the buy or lease the land with the
right to damages.
As for the BPS, he has no right to reimburse and that he
loses everything that he planted, built, or sowed. He is
entitled to reimbursement for necessary expenses,
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

expenses for production, gathering, and preservation of the pursue, either the BPS only or the LO and his/her
fruits received by the landowner, and the luxurious subsidiary liability.
expenses.

The easiest scenario is when the BPS is in bad faith since BUILDER, OWNER OF
the rule is very easy to remember: he loses everything that LAND OWNER
PLANTER, MATERIALS
he has built planted or sowed. He does not have any right (LO)
SOWER (BPS) (OM)
except that he may be entitled to recover Art. 443 where the ALL IN GF
same is applicable, and to recover necessary expenses
incurred without right of retention. He also has the limited (1) Acquire (1) Right of 1) Collect value of
right of removal for luxurious improvements. improvements retention for materials primarily
and pay indemnity necessary and from BPS and
Another important thing is that the law clearly gives the
to the useful expenses. subsidiarily from
landowner the right of removal. He may be ask that
whatever was introduced in his property be removed at the BPS and be LO if former is
expense of the BPS who acted in bad faith. subsidiarily liable (2) Ask LO for insolvent
to OM for value of reimbursement PROVIDED the LO
Q: Supposing the situation was reversed, that it was the the materials. for the value of appropriates
landowner was the one who acted in bad faith, and it the materials and the building,
was the BPS who acted in good faith, what will be the
(2) Sell the land to labor in case: planting or sowing.
rights and obligations of the parties?
A: The BPS will be considered as the agent of the owner in BP except if its (a) (Thus, where the
that case. The landowner will be considered as the BPS, and value is the LO LO decides to have
the BPS the owner of the materials. The landowner must considerably more; appropriates the the building,
pay for the value of the materials including damages but it Demand rent to S. building, planting or sowing
is subject to the absolute right of the BPS to remove the planting and demolished
works. sowing; and because the BPS
(b) the BPS has acted in BF, there
THIRD:
paid the OM. will be no
THREE PEOPLE ACTING AS THE OWNER; BUILDER,
subsidiary
PLANTER, SOWER; AND AS THE OWNER OF THE
liability.)
MATERIALS.
(2) Remove
Q: The third scenario would have us see three people
only if without
acting as the owner, BPS, and owner of materials.
Essentially, the same rights and obligations will govern injury.
the parties. However, there is a design that we have to GF GF BF
follow: (1) Same (1) Same (1) Lose materials
1. Define the rights and obligations of the (2) Without (2) Keep building, without right to
landowner and the BPS;
subsidiary planting or sowing indemnity
2. Include the owner of the materials and
determine his rights/obligations in relation to liability for cost without indemnity (2) Pay
these two. to OM and collect damages
damages from him.
Q:Why do we have to go about determining the rights
and obligations in this manner?
A: Because of Art. 455, which provides for some kind of
subsidiary liability on the part of the owner for the
obligations of the BPS towards the owner of the materials.
However, this subsidiary liability will not apply if the owner
makes use of the right granted under Art. 450. That’s why
we have to define the rights and obligations of the parties
are, i.e. the landowner and the BPS before we can include
the owner of the materials. This is so we can know who to

Page 25 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

EXPENSES FOR LUXURIOUS

LIABILITY OF THE PRODUCTION, NECESSARY USEFUL EXPENSES EXPENSES
OWNER GATHERING, EXPENSES
PRESERVATION (FOR AESTHETICS)

PGF (where the No, because the Yes, with right of Yes, with right of No, except if owner
fruits have been fruits go to the PGF. retention. retention and defeats his limited
received) limited right of right of removal.
PGF is not entitled to removal which may
the reimbursement be defeated by the Limited right of
because he gets to owner. retention may be
keep the fruits exercised when:
received. Right of retention 1) Such right exists
may be defeated by 2) PGF chooses to
the owner should the exercise the same;
latter choose to and
appropriate the 3) The owner opts to
useful improvement. defeat him by paying
for the amount he
expended in
introducing the
luxurious
improvements

PGF (where the Article 545 Yes, with right of Same. Same.
fruits are still applies. retention.
pending when
possession in good
faith is interrupted)

This is the instance I

was referring to a
while ago on the
overlapping of fruits.

Page 26 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

PBF (where the Yes. Yes, but no right of No. No, except if owner
fruits have already Since the PBF has retention. Reason for this defeats his limited
been received by the already reimbursed is because the right of removal.
owner in accordance the owner, the PBF is law is silent on Limited right of
with Art. 549) entitled to this right of the retention may be
reimbursement PBF. exercised when:
The PBF has under Art. 443 for 1) Such right exists
already the expenses for 2) PBF chooses to
reimbursed the production, exercise the same;
owner for all the gathering or and
fruits he may preservation. The 3) The owner opts to
have received law does not defeat him by paying
and the fruits distinguish whether for the amount he
which he could the possessor who expended in
have received. receives the fruits is introducing the
in GF or in BF luxurious
improvements

PBF (where the No, Article 449 Yes, but no right of No. No, except if owner
fruits are still applies. retention. defeats
pending; i.e. his limited right of
unharvested or still Not entitled to removal.
attached to the reimbursement
land) under Article 443. Limited right of
retention may be
The fruits belong exercised when:
to the owner. The 1) Such right exists
PBF will lose 2) PBF chooses to
everything. exercise the same;
and
3) The owner opts to
defeat him by paying
for the amount he
expended in
introducing the
luxurious
improvements

Page 27 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
ACCESSION CONTINUA NATURAL
Q: What are the different kinds of Accession Continua
Natural?
A:
1. Alluvion;
2. Avulsion;
3. Change of course of rivers;
4. Formation of islands.
Alluvion and Avulsion are usually compared to one another
because of their drastically different manner of coming into
being.
ALLUVION OR ALLUVIUM
Art. 457. To the owners of lands adjoining the banks of
rivers belong the accretion which they gradually receive
from the effects of the current of the waters.
Q: What is involved in alluvion?
A: Soil is deposited from the estate fronting the land.
Estate fronting the waters and these are known to be
riparian estates. Basically, the ownership of the accretion
which is created by the gradual movement of the water is
given to the owner of the riparian estate/owner. The
reason for doing so is we want to compensate the
riparian owner for the danger that he is also exposed to
(the danger of losing a portion of his property due to the
movement of the waters as well). Just as the water may
give, the water may also take away. That is meant to be
the compensation.
Requisites of Alluvion:
1. Accumulation of soil must be gradual and
imperceptible;
2. It must be the result of the action of the waters of
the river; and
3. The land where the accretion takes place is
adjacent to the bank of the river.
Q: How is alluvium different from accretion?
A: Alluvium is the soil deposited on the estate fronting the
river bank, while accretion is the process whereby the soil is
deposited along the banks of rivers.
Important thing to remember for Alluvion is that
acquisition of ownership over the accretion is automatic.
The riparian owner does not have to do anything. It belongs
to him. However, if the riparian estate is already registered
in his name under the Torrens system, registration does
not come automatically for the accretion. He must bring
Page 28 of 128
the accretion within the scope of the Torrens system. He
must have it registered.
Q: Can he opt not to do so?
A: Yes, as owner he can do whatever he wants. But if he
does not do so and the accretion is occupied or possess by
some other person, then he stands to lose the same through
acquisitive prescription.
AVULSION
Art. 459. Whenever the current of a river, creek or torrent
segregates from an estate on its bank a known portion of
land and transfers it to another estate, the owner of the land
to which the segregated portion belonged retains the
ownership of it, provided that he removes the same within
two years.
Avulsion would be the exact opposite of alluvion.
If the process is gradual and imperceptible, it is alluvium;
when the process is sudden and abrupt, it is a case
of avulsion.
Q: What is avulsion?
A: Basically, where alluvion is gradual and imperceptible,
avulsion is sudden and violent even. A portion of land is
torn away and transported onto another estate. Here, what
we have is [inaudible] segregation of a portion of property
and results in the addition of that torn portion to the estate
of another person.
Here, ownership is not automatically acquired. Because
the owner of the estate from which the portion was torn
away has a period of two (2) years to reclaim the torn
portion and it is only when he fails to recover or reclaim the
land within the 2-year period that the ownership is lost in
favor of the estate onto which the torn portion was
transported.
We have a similar rule when it comes to uprooted trees.
Ganun din ang principle. If trees are uprooted and then they
are transported to the property of another person, then the
owner of these trees is given a period of six (6) months to
reclaim them. Failing which, he loses ownership and the
uprooted trees will now belong to the property onto whose
estate they were transported.
CHANGE IN THE COURSE OF RIVER
Art. 461. River beds which are abandoned through the
natural change in the course of the waters ipso facto belong
to the owners whose lands are occupied by the new course
in proportion to the area lost. However, the owners of the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

lands adjoining the old bed shall have the right to acquire ACCESSION IN RELATION TO MOVABLE PROPERTIES
the same by paying the value thereof, which value shall not
exceed the value of the area occupied by the new bed. Q: How many kinds of accession do we have in case of
movable properties?
Art. 462. Whenever a river, changing its course by natural A: Three types:
causes, opens a new bed through a private estate, this bed 1. Adjunction or conjunction
shall become of public dominion. 2. Commixtion or confusion
3. Specification
You must know that a river would have a bed. And the bed
GR: Accession in relation to movable properties follows the
will determine its course, dito dumadaan ‘yung ilog. But the
principle that owner of the principal acquires ownership of
river may change its course and if it does so, then it will
the accessory.
abandon the old river bed and it will make a new bed. How?
‘Yung bago niyang dadaanan, ‘yun na ‘yung bago niyang bed.
XPN: Commixtion or confusion. The default rule does not
And it may happen that the new course may traverse
result in one party acquiring ownership over the property
private estate in which case, we will have rules provided in
of another. Rather, the default rule results in co-ownership.
the law to determine ownership both of the old bed and the
new bed.
XPN to XPN: There is acquisition of property when the
party who caused the commixtion or confusion acted in bad
The new bed without doubt, would now belong to the
faith.
State. Kasi nasa ilalim ‘yan ng ilog.
ADJUNCTION OR CONJUNCTION
Q: What is the rule with regard to the ownership of the
old bed?
This takes place when two or more movables owned by
A: Ownership will now belong to the owner of the estates
different owners are united in such a way that the thing
now occupied by the river.
united cannot be separated without injury. They are
incorporated.
However, an option is given to the owners of the adjoining
estates meaning the estates adjoining the old river bed. And
What sets this apart from the others is that here, you can
what is that option? The option to pay for the old bed,
still identify the objects. They retain their
indemnify the owners affected by the change in the course
essence/character.
of the river. This is simple enough as a rule.
Before you determine whether there is accession, you must
Q: What is the reason of the law for giving the owners of
first determine whether it is still possible to separate
the estates alongside the old bed this option?
them without injury. Because if it is possible, we do not
A: The reason of the law is simple. Since they are already in
speak of accession. If it cannot be separated, we apply the
position, then it may benefit them more if they will be able
general rule above. (owner of the principal acquires
to acquire the old bed. Kasi malapit na sa lugar nila. They
ownership over the accessory)
are already in place. They will be able to cultivate it more
effectively siguro and they will be able to make more use of
So logically, we must determine which among the objects is
it, as opposed to the owners of the estates affected by the
the principal and accessory.
change in the course of the river, kasi that may mean having
to relocate to where the old bed is. It is not practical in the
Three standards of determining which is the principal and
long run. That is the reason why we have that option.
which is the accessory:
1. Importance – determined by the purpose for which
FORMATION OF ISLANDS
it is attached. This is done by determining whether
the purpose of the thing attached is used as an
If the island is formed in the seas, that shall belong to the
ornament or . You must determine which of the two
state. But if formed in non-navigable and non-floatable
things attached serves as an ornament or for the
rivers, they belong to the riparian owners, whoever is
use of the thing for its perfection.
nearest. If the island form is equidistant, it will belong to
2. Value
both owners of estates along both banks.
3. Volume

XPN: (to the rule that the principal acquires ownership over
the accessory)

Page 29 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
If the accessory is of greater value than the principal, the
owner of the accessory may demand separation of the two
things even though it would result injury to the principal.
ARTICLE 469. Whenever the things united can be
separated without injury, their respective owners may
demand their separation.
Nevertheless, in case the thing united for the use,
embellishment or perfection of the other, is much more
precious than the principal thing, the owner of the former
may demand its separation, even though the thing to
which it has been incorporated may suffer some injury.
(378)
XPN to the XPN:
If the owner of the accessory is in bad faith, he cannot
demand separation of the thing. And what happens is the
owner of the principal acquires the accessory and the
owner of the principal does not need to indemnify the
owner of the accessory.
If the owner of the accessory acted in bad faith he loses the
accessory, he will not have to be indemnified by the
principal and instead he may even be liable to the principal
for damages.
Q: What would be the consequence of bad faith on the
part of the owner of the principal?
A: If the owner of the principal acted in bad faith then the
owner of the accessory has the option between
indemnification or asking for the separation of the objects
even if it means injury to the principal. In both cases, he
may ask for damages.
ARTICLE 470. Whenever the owner of the accessory thing
has made the incorporation in bad faith, he shall lose the
thing incorporated and shall have the obligation to
indemnify the owner of the principal thing for the
damages he may have suffered.
If the one who has acted in bad faith is the owner of the
principal thing, the owner of the accessory thing shall
have a right to choose between the former paying him its
value or that the thing belonging to him be separated, even
though for this purpose it be necessary to destroy the
principal thing; and in both cases, furthermore, there shall
be indemnity for damages.
If either one of the owners has made the incorporation
with the knowledge and without the objection of the other,
their respective rights shall be determined as though both
acted in good faith. (379a)
Page 30 of 128
Q: How is indemnity made?
A: By giving a thing equal in kind and in value or payment of
the price including the sentimental value.
Q: How do we determine the price?
A: By expert appraisal.
COMIXTION OR CONFUSION
This happens if by will of the parties or by chance wherein
there are same or different kinds of mixture that was mixed
together and that they cannot be separated from each other
or they are not separable without injury to the other.
ARTICLE 472. If by the will of their owners two things of
the same or different kinds are mixed, or if the mixture
occurs by chance, and in the latter case the things are not
separable without injury, each owner shall acquire a right
proportional to the part belonging to him, bearing in mind
the value of the things mixed or confused. (381)
Example:
3-in-1 Coffee – Comixtion
Mango Strawberry Shake – Confusion
Rule:
There will be co-ownership between the two things if in
case the thing was mixed 1) by chance; 2) by will of the
parties and 3) if it comes about through the action of only
one of the parties but he acted in good faith.
Q: If the comixtion or confusion comes a lot because of
the action of one party acting in bad faith, what
happens?
A: He loses ownership over his property and he may also
still be made liable for damages
ARTICLE 473. If by the will of only one owner, but in good
faith, two things of the same or different kinds are mixed
or confused, the rights of the owners shall be determined
by the provisions of the preceding article.
If the one who caused the mixture or confusion acted in
bad faith, he shall lose the thing belonging to him thus
mixed or confused, besides being obliged to pay indemnity
for the damages caused to the owner of the other thing
with which his own was mixed. (382)
He loses ownership over his property, and he may also still
be liable for damages.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
SPECIFICATION
Q: What is specification?
A: The union of work of a person with the property of
another
Q: How may objects or things that we have in
specification?
A: We only have one (1) object, and this very object is
transformed into another so the application of work and
skill. The parties here are the owner and maker of the
material.
Q: What is the rule when it comes to specification?
A: If the maker acted in good faith: maker appropriates the
thing as his own, indemnifying the owner of the material for
its value
XPN: When the material is more precious or valuable than
the transformed thing in which case the owner may: (1)
appropriate the new thing to himself, paying indemnity for
the value of the work; or (2) demand indemnity for the
material.
If worker acted in bad faith, the owner of the material
may:
1. Appropriate the work for himself without paying
anything to the maker;
2. Demand indemnity for the value of the material from the
maker; and
3. Collect damages
XPN: The owner of the material cannot appropriate the
work in case the value of the work, for artistic or scientific
reasons, is considerably more than that of the material
QUIETING OF TITLE
Q: What do you understand by quieting of title?
A: Quieting of title may be brought when there is a cloud on
title to real property or any interest therein, by reason of
any instrument, record, claim, encumbrance or proceeding
which is apparently valid or effective but is in truth and in
fact invalid, ineffective, voidable, or unenforceable, and may
be prejudicial to said title, an action may be brought to
remove such cloud or to quiet the title.
Also, an action to quiet title may also be brought when the
contract, instrument or other obligation has been
extinguished or has terminated, or has been barred by
extinctive prescription.
Q: What is the nature of the quieting of title as a
proceeding?
Page 31 of 128
A: It is an action quasi in rem because although it involves
real property, any judgment obtaining that action will only
be binding upon the parties who joined the action.
Q: What are the two (2) requisites for an action for
quieting of title to prosper?
A:
The requisites for an action to quiet title are
a. The plaintiff must have a legal or equitable title
or interest over the real property which is the
subject of the action; and
b. The deed, claim, encumbrance, or proceeding
claimed to be casting a cloud on his title must be
shown to be in fact invalid or inoperative despite
the appearance of validity or legal efficacy.
Q: What rule in the Rules of Court do we use to
govern an action to quiet title?
A: Rule 63. You will find this in paragraph 2, Section 1
because if you go by the heading of Rule 63 you will not
find quieting of title there. You will only see Declaratory
Relief and other Similar Remedies. But if you go to
paragraph 2, Section 1 of Rule 63, quieting of title of title
should be mentioned there alongside reformation of
instruments.
Q: When the law requires that the plaintiff must have
legal title or equitable title what does the law mean?
What is legal title and equitable title?
A: Legal title may denote registered owner while
equitable title denotes beneficial ownership.
Q: What can be an example of equitable title?
A: Ownership acquired through prescription.
If there is an assertion of ownership through acquisitive
prescription, then obviously ownership was vested but
Torrens title may not have been issued yet. This is an
instance of an equitable title, this is sufficient to give the
plaintiff cause of action to file an action to quiet title.
Q: What is the period of prescription to file the action
to quiet title?
A: If the plaintiff is in possession, the prescriptive period
is 30 years from the accrual of his cause of action. This in
accordance with the ruling of SC in Gatmaytan v. Misibis
Land decided in 2020. If he is in possession, it is not
subject to prescription because there is a presumption of
ownership on part of the plaintiff. If there is a
presumption of ownership, then you do not have to do
anything until your possession is disturbed.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

CO-OWNERSHIP 3. Such use must not be in a manner as to prevent

the other co-owners from using the thing in
Q: What is co-ownership? according to their own right.
A: Co-ownership is the right of common dominion which
two or more persons have over a thing that is undivided, Take the case of siblings. Usually, sa province lumaki, and
materially or physically. most of them leaves the province, nagmmigrate sa ibang
bansa or sa manila. Always, may maiiwan na isa, and where
Q: Are we limited to things or objects in does that person live? Sa bahay na iniwan sa kanila ng
co-ownership? magulang nila, aka, coowned property which belongs to the
family. That sibling who lives in that house wouldn’t pay
A: No. Rights are also included.
rent.
Q: How do we create co-ownership? How does
Sometimes, its fine, sometimes, minamasama ng other
co-ownership come about?
siblings because they pay for their own rent, amortization.
A: Co-ownership is created by either law, or agreement
Sometimes, may sulsulan, sasabihin, lets ask rent kay kuya
(succession, contract, commixtion etc)
who lives in our house, unlike us who have to pay our own.
Q: How do we get co-ownership in succession?
Q: The questions is, the sibling who lives in the house
A: Co-ownership through succession is made where several
that is coowned, should he be liable for rent while he is
heirs are called to succeed the decedent. When there is
living in the property?
inheritance of more than one heir and succession is
A: No. While their interest is ideal, that coowner has the
intestate, automatically, there is coownership, until there is
right of dominion over the whole property, which is in
a partition.
according to the purpose of which the thing is intended, as a
home. Now, he is not using the property in prejudice of the
Q: Explain the concept of co-ownership.
others, as they can come and use the property as well.
A: Quantitatively, each co-owner is assigned an ideal or
aliquot share in the co-owned property. Qualitatively, a
It is a different story if the parents left the property as
co-owner is considered an owner of the whole dominion of
apartment units. And he is occupying one of the units
the entire property. Until there is a partition, a co-owner is
without paying rent, because he is not using the property
not sure what share may be given to him/her. Thus, every
according to its purpose, which is to rent them out and if he
single part of the property will pertain to a co- owner until a
has paid rent, this is without prejudice to his right in turn to
specific portion is identified.
participate in the profits.
The co-owner owns an inchoate share, but also owns a right
So, the process is just circuitous. Baka naman sa
of dominion over the entire property which allows him to
distribution of profits, yung mababalik sa kanya, as his part,
enjoy the property in its entirety, not just limited to his
is already sufficient to cover his rent. Or if not sufficient,
share.
maybe substantial enough to bring about a reduction in the
rent that he is paying. But definitely, he cannot shortcut the
If he has a house and lot owned by three people, ideally,
process. He cannot go on living in the apartment unit, and
each owns ⅓ of the lot, quantitatively speaking. But,
not pay rent. He must pay rent, and then, only after the
qualitatively, each co-owner would ENJOY (not own bc
expenses have been paid, and he is participating in the
contrary na siya sa fact na each of them only own 1/3) the
profits, then we can say, whether or not he is actually living
whole dominion of the property.
there rent free.
Q: What are the conditions to which co-ownership is
CONSEQUENCES OF CO-OWNERSHIP
subject to?
A:
1. Each co-owner shares in the benefits and the
1. Use of the thing co-owned must be in accordance
charges arising from the co-ownership, in
with the purpose for which the thing is intended –
proportion to their respective interests.
Basis of the purpose: In the absence of agreement, the
nature of the property co-owned.
Each co-owner shares in the benefits and the charges and
when it comes to the proportionate interests, this is
2. Such use must be without prejudice to the right of
presumed to be equal, unless the contrary is proven.
the other co-owners

Page 32 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Example: In the sharing, we have 3 people. Then we assume
that they have equal interests, unless it is indicated
otherwise. Pero pwede naman na ½ belongs to 1 person,
and the other 2 would be sharing the other half, tig-1/4 sila.
When that happens the share in the benefits, the expenses
should correspond to the their proportionate interest. The
person who has ½ interest would have to shoulder ½ of the
interest. And by the same token, he will also reap ½ of the
benefits.
Q: Can they provide for a different proportion of
sharing by agreement?
A: No, they cannot provide a stipulation providing for a
different proportion.
So, one co-owner can say that “I will no longer participate in
the benefits, wag niyo na lang din ako singilin sa expenses.”
Hindi pwedeng by stipulation yun.
Q: But if there are expenses for preservation, let’s say,
taxes. Is a co-owner given any option to avoid
participating in expending this amount for
preservation and taxes?
A: Yes. That co-owner who decides to not participate in the
payment of the taxes may renounce his interest in the
co-ownership, as they be equivalent to the expenses or the
charges. However, that rule is subject to exception, that
renunciation is not available if that will prejudice the
co-ownership.
Q: Illustrate how such renunciation of participation in
the expenses may result in prejudicing the
co-ownerhsip.
A: For instance, the one who is waiving his right in order to
not participate in the payment of taxes, is the only
financially capable co-owner, while the other co-owners are
financially capable. If that’s the case, then that would be
prejudicial, because the payment of taxes would not be
possible.
But every (inaudible) is not financially capable, and the one
who wants to waive is the only one who is financially
capable, then he would just be liable for his portion and that
would still be not enough to pay for the taxes, if the others
can’t contribute. In other words, kulang pa din kung siya
lang ang may pera at yung iba wala, kasi yung mapupunan
lang niya is yung portion niya.
Perhaps another example would be, the one who wants to
renounce, happens to have the biggest share, 60% kunwari,
and the others, tig-20% lang sila. And one will have the
money to pay for their portion of the taxes, to their portion
of the expenses, they do not have the capacity to form for
his 60%. That’s realistic. So, if he decides not to participate
Page 33 of 128
in expending the amount for the preservation or the taxes,
then essentially, he has shutdown the co-ownership,
especially if we’re talking about taxes, because if you failed
to pay realty taxes on your property, your property would
be confiscated by the government, and then auctioned off to
the highest bidder, to pay for the taxes that you cannot pay.
So that means, they will lose their co-owned property. So, in
that kind of situation, his option cannot be allowed, or
cannot be given to the co-owner who does not want to
share in the expenses.
Q: In terms of making decisions for the co-ownership,
who decides?
A: As a general rule, the decision must be made by the
majority of the co-owners.
Q: How do you determine majority?
A: The (inaudible) pertains to the co-owner/s having the
controlling interest and not numerical majority.
It’s not numerical majority. We go by the controlling
interest.
So, it’s possible that in a co-ownership of 3 people, the
majority may actually pertain to just 1 person, if that person
happens to have the majority interest, like in our example,
60-20-20. The one who has 60% constitute the majority.
GR: It is settled that for administration, or expenses, these
are decisions that must be made by the majority.
XPN: 2 Instances when a Sole Co-Owner may make a
decision or take action on behalf of the co-ownership
a. in case of repairs for preservation, which
may be made by the will of one or anyone of the
co-owners, provided that he will first notify the
other co-owners of the necessity of such repair, if
practicable;
b. bringing an action for ejectment which
may be initiated by any of the co-owners.
Q: Explain the two (2) instances.
A: With respect to the repairs for preservation, they may be
made by anyone of the parties to the co-ownership, as long
as the same will not constitute any act of alteration.
With the second exception, the law gives any one of the
co-owners the right to bring an action on behalf of the other
co-owners.
Q: In bringing an action for ejectment, are the suing
co-owners required to implead the others?
A: The suing co-owner does not need to implead his other
co-owners because it is presumed that he is bringing the
action, in behalf of the benefit of the co-owners.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: And if the judgment is obtained in an ejectment case
that is brought by only one of the co-owners, will this
judgment bind the others?
A: I would qualify my answer. If the judgment is prejudicial
to the co-owners, then it would not bind the other
co-owners, only the person, or the co-owner who filed the
case. However, in case that it would be beneficial to the
co-ownership, then it would benefit on.
In other words, if it’s successful, then we can expect that the
other co-owners would abide by their judgment because it
is in their favor. But what is actually provided in the law is, if
it is adverse, then the other co-owners would not be bound
by the judgment. If it is adverse, then the other co-owners
will not be bound by the judgment.
Q: What could be the justification that they cannot be
bound by the adverse judgment in the ejectment case
filed by the suing co-owner?
A: First, since they were not impleaded, then by the
ordinary rules of procedure, they will not be bound by the
judgment.
Second, it is also a principle under the law on co-ownership
that a co-owner can only act for the benefit of the other
co-owners. These actions cannot prejudice them.
If the judgment is adverse then the other co-owners may
say that they are not bound thereby. The result of this is
that, they can refile the action. They can re-litigate the
controversy.
If you are the defendant in this case that the first co-owner
brought without impleading the others and you were
successful. Then before you know it there is another case,
this time brought about by the other co-owners. Syempre,
hindi mo gusto ‘yun kasi wala ng katapusang re-litigation
yan.
Q: What is it the defendant can do the first time around
that you are sued to ensure the matter will not be
re-litigated after you are successful in defending
yourself in this case?
A: In the first case, the defendant can file a motion to
implead the other co-owners as necessary parties in the
case. Necessary parties would afford one complete relief.
Q: What is the rule when it comes to alterations? Whose
decisions are required?
A: If the improvement will result to an alteration of the
co-owned property, then the unanimous consent of the
co-owners must be obtained.
Article 491. None of the co-owners shall, without the
consent of the others, make alterations in the thing owned
Page 34 of 128
in common, even though benefits for all would result
therefrom. However, if the withholding of the consent by
one or more of the co-owners is clearly prejudicial to the
common interest, the courts may afford adequate relief.
Q: Supposing that one of the co-owners should withhold
consent to the alteration sought to be made, what
would be the remedy of the others?
A: If one co-owner withholds his consent, and the same is
prejudicial to the co-ownership, this may be questioned in
court.
Q: If the situation involved is to sell the property and
everyone is on board except for one. Can the other
co-owners invoke the provisions of Art. 491 to compel
the withholding co-owner to also sell his share? Or
consent to the sale of the entire property?
A: No, because the other co-owners although they have a
right to the dominion of the whole property, they do not
have the right to the aliquot share of the co-owner who is
withholding consent.
Because with respect to the aliquot share, that is owned in
absolute terms by the co-owner in question. He alone can
decide whether or not to dispose of his share or not.
2. Each co-owner only enjoys full ownership of his
ideal share and until the co-ownership is
terminated and partition has been made he
cannot pinpoint with accuracy the definite
portion of the whole to which belongs to him.
Q: Does this mean that he cannot commit any act of
ownership over his ideal share?
A: No, a co-owner may alienate, assign or mortgage it and
can even substitute another person in its enjoyment except
when there are personal rights involved. (ex: Family Home)
Q: This is the right to dispose of his share. When he makes
a disposition of his share, what exactly may be the
subject of such disposition?
A: The subject of the said disposition is his aliquot share to
the property subject of the co-ownership.
Q: When you speak of aliquot share, what does it
necessarily exclude?
A: It excludes the share of the other co-owners who do not
give consent to the sale.
Q: When you sell something, you describe what you are
selling to identify it. In terms of identifying his share for
purpose of selling the same, to what extent can he make
a description or identification?
A: The identification would not be specific and it would only
indicate the proportionate share of the co-owner, not a
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

specific portion with the metes and bounds. He cannot

Angela Melchor (Angela), 466.5 square meters; and (3)
identify the definite portion of the co-owned property.
the spouses Melecio and Victoria Melchor (Spouses
Melchor), 796.5 square meters. Upon the death of the
Ex: He cannot say “I am selling 1/3 of the property which
Spouses Melchor, their share in the subject property was
constitutes my share which 1/3 portion is found on the
inherited by their daughter Lorenza Melchor Ballesteros
southernmost part of the property”
(Lorenza). Subsequently, Lorenza and her husband
Antonio Ballesteros (respondents) acquired the share of
Until there is a partition, he is not certain what will be given
Angela in the subject property by virtue of an Affidavit
to him. In fact, when he sells, that sale would be dependent
of Extrajudicial Settlement with Absolute Sale dated
on the partition that would eventually take place. It is only
October 1, 1986. On August 11, 2000, Margarita, then
after partition would the buyer know what exactly it is that
already widowed, together with her children, sold their
he bought.
share in the subject property to Spouses Pascual and
Francisco. Subsequently, Spouses Pascual and Francisco
Q: Is he required to get the consent of the other
caused the cancellation of TCT No. 30375 and, thus, TCT
co-owners before he may sell his aliquot interest?
No. T-32522 was then issued in their names together
A: No. Consent of the other co-owners is not required
with Angela and Spouses Melchor. Consequently, the
before he can sell his aliquot share.
respondents, claiming that they did not receive any
written notice of the said sale in favor of Spouses
Q: Would it be correct to say that the co-owners would
Pascual and Francisco, filed with the Regional Trial
be useless in preventing or reversing such a sale?
Court (RTC) of Laoag City a Complaint for legal
A: Although the consent of the other co-owners is not
redemption against the petitioners. The respondents
necessary, the selling co-owner is still required to give
claimed that they are entitled to redeem the portion of
notice in writing of the sale to the other co-owners. The
the subject property sold to Spouses Pascual and
other co-owners still have the opportunity to undo the sale,
Francisco being co-owners of the same. For their part,
so long as the co-ownership still exists at the time, the
the petitioners claimed that there was no coownership
co-owners may undo the sale to a third person through the
over the subject property considering that the shares of
exercise of legal redemption.
the registered owners thereof had been particularized,
specified and subdivided and, hence, the respondents
This right of legal redemption is a right that must be
have no right to redeem the portion of the subject
exercised within 30 days from the given of written notice.
property that was sold to them. On January 31, 2007, the
Supposing that there is no written notice, but there was
RTC rendered a decision dismissing the complaint for
knowledge of the sale that was acquired by the other
legal redemption filed by the respondents. On the first
co-owners by other means – for example, there is written
issue, the RTC held that the respondents and the
notice but there was oral notice.
predecessors-in-interest of the petitioners are
co-owners of the subject property considering that the
Q: Will this be sufficient to cause the period of 30 days
petitioners failed to adduce any evidence showing that
to run?
the respective shares of each of the registered owners
A: No. The oral notice would not suffice because the giving
thereof were indeed particularized, specified and
of the written notice is mandatory – no other form of notice
subdivided. On the second issue, the RTC ruled that the
would be acceptable.
respondents failed to seasonably exercise their right of
redemption within the 30-day period pursuant to
Article 1623 of the Civil Code.
Sps. Pascual vs. Sps. Ballesteros
G.R. No. 186269, February 15, 2012 Notwithstanding the lack of a written notice of the sale
of a portion of the subject property to Spouses Pascual
and Francisco, the RTC asserted that the respondents
FACTS: had actual notice of the said sale. Failing to exercise
The instant case involves a 1,539 square meter parcel of their right of redemption within 30 days from actual
land (subject property) situated in Barangay Sta. Maria, notice of the said sale, the RTC opined that the
Laoag City and covered by TCT No. T-30375 of the Laoag respondents can no longer seek for the redemption of
City registry. The subject property is owned by the the property as against the petitioners.
following persons, with the extent of their respective
shares over the same: (1) the spouses Albino and
Margarita Corazon Mariano, 330 square meters; (2)

Page 35 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

ISSUE: WON respondents could no longer exercise their

If you would compare the two articles, then you would note
right of redemption
that there is a very nuanced difference between them.
Under Art. 1620, it is provided that if the price of the
RULING:
alienation is grossly excessive, then the redemptioner shall
The 30-day period given to the respondents within
pay only a reasonable rate – not necessarily the price for
which to exercise their right of redemption has not
which the share was sold.
commenced in view of the absence of a written notice.
Verily, despite the respondents’ actual knowledge of the
But we do not have that option under Art. 1088. There is no
sale to the respondents, a written notice is still
leeway if the price is found to be grossly excessive. So, it
mandatory and indispensable for purposes of the
may be beneficial if the provision that would be applicable
commencement of the 30-day period within which to
is Art. 1620, instead of Art. 1088.
exercise the right of redemption as it is based on Art.
1623 of the civil code. As it was explained in our
Q: When do we apply Art. 1620, and when do we apply
jurisprudence, the court ruled that petitioner-heirs have
Art. 1088 if the co-owners happened to be co-heirs?
not lost their right to redeem, for in the absence of a
A: To apply Art. 1088, what you should be selling would be
written notification of the sale by the vendors, the
your hereditary right – it is in the abstract concept. It does
30-day period has not even begun to run." The right of
not pertain to any specific property, but it refers to your
the petitioner-heirs to exercise their right of legal
hereditary rights in general.
redemption exists, and the running of the period for its
exercise has not even been triggered because they have
But, if you are selling ¼ of your interest in the ancestral
not been notified in writing of the fact of sale.
home, which is part of the inheritance, then that would be a
different case. You are no longer selling your hereditary
Here, it is undisputed that the respondents did not
rights. You are selling your interest in specific property in
receive a written notice of the sale in favor of the
your capacity as co-owner/co-heir. In which case, you can
petitioners. Accordingly, the 30-day period stated under
now apply Art. 1620.
Article 1623 of the Civil Code within which to exercise
their right of redemption has not begun to run.
Art. 1620 may prove to be beneficial to your co-owners.
Consequently, the respondents may still redeem from
Because if it turns out that the purchase price at which you
the petitioners the portion of the subject property that
sold your interest in that ancestral house is grossly
was sold to the latter.
excessive, they will not have to pay that grossly excessive
price to exercise the right of legal redemption. Under Art
This right of legal redemption is found in Art. 1620 of the 1620, they will only need to pay a reasonable rate to be
Civil Code. A similar right is given to co-heirs under Art. determined by the court.
1088.
Always remember the requisites to exercise the right of
legal redemption:
ARTICLE 1088. Should any of the heirs sell his 1. The co-ownership must be existing;
hereditary rights to a stranger before the partition, any 2. One of the co-owners sold his right to a stranger;
or all of the co-heirs may be subrogated to the rights of 3. Sale was made before the partition of the co-owned
the purchaser by reimbursing him for the price of the property; and
sale, provided they do so within the period of one month 4. The right of redemption must be exercised by one
from the time they were notified in writing of the sale by or more co-owners within a period of 30 days, to be
the vendor. counted from the time he or they were notified in
writing by the vendee or the co-owner-vendor.
ARTICLE 1620. A co-owner of a thing may exercise the
right of redemption in case the shares of all the other
co-owners or of any of them, are sold to a third person. If One of the co-owners sold his right to a stranger. The sale
the price of the alienation is grossly excessive, the was made before the partition of the co-owned property.
redemptioner shall pay only a reasonable one.
The right of redemption must be exercised by one or more
Should two or more co-owners desire to exercise the co-owners within the period of 30 days counted from the
right of redemption, they may only do so in proportion time that they were notified in writing by the vendee or the
to the share they may respectively have in the thing co-owner vendor.
owned in common.
The vendee must be reimbursed for the price of the sale.

Page 36 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
3. Any co-owner may demand the partition anytime.
No co-owner shall be required to remain in the
co-ownership.
- a co-owner disposes of a definite portion of the
whole property as his purported share
Q: We mentioned earlier that the co-owner can sell his
ideal share but cannot define or describe which definite
portion of the property this is. For example, he may
only sell 1/3rd of the land, but cannot say 1/3rd of the
southernmost portion defined by its metes and bounds.
What if one co-owner executes a contract of sale and
defined therein the portion that he is supposed to sell,
what is the effect of this sale?
A: The contract of sale will still be valid with regard to the
portion of the co-owner has sold to the third person. The
portion will be subject to the judicial partition that will take
place.
Q: In plain terms, what does “that it will be subject to
the outcome”?
A: The definite portion that will be sold to the vendee will
still be subject to the partition that will be agreed upon by
the co-owners at the time they will have the co-owned
property subject to partition.
Q: What will the buyer end up getting?
A: The buyer will end up getting the portion that will be
individually owned by the co-owner at the time the
partition [of any manner] took place.
What will happen is that regardless of what was described
in the contract of sale between the selling co-owner and the
buyer, the buyer will end up getting whatever is allotted or
assigned to the selling co-owner in the partition, which may
be voluntary or through judicial action.
Q: Supposing this co-owner alienates the entire
property without the consent of the other co-owners,
what will be the status of the sale?
A: The contract of sale will be valid insofar as the said
co-owner’s share is concerned.
Q: What about the shares pertaining to the others, what
will be the status of the sale?
A: The sale will be valid but unenforceable because the said
co-owner does not have the authority to sell to the
aforementioned portions of land. However, it will be valid if
the other co-owners will ratify the contract of sale.
Entering into a contract on behalf of another person
without the latter person’s authority makes that contract
Page 37 of 128
unenforceable. Being unenforceable means that the contract
is not void, and, therefore, is susceptible of ratification.
There is an instance where the contract may become null
and void insofar as the shares of the other co-owners are
concerned. This will happen in cases wherein the selling
co-owner represents himself as the authorized
representative of the other co-owners and the property in
question happens to be a parcel of land. In this situation,
the other requirement will be applied under the law on
sales when it comes to the sale of land, which provides that
there should be written authority. The lack of this written
authority would render the sale null and void.
To reiterate and emphasize: this will only apply if there is an
active representation that this co-owner is acting on behalf
of the other co-owners and that what is involved is a parcel
of land. Otherwise, the rule that the sale insofar as the
shares of the co-owners are concerned is unenforceable due
to lack of authority.
CO-OWNERSHIP UNDER ART. 147 and 148 OF THE
FAMILY CODE
Art. 147. 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.
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.
When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common children. In case
of default of or waiver by any or all of the common children
or their descendants, each vacant share shall belong to the
respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
In all cases, the forfeiture shall take place upon termination
of the cohabitation.
Art. 148. In cases of cohabitation not falling under the
preceding Article, only the properties acquired by both of
the parties through their actual joint contribution of
money, property, or industry shall be owned by them in
common in proportion to their respective contributions. In
the absence of proof to the contrary, their contributions
and corresponding shares are presumed to be equal. The
same rule and presumption shall apply to joint deposits of
money and evidences of credit.
If one of the parties is validly married to another, his or
her share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is not validly
married to another, his or her shall be forfeited in the
manner provided in the last paragraph of the preceding
Article.
The foregoing rules on forfeiture shall likewise apply even
if both parties are in bad faith.
Q: Why is it a special kind of co ownership?
A: Because whatever properties they [the parties to the
co-ownership under Art. 147, FC] acquired during
cohabitation may not be sold during cohabitation without
the consent of the other.
Q: What is the subject of the prohibition?
A: The parties’ ideal share in the co-owned property.
Q: Supposing we have a man and a woman governed by
Article 147. The man sold the entire property co-owned
with the woman. How should we treat the sale? Can we
use Art. 147?
A: No. Because Art. 147 only covers the sale of a share and
not the entire property. Basis would be the ruling of the
Supreme Court in Perez v Perez.
NICXON L. PEREZ, JR. V. AVEGAIL PEREZ-SENERPIDA,
ASSISTED BY HER HUSBAND MR. SENERPIDA
G.R. NO. 233365 24 MARCH 2021
FACTS:
Spouses Eliodoro Q. Perez (Eliodoro) and Adelita M. Perez
(Adelita) were the registered owners of a parcel of land in
Olongapo City. They were married on December 10, 1975,
and had two children, Avegail and Adonis Perez (Adonis).
Before his marriage with Adelita, Eliodoro was married and
had several children, one of whom was Nicxon Perez, Sr. The
latter, in turn, is the father of Nicxon L. Perez, Jr. (Nicxon).
Page 38 of 128
Adelita executed a sworn statement denominated as
Renunciation and Waiver of Rights (RWR) in favor of
Eliodoro on October 29, 1995, which was inscribed on the
Transfer Certificate of Title (TCT) of the subject parcel of
land. Eliodoro donated said land to Nicxon on July 27, 2004.
However, the donation was without the conformity of
Adelita. Subsequently, a Real Estate Mortgage was executed
by Nicxon in favor of Rolando Ramos.
On February 1, 2005, Eliodoro filed against Adelita a
petition for declaration of nullity of marriage under Article
36 of the Family Code before the Regional Trial Court
Branch 73 (RTC-Branch 73). The RTC declared the marriage
void ab initio.
On September 30, 2010, Avegail Perez-Senerpida (Avegail)
brought an action for Annulment of Donation and Title
against Nicxon. Avegail alleged that she is one of the
children of the late Eliodoro and Adelita and that Deed of
Donation solely executed by Eliodoro was based on the
alleged RWR executed by her mother Adelita. She claimed
that the RWR and the Deed of Donation were prejudicial to
her interest because it affected her future inheritance or
legitime.
In the meantime, On July 5, 2011, six years after the
Marriage Nullity Decision had become final and executory,
Adelita filed before the Court of Appeals (CA) a petition for
annulment of judgment (Annulment of Judgment Petition)
against the heirs of Eliodoro, who are the children of
Eliodoro by his first marriage, on the ground of lack of
jurisdiction over her person.
The RTC-Branch ruled in favor of Avegail and ordered the
annulment of the RWR and the Deed of Donation in favor of
Nicxon. It further ruled that the Marriage Nullity Decision
had not yet attained finality at the time of Eliodoro’s death
considering that the same has been assigned for further
reception of evidence. Thus, it deemed the marriage
between Eliodoro and Adelita to be valid and subsisting
from the time of its celebration up to Eliodoro's death on
June 28, 2008.
The CA denied the petition for annulment of judgement. As
to the appeal filed by Nicxon, the same was denied by the
CA on April 7, 2017. It ruled that at the time of the donation,
Eliodoro was still legally married to Adelita. As such,
Eliodoro should have first secured the conformity of his
wife, Adelita, as expressly required under Article 98 of the
Family Code.
As to the RWR, the CA ruled that the RWR is a prohibited
waiver because the property regime of Eliodoro and Adelita
was the absolute community property (ACP), there being no
marriage settlement between them, and under Article 89 of
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
the Family Code (FC), which provides that: "No waiver of
rights, interests, shares and effects of the absolute
community property during the marriage can be made
except in case of judicial separation of property”.
The CA further agreed with the RTC the RWR partook the
nature of a donation or grant of gratuitous advantage
between spouses, there being no material consideration
given by Eliodoro to Adelita in exchange for the execution of
the RWR, which consequently is prohibited under Article 87
of the FC which provides: "every donation or grant of
gratuitous advantage, direct or indirect, between the
spouses during the marriage shall be void."
Nicxon contends that Article 147 of the FC applies to the
present case. Thus, the RWR is valid on the ground that
Eliodoro and Adelita, being mere co- owners of the subject
property, either of them could donate or waive their
respective shares therein provided that the consent of
either partner was obtained.
Hence, this petition.
ISSUE:
WON the Deed of Donation is valid despite the absence of
consent of Adelita - NO
RULING:
NO. The Court ruled first ruled that Article 147 of the FC
applied which provides:
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 farmer's efforts
consisted in the care and maintenance of the family and of
the household.
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.
When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith in the co-ownership
Page 39 of 128
shall be forfeited in favor of their common children. In case of
default of or waiver by any or all of the common children or
their descendants, each vacant share shall belong to the
respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party. In
all cases, the forfeiture shall take place upon termination of
the cohabitation.
Since the subject property was registered in the names of
Eliodoro and Adelita, as spouses, and there being no proof
to the contrary, the subject property is presumed to have
been obtained by their joint efforts, work or industry, and
was owned in equal shares by them pursuant to Article 147.
Under Article 147 of the Family Code, which covers the
exclusive cohabitation of a man and woman as husband and
wife without the benefit of marriage or under a void
marriage, there is unfortunately no direct prohibition on
donation of any property acquired during the cohabitation
by one party without the consent of the other.
It is true that Article 147 provides that the property
acquired during the cohabitation shall be governed by the
rules on co-ownership and pursuant to Article 493 of the
Civil Code, in a co-ownership: "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."
With Article 493 of the Civil Code as basis, Eliodoro could
have alienated onerously or gratuitously his part or share in
the subject property to Nicxon without the consent of
Adelita.
However, Article 493 of the Civil Code cannot
supersede, and must yield to, Article 147 of the Family
Code, which expressly mandates that: "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."
The reason for this amendment to Article 144 of the
Civil Code rule, as it is now expressed in the Family
Code, is this:
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.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Given the above express prohibition of a party to the
cohabitation to encumber or alienate by acts inter vivos
even his or her share in the property acquired during the
cohabitation and owned in common, without the consent of
the other party until after the termination thereof under
Article 147, then the donation of any property acquired
during the cohabitation by one party without the consent of
the other can only be but void. The rules on ordinary
co-ownership cannot apply to vest validity on the undivided
share of the disposing party.
If a disposition of a party's share in the property under
special co ownership created by virtue of Article 147
without the consent of the other party is proscribed by
law, then, and with more reason, should the disposition
of the entire property under such special co-ownership
by a party without the other party's consent be
considered void as well.
While the Court found merit in Nicxon's contention that the
lower courts in the present case erred in finding that the
property regime between Adelita and Eliodoro was
governed by the ACP as their marriage subsisted until
Eliodoro died, the Deed of Donation to him of the subject
property is, nonetheless, void as this is a prohibited
disposition under Article 147 of the Family Code.
Essentially in this case, the Supreme Court emphasized the
difference of co-ownership found under Art. 147 from
ordinary co-ownership. And the question that was raised
here was the status of the donation made of the property
owned under Art. 147 by the parties. Whether the sale
should be given the effect that we accord the sale by a
co-owner of the entire property owned in
co-ownership.
Ordinary, such a sale would not be void, but would be valid
although unenforceable for lack of authority on the part of
the selling co-owner to sell the entire property.
Q: Do we apply the same rule to the disposition of the
property owned in common under Art. 147? What
would be the status of the sale, should we accord the
same effect/status that we give to the sale of co-owned
property in ordinary co-ownership?
A: The status of the sale would be void.
Q: What is the justification for its nullity?
A: The Supreme Court said if the disposition of the ideal
share of each party without the consent of the other during
cohabitation is prohibited, then what more the disposition
of the entire property. Kung ‘yun disposition of the ideal
share is void for lack of consent of the other during the
cohabitation, then with more reason that the disposition of
Page 40 of 128
the entire co-owned property under Art. 147 without the
consent of the other should be void as well.
And we cannot apply here the rule that we observe for
ordinary co-ownership where the sale would be considered
valid, but unenforceable with regard to the other
co-owners.
CONSEQUENCES OF CO-OWNERSHIP
1. Each co-owner is allowed to demand partition
at any time. The principle being that no co-owner
may be compelled to stay in the co-ownership.
Art. 494. No co-owner shall be obliged to remain in the
co-ownership. Each co-owner may demand at any time
the partition of the thing owned in common, insofar as
his share is concerned.
Nevertheless, an agreement to keep the thing undivided
for a certain period of time, not exceeding ten years,
shall be valid. This term may be extended by a new
agreement.
A donor or testator may prohibit partition for a period
which shall not exceed twenty years.
Neither shall there be any partition when it is
prohibited by law.
No prescription shall run in favor of a co-owner or
co-heir against his co-owners or co-heirs so long as he
expressly or impliedly recognizes the
co-ownership. (400a)
Art. 495. Notwithstanding the provisions of the
preceding article, the co-owners cannot demand a
physical division of the thing owned in common, when
to do so would render it unserviceable for the use for
which it is intended. But the co-ownership may be
terminated in accordance with Article 498. (401a)
GR: Each co-owner may demand at any time the partition of
the thing owned in common, insofar as his share is
concerned.
XPNs:
1. When there is an agreement among co-owners to
keep the thing undivided for a certain period of
time, not exceeding ten (10) years. This term may
be extended by a new agreement;
2. When the donor or testator prohibits partition for a
period which shall not exceed twenty (20) years;
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
3. When the law prohibits partition; and
4. When partition would render the thing
unserviceable for the use for which it is intended.
Example: Family Home. It may not be subject to partition
for a period of ten (10) years from the time of the death of
the owner of the family home or as long as there is a minor
beneficiary at the family home.
FC, Art. 159. The family home shall continue despite the
death of one or both spouses or of the unmarried head of
the family for a period of ten years or for as long as there
is a minor beneficiary, and the heirs cannot partition the
same unless the court finds compelling reasons therefor.
This rule shall apply regardless of whoever owns the
property or constituted the family home.
Q: Why would co-ownership be an issue here when it
comes to the Family Home? How would we have a
co-ownership in relation to a Family Home?
A: Because we’re looking at a specific situation where the
owner of the family home dies and he is survived by several
heirs. Whenever we have succession and there are several
heirs or more than one heir, then automatically what we
have is co-ownership among the several heirs.
2. Each co-owner shares in the benefits and the
charges, in proportion to their respective
interests. The portions are presumed to be
equal unless the contrary is proved;
3. Right to bring an action; and
4. Each co-owner only enjoys full ownership over
his ideal share, and until the co-ownership is
terminated and partition has been made, he
cannot pinpoint with accuracy the definite
portion of the whole which belongs to him;
Q: How is partition effected?
A:
1. Extrajudicial partition (by agreement of both
parties) or
2. Judicial partition (seeking assistance of the court)
Q: If the parties come to an agreement, well and good.
But should they come to an agreement, in what form
should the partition be made? Is there a need to comply
with the statute of frauds?
A: There is no need to comply with the statute of fraud.
There is also no form under the law because an action for
partition does not convey ownership but merely identifies
the actual share of each co-owner in the co-owned property.
Page 41 of 128
Q: What happens when the co-owners fail to come up
with an agreement? How should the parties interested
go about?
A: If the parties fail to come to an agreement as regards the
partition, they may go to courts and the partition would be
by judicial action.
Q: What should be proven in court?
A: Parties who seek a judicial partition must show the
existence of the co-ownership and present how they will
divide the property.
Q: Why would they need to establish the existence of
the co-ownership?
A: Usually, when a partition is sought in courts, one of the
parties is claiming sole-ownership of the co-owned
properties. He is refusing to recognize the co-ownership.
Hence, a party seeking partition must not only justify the
manner of partition but also must first hurdle the primary
issue of whether or not there is co-ownership to speak of.
Case in point is the co-ownership under Article 147 and 148
of the Family Code. The moment 147 and 148 are invoked,
parties are not in agreement.
The parties live together. One thinks that they are
cohabiting together as husband and wife while the other
thinks they are living together only as boyfriend and
girlfriend. There is a difference between sleeping over as
gf/bf and husband and wife. The latter pertains to
representing themselves as married to one another. Pag
naghiwalay kayo, there may be properties owned by both of
you.
In which case when the relationship sours, you can
guarantee it that either party would like to spy on the other
to assert the supposed common properties. So dun ngayon
magkakaroon ng contentious claims of ownership. So yun
ang first step, you have to establish that co-ownership does
exist.
Once you have established that, then the other party may
either still insist on having the partition ruled upon by the
court or agree to a voluntary partition. If the other party
agrees to a voluntary partition, then that’s it for the case,
tapos na. They will simply draw up a partition agreement.
Pero pag hindi pa rin, then the case will now enter the
second phase, being the partition itself.
Once a partition has been entered into by the co-owners,
then they ought to also make unusual accounting of the
benefits received and then make the proper indemnification
or reimbursement of the expenses as well as damages that
may have been suffered.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Article 500. Upon partition, there shall be a mutual
accounting for benefits received and
reimbursements for expenses made. Likewise, each
co-owner shall pay for damages caused by reason of his
negligence or fraud
And also very important, every co-owner must warrant the
quality and the title of the portions allotted to the other
co-owners that is provided in the law.
Q: What would be the reason why the law requires that
there be a warranty against eviction, a warranty
relating to the quality of the portion allotted to the
other co-owners in the partition?
A: Because there might be presence of abuse on the part of
the co-owners in such a way that for example, in a voluntary
partition, one of the co-owners would surreptitiously know
some fact or some matters such as an encumbrance which
will be given to a co-owner upon a partition.
It may happen that because in a group there would be more
people that are dominant than the others and the others
would just follow or to meekly speak their minds. Baka ang
mangyari, yung more dominant co-owners will assign the
portion na patapon or mga walang kwentang portions dun
sa mga too meek to speak for themselves. This is meant to
balance things, so to speak. To protect those who may not
be able to protect themselves. At least, the law would
require that there should be a warranty, some kind of
remedy in case some co-owners end up with portions that
are less than desirable. Kasi may defect dun sa title, or may
defect dun sa quality.
Another consequence of co-ownership is that prescription
does not run in favor of a co-owner unless there has been
repudiation.
Q: What does repudiation mean?
A: It means that as a general rule, prescription does not lie
against a co-owner because each co-owner holds the
property in favor of himself and in the name of the
co-owners. In other words, there is a fiduciary relation
between the co-owners. An exception however, prescription
may run against the co-owners if one of the owners
repudiates the co-ownership.
In order for prescription to run, the following requisites
must be present:
1. There is an unequivocal act of repudiation on the
part of the co-owner;
2. That this fact of repudiation must be made known to
the other co-owners; and
Page 42 of 128
3. That evidence of that repudiation is clear and
convincing.
In other words, if only one of the co-owner happens to be in
possession and the others are not, it will not amount to
anything because he is deemed to be possessing on behalf
of the other co-owners. Unless, he has repudiated the
co-ownership and is now claiming ownership over the
property for his own.
If you would recall when we are discussing the right to
bring an action for ejectment, di ba sabi natin, there is no
need to implead the other co-owners because each
co-owners allowed to bring an action to evict except that if
the suing co-owner is asserting sole ownership in the
complaint, then that will be taken as clear act of repudiation
and he will have to implead the other co-owners. Kasi he
can no longer say that he is acting for the others. Why not?
Because he is claiming sole ownership of his name.
POSSESSION
The important thing about possession is that at least in the
Civil Code of the Philippines, possession is taken as an
indicium of ownership. Kaya yung discussion natin ng
possession under the Civil Code is possession in the
concept of an owner. Because that is how we treat
possession here, as indication of ownership and this is
further fortress by the fact that under our law, if you are in
possession, then the presumption is you are the owner of
the property and you have just title to the property. And you
cannot even be required to prove your title, instead it
would be a burden of the claimant to show that you do not
have any rights to the property.
Article 523, NCC. Possession is the holding of a thing or
the enjoyment of a right.
Q: What is possession?
A: Possession is the holding of a thing and an enjoyment of
a right. It should go without saying that only those which
are susceptible of appropriation may be the subject of
possession. That is why if a thing goes out of commerce, you
also lose possession over the thing because it can no longer
be a subject of appropriation.
Q: What are the different classes of possession?
A:
1) Possession in one’s own name
2) Possession in the name of another
3) Possession in the concept of a holder
4) Possession in the concept of an owner
5) Possession in good faith
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

6) Possession in bad faith

Article 524. Possession may be exercised in one’s own
name or in that of another.
Q: What is possession in one’s own name as opposed to
possession in the name of another?
A: So, if you are possessing in your own name then that
means you have the fact of possession and the title
justifying the possession. If you own a property, then you
have title to the property and at the same time, you are
exercising physical and actual possession over the property,
but if you are possessing in the name of another, you only
have the fact of possession but not the title.
Article 525. The possession of things or rights may be
had in one of two concepts: either in the concept of
owner, or in that of the holder of the thing or right to
keep or enjoy it, the ownership pertaining to another
person.
Q: When he has that actual possession, does it mean
that he has the right to the property?
A: No. A person who is possessing in the name of another
does not have any right to the property. He only has actual
possession.
A security guard may have actual possession but he does
not have any right over the property he is guarding because
he is simply an agent of the owner in whose name he is
possessing.
At first glance, it may seem that possession in the name of
another is similar to the concept of the holder because in
both cases, the better right of possession is recognized in
someone else. In possession of a concept of a holder, you are
recognizing that your right is short of ownership.
Ownership which carries with it the better right of
possession besides elsewhere, pero ang pinagkaiba ng
possession in the concept of a holder from possession in the
name of another is that a possessor in the concept of the
holder would have rights of his own which rights cannot be
found in the person of a person possessing in the name of
another.
For instance, a lessee is a possessor in the concept of a
holder kasi he recognizes that better rights reside in the
owner or lessor but we cannot discount the fact that the
lessee himself would have his own rights and as a matter of
fact, we regard to leasehold rights, he would be considered
as a possessor in the concept of an owner, but with regard
to the property itself that he is leasing, he is only considered
as a possessor in the concept of a holder.
In the case of security guard, he can be a possessor in the
name of another in relation to the owner of the property
because owner can get a security guard at the same time, he
may also be considered as a possessor in the name of
another who happens to be the lessee who is only a
possessor in the concept of a holder. Because even if you are
just a lessee of a property, you can still get a security guard
to stand guard in your property to provide security to the
property which you are leasing.
To simplify further, the possessor in the concept of a holder,
himself, may get someone to possess the property in his
name. the lessee may also get a security guard or a
caretaker to possess the property in his name. To go back in
the possession in an owner or possessor concept of a holder
Q: When we say concept, whose concept are we
concerned with?
A: This concept refers to the opinion of a third person with
regard to the possession.
This would be with regard to the perspective of the public.
The determination of whether you are a possessor in the
concept of an owner or holder. This is not on how you view
yourself, rather on how you are viewed by third persons.
The consequence of possessing in the concept of an owner
is that these can be the basis for the acquisition of
ownership through prescription.
Article 526. He is deemed a possessor in good faith who
is not aware that there exists in his title or mode of
acquisition any flaw which invalidates it.
He is deemed a possessor in bad faith who possesses in
any case contrary to the foregoing.
Mistake upon a doubtful or difficult question of law may
be the basis of good faith.
Article 527. Good faith is always presumed, and upon
him who alleges bad faith on the part of a possessor rests
the burden of proof.
The third classification, and most important classification is
possession in good faith and possession in bad faith
Possession in good faith is said to exist if the possessor is
not aware that there exists in his title or mode of acquisition
a flaw which invalidates his title. All other kinds of
possession would be in bad faith.

Page 43 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
What’s interesting is that the law also provides that a
mistake upon a doubtful or difficult question of law may be
the basis of good faith.
Q: Is this significant? This provision in Art. 526?
A: Yes. Because under Art. 3, ignorance of the law excuses
no one from compliance therewith, and it expresses that in
absolute terms. In fact, we have settled you cannot claim
good faith when your mistake is based on a mistake of law
because in Art. 3 you are presumed to know what the law is.
But here we have an exception where the law says itself that
you can claim good faith on the basis of a doubtful or
difficult question of law. But this is a specific relation of
possession in good faith.
Q: Does the law have any presumption when regard to
the character of possession?
A: The law presumes that possession is in good faith. In fact,
it places the proving otherwise in the burden of the person
who claims that possession is not in good faith.
This ties up with what we said regarding the presumption
that the law creates in relation to possession. We said, if you
are in possession then the law presumes that you are the
owner and you have just title in the property.
Rightfully so, if that is the presumption that you are the
owner and you have just title, then it is only right that the
law presumes that your possession also is in good faith.
Kasi it is presumed that you have just title. It is also the
reason why you’ve heard this saying before, possession is
nine-tenths of the law. Because if you are in possession you
do not have to do anything.
The case will rise and fall on the evidence that the other
party has against you. You may not have evidence of your
own to prove the title, but if the other party wasn’t able to
discharge the burden of proof, then, you cannot be
disturbed in your possession.
You are in possession, you are being sued with eviction, but
the only thing that the other party has as his proof was an
oral testimony of witnesses from days gone by that this
property was owned by someone else, but they do not have
the documentation. And you, baka nga hindi mo pa sinagot
ang complaint, and you would simply ask for a dismissal on
technical grounds. Now even if your motion to dismiss was
denied, and even if you do not have evidence to defend
yourself, then the other party cannot convince the court,
then the case shall be dismissed without you bringing
Page 44 of 128
further proof to your title. This is because you enjoy that
presumption in your favor.
The presumption regarding one’s possession is different
from the rule on continuity of the character of possession.
Article 529. It is presumed that possession continues to
be enjoyed in the same character in which it was
acquired, until the contrary is proved.
Q: What do we mean with the continuity of the
character of possession?
A: It means that the possession will continue in which it
was first acquired. If a possessor proves that he is in
possession 10 years ago, therefore, the presumption that in
between that time and now, he is in continuous possession
of the property.
Continuity of possession means that possession is
maintained for the same time since it was acquired, unless
the contrary is proved. This will only apply to good faith
possession. If the possession was started in bad faith, then,
there is no way to improve or deteriorate the same.
Information can never be unlearned. Once you know of facts
affecting your title, or facts affecting just about anything
else, there is no mechanism for you to unlearn the same.
Regardless of the number of years that have passed,
possession in good faith continues, unless facts may show
proving the contrary. Remember, good faith possession is
fragile, as you need to show that you are unaware of the
facts, of the flaws in your title.
As said earlier, for 10 years. There is good faith possession
all throughout. To better appreciate this, if there are fruits
harvested 5 years ago, improvements introduced 3 years
ago, and for all those, the rules on possession in good faith
applies. Because it is presumed that good faith is there.
However, if at any point in time, say, in the 3rd year of your
possession, it shall be proved that summons was served
upon you, for complaint seeking to recover ownership or
possession of the property from you. And it shows that in
your 3rd year, you are not unaware that there may be a
defect in your title. So our presumption of the continuity of
the character of good faith, will have to stop around the 3rd
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
year, because in that year, summons were served upon
you,and in that time, bad faith ka na.
In the fruits which came on the 5th year, or the
improvements which were introduced on the 3rd year, after
the summons was served, then this would have to be
treated as having been made by a possessor in bad faith.
This is how you appreciate the continuity of the character of
possession.
Similarly, if you possess property through succession,
whatever bad faith you may have affected the property
while in the possession of the transferor or successor in
interest, this will not prejudice you. But in the third time(?),
you cannot get the benefits of good faith until after his
death. That is how it works. It doesn’t just work in
acquisitive prescription, it also works in determination of
the rights to the fruits, reimbursements, improvements
whether necessary, ordinary, or luxurious.
ACQUISITION OF POSSESSION
Article 531. Possession is acquired by the material
occupation of a thing or the exercise of a right, or by the
fact that it is subject to the action of our will, or by the
proper acts and legal formalities established for
acquiring such right.
Q: Is capacity to act a necessity for the acquisition of
possession?
A: No, capacity to act is not necessary to possess a property.
However, capacity to act will limit his exercise of his rights
over the said property.
Q: How would it limit his rights or his power to exercise
his rights?
A: The person who does not have the capacity to act cannot
enjoy the said rights. For instance, a minor while he can
possess a property, he does not have a right to enter into
contracts with respect to the said property, because of his
minority.
The thing about possession is this, because the manner in
which you acquire possession, mostly it’s occupation of the
thing, physical occupation of thing, physical control of the
thing. In which case, hindi factor yung capacity to act. ‘Pag
dinampot mo yung isang bagay, you are in possession. Kahit
naman bata pwedeng dumampot ng kahit anong bagay na
kaya niyang buhatin. So capacity to act is not really a factor
to the acquisition of possession.
Page 45 of 128
But it’s a different thing when it comes to exercising rights
in relation to possession. Example, you’re a minor, biglang
inagawan ka ng cellphone mo. No doubt, prior to the
robbery, you were in possession. Pero pag inagaw nay an
sayo, and you need to go to Court to recover, then you will
now need the assistance of your parents/guardians. That is
what the law means. No doubt that you as a minor, you are
in possession.
Q: How is possession acquired?
A:
1. By material occupation of the thing or
the exercise of a right
2. By the fact that it is subject to the action of
a will
3. By the proper action, legal formalities are
established for acquiring such rights.
Example: Hereditary Rights
Q: How possession of hereditary rights is acquired? An
explanation as to how the performance of certain acts
or observance of certain formalities in relation to
hereditary rights translates to acquisition of
possession.
A:
Article 533. The possession of hereditary property is
deemed transmitted to the heir without interruption
and from the moment of the death of the decedent, in
case the inheritance is accepted.
One who validly renounces an inheritance is deemed
never to have possessed the same.
Art. 533 means that, if you accept the inheritance, then you
are deemed to have possessed the inherited property from
the time of the death of the decedent even though
possession was being exercised by someone else
throughout that time. Because there is always that period of
time between the death of the deceased and the time when
there is final settlement of his estate, and partition ensues.
That throughout that time, the property inherited maybe
changing possession from one person to another. Pwedeng
nakay-A, nakay-B, nakay-C, but never in the possession of
Heir X who accepts. And yet, once he accepts the
inheritance, then he is deemed to have been in possession
throughout the period. And in return, the thing is never
considered in the possession of A, of B or even of C, because
there is acceptance.
Conversely, maaaring X has been in possession of the
property even before the deceased died. Like, if kotse na
pinapagamit sakanya at kinamatayan na ng deceased.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
But, if he rejects, repudiates the inheritance on the vehicle,
even though he is in actual possession throughout, he is
deemed to be never in possession at all. Instead, the heir
who eventually accepts is the one who shall be considered
the one who have been exercising possession.
Reason: formalities were observed.
Under our law, it is one of the means of acquiring
possession. Just as it is important to know when possession
is required, it is also important to know when possession is
lost.
Q: When is possession lost?
A:
Article 555. A possessor may lose his possession:
(1) By the abandonment of the thing;
(2) By an assignment made to another either by onerous
or gratuitous title;
(3) By the destruction or total loss of the thing, or
because it goes out of commerce;
(4) By the possession of another, subject to the
provisions of article 537, if the new possession has lasted
longer than one year. But the real right of possession is not
lost till after the lapse of ten years. (460a)
If possession is found in another person, possession is lost.
Subject to the qualification of the provision in Art. 537.
Article 537. Acts merely tolerated, and those executed
clandestinely and without the knowledge of the possessor
of a thing, or by violence, do not affect possession. (444)
Q: What acts do not affect possession under Art. 537?
A:
1. Acts merely tolerated
- Tolerance extended to people because you are
being neighborly. (halimbawa, magtatayo ng
sampayan sa property mo kasi maaraw dun,
kung nagpapastol ng baka at kalabaw sa
property mo) So long as it’s not done through
stealth.
- If hayagan and may implied consent on your
part, done in your presence and you don’t
object – tolerated act, which will not affect your
possession.
Page 46 of 128
2. Acts done by violence (threat or intimidation)
- So long there is a possessor who objects
3. Those executed clandestinely or without the
knowledge of the possessor
These are the very same grounds that we used to bring a
case for unlawful detainer or a case for forcible entry. If you
take Art. 537 in conjunction with the nature of unlawful
detainer or forcible entry, or accion interdictal in general,
then, this sheds light on what exactly been fought for in
these actions.
Kung sasabihin natin acts merely tolerated, force, stealth,
will not affect possession, then that makes it very clear that
ang pinag aawayan natin sa accion interdictal ay hindi legal
possession. Because these things are the basis for
unlawful detainer and forcible entry – they are not
supposed to affect possession. What will be in dispute
here is material or physical possession. Because legal
possession has not been lost since it cannot be affected by
acts merely tolerated, by stealth, force, intimidation, etc.
Kaya dapat within one year, ma-file mo yung action. Because
you also have that provision in the law which says that
possession will be interrupted if the dispossession lasted
for more than 1 year. It means at risk na yung real right of
possession mo kapag more than 1 year na yung physical or
material dispossession. Kaya gagraduate ka na ngayon sa
accion publiciana.
Since possession is an indication of ownership, we cannot
recognize possession in two people simultaneously. And we
have a hierarchy of rules to determine preference.
Article 538. Possession as a fact cannot be recognized at
the same time in two different personalities except in the
cases of co-possession. Should a question arise regarding
the fact of possession, the present possessor shall be
preferred; if there are two possessors, the one longer in
possession; if the dates of the possession are the same,
the one who presents a title; and if all these conditions
are equal, the thing shall be placed in judicial deposit
pending determination of its possession or ownership
through proper proceedings
Q: What would be this hierarchy?
A:
1. The present possessor is preferred;
2. If there are two possessors then the one longer in
possession is preferred;
3. If the dates of possession are the same then the one
who presents a title is preferred; and
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
4. If all these conditions are met by both parties, then
the courts will decide.
ARTICLE 551. Improvements caused by Nature or time
shall always inure to the benefit of the person who has
succeeded in recovering possession.
ARTICLE 552. A possessor in good faith shall not be
liable for the deterioration or loss of the thing
possessed, except in cases in which it is proved that he
has acted with fraudulent intent or negligence, after the
judicial summons.
A possessor in bad faith shall be liable for deterioration
or loss in every case, even if caused by a fortuitous
event.
These are certain important provisions. Again, if the
improvements have already disappeared or do not exist
anymore at the time that the lawful possessor takes
possession or reclaims possession, then there would be no
obligation on his part to indemnify for necessary, useful, or
luxurious expenses, whenever warranted.
EASEMENTS
Article 613. An easement or servitude is an
encumbrance imposed upon an immovable for the
benefit of another immovable belonging to a different
owner.
The immovable in favor of which the easement is
established is called the dominant estate; that which is
subject thereto, the servient estate.
Art. 614. Servitudes may also be established for the
benefit of a community, or of one or more persons to
whom the encumbered estate does not belong.
Q: What is an easement?
A: An easement or servitude is an encumbrance imposed
upon an immovable for the benefit of another immovable
belonging to a different owner (Art. 613).
Q: Who may also be benefitted by an easement?
A: It can be for the benefit of a community, or one or more
persons to whom the encumbered estate does not belong.
Q: Easements and servitudes are used interchangeably.
Are they the same?
Page 47 of 128
A: No. The easement would refer to the right enjoyed.
Servitude on the other hand refers to the burden imposed
upon the estate.
CHARACTERISTIC OF EASEMENTS
Q: It is a right that is enjoyed over what kind of
property?
A: Over an immovable property.
Q: What are the essential features of an easement?
A: They are as follows:
1. It is a real right enjoyed over immovable
property;
Can only be instituted on immovable property and
never on personal property – That is why I would
need you to be careful, kasi kapag sinasabi nating
personal easement, we can be confused or mislead
into thinking that since personal easement ‘yung
binabanggit natin paulit-ulit, that this may involve
personal property. No, once you say easement, it is
automatic. You are limited to an immovable
property by nature e.g. land, buildings,
constructions adhered to the soil.
2. Such immovable property must be owned by
another person;
You cannot enjoy the right of easement over your
own property. If you have two adjoining estates and
you have built a road through the outer estate
which will allow you and your visitors or people
occupying the inner estate to pass through and get
to the main road, then you are simply exercising
your right of ownership in building that road to the
outer estate. Walang easement involved diyan.
Hindi mo kailangan ng easement diyan kasi
pag-aari mo ‘yung both properties eh. You can do
whatever you want including building a
pathway/road that would allow people to traverse
your outer estate to get to the main road and back
to your property or from your inner
property/estate to the main road. Kasi nga ikaw
‘yung may-ari ng parehas na property.
Kung nagkataon na magkaiba ‘yung may-ari, then
obviously, the owner of the inner state cannot just
build a road through the outer estate kasi hindi
niya pagma-may ari ‘yun eh. In which case, you will
only be able to do so through an easement.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

3. An easement imposes limitations on the
ownership of the property;
4. It is inseparable from the property to which it is
attached [the easement cannot be alienated].
5. The easement does not have an independent
existence;
Q: Consequently, if the easement does not have
independent existence from the tenement, what
happens?
A: The easement cannot be subject to alienation.
Remember, we have an enumeration of the different kinds
of immovable property under Art. 415. We do not apply
that in easements kasi easements can only be
constituted on immovables by nature.
If you would look also at personal servitudes, since we only
have one estate involved and the beneficiary would happen
to be persons, then a personal servitude would appear to be
quite similar to a usufruct.
EASEMENT VS. USUFRUCT

That [easements do not have an independent existence] is Kasi sa usufruct, the usufructuary acquires the right to
what differentiates easements from usufructs, which can be enjoy, the right to possess, the right to the fruits of the
mortgaged and alienated. Easements cannot be alienated property.
despite it being considered as a real right. ‘Yung relationship would be we have an estate/property
which may be real or personal, and then we have a person
EASEMENT VS. SERVITUDE who shall be the beneficiary. Which is also the situation in a
personal easement.
EASEMENT SERVITUDE
The right enjoyed by the The burden imposed upon From Atty. Seña
dominant estate the servient estate
PERSONAL SERVITUDE USUFRUCT
Essentially, they are the same. They are used Limited only to immovables The right may be constituted
interchangeably in this jurisdiction. by nature on real or personal property
The easement is defined, it is The right to use given to the
If you would look at the definition provided in the law determinate. usufructuary is
under Art. 613, you will notice that it only pertains to one indeterminate.
kind of easement: the easement that is imposed on an You cannot change the use or
immovable for the benefit of another immovable belonging the character of the Essentially, the right to use
to a different owner. This does not take into account easement if you are its enjoyed by the usufructuary
personal easement or the easement that is defined under beneficiary. would be universal because
Art. 614. the entirety of the property is
Kung ang pinag-uusapan given to him to possess, to
Art. 614 refers to an easement that is constituted on an lang natin ay right of way to enjoy, and to get fruits from.
immovable property but this time, in favor of a particular draw water, right of way to
community or of one or more persons to whom the estate draw water lang ‘yan. You
does not belong. cannot expand it to anything
else.
To be clear, in both real and personal easements, we have an
immovable involved. At least there would be a servient Cannot be the subject of The right of usufruct may be
estate. ‘Yun nga lang sa personal easement, we do not have alienation alienated or encumbered.
a dominant estate. In lieu of the dominant estate we have
either a community or a specific person or persons as
From GN 2021
beneficiary. But in both instances, it is important that the
owner of the dominant estate be different from the owner BASIS EASEMENT USUFRUCT
of the servient estate or that the beneficiaries (i.e. the Constituted on Real property Real or personal
community or the specific person or persons) do not own the Use granted Limited to a Includes all uses and
servient estate. particular or fruits
specific use of the
Also, in both instances, the immovable involved must be an servient estate
immovable by nature. We are limited to land, buildings, to
constructions of all kinds that are adhered to the soil. As to right of No possessory right Involves a right of
possession over an immovable possession in an

Page 48 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

immovable or Art. 615. Easements may be continuous or

movable discontinuous, apparent or non apparent.
As to effect of Not extinguished Extinguished by
death by death of death of xxxxx
dominant owner usufructuary
Nature of right Real right whether Real right whether Apparent easements are those which are made known
or not registered or not registered and are continually kept in view by external signs that
As to Transmissible Transmissible reveal the use and enjoyment of the same.
transmissibility
How it may be May be constituted Cannot be Nonapparent easements are those which show no
constituted in favor, or, constituted on an external indication of their existence
burdening a piece easement but it may
of land held in be constituted on 4. As to manner of exercise
usufruct the land burdened
by an easement a) Continuous - those the use of which is or may
be incessant, without the intervention of any act of
CLASSIFICATION OF EASEMENTS man. (NCC, Art. 615)

1. As to recipient of the benefit
a) Real easement – The easement is in favor of
another immovable (NCC, Art. 613)
b) Personal easement – The easement is in favor
of a community, or of one or more persons to
whom the encumbered estate does not belong
(NCC, Art. 614)
2. As to source
a) Legal easement – established/imposed by law
(NCC, Art. 619)
b) Voluntary easement – established by the will of
the owners; easements that are constituted by the
will of the parties (NCC, Art. 619)
These are easements the use of which is or may be
incessant without the intervention of man. Pwedeng
example would be an easement of light and view kasi kahit
merong tumitingin, kahit wala, the view will always be
there. Once you made that opening, then the view will
always be accessible.
b) Discontinuous - those which are used at
intervals and depend upon the acts of man. (NCC,
Art. 615)
These are easements whose use is cut intervals and depend
upon the acts of man. Example would be the right of way
kasi definitely, kailangan mo ng tao para may dumaan doon
sa road or sa pathway that was created.
Art. 615. Easements may be continuous or
discontinuous, apparent or non apparent.

Art. 619. Easements are established either by law or by Continuous easements are those the use of which is or
the will of the owners. The former are called legal and the may be incessant, without the intervention of any act of
latter voluntary easements man.

Discontinuous easements are those which are used at

intervals and depend upon the acts of man.
3. As to whether their existence is indicated

a) Apparent - those which are made known and
are continually kept in view by external signs that
reveal the use and enjoyment of the same. (NCC,
Art. 615)
b) Non-apparent – those which show no external
indication of their existence. (NCC, Art. 615)
5. As to the duty of the servient owner
a) Positive - one which imposes upon the owner of
the servient estate the obligation of allowing
something to be done or of doing it himself. (NCC,
Art. 616)
b) Negative - that which prohibits the owner of the
servient estate from doing something which he

Page 49 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
could lawfully do if the easement did not
exist. (NCC, Art. 616)
These are not mutually exclusive. Pwede kang magkaroon
ng easement which is continuous and at the same time
apparent and at the same time positive. Or an easement
which is discontinuous, apparent, and at the same time
negative. When you take this classification together, this will
help you determine how these easements may be acquired
and how these easements may be extinguished.
Art. 616. Easements are also positive or negative.
A positive easement is one which imposes upon the
owner of the servient estate the obligation of allowing
something to be done or of doing it himself, and a
negative easement, that which prohibits the owner of the
servient estate from doing something which he could
lawfully do if the easement did not exist.
CONTINUOUS AND DISCONTINUOUS EASEMENTS
1. Continuous Easements – Easements the use of
which may be incessant without the intervention of
man.
Ex. Easement of light and view
2. Discontinuous Easements – Easements used at
intervals and depend upon the act of man.
Ex. Right of way
APPARENT AND NON-APPARENT EASEMENTS
1. Apparent Easements – those which are made
known and kept in view by external signs that
reveal the use and enjoyment of the same
Ex. Cemented road in cities which serves as a right
of way.
2. Non-apparent – no visible external signs
Ex. Right of way in provinces which are not
cemented but the pathway is covered by grass that
is bent as a result of being repeatedly stepped over.
POSITIVE AND NEGATIVE EASEMENTS
1. Positive Easement – if the owner of a certain
estate is compelled to allow something to be done
in his property. If he has to do something himself.
Also called Servitude in Faciendo. Given the nature
Page 50 of 128
of easements as a burden on immovable property
and not on the person, this provision is interpreted
to mean doing things necessary for the easement.
There will be no separate obligation imposed upon
the servient estate. The obligation is incidental to
the easement.
2. Negative Easement – Refer to those which will
prohibit the owner of the servient estate to do
something which otherwise he would have done. It
takes on the character of prohibition
Q: What is that kind of easement which may be positive
or negative depending on the circumstances?
A: Easement of light and view
Generally, an easement of light and view is positive when
the window or opening is situated in a party wall and
negative if within your own wall.
Q: Why does a window or opening in a party wall
constitute a positive easement?
A: The easement of light and view becomes positive in
relation to a party wall because there is an imposition of a
burden on the part of the neighbor to allow you to make an
opening on his side of the party wall.
Your side of the wall would belong to you. Now the other
side which pertains to the neighbor would belong to your
neighbor. So if you’re going to make an opening in a party
wall, to allow light and view, then definitely it would not be
enough to make an opening only in your side, kasi kung sa
side mo lang, ano yung makikita mo? Semento. Kung hindi
mo bubutasin ng tagusan yan, walang papasok na light and
view. If you would limit the opening to your side ang
makikita mo hollow block nung wall nung kabilang side. So
what do you need to do to be able to let light and view to get
through the opening? You have to make the opening go
through the other side. So doon mo ngayon na
papakialaman yung property nung kapit-bahay mo kasi
bubutasan mo na yung side niya. And that is how the
easement of light and view becomes positive because you
are now imposing this burden on your neighbor to allow
you to make opening on his side of the wall. Diyan positive.
But your action may be justified through easement.
Pag-uusapan na lang natin pano mo ma-aacquire yung
easement. If you can come to an agreement, then that would
be voluntary easement. You can draw up a contract. Kung
hindi naman siya iimik pwede mong ma-acquire yung
property through prescription because that would be
apparent and continuous.
Q: Kelan naman pwedeng maging negative ang
easement of light and view?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
A: Kapag ang opening ay ginawa mo sa sarili mong pag-aari.
Let’s say on your own wall. And when I say your wall, the
wall of your house. You make an opening and then what you
do is you give notice, a notarial prohibition on your
neighbor not to block your view. So halimbawa, two-stories
lang yung bahay niya, ikaw nung nagpapagawa ka, ginawa
mong three-stories para asa third floor na walang
nakaharang, unobstructed view. Where are you making the
opening? In your own property. Wall of your house. Gawa ka
ng malaking bintana dun.
To ensure that nothing will be built or block your view, you
want to acquire this easement of light and view. But what
will kind of easement are you acquiring? A negative one kasi
your purpose is to prevent your neighbor from building and
obstructing your. Eh kasi baka mainggit sayo, and
magpatayo ng third floor din, edi wala na yung view.
Q: How will you do that?
A: Through a notarial prohibition. That is how you acquire
it by prescription. Pero kung papayag naman siya, kung
mapag-uuspan niyo naman, pwede namang contract.
Easements are also marked by certain characteristics.
Q: What are the characteristics of an easement:
A: Article 617 and Article 618
ARTICLE 617. Easements are inseparable from the estate
to which they actively or passively belong. (534)
ARTICLE 618. Easements are indivisible. If the servient
estate is divided between two or more persons, the
easement is not modified, and each of them must bear it
on the part which corresponds to him.
If it is the dominant estate that is divided between two or
more persons, each of them may use the easement in its
entirety, without changing the place of its use, or making it
more burdensome in any other way. (535)
1. Inseparability
Because an easement is inseparable, it has no certain
identity either from the dominant or servient estate. That’s
why unlike in usufruct in which you may alienate on its own
or even encumbrance, you cannot alienate an easement and
you cannot mortgage it because it has no separate existence
apart from the dominant or servient estate.
2. Indivisibility
It simply means that it cannot be acquired or lost partially.
So no matter what happens to the dominant or servient
estate, the easement will remain or will subsist, or continue
wherever it was constituted. Very relevant dito yung
Page 51 of 128
right-of-way. So you have your dominant and servient
estate.
e.g. Yung servient estate is partitioned into two at yung
pagkakahati eh yung tulad nung pagkakahati let’s say yung
pagkakahati niyo sa screenshot dito sa computer, ganiyan
din and pagkakahati sa servient estate horizontally. So
meron kang top portion, bottom portion. And the
right-of-way will be traversing from the top and the bottom.
So the partition or division of the servient estate into two
will not affect the existence of right-of-way.
The owner of the dominant estate may now traverse both
estates kasi nandun yung top and bottom portion nung
right-of-way, yung road. So dati, isa lang yung estate na
nattraverse kasi hindi pa nappartition. Pero nung
na-parition na, then it only means that the owner of the
dominant estate may now be traversing to the estates
instead of one but still the same right-of-way.
Ganun din naman kung si dominant estate ang nagging
subject of partition or division. It means that from one,
there will now be two dominant estates enjoying the
right-of-way through the servient estate, all because the
right-of-way is indivisible, it cannot be lost or acquired
partially.
3. Permanence
Once the easement has been established, then it will
continue and it may be used at any time unless it has been
extinguished for non-use of ten (10) years.
4. Perpetuity
servitude lasts as long as the dominant and the servient
estate exist unless earlier extinguished by one of the modes
provided for the law
DIFFERENT MODES OF ACQUIRING EASEMENTS
Q: What are the different modes?
A: Through:
1. Title
2. Prescription.
Q: When we say title, what do we mean?
A: It is the juridical act which gives rise to the easement or
servitude.
Q: What would be examples of juridical act?
A: A law, will, donation, or contract.
Q: What do we mean by prescription?
A: Prescription is premised on possession. You acquire it
through possession for the required number of years or
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
period of time. Under the law, you can only acquire
easements which are apparent and continuous by
prescription, but you can acquire all kinds of easements
through title.
Q: How come when it comes to prescription, the same
can only apply to easements which are apparent and
continuous?
A: It has to be apparent because possession as a basis for
prescription is required to be public or out in the open, and
of course that will not apply if the easement is hidden or
non-apparent.
At the same time, possession as a basis for prescription
must be uninterrupted kasi once interrupted, balik tayo sa
zero and we have to begin counting anew that is why it has
to be continuous. Mababago nalang ‘yung pagbibilang natin
ng period if we’re dealing with an easement which is
apparent and continuous and at the same time positive, or
an easement that is apparent and continuous and at the
same time negative.
Q: How do we compute the period if we’re dealing with
a positive easement and when we are dealing with a
negative easement?
A: Period: 10 years
When easement is positive: Period is counted from the
day on which the owner of the dominant estate commenced
to exercise it upon the servient estate
When easement is negative: Period is counted from the
day on which the owner of the dominant estate forbade, by
an instrument acknowledged before a notary public, the
owner of the servient estate, from executing an act which
would be lawful without the easement.
INTERPRETATION OF ARTICLE 624
Article 624. The existence of an apparent sign of
easement between two estates, established or maintained
by the owner of both, shall be considered, should either of
them be alienated, as a title in order that the easement
may continue actively and passively, unless, at the time the
ownership of the two estates is divided, the contrary
should be provided in the title of conveyance of either of
them, or the sign aforesaid should be removed before the
execution of the deed. This provision shall also apply in
case of the division of a thing owned in common by two or
more persons. (541a)
Art. 624 refers to easement by apparent sign. There are
two estates previously belonging to a single owner or
Page 52 of 128
there is an estate and two or more portion belongs to a
single owner. If those portions are alienated, it is
considered that the easements is continued because the
legal presumptions impose upon the apparent sign on
those estate or portions. The easement continues even
after alienation, unless the contrary is indicated in the
title of conveyance or if those apparent signs were
removed at the time of alienation.
Essentially, what we have here are two estates owned by
the same person, and between these two estates there
appears to be an apparent easement. Why apparent
easement and not outright easements? Because these
easements belong to the same owner. This is our number
1 criteria, the two estates must belong to two different
owners because you cannot constitute an easement of
your own property.
But like in our example, pwedeng you have two
properties magkatabi, and then put a road on the outer
estate, then nakakadaan ngayon yung mga tao from your
inner estate traversing the otuer estate getting to the
main road. You cannot say that there is a rightof way
because this is still your property and you do not need an
easement because you are doing is simply an act of
ownership.
Let us say that the right of way you put there is concrete
(sementado). This means it is apparent. There is now an
apparent sign of easement in your property. If you
dispose of either of these two properties, then the
existence of that apparent sign may serve as title that
will allow that easement to subsist either actively or
passively.
If you sold your outer estate, then the buyer of the outer
estate would have a right to demand access to the
remaining inner estate in your name. this is because he
has a basis for the title to the right of way. This basis is
the existence of the apparent easement of a right of way.
Maaring hindi mo naman intensiyon na ipagpatuloy yung
right of way through the outer estate that we made in
your ownership, but since we have Art 624 and therefore
there was definitely an apparent sign of easement
existing before you sold that property, then that will
serve as title in favor of the buyer of the inner estate
which will not be considered as the dominant estate
under Art. 624.
If you want to prevent this from happening, you can:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
1. Provide a contrary provision in the title or deed
of conveyance between you and your buyer –
“notwithstanding the apparent sigh or the
provision of Art. 624, you are not granting the
buyer any right of way in the property”
2. Destroy the road you constructed in your outer
estate that will be remaining in your ownership
because if you do so there will be no basis for the
right of way to subsists in favor of your buyer
RIGHTS AND OBLIGATIONS OF THE OWNERS OF
THE DOMINANT AND SERVIENT ESTATE
Dominant’s rights:
1. Use the easement and exercise all rights
necessary for the use of easement;
2. To do at his expense all necessary works for the
use and preservation of the easement
Dominant’s obligations:
1. At his expense, do all necessary works for the
use and preservation of the easement;
2. Notify the owner of the servient estate before
making repairs on the easement in a manner
least inconvenient to the servient estate;
3. Contribute to the expenses unless he renounces
his interests;
Servient’s rights:
1. Retain ownership and use of his property to
change the place or manner of the use of
easement
2. Use the easements
Servient’s obligations:
1. Not to impair the use of the easement
2. To contribute to the expenses if he uses the
easement
MODES OF EXTINGUISHING EASEMENTS
Art. 631. Easements are extinguished:
(1) By merger in the same person of the ownership of
the dominant and servient estates;
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(2) By nonuser for ten years; with respect to
discontinuous easements, this period shall be computed
from the day on which they ceased to be used; and, with
respect to continuous easements, from the day on which
an act contrary to the same took place;
(3) When either or both of the estates fall into such
condition that the easement cannot be used; but it shall
revive if the subsequent condition of the estates or either
of them should again permit its use, unless when the use
becomes possible, sufficient time for prescription has
elapsed, in accordance with the provisions of the
preceding number;
(4) By the expiration of the term or the fulfillment of
the condition, if the easement is temporary or
conditional;
(5) By the renunciation of the owner of the dominant
estate;
(6) By the redemption agreed upon between the owners
of the dominant and servient estates.
Q: In renunciation as a mode of extinguishing the
estate, in whose favor may the renunciation be made?
A: The law provides that renunciation must be made by the
owner of the dominant estate without a specific person in
mind as long as the renunciation is made clearly and
concisely.
So the renunciation must be a general renunciation. It
cannot be in favor of the servient estate, of the owner of the
servient estate.
Q: Why can’t the renunciation be done to the owner of
the servient estate?
A: Because the easement will not be ceded(?) to the owner
of the servient estate. Because he is the owner where the
easement exists.
Q: What about redemption?
A: Redemption is the agreement between the owner of the
dominant and servient estate whereby a consideration of a
certain amount which is paid by the owner of the servient
estate to the dominant estate so that said easement may be
extinguished.
Q: What is the basis of the owner of the servient estate
to be able to make this offer to pay the owner of the
dominant estate?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

A: The consideration would be the owner of the servient

which will impede this easement; neither can the owner
estate would be buying back his own property. of the higher estate make works which will increase the
burden. (552)
Q: This is simply going up to the owner of the servient
estate? That’s it?
1) Easement of Drainage of Waters
A: No. The law itself says that the redemption must be
agreed upon. There must be an agreement between them
that would allow the owner of the servient estate to make
such redemption. Otherwise, there would be no basis. You
cannot wake up one morning and decide that the estate
shall be removed from his property and impose his will
upon the owner of the dominant estate by simple removing
it, no. There must be an agreement.

LEGAL EASEMENTS

CHAPTER 2
LEGAL EASEMENTS
SECTION 1. - General Provisions
Art. 634. Easements imposed by law have for their object
either public use or the interest of private persons. (549)
Art. 635. All matters concerning easements established
for public or communal use shall be governed by the
special laws and regulations relating thereto, and, in the
absence thereof, by the provisions of this Title. (550)
Art. 636. Easements established by law in the interest of
private persons or for private use shall be governed by
the provisions of this Title, without prejudice to the
provisions of general or local laws and ordinances for the
general welfare.
These easements may be modified by agreement of the
interested parties, whenever the law does not prohibit it
or no injury is suffered by a third person. (551a)
LEGAL EASEMENTS AFFECTING WATER
SECTION 2. - Easements Relating to Waters
Art. 637. Lower estates are obliged to receive the waters
which naturally and without the intervention of man
descend from the higher estates, as well as the stones or
earth which they carry with them.
As you can see, there is a property on top of a hill, and this
corner would represent the lower estate. Under Article 637,
there is a legal easement created whereby the lower estate
is required to receive the water flowing from the higher
estate. Of course, the water would bring stones, earth, dirt,
and the lower estate is required to receive it all, provided
that it flows naturally with no intervention from man.
Part of the easement here is the prohibition on part of the
lower estate from constructing works which will impede
the easement. No wall or drainage which would prevent the
water from flowing into his property.
Q: Why do we have this kind of legal easement?
A: This is provided by law to ensure continuity of the water
cycle.
The idea is we have to make sure that water flowing from
the higher estate would flow and find its way back to the
oceans. That would allow them to evaporate back to the
clouds, and then bring rains. And we know how important
rain is to us. If there is no rain, then there will be droughts
and we will have water shortage. So that is the reason why
the owner of the lower estate cannot impede the flow of
water through his property.

The owner of the lower estate cannot construct works

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UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

2) Easement of Public Use 3) Easement of Towpath

Article 638. The banks of rivers and streams, even in

case they are of private ownership, are subject
throughout their entire length and within a zone of
three meters along their margins, to the easement of
public use in the general interest of navigation, floatage,
fishing and salvage.
Nasa may riverbank siya. Hinihila niya yung barge. This is
an instance where there is an easement to impose on this
riparian estate.
4) Easement of Drawing Waters

Estates adjoining the banks of navigable or floatable

rivers are, furthermore, subject to the easement of
towpath for the exclusive service of river navigation and
floatage.

If it be necessary for such purpose to occupy lands of

private ownership, the proper indemnity shall first be
paid.

Art.638 provides for the easement that the law imposes

along the entire length of the banks or the shore of rivers or
streams. You would measure 3meters from the margin
where the water touches the shore. And this 3meters would
be open to the public.
Maybe you observed, while you are vacationing and you’re
renting a beachfront property, you would notice that
although the portion you’re occupying is privately owned,
people will just walk freely in front of the property, or boats
dock in front of the same, without asking for permission
from the owner of the property. Because there is this
3meters which is preserved by law, for use by the public, or
for the general interest of navigation, floatage, fishing and
salvage.
Article 640. Compulsory easements for drawing water
or for watering animals can be imposed only for reasons
of public use in favor of a town or village, after payment
of the proper indemnity.
This can be an example of a personal servitude, since it is
imposed on an estate for the benefit of the community. Just
about anyone who gives access to the water may pass
through this fact, which leads to the body of water. And
since the purpose here is not just to allow the community to
draw water, but also to bring their animals to the source of
the water, the size would be big enough to allow not just
people, but also the animals that they will have to bring to
be able to get water.

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UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
5) Easement of Abutment of Dam
Article 639. Whenever for the diversion or taking of
water from a river or brook, or for the use of any other
continuous or discontinuous stream, it should be
necessary to build a dam, and the person who is to
construct it is not the owner of the banks, or lands
which must support it, he may establish the easement of
abutment of a dam, after payment of the proper
indemnity.
Here, you want to build a dam. What is the purpose of a
dam? To be able to keep water in a certain place to create a
pool, a reservoir. So, you will build a wall that will prevent
the water from flowing out of the portion that you’re going
to use as your reservoir. Also, your wall, kelangan meron
kang kinakabitan dyan, you need to have an abutment
contact. And if the property belongs to someone else, then
the person who is constructing the dam, would have to pay
proper indemnity to the owner of the property upon which
the abutment may be made.
So, makikita niyo dito, eto yung contact, dito nakadikit yung
wall. And the owner of this property here, siya yung
sinasabi nating owner of the servient estate, and he will
now have to be paid indemnity for the intrusion upon his
property because of the dam that was constructed.
If you travel to Baler, meron dun Pantabangan Dam, and you
will be crossing atop of the wall of the dam itself. Yung
kabilang side nun, the side where the wall is connected to
land, yun yung abutment contact.
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6) Easement of Aqueduct
Article 644. The easement of aqueduct for private
interest cannot be imposed on buildings, courtyards,
annexes, or outhouses, or on orchards or gardens
already existing.
Article 645. The easement of aqueduct does not
prevent the owner of the servient estate from closing or
fencing it, or from building over the aqueduct in such
manner as not to cause the latter any damage, or render
necessary repairs and cleanings impossible.
Article 646. For legal purposes, the easement of
aqueduct shall be considered as continuous and
apparent, even though the flow of the water may not be
continuous, or its use depends upon the needs of the
dominant estate, or upon a schedule of alternate days or
hours.
Water is gathered at certain points, usually, the water will
be gathered from the highest points of the land. And there
will be a drainage that would be built, that would traverse
property. Kung makikita niyo dito, from this perspective,
you’ll have an idea kung gano kahaba yung aqueduct. And
water will simply flow through, and get to the point where it
is intended to be caught, from the source.
And this is not a new concept, kasi duon sa European
countries, yung na-occupy ng mga Romans before. You’ll see
the aqueducts, one of the more famous ones can be found in
Segovia. So, that would traverse kilometers of property, the
purpose would be to catch water from a source or pwedeng
sa falls, or from the rains. And then they will be brought to
the further ends of the province or the place where the
aqueducts were built.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

7) Easement of Stop Lock or Sluice Gate

Remember: This is demandable if there is necessity for
access on the part of the dominant estate. It cannot be a
Article 647. One who for the purpose of irrigating or
question of convenience only. The right of way will not exist
improving his estate, has to construct a stop lock or
simply because it happens to be convenient. It must be born
sluice gate in the bed of the stream from which the
out of necessity.
water is to be taken, may demand that the owners of the
banks permit its construction, after payment of
damages, including those caused by the new easement SECTION 3
to such owners and to the other irrigators. Easement of Right of Way

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

This would be a stop lock or sluice gate. What you do here is
you lower this unto, into the waters and then, unto the bed
of the river. So water will be locked in. Water will always
take its own level. So, if water cannot flow through, because
the gate is closed, then water will flow back. And then, when
water flows back, then the water will get to the properties,
which need irrigation.
But, to be able to build this, you will need to use the lands
on either bank of the river. So dito nagkakaron ng
easements. If you’ll see, the gate is connected to the
construction, which abuts on land. So if this land belongs to
other people. Then, they must be paid indemnity, for the
intrusion into their land.
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.
In case the right of way is limited to the necessary
passage for the cultivation of the estate surrounded by
others and for the gathering of its crops through the
servient estate without a permanent way, the indemnity
shall consist in the payment of the damage caused by
such encumbrance.
This easement is not compulsory if the isolation of the
immovable is due to the proprietor's own acts. (564a)

Easements just restrict ownership, Hindi talaga kinukuha

yung property mo, but there comes restriction.

EASEMENT OF RIGHT OF WAY

Requisites for the Easement to be Granted

1. there must be a claimant who is the owner of an
enclosed immovable
2. there is no adequate outlet through a public
highway
3. it must be absolutely necessary
4. the isolation must not be due to the claimant’s act
5. the easement is established at the point which is There is a necessity because Abel’s property is completely
least prejudicial to the servient estate. surrounded by Baker’s property and there is no access from
Abel’s property to the main road, except through Baker’s
It must be established at the point that is least prejudicial to property.
the servient estate. And if possible, which also would
provides the shortest distance between the owner of the Where do you put the right of way?
dominant estate and the main road.

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UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

It should be the point which is least prejudicial to the owner

of the servient estate. If possible it should afford the EASEMENT OF PARTY WALL
shortest distance between the dominant estate and the
main road.

In this illustration, it is the least prejudicial and at the same

time, constitutes the shortest distance between the
dominant estate and the main road.

It is important that there should be a proper payment of

indemnity.

Q: What would be the measure of indemnity?

A:

1. Easement is continuous and permanent – value

of the land occupied + amount of damage caused to
the servient estate

2. Easement is temporary – amount of the damage

caused to the servient estate

Q: What will be the implication of paying the value of
the property or the portion taken for the right of way?
Does this mean ownership over that portion would be
transferred to the owner of the dominant estate?
A: The payment of indemnity consisting of the value of the
portion of the land taken will not result in the acquisition by
the dominant estate of that portion which he has a right of
way because the owner of the estate cannot have an
easement over his property. By the same totem, the owner
of the dominant estate will not acquire ownership over that
portion of land on which the easement in favor of his estate
exists. Masisira yung requirement that the estates should
belong to different owners.
Second, the owner of the servient state may always change
the location of the right of way. So if it were true that the
owner of the dominant estate will be acquiring ownership
over the portion of the land used as a right of way, then the
owner of the servient estate should no longer be able to
change its location. Pero sa batas, the owner of the servient
estate can always change the location of the right of way if it
proves to be inconvenient for him.
Third, when the land is paid from the encumbrance upon
the redemption, upon the return of the indemnity, then the
property is simply freed of its restriction. The ownership
still remaining, in fact never left the owner of the servient
estate.
This right of way would include the right given to the
workers that may be building or constructing the house of
your neighbor and would require to access your property to
put up scaffoldings.
Q: What is the concept of a party wall?
A: A party wall is a common wall which separates two
estates, built by through a common agreement at the
dividing line such that it occupies a portion of each estate in
more or less equal parts.
When there is a party wall and it is established as a party
wall, then basically, it will be considered as a wall that is
co-owned by the two adjoining lots.
There is a co-ownership that is recognized in the party wall.
This is not like the usual co-ownership we have
encountered before. Here in a party wall, there is a clear
delineation of the ownership by each of the neighboring lots
– one side of the wall belongs to the estate where it is facing.
This implies that when the existence of a party wall is not
disproved, then the area of the properties would extend up
to the dividing line between the two sides of the party wall.
Why is this significant? For example, kunwari ikaw lang ang
nagtayo nung dividing wall and you placed it inside the
perimeter of your property. And yet, through inaction, you
never disputed that the wall is your wall instead of being a
party wall, then ang mangyayari ay yung kapitbahay mo ay
kakain pa nung kalahati nung area nung dividing wall that
you put up. And since you built that wall within the
perimeter of your property, ang ibig-sabihin din niyan ay
kakain siya ng portion ng property mo.
For example, if the measurement of your party wall is 4ft by
20ft, then ½ of that wall will be 80sq. feet. That means your

Page 58 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
property will be reduced by that much because of your
failure to refute that the dividing wall is a party wall.
Q: Instances where a party wall is presumed to exist:
A:
ARTICLE 659. The existence of an easement of party
wall is presumed, unless there is a title, or exterior sign,
or proof to the contrary:
(1) In dividing walls of adjoining buildings up to the
point of common elevation;
(2) In dividing walls of gardens or yards situated in
cities, towns, or in rural communities;
(3) In fences, walls and live hedges dividing rural lands.
Refer to illustration of Party Wall Type B:
As you can see, the adjoining estates are using the same
wall to support their structures like floors and roofs. But for
building 2, there are three floors while building 1 has only 2
floors. So, the presumption here is that the party wall is
only up to the point of common elevation – only up to the
2nd floor of both buildings that are similar in terms of
elevation.
Now, with regard to the extension (the portion where the
3rd floor of building 2 rests upon), it will no longer be
considered a party wall because it may have happened that
only the owner of building 2 built the additional height on
the party wall to support the rest of his building. But that is
just a presumption.
Page 59 of 128
Similarly, if you have dividing walls of gardens or yards,
these would be presumed to be a party wall. So, what will
happen is you will divide the wall down the middle and
then each side would belong to the property it faces. A party
wall need not be concrete – it could be fences, walls, or live
hedges.
ARTICLE 660. It is understood that there is an exterior
sign, contrary to the easement of party wall:
(1) Whenever in the dividing wall of buildings there is a
window or opening;
(2) Whenever the dividing wall is, on one side, straight
and plumb on all its facement, and on the other, it has
similar conditions on the upper part, but the lower part
slants or projects outward;
(3) Whenever the entire wall is built within the
boundaries of one of the estates;
(4) Whenever the dividing wall bears the burden of the
binding beams, floors and roof frame of one of the
buildings, but not those of the others;
(5) Whenever the dividing wall between courtyards,
gardens, and tenements is constructed in such a way
that the coping sheds the water upon only one of the
estates;
(6) Whenever the dividing wall, being built of masonry,
has stepping stones, which at certain intervals project
from the surface on one side only, but not on the other;
(7) Whenever lands enclosed by fences or live hedges
adjoin others which are not enclosed.
In all these cases, the ownership of the walls, fences or
hedges shall be deemed to belong exclusively to the
owner of the property or tenement which has in its favor
the presumption based on any one of these signs.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
(1): It illustrates how you could have openings in the
dividing walls. Baka kasi iniisip niyo na yung opening
kailangan parang bintana. No, kahit simple openings lang. If
you have openings, it will not be considered as a party wall
– it will be taken as a sign that the dividing wall is not a
party wall.
(2): This is fairly common here in Metro Manila. As you can
see, one side of the wall would be straight and put well
together and then the other side is not as nicely done as the
other side. So, the conclusion may be that the side that was
nicely done was built solely through the efforts of the owner
of the lot where it faces. And then the other side, since it is
no longer his portion, then it is not as nicely made.
(3) So here, you can see that the dividing wall is well within
the boundary line. You may say that the wall supports the
structure of the adjacent property. But the fact that it is built
within the line of the first property negates the existence of
any sign that it is a party wall. Instead, it is the wall of
property 1.
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(4): Here, parang modification ng item 3. Here, the dividing
wall only supports the binding beams, the roof and the floor
of one of the buildings but not the other. So, definitely you
cannot say that it is a party wall.
(5): This would be the coping sheds whose purpose is to
direct water to fall onto the estate. Now, if this is built in
such a way that the water is directed to fall within the
boundary of only one of the estates, then this will not be
considered a party wall.
(6) We have a dividing wall, but on one side there are
stepping stones. There is none on the other side. This is
simply a wall belonging to the estate on whose side the
stepping stones appear.
(7) In this case, the hedges only enclose singular properties.
These are not party walls.
(8) In some provincial areas, the dividing walls are not
walls but are merely ditches or drains. The presumption is
that they are common, that they are like dividing walls, that
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
there will be co-ownership unless there is title or signs
showing to the contrary.
Art. 661. Ditches or drains opened between two estates
are also presumed as common to both, if there is no title
or sign showing the contrary.
There is a sign contrary to the part-ownership whenever
the earth or dirt removed to open the ditch or to clean it
is only on one side thereof, in which case the ownership
of the ditch shall belong exclusively to the owner of the
land having this exterior sign in its favor.
Here, if you have the earth removed from the ditch and
placed on one side thereof, the presumption is that it
belongs to the owner of the land having this exterior sign
[excess earth] since when he dug up the earth, he would put
the excess earth within his property.
EASEMENT OF LIGHT AND VIEW
If you would want to acquire the easement of light and view
through prescription, then we must observe the distances
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provided in the law. If you do not observe this, there is no
basis for the acquisitive prescription.
There are only two figures to remember:
1. 2 meters – measured from openings of the walls of
the buildings up to the boundary. If the window has
a balcony, then you will measure from the outer
line of the balcony, not from the wall where the
opening is made.
2. 60 cm - if it is an oblique view [you are not looking
into the property in front of you, but sideways].
These measurements will not be applicable a road between
the two estates. In this case, there should be a measurement
of 3 meters.
Art. 669. When the distances in Article 670 are not
observed, the owner of a wall which is not party wall,
adjoining a tenement or piece of land belonging to
another, can make in it openings to admit light at the
height of the ceiling joints or immediately under the
ceiling, and of the size of thirty centimeters square, and,
in every case, with an iron grating imbedded in the wall
and with a wire screen.
Nevertheless, the owner of the tenement or property
adjoining the wall in which the openings are made can
close them should he acquire part-ownership thereof, if
there be no stipulation to the contrary.
He can also obstruct them by constructing a building on
his land or by raising a wall thereon contiguous to that
having such openings, unless an easement of light has
been acquired.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

If you do not observe the 2 meter distance in building your

Art. 675. The owner of a tenement or a piece of land,
estate, you are not allowed to make any openings in the wall
subject to the easement of receiving water falling from
facing the adjoining estate.
roofs, may build in such manner as to receive the water
upon his own roof or give it another outlet in accordance
In this picture, we have a house that is right on the
with local ordinances or customs, and in such a way as
boundary line. There are no windows in that side since the
not to cause any nuisance or damage whatever to the
wall is already on the boundary.
dominant estate.
The only opening that will be allowed is right under the
ceiling joints. The measurement is very specific, which
should be 30 sq. cm. and that there should be iron gratings
and a wire screen since the purpose of these windows are
no longer for view, but for light. If it is for viewing, you will
be violating the right to privacy of the adjoining landowner.

There is also this counterpart right given to the owner of

the adjoining property who can make or construct in such a
way that would obstruct the openings unless the easement
of light has already been acquired.

EASEMENT OF DRAINAGE OF BUILDINGS

Art. 674. The owner of a building shall be obliged to
construct its roof or covering in such manner that the
rain water shall fall on his own land or on a street or
public place, and not on the land of his neighbor, even
though the adjacent land may belong to two or more
persons, one of whom is the owner of the roof. Even if it
should fall on his own land, the owner shall be obliged to
collect the water in such a way as not to cause damage to
the adjacent land or tenement.
If there is an easement that is acquired, the owner of the
tenement or the piece of land subject to the easement is
receiving water falling from roofs, he may build in such a
manner as to receive the water upon his own roof or give it
another outlet.
He may accept to receive water or he may utilize another
method so that the water will flow out of his property into
an outlet that he may build in his property.
Art. 676. Whenever the yard or court of a house is
surrounded by other houses, and it is not possible to give
an outlet through the house itself to the rain water
collected thereon, the establishment of an easement of
drainage can be demanded, giving an outlet to the water
at the point of the contiguous lands or tenements where
its egress may be easiest, and establishing a conduit for
the drainage in such manner as to cause the least damage
to the servient estate, after payment of the property
indemnity.

In drainage of buildings, essentially you must direct your

waters not to the land of your neighbor, but directly to the
canals.

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4D – CIVIL LAW REVIEW AY 2022-2023

In this case, there is a mechanism that would allow water to

Art. 683. Subject to zoning, health, police and other laws
be drained through the estate of another. There is an outlet
and regulations, factories and shops may be maintained
underground.
provided the least possible annoyance is caused to the
neighborhood.
INTERMEDIATE DISTANCES AND WORKS FOR
CERTAIN CONSTRUCTIONS AND PLANTINGS

EASEMENT OF LATERAL AND SUBJACENT

SUPPORT

ART. 679. No trees shall be planted near a tenement or Sec. 684. No proprietor shall make such excavations
piece of land belonging to another except at the distance upon his land as to deprive any adjacent land or building
authorized by the ordinances or customs of the place, and, of sufficient lateral or subjacent support
in the absence thereof, at a distance of at least 2 meters
from the dividing line of estates if tall trees are planted
and at a distance of at least 50 cm if shrubs or small trees
are planted.

Every landowner shall have the right to demand that trees

hereafter planted at a shorter distance from his land or
tenement be uprooted.

The provisions of this article also apply to trees which

have grown spontaneously.

In this case, 50 cm from the property line is sufficient.

EASEMENT AGAINST NUISANCE

Art. 682. Every building or piece of land is subject to the

easement which prohibits the proprietor or possessor
from committing nuisance through noise, jarring, You have to make sure that the excavations that you are
offensive odor, smoke, heat, dust, water, glare and other making will not weaken the foundation of the existing
causes. buildings in the adjoining lot.

Page 63 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

Number 2, the law defines donation as an act. And yet it

DONATIONS
provides in its subsequent provisions, that donations will
be governed suppletorily by the law on contracts. In fact,
Art. 725. Donation is an act of liberality whereby a person when you are dealing with onerous donations (donations
disposes gratuitously of a thing or right in favor of another, with burdens), they are supposed to be treated as contracts.
who accepts it.
Art. 733. Donations with an onerous cause shall be
Donation – defined in the law as an act of liberality governed by the rules on contracts and remuneratory
whereby a person disposes gratuitously of a thing or right donations by the provisions of the present Title as
in favor of another who accepts it. regards that portion which exceeds the value of the
burden imposed.
Requisites
1. Donor must have the capacity to make donation; o
Even in modal donations, the portion which exceeds the
Donor must have the capacity to contract and the
value of the burden, ‘yun lang ang ita-trato nating donation.
capacity to dispose of his property. o Determined at
But insofar as the value of the property donated and the
the time of the making of the donation.
burden coincide, we have to treat it as an onerous donation
2. Donative intent or animus donandi;
and therefore, governed by the law on contracts.
3. Delivery;
4. Donee must accept or consent during the lifetime
‘Yun ‘yung mindset natin. We cannot fully subscribe to what
of the donor or donee (in case of donation inter
the law says that it is a mere act of liberality because of
vivos)
these considerations that we mentioned.
You have encountered transactions before where liberality
Another important aspect to donation would be the
was also a consideration e.g. commodatum, depositum. But
classification of donations under the law. We have the most
these transactions even though they may be supported by
important classification: donation mortis causa and
liberality as consideration, they do not amount to
donation inter vivos.
donations. Kasi donations contemplate transfer of
ownership kaya donation is even included as a mode of
CLASSIFICATION OF DONATION
acquisition of ownership.

Which begs the question, ibig sabihin ba nito kapag A. As to effectivity

donation hindi na kailangan ng traditio? Because ownership
is transferred by the fact of donation itself? 1. Donation mortis causa – donation that takes
effect upon the death of the donor.
This is contradicted by provisions in the law on donations
pa rin because under the law on donations, there are 1. 2. Donation inter vivos – donation that takes
certain donations which would require delivery to make the effect during the lifetime of the donor.
donation valid. And this will happen in oral donations of
movable property whose value does not exceed P5,000. a. Simple Donations
b. Remuneratory Donations
Ang nangyari, nagkataon that traditio under Philippine law,
is the mode of transferring ownership. That is one B. As to effect
consideration against treating donation as a mode of 1. Pure
acquiring ownership -- the requirement of delivery for 2. Conditional
certain kinds of donations. 3. Donation with a term
4. Onerous
Art. 726. When a person gives to another a thing or right
a.mixed
on account of the latter's merits or of the services
b.modal
rendered by him to the donor, provided they do not
constitute a demandable debt, or when the gift imposes
upon the donee a burden which is less than the value of
the thing given, there is also a donation.

Page 64 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
DONATIONS MORTIS CAUSA
Art. 728. Donations which are to take effect upon the death
of the donor partake of the nature of testamentary
provisions, and shall be governed by the rules established in
the Title on Succession.
It is defined under Art. 728, but the definition under Art.
728, also takes out donation mortis causa of the scope of
donations in general.
Ano ‘yung shorthand interpretation natin dito? There is no
such thing as donation mortis causa anymore. Kasi once
we have a donation which takes effect at point of death of
donor, then that would be a testamentary disposition.
And being a testamentary disposition, it must be in the form
of a last will and testament, either holographic or notarial.
Q: If that is the case, what is the purpose of having a
classification of donation as a donation mortis causa
kung testamentary disposition din pala?
A: We have this classification of donation mortis causa to
tell us when a donation or when a disposition has been
made should be declared void for not being in the proper
form. Put simply, the classification guides us as to what the
proper form of the transfer should be in order to be valid.
Because if we are classifying [something] as donation mortis
causa and it is not embodied in a last will and testament,
the conclusion is it is null and void. There is no disposition
to speak of.
If we classify something as donation mortis causa and we
see that it is embodied in a last will and testament, then it is
valid.
To further have your head wrapped around the concept,
tatandaan niyo na hindi naman lahat ng gumagawa ng
instruments at abogado at hindi rin naman lahat ng
abogado nakakaintindi ng nuances ng batas. Some would
label the document as donation mortis causa thinking na
pwede ‘yun, that there is such a thing. Kapag nakita mo ‘yun
at sa donation mortis causa, then what is the first thing you
would look at? Titingnan mo ‘yung form. Is it in the proper
form? And what form should it be? Last will and testament.
If hindi siya naka-last will and testament, then definitely it
cannot be considered as a valid disposition taking effect
upon death.
But it will not necessarily mean that there is no valid
disposition kasi pwede namang kapag binasa mo pala
‘yung body nung instrument, it was not intended to be a
donation mortis causa. It was meant to take effect during
the lifetime of the grantor, only his intention was to reserve
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the usufruct/enjoyment of the property in his favor. E hindi
niya alam na may ganun pa lang possible version ng
donation inter vivos, so if you see that provision in the
instrument, your conclusion should be that this is not a
donation mortis causa at all. This is a donation inter vivos.
Because it might take effect during the lifetime of the donor
even though the intention was to delay delivery after his
death. What is controlling is not the title but the provisions
of the instrument. And since this is a donation inter vivos, if
it involves immovable or movable property and is notarized
and accepted in the same instrument, then papasa pa to as a
donation intervivos. It may have failed as a donation mortis
causa becase it was not embodied in the will but it turns out
that it is intended to be a donation intervivos, then we can
still give effect to the transfer. However, it is no longer a
testamentary disposition because it was never a
testamentary donation but a donation intervivos.
We started with an instrument denominated as a donation
mortis causa. Then we disregarded that because it is not in
the proper form. But we looked into the provisions and
concluded that it was a donation intervivos in compliant
with the proper formalities. Then there is a valid transfer.
Characteristics of a donation mortis causa
1. Must not convey title or ownership before the
death of the transferror.
2. Must provide that before his death, the transfer
should be revocable at will because this is a
characteristic of a testamentary disposition. For
any reason or no reason at all (anathema to a
donation inter vivos because you can only revoke
upon grounds provided by law)
3. If the transfer would become void should the
transferor survive the transferee
a. Because if the heir, devisee or legatee is no
longer alive at the time of your death, then
he no longer has the capacity to inherit.
(The basic requisite for a person to have
capacity to inherit is for him to have a
pulse. He must still be alive.)
When a donation is inter vivos or mortis causa
1. Look into when ownership is transferred. If
ownership is transferred during the lifetime of the
donor, it is a donation inter vivos. If ownership is
transferred only upon death of the donor, it is
donatio mortis causa.
2. Why is there a need to know whether a donation is
inter vivos or mortis causa? To determine validity
and revocability
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
DONATIONS INTER VIVOS
Important provisions: Article 730 and 731
Article 730. The fixing of an event or the imposition of a
suspensive condition, which may take place beyond the
natural expectation of life of the donor, does not destroy
the nature of the act as a donation inter vivos, unless a
contrary intention appears.
Article 731. When a person donates something, subject to
the resolutory condition of the donor's survival, there is a
donation inter vivos.
It may be said by the donor making a donation in favor of a
person still in highschool that the donation is made subject
to the suspensive condition that he become a lawyer. If the
donor is already old, there is the possibility that the event
or condition will not be fulfilled during his lifetime.
Q: Would the fact that the condition is fulfilled after the
death of the donor render the donation one of mortis
causa or inter vivos?
A: Still inter vivos because the fulfillment of the suspensive
condition has retroactive effect from the time the donation
was made.
Bakit ganun yung rule? Bakit kahit na fulfill mo na, the
condition takes place after the death of the donor, we still
treat it as a donation inter vivos. The reason is since it is
subject to a suspensive condition, then the happening of the
fulfillment of the condition has the effect of retroacting to
the time when the donation was made. Yun yung
characteristic ng obligation subject to a suspensive
condition. At sabi nga natin donations are governed
suppletorily by the law on obligations and contracts. So may
basis tayo for applying that rule.
So since we retroact, it is as though the condition was
already fulfilled at the time the donation was made and
therefore the donation took effect not after the death of the
donor but during his lifetime when he first made the
donation. Then look at Article 731.
Medyo delikado tong article na to kasi kapag ikaw ay
nag-donate and it is subject to the resolutory condition of
you surviving, meaning to say the donation loses its effect
should you survive a certain event, or date eh maraming
magdadasal para wag kang mag-survive. For example, pag
sumakay ka ng eroplano at pakiramdam mo eh it’s
dangerous, so dinonate mo lahat ng property mo subject to
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the resolutory condition that if you survive this plane trip
wala ng epekto yung donation.
The more important point is this, if this is the situation, why
do we treat this as donation inter vivos? Kasi admittedly
whenever the donor’s life or death is mentioned medyo tayo
ay nalilihis. Parati natin naiisip na pag binanggit yung
kamatayan ng donor, automatic donation in mortis causa.
But you have to look at the fine print so to speak which is
the donation is subject to a resolutory condition.
The effect of the resolutory condition is that it extinguishes
the right. And if it’s supposed to extinguish the right, then
what does that imply? It clearly implies that the right
already existed.
So the conclusion here is this, under this provision, the
donation immediately takes effect. Eh yun lang naman ang
concern natin sa donation inter vivos that it takes effect
during lifetime of the donor and clearly that requirement is
met here in this situation. That the donation loses its effect
should the donor survive does not matter anymore because
what we need to be concerned with is the fact that it take
effect during the lifetime of the donor.
TYPES OF DONATION INTER VIVOS
Sabi natin kanina, donation inter vivos may be divided into
two classes: simple and remuneratory
A. Simple Donations
There is no donation other than the liberality of the donor,
talagang pure liberality lang.
B. Remuneratory Donations
Those which are given in recognition of services that are
previously rendered. (Reminder: Services must not
constitute or must not be devise to be demandable,
obligations or treatment)
e.g. After you graduate and become lawyers, you might
want to reward the persons who took care of you. Hindi
mga magulang niyo because they were never in your
service. We are speaking of persons who are working for
you or for your family. They can be your yaya, if you grew up
with a yaya. Maaaring matanda na sila or retired na sila
ngayon kasi matatanda na kayo but they were treated as a
family.
Now if you would want to give them something in
recognition of their past service, then that would constitute
a remuneratory donation.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Pero kung yung yaya niyo ay hindi pa rin bayad kahit na
graduate na kayo ng lawschool, ibang usapan na yun kung
kayo ay magbabayad. Because what you will be giving is just
a payment demandable due to the sums from you or for
your family.
CLASSIFICATION OF DONATION AS TO ITS EFFECTS
a) Pure
You may ask, hindi ba dapat parehas yung pure and simple
donations? No kasi dun sa simple sabi natin, the
consideration is pure liberality. Kasi sa simple, katulad na
lang sa obligations, we do not have any conditions, terms
and modes attached to the donation. So it takes effect
immediately. Within the parameters or within the context of
the formalities for donations.
b) Conditional or With a Term
Again, katulad sa obligations, these are donations subject to
a future and uncertain event which may either be
suspensive or resolutory. Then donations would affirm,
these are those whose demandability depends on the
arrival of the term or whose extinguishment may also
depend on the arrival of the term. Suspensive or Resolutory
din siya.
c) Onerous
We also have onerous donations. An onerous donation
may actually include the so called improper or mixed
donations. Ang key sa onerous donation is that there is a
burden imposed on the donation, and it will be classified as
an onerous donation if the burden is inferior to the value of
the property donated. Now, it becomes an improper
donation if the value of the burden is equal to the value of
the property.
d) Mixed donation
A mixed donation is one which contains an onerous
transaction. For instance, binebenta sa iyo for a price which
is lower than the market value of the property.
e) Modal/Conditional donation
A modal donation. This is different from the modal
testamentary disposition under the laws on wills and
succession. The mode is the prestation that must be
performed by the donee, and how is it different from a
condition? It obligates, a condition does not obligate. If you
are given a mode, then you are required to perform to
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complete the same. But if the donation given to you is
subject to a condition, you are not obligated to fulfill the
condition. It may even happen that the fulfillment of the
condition is dependent on the will of a third person.
Q: How should you treat a modal donation?
A: It takes effect immediately, but should you be not able to
carry out the mode, then the donation may be set aside and
it may lose its effect.
Q: What is the importance of knowing these different
classifications of donations according to effect?
A: This will tell us what law will govern the donation kasi if
it is a pure donation, it will be governed by the law on
donation and suppletorily by the law on obligations and
contracts, but if it is an onerous donation, it will be
governed by the law on obligations and contracts because it
will be treated as a contract.
Also, we will need to know the classification of the donation
as to effects to determine the imposition of an illegal or
impossible condition.
Article 727. Illegal or impossible conditions in simple
and remuneratory donations shall be considered as not
imposed.
Q: What kind of conditions can be imposed when you
are making a donation?
A: Basically, since you are the grantor, you control the
circumstances under which the donation will take effect,
and among the matters left to your discretion will be the
imposition of conditions. Now, if we are dealing with an
ordinary contract, then you have the same ruling, pero if it
is an ordinary contract, and you impose a condition that is
impossible or illegal, it will render the entire obligation null
and void but not so for simple and remuneratory donations.
Here, it is only the illegal or impossible conditions which
will be considered as not imposed. What happens then is
that simple and remuneratory donations which were
previously conditional would now become pure donations.
Q: Article 727 refers only to simple and remuneratory
donations. What about onerous donations? Supposing
you have an onerous donation and there is an illegal or
impossible condition imposed?
A: In that case, we will have to consider both the condition
and the donation. If we are dealing with an onerous
donation, the law says that will be treated as a contract, and
under the laws of obligations and contracts, if we have an
onerous donation and there is an illegal or impossible
condition imposed, then it will render the contract null and
void, and not just the condition.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Art. 732. Donations which are to take effect inter vivos
shall be governed by the general provisions on contracts
and obligations in all that is not determined in this Title.
(621)
Art. 733. Donations with an onerous cause shall be
governed by the rules on contracts and remuneratory
donations by the provisions of the present Title as
regards that portion which exceeds the value of the
burden imposed. (622)
The use of remuneratory here is improper. This should be
read as “onerous donations” because it speaks of a burden.
Q: When is a donation is perfected?
A: A donation is perfected from the moment the donor
knows of the acceptance by the donee.
Sometimes, pag tinatanong kayo at nagmamadali kayo, you
would forget to say from the moment of knowledge of the
acceptance, but that is wrong. What is essential in contracts
is offer and acceptance. Acceptance should be
communicated to the offeror, and that also applies in
donations. Acceptance should be communicated to the
donor for us to have a perfected donation.
Q: What is the fffect of the perfection of the donation
A: Once a donation inter vivos is perfected, the property
donated ceases to be part of the donor’s estate.
Delivery here is not needed, except if delivery is an element
of formalities affecting the donation concerned, especially if
it is a donation of immovable property not worth more than
PHP5,000. Before, you can do it orally but must be
accompanied with simultaneous delivery. In all other cases,
it appears that perfection of the donations takes place upon
knowledge of the acceptance, which also transfers the
ownership to the donee.
Q: Who may give or receive a donation?
A: Essentially, anyone who has control of his property may
make a donation.
Q: Who may be a donee?
A: Anyone may be a donee, unless he has been disqualified
by law.
Page 68 of 128
Art. 739. The following donations shall be void:
(1) Those made between persons who were guilty of
adultery or concubinage at the time of the donation;
(2) Those made between persons found guilty of the
same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration
of nullity may be brought by the spouse of the donor or
donee; and the guilt of the donor and donee may be
proved by preponderance of evidence in the same action.
(n)
(1) Those made between persons who were
guilty of adultery or concubinage at the time of
the donation;
Those guilty of adultery and concubinage need not be those
who are guilty in a criminal case. In here, those who seek to
annul the donation can prove by preponderance of evidence
in the same action.
This is because concubinage is difficult to prove, while
adultery is easy. And in criminal cases, guilty beyond
reasonable doubt is the standard. Here, we only need
preponderance of evidence, and you will establish it in the
same action to have the donation declared null and void.
I assume you know the difference between having a
donation declared null and void, and in having a donation
revoked.
In a null and void donation, it is deemed to have never
existed at all with no rights or effects in favor of a donee. In
a revoked donation, there will be rights acquired by the
donee in the interim, in the time that the donation was not
revoked.
(2) Those made between persons found guilty of
the same criminal offense, in consideration
thereof;
This is a donation made by a third person in favor of
another or others. And they were asked to perform a
criminal offense or act.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his
office.
We prove that the donation was done by reason of his office
if there is no other obvious reason to make the donation.
If you don’t know your mayor, and you give a gift, it is
obvious that it is because of his office. If your donation was
given to a mayor who was your friend in law school who
dropped out and namulitika na lang, if you give a donation
to him, it won’t fall under this provision because you can
always cite your relationship to him. Pwede sana if
anti-graft and corruption, but under Art. 739, it won’t come
in.
Art. 740. Incapacity to succeed by will shall be applicable
to donations inter vivos. (n)
Insofar as capacity to be a donee is concerned, keep in mind
that the provisions of Art. 1027 and 1032 of the Civil Code
would also be applicable because Art.740 says, “Incapacity
to succeed by will shall be applicable to donations inter
vivos.”
Article 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testator
during his last illness, or the minister of the gospel who
extended spiritual aid to him during the same period;
(2) The relatives of such priest or minister of the gospel
within the fourth degree, the church, order, chapter,
community, organization, or institution to which such
priest or minister may belong;
(3) A guardian with respect to testamentary dispositions
given by a ward in his favor before the final accounts of
the guardianship have been approved, even if the testator
should die after the approval thereof; nevertheless, any
provision made by the ward in favor of the guardian
when the latter is his ascendant, descendant, brother,
sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the
spouse, parents, or children, or any one claiming under
such witness, spouse, parents, or children;
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(5) Any physician, surgeon, nurse, health officer or
druggist who took care of the testator during his last
illness;
(6) Individuals, associations and corporations not
permitted by law to inherit.
Article 1032. The following are incapable of succeeding
by reason of unworthiness:
(1) Parents who have abandoned their children or
induced their daughters to lead a corrupt or immoral life,
or attempted against their virtue;
(2) Any person who has been convicted of an attempt
against the life of the testator, his or her spouse,
descendants, or ascendants;
(3) Any person who has accused the testator of a crime
for which the law prescribes imprisonment for six years
or more, if the accusation has been found groundless;
(4) Any heir of full age who, having knowledge of the
violent death of the testator, should fail to report it to an
officer of the law within a month, unless the authorities
have already taken action; this prohibition shall not apply
to cases wherein, according to law, there is no obligation
to make an accusation;
(5) Any person convicted of adultery or concubinage with
the spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or
undue influence should cause the testator to make a will
or to change one already made;
(7) Any person who by the same means prevents another
from making a will, or from revoking one already made,
or who supplants, conceals, or alters the latter's will;
(8) Any person who falsifies or forges a supposed will of
the decedent.
After the forms of Donations, we have already mentioned
earlier, if it’s personal property, then it may be made orally,
or in writing.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

Q: Who are those other People who may be interested

Article 748. The donation of a movable may be made
orally or in writing.
An oral donation requires the simultaneous delivery of
the thing or of the document representing the right
donated.
If the value of the personal property donated exceeds
five thousand pesos, the donation and the acceptance
shall be made in writing. Otherwise, the donation shall
be void.
This is the reason why the donation of Maria to Pedro was
void; because it involved shares of stocks and the value was
more than 5k pesos. And it was not made in writing. It
exceeded the limit, and the limit would not be applicable
because the donation was not in a marriage settlement.
or potentially prejudiced by the donations that he
makes?
A: Creditors, because if you are going to donate all your
properties, and you will not leave any properties that would
be enough to support you, that may also mean that you will
also not leave properties that will pay for the loans you
made.
Q: In that case, would creditors have the same right as
those entitled to receive support from the donor?
Because under Art.750, an action to reduce donation
may be brought by such the person entitled to support,
affected by the donation. So papano yung creditors?
Because we established that the creditors are just as
adversely affected. Do they have the same right?
A: Art.750 does not mention them. Art.750 states, “those
entitled to be supported”.

If you’re dealing with immovable property, then what is

Article 750. The donation may comprehend all the
required is that it should be in a public instrument. Ideally,
present property of the donor, or part thereof, provided
both the donation and the acceptance must be made in the
he reserves, in full ownership or in usufruct, sufficient
same instrument. But if that is not possible, then acceptance
means for the support of himself, and of all relatives
may be made in a separate document. But it must be made
who, at the time of the acceptance of the donation, are
during the lifetime of the donor, and the acceptance must be
by law entitled to be supported by the donor. Without
communicated to the donor. The law says, it must be made
such reservation, the donation shall be reduced in
in an authentic form. Safe to say, that has been notarized as
petition of any person affected.
well.

And then, the communication of the acceptance, the notice
given to the donor of the acceptance, must be notated in
both instruments, meaning, the donation itself and the
acceptance itself. Notice given as of today, Nov. 27, 2022.
Why? Because that will ask whether the notice of
acceptance was communicated during the lifetime of the
donor. If the donation is not in the proper form, then it
becomes null and void.
Creditor’s Remedy:
Even though the law does not give the creditors any remedy
under the law and rules on succession, the law nonetheless
provides, under Art.759, that act of the donor in giving away
all of his properties without reserving sufficient properties
for himself, or for the payment of his debts, that would be
presumed to be in fraud of creditors.

Q: What may be donated?

Article 759. There being no stipulation regarding the
A: In Donation Inter vivos – we can only donate the present
payment of debts, the donee shall be responsible
property of the donor.
therefor only when the donation has been made in fraud
of creditors.
Limitation: Generally, the only limitation is he must reserve
in full ownership or usufruct sufficient means for his
The donation is always presumed to be in fraud of
support or for the support of those people who at the time
creditors, when at the time thereof the donor did not
of the acceptance of the donation are entitled to be
reserve sufficient property to pay his debts prior to the
supported by them. And if it does not make that reservation,
donation.
the donation shall be reduced in petition of any person
affected.
And it is in fraud of creditors on what right of action is given
Hindi lang naman yung mga taong may karapatan humingi to the affected creditor.
ng support sa donor ang may interest dun sa donation na
gagawin niya. Remedy of Accion Pauliana - one of the extreme remedies
under the law on obligations and contracts.

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UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

Or through jurisprudence, you can expose it perhaps as a

CHAPTER 3
donation which is absolutely simulated, and attack it as null
Effect of Donations and Limitations Thereon
and void. Kasi it is absolutely simulated, then it means not
supported by any consideration at all because it is simply a
Article 750. The donation may comprehend all the
ruse – hindi sya totoo.
present property of the donor, or part thereof, provided
he reserves, in full ownership or in usufruct, sufficient
There would be greater limitations if the person who is
means for the support of himself, and of all relatives who,
making the donation happens to have compulsory heirs.
at the time of the acceptance of the donation, are by law
Kasi if may compulsory heirs ka, the law does not only
entitled to be supported by the donor. Without such
require you to make a reservation of properties sufficient
reservation, the donation shall be reduced in petition of
for your means or for those who have a right to demand
any person affected. (634a)
support from you. The limitation will also be determined by
how much you are allowed to dispose of by way of
Article 751. Donations cannot comprehend future
testamentary succession. Kasi if there are compulsory heirs
property.
you can only dispose of the free portion.
By future property is understood anything which the
Q: How do we determine the free portion, buhay ka pa.
donor cannot dispose of at the time of the donation.
Alangan naman na pag nagbibigay ka ng free portion,
(635)
cino-compute mo na yung free portion. How does it
works?
A: After you die, all the donations you made during your GR: Donation cannot comprehend future property.
lifetime, these will be collated. The value of all these
donations will be brought back to form part of your estate XPN: Donation propter nuptias (between the future
(yung value lang). They will be collated for purposes of spouses)
determining how much the estate is worth. From that
determination, it will be computed how much would If you are making a donation propter nuptias of future
constitute the legitime of your compulsory heirs, and how property, the law requires that it be made in the form of
much is the free portion. Sa free portion, pag kakasyahin Wills and Succession.
doon lahat ng donations that you may have made during
your lifetime. If all these donations cannot fit in the free Previously, under the Civil Code, it was sufficient that you
portion, either there is revocation or reduction. make it in the marriage settlement, even though the DPN of
future property was supposed to only take effect upon
Q: How will we determine how much is reduced, how death. Kaya for a while, meron tayong tinatawag na
much is revoked? Contractual Succession (ordinary contract).
A: Under the law, we give priority to the earlier donations.
Yung mas huli, sila ang mas unang mababawasan, or mas This has been changed by the Family Code if you are going
unang mare-revoke. Yung mas nauna, they have greater to make such an act of donation, then you must have it
chances of being reserved. (will be tackled in detailed in embodied in a last will and testament. If a donation exceeds
Succession) the free portion and must be reduced or revoked will do so
on the ground of inofficiousness.

Article 752. The provisions of article 750

notwithstanding, no person may give or receive, by way
of donation, more than he may give or receive by will.

The donation shall be inofficious in all that it may exceed

this limitation. (636)

Page 71 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
ACCRETION IN TERMS OF DONATION
Article 753. When a donation is made to several persons
jointly, it is understood to be in equal shares, and there
shall be no right of accretion among them, unless the
donor has otherwise provided.
The preceding paragraph shall not be applicable to
donations made to the husband and wife jointly, between
whom there shall be a right of accretion, if the contrary
has not been provided by the donor. (637)
When a donation is made to several persons jointly. You
make a donation in favor of A, B, C and D. The result will be
co-ownership among them. But donations will not be
protected unless we have acceptance.
The donee may reject and should anyone of the donees
reject, there will be a portion without a donee (vacant
portion)
Q: Would this approve to the other donees?
A: No, unless the donor provides otherwise.
XPN to XPN: If the donees happen to be husband and wife.
Accretion will be the default, unless the donor says the
contrary.
Dito sa donation inter vivos, it is understood to be in equal
shares. (we will have a similar discussion under the Law on
Wills and Succession-Accretion) Would there be accretion if
the shares are not equal? Or dapat ba parating equal for
accretion to take place. (to be discussed in Wills and
Succession) In theory when it comes to intestate succession,
accretion follows as a matter of course. Ganun din ba sa
donation inter vivos?
REVERSION
ARTICLE 757. Reversion may be validly established in
favor of only the donor for any case and circumstances,
but not in favor of other persons unless they are all living
at the time of the donation.
Any reversion stipulated by the donor in favor of a third
person in violation of what is provided in the preceding
paragraph shall be void, but shall not nullify the donation.
Reversion simply means that the thing donated would be
returned to its former owner.
Q: Is this the same with revocation?
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A: No. It may have the same effect of returning the thing
donated back to its donor, but the manner would be
different.
In reversion, the return of the thing to the donor is provided
in the donation itself – a provision for reversion.
We speak of reversion as returning the thing donated to the
donor. But under our law, there can be reversion in favor of
a third person. If you would look closely at Art. 757, you
would see that a reversion in favor of a third person would
effectively be a limitation to the flow of the property. If
there is a provision for reversion in favor of a third person,
the donee does not have any discretion to dispose of the
property. The donee cannot even dispose the thing donated
to his own heirs because of the reversion.
Essentially, this reversion in favor of a third person is
similar to a fideicommissary substitution. So, what is the
effect? You are ultimately limiting the circulation of the
property by limiting where it may be given after the first
donee (heir, in case of substitution)
In a fideicommissary substitution, ang daming conditions
that must be met. Ganito rin tayo sa reversion in favor of a
third person. Under Art. 757, the third person in whose
favor the reversion is made is required to be living at the
time of donation. And of course, the reversion in favor of
third person cannot be made in the same manner as
reversion in favor of the donor. The reversion in favor of the
donor can be made for any case and circumstances. It is
more limited in the case of reversion in favor of a third
person.
Q: Now, what happens if you make a reversion in favor
of a third person which is contrary to what is provided
in the law?
A: The reversion will be void, but the donation will not be
nullified.
Let’s say that the donation simply states that there is
reversion or it is subject to reversion. If no person is
specified to be benefitted of the reversion, then it is
presumed to be in favor of the donor or his heirs.
REVOCATION AND REDUCTION OF DONATIONS
ARTICLE 760. Every donation inter vivos, made by a
person having no children or descendants, legitimate or
legitimated by subsequent marriage, or illegitimate, may
be revoked or reduced as provided in the next article, by
the happening of any of these events:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
(1) If the donor, after the donation, should have
legitimate or legitimated or illegitimate children, even
though they be posthumous;
(2) If the child of the donor, whom the latter believed to
be dead when he made the donation, should turn out to
be living;
(3) If the donor should subsequently adopt a minor child.
Q: What is the reason for this article?
A: The reason is to protect the children of the donor.
You must understand that whenever a donation is made, it
results in the reduction of the patrimony of the donor.
Another ground for revocation would be Art .764 – if there
is non-fulfillment of a condition. The prescriptive period
here would be the same as the prescriptive period for the
grounds relating to the birth, reappearance, or the adoption
of children – a period of 4 years.
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.
It is important to know that both grounds are transmissible.
The heirs of the donors may also exercise the right to
revoke on these grounds.
This is different from the ground of ingratitude. Apart from
being shorter (1 year in case of ingratitude), there is also
the provision preventing transmissibility of the right to
revoke on the ground of ingratitude – it dies with the donor.
For the grounds constituting ingratitude, look for Art. 765.
Page 73 of 128
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.
Pay attention to the manner of computing the prescriptive
period of one year. You count this from the time the donor
acquires knowledge of the ground AND it was possible for
him to bring an action. So, in reality, that one year period
may not be that short because the reckoning point would be
the time where there is knowledge and possibility of
bringing the action.
The 1 year period may not be that short in reality since the
reckoning point from the time of his knowledge and the
possibility of the action
NUISANCE
Art. 694. A nuisance is any act, omission, establishment,
business, condition of property, or anything else which:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any
public highway or street, or any body of water; or
(5) Hinders or impairs the use of property.
The law does not directly define what a nuisance is but
merely enumerates what is considered as nuisance.
DOCTRINE OF ATTRACTIVE NUISANCE
It can be stated as follows: one who maintains in his
premises dangerous instrumentalities or appliances of the
character that would likely attract children in play and he
fails to exercise ordinary care to prevent children therewith
and resorting thereto is liable for the damages that may be
caused.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

For example, an ordinary swimming pool or an ordinary REMEDIES TO A NUISANCE [PUBLIC v. PRIVATE]
body of water would not be considered as attractive
nuisance. However, those swimming pools with floating
PUBLIC PRIVATE
docks or slides that would attract a child who dives in and
drowns, the owner will be liable for maintaining an
KIND OF ACTION
attractive nuisance on your property and you failing to
safeguard to prevent children from diving in, and, as a
Criminal Action, Civil Civil Action or Abatement,
consequence, drowning.
Action, or Abatement without judicial
without judicial proceedings. [Art. 705].
The theory being that being the one who installed that, you
proceedings [Art. 699].
attracted the children to go into your property and make
use of whatever things you installed in your property.
WHO MAY FILE/AVAIL
KINDS OF NUISANCE The district health officer N/A
shall take care that one or
A nuisance may be: all of the remedies against
1. Public or private a public nuisance are
availed of. [Art. 700].
a. Public nuisance pertains to a nuisance that affects a
community, neighborhood, or any considerable number If a civil action is brought N/A
of people. In this case, you may resort to criminal by reason of the
prosecution, civil action, and abatement without judicial maintenance of a public
proceedings. nuisance, such action shall
be commenced by the city
b. Private nuisance affects an individual or a limited or municipal mayor. [Art.
number of individuals. There is no criminal action, only 701].
civil actions and abatement without judicial proceedings.
A private person may file Any person injured by a
c. The lapse of time cannot legalize any nuisance either an action on account of a private nuisance may abate
public or private. It cannot vest a right to an owner of the public nuisance, if it is it by removing, or if
nuisance [Art. 698]. specially injurious to necessary, by destroying
himself. [Art. 703]. the thing which constitutes
2. Per accidens or per se the nuisance, without
committing a breach of the
a. Per accidens pertains to a nuisance under any and all peace or doing
circumstances [e.g. a house built in the middle of the road, unnecessary injury.
in this case there is no need to go to court to abolish it]. However, it is
indispensable that the
b. Per se pertains to a nuisance that is only a nuisance due procedure for
to the circumstances [e.g. a piggery in a remote area is not extrajudicial abatement
a nuisance unless in the process there are people who of a public nuisance by a
built their houses in the area. It would not be proper for private person be
the piggery to be destroyed, there must be a hearing since followed [Art. 706].
he arrived there first in the area. You must look into the
zoning and classification of the area [either residential or
industrial etc.]. The context will now become important. WILLS AND SUCCESSION

Art. 701. If a civil action is brought by reason of the

maintenance of a public nuisance, such action shall be SUCCESSION
commenced by the city or municipal mayor.
Art. 774. Succession is a mode of acquisition by virtue of
Art. 702. The district health officer shall determine
which the property, rights and obligations to the extent of
whether or not abatement, without judicial proceedings,
the value of the inheritance, of a person are transmitted
is the best remedy against a public nuisance.

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UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
through his death to another or others either by his will or
by operation of law.
This definition contains the elements that must be present
in order for succession to take place.
ELEMENTS OF SUCCESSION
1. Death
2. Inheritance
3. Successors
4. Acceptance
All of these must come together in order for succession to
take place. But before we proceed, I would want to tackle
some terms that you ought to be familiar with at this point.
1. Decedent vs. Testator
Art. 775. In this Title, "decedent" is the general term
applied to the person whose property is transmitted
through succession, whether or not he left a will. If he left a
will, he is also called the testator.
Decedent and Testator may refer to the same person only
that a testator is someone who was able to prepare for his
death by executing a last will and testament before dying.
A decedent, on the other hand, is a term that is broad
enough to include both a testator (someone who left a will)
and a person who died (deceased) who did not leave any
last will and testament.
2. Heirs, Legatee, and Devisee
Art. 782. An heir is a person called to the succession either
by the provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real and
personal property are respectively given by virtue of a will.
Heir – a person to whom the decedent or the testator has
left some inheritance and the inheritance would be abstract
in concept, because there is no specific property that is left
to the heir. Usually, it would be a portion of the estate or the
entire estate.
Legatee – the recipient through testamentary disposition of
specific personal property.
Devisee – the recipient through testamentary disposition of
specific real property.
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Q: Why is it important to know the distinction between
an heir, on one hand, and the legatees/devisees, on the
other?
A: Because in case there is preterition, the effect of
preterition will affect an heir differently from a devisee or
legatee.
Art. 854. The preterition or omission of one, some, or all of
the compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not
inofficious.
If we have preterition, it results in the annulment of the
institution of heirs. Mababalewala ‘yung nakalagay sa last
will and testament. Whereas, if what was disposed of under
the will where the preterition was committed, was simply
legacies or devises, then the law says that even if there is
preterition, the legacies and the devises may still be
respected/retained to the extent that they do not impair the
legitime.
Q: How do we know if a person is an heir? Or if a person is
devisee or legatee? Kasi kung pagbabasehan lang natin
‘yung definition sa batas as to what an heir is vs. what a
devisee or legatee is, it would seem that there is possible
overlapping between the two concepts.
Halimbawa, the estate only has one property and we only
have one heir. Naturally, that single property of the estate
would go to that heir.
So how should we treat that person? Is he an heir? Or is he a
devisee or legatee? Needless to say itong ating
pagdududang ito, this will only come into play if what is
involved here is a testator. Kasi if the person died intestate,
then the possibility of having a legacy or devise is already
shut down kasi wala ngang last will and testament.
Necessarily, wala ka ring legacy or devise. Pero if that
person was instituted under a last will and testament and
there is possible preterition, then it would be crucial for us
to determine in what capacity did that person inherit
from the testator?
Kasi kung heir siya at may preterition, his institution as heir
will be set aside. But if he can make out a case to say that he
is not an heir, but a legatee or devisee, then it is possible to
say that at least half of what was given to him as a devise
or legacy, kasi ‘yung default nating legitime ½ of the estate.
If there’s only property in the estate, then yung legacy sa
kanya, that single property may still be saved up to the
extent of that ½ portion. Bakit? Kasi up to that ½ portion,
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
pwede pang ma-accommodate sa free portion. Hindi pa
magi-impair ng legitime.
A: Look at how the disposition was made. If the person
was instituted to the entire estate, then that person would
be considered an heir even though the estate only has one
property. The reason being is that he was instituted to
succeed to the entire estate. It does not matter that in so
doing, he will be succeeding to one specific property.
But if he was instituted under the will to receive the only
property left behind by the testator, and this was referred to
specifically, then he will be considered as a legatee or as a
devisee even if that sole property is already the entire
estate of the testator.
Nakikita niyo langit at lupa ‘yung layo nung effect if he was
instituted as heir, then he receives nothing because his
institution will be annulled.
If we will treat him as a legatee or devisee, he still gets
half because the ½ of the legacy/devise given to him,
may be accommodated in the free portion. It is ½
because the default legitime is 1/2. Lahat ng ating
primary compulsory heirs (children - ½, parents - ½, wife –
½), they get ½. We apply this usually kapag isa lang ang
compulsory heir mo. Or marami man, but they are of the
same kind. If there is more than one child, ½ pa rin kasi
lahat sila anak. If there is more than one parent, ½ pa rin
kasi lahat sila parents.
3. Successors
4. Acceptance
KINDS OF SUCCESSION
Art. 779. Testamentary succession is that which results
from the designation of an heir, made in a will executed in
the form prescribed by law.
1. Testamentary – That which takes place through the
execution of a will. Remember the purpose of executing a
will is disposition of property to take effect after death. So
even if you may have an instrument that may be centered
on death or has death as consideration, if there is no
disposition, then it will not qualify as a last will and
testament. It will not give rise to testamentary succession.
Art. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one
which has subsequently lost its validity;
Page 76 of 128
(2) When the will does not institute an heir to, or dispose of
all the property belonging to the testator. In such case, legal
succession shall take place only with respect to the
property of which the testator has not disposed;
(3) If the suspensive condition attached to the institution of
heir does not happen or is not fulfilled, or if the heir dies
before the testator, or repudiates the inheritance, there
being no substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code.
2. Legal/Intestate – This is what takes place by operation
of law. Compulsory succession is the same thing. It also
takes place by operation of law. Kaya lang we cannot lump
intestate succession with compulsory succession because
intestate succession may be defeated by the execution of a
last will and testament. It takes place in the absence of a last
will and testament. Or even if there was a last will and
testament executed, if it fails to pass probate, then intestate
succession takes place.
Compulsory succession, on the other hand, takes place
notwithstanding the execution of a last will and testament.
But it is not compulsory on the heirs, it is compulsory on
the receiver. The law reserves certain portion of his estate
in favor of his compulsory heirs.
The adherence to this policy of reserving a certain portion
of the decedent’s estate in favor of compulsory heirs is so
strict that the law requires us to go back in time to collate
all prior donations inter vivos to determine whether or not
there was impairment of the legitime.
Imagine, mabubuhay ka ng 75 years and throughout the 75
years, you will be making donations every now and then.
Babalikan lahat ‘yun. Every single donation that you made
would be collated -- the value would be brought back to
your estate. All for the purpose of determining whether you
have made any inofficious donation (any donation which
impairs the legitime). Ganun ka-sacred ‘yung legitime.
In fact, kaya rin ito tinatawag na compulsory because the
decedent cannot deprive his compulsory heirs of their
legitime except through disinheritance. And you can only
disinherit by executing a last will and testament and by
availing of the grounds specified in the law (See Art. 919,
NCC). If you fail to single out an applicable ground or let’s
say you were able to specify a ground, but the people
interested in your estate were not able to prove it then what
you will have is a defective disinheritance.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

A defective disinheritance, hindi siya kasinglala sa effect ng
preterition. But it also results in the setting aside of some
other disposition, but only insofar as they may impair the
legitime. It is not an outright or automatic annulment.
Art. 780. Mixed succession is that effected partly by will
and partly by operation of law.
5. Contractual Succession - There is no more contractual
succession to speak of. Kasi dati we had that under the Civil
Code. The future spouses could make donations propter
nuptias involving future property to take effect upon death.
And they were allowed to make the donation in the
marriage settlement which is an ordinary contract. Kaya
contractual succession lumalabas.

But the Family Code has changed that because under the
3. Mixed – Combination of intestate and testamentary
Family Code, if you would want to donate future property
succession. You do not refer to the combination of the
by way of donation propter nuptias, that will also still be
compulsory succession and testamentary succession as
effective upon death. Furthermore, it must now comply with
mixed, hindi. Kasi given na ‘yan talaga. We have that
the forms and solemnities of last will and testament.
[compulsory succession] regardless of whether what you
have is intestate succession or testamentary succession.
Wala na ‘yung dating pwede nasa marriage settlement.
Ngayon, kailangan nasa last will and testament.
But if what takes place is a combination of testamentary
and intestate, then you have a mixed succession.
ELEMENTS OF SUCCESSION
Q: How can you have a mixed succession?
1st ELEMENT: DEATH
A: Halimbawa, you made a will but you only disposed of
certain portions of your estate then that means that the rest
Death opens succession. From the time of death, right to
would have to be governed by the law on intestate
inheritance is vested. But because of the focus on death, we
succession.
forget that death is not only the element. Because even if
the decedent dies but he has no properties or heirs, there
Pero a more complicated route to be presented by the
will be no succession.
execution of a last will and testament meant to dispose of
the entire estate. However, the last will and testament fails
Or even if he has properties or heirs, but his heirs does not
to provide for a stipulation or a provision saying that
accept, there will still be no succession
after-acquired properties (properties which are acquired
after the execution of the will) would also be covered by the
Article 777. The rights to the succession are transmitted
said last will and testament.
from the moment of the death of the decedent. (657a)
The default is your will will not cover after-acquired
properties unless you provide for that effect in the last will Q: What kind of death are we speaking of here? Do we
and testament. have different kinds?
A:
1. Actual or physical death
Art. 793. Property acquired after the making of a will shall
2. Presumptive death
only pass thereby, as if the testator had possessed it at the
time of making the will, should it expressly appear by the
Rule on Presumptive death:
will that such was his intention.
GR: absence of atleast 10 years before opening succession
Maraming abogado, nakakaligtaang gawin ‘yan. So anong to absentee
mangyayari? Mamamatay si testator thinking na okay na, XPN:
namatay na ako, hindi na magmamana ‘yung mga 1. If person was of the age of 75yrs or more at the
kamag-anak ko dahil na-specify ko lang kung sino lang ang time of disappearance, in which case, the period
pwedeng magmana sa akin. E namatay siya, sabihin natin will be shortened to 5 years
45 years after executing the will, at doon pa siya sa period 2. If the person is under the danger of death at the
na ‘yon, sa last quarter ng buhay niya, dun pa siya time of disappearance, the period will be shortened
yumaman. Ang mangyayari the will only govern those to 4 years (Art. 391, NCC)
properties existing at the time the will was executed. 3. 2 years for purposes of contracting a Terminable
Subsequent Marriage (Art. 41, FC)
4. Compulsory - Takes place by operation of law. (See
discussion above)

Page 77 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: How to open succession of a person absent for 10
years? Do you file a petition to declare him
presumptively dead?
A: No. Such a petition to declare someone presumptively
dead does not exist in relation to Art. 41. The proper way is
to file a petition to settle the absentee’s estate. But before
settlement proper, you must establish in the same
proceeding that he has been absent for the required
number of years and that he ought to be declared
presumptively death. After he is so declared, you can no
proceed with settlement of his estate.
2nd ELEMENT: INHERITANCE
Under the law on succession, inheritance is defined
multiple times.
Article 776. The inheritance includes all the property,
rights and obligations of a person which are not
extinguished by his death. (659)
Article 774. Succession is a mode of acquisition by virtue
of which the property, rights and obligations to the extent
of the value of the inheritance, of a person are transmitted
through his death to another or others either by his will or
by operation of law. (n)
Article 781. The inheritance of a person includes not only
the property and the transmissible rights and obligations
existing at the time of his death, but also those which have
accrued thereto since the opening of the succession. (n)
There is a problem in 781, specially because under 777,
death opens succession and right over inheritance is vested.
From the moment of death of decedent, the heir would now
become the owner of the properties inherited from
decedent. But in 781, the inheritance includes properties
which have accrued since the opening of succession
whereas under the rules on property, anything that would
accrue would now belong to the heir as owner in his own
right.
EXTENT OF AN HEIR'S LIABILITY FOR AN INHERITED
OBLIGATION
Example:
PEDRO DIED AFTER EXECUTING A DEED OF SALE WITH
JUAN FOR THE PURCHASE OF THE LATTER'S HOUSE
AND LOT FOR PHP 2 MILLION. ASIDE FROMTHIS
OBLIGATION, PEDRO ALSO LEFT BEHIND SHARES OF
STOCKS WORTH PHP 1 MILLION WHICH AFTER HIS
Page 78 of 128
DEATH EARNED CASH DIVIDENDS INTHEAMOUNT OF
PHP 1.5 MILLION.
IF JUAN WERE TO DEMAND PAYMENT OF THE PHP 2
MILLION PURCHASE PRICE FOR THE SALE, HOW MUCH
WILL HE ABLE TO COLLECT FROM PEDRO'S ESTATE?
Here you can see that in the inheritance it consists of
obligation and property comprised of shares of stocks. At
the time of the death of the decedent, the obigation was
worth 2M and the shares of stocks were worth 1M.
Yun nga lang after his death, the shares of stocks that he left
behind earned cash dividends amounting to 1.5M. So, if we
are going to outline: 2M - Obligation; 1M - Shares of stocks +
1.5M - Accrual
Art. 925. A testator may charge with legacies and devises
not only his compulsory heirs but also the legatees and
devisees.
The latter shall be liable for the charge only to the
extent of the value of the legacy or the devise
received by them. The compulsory heirs shall not be
liable for the charge beyond the amount of the free
portion given them. (858a)
Inheritance shall only include is supposed only to include
the property rights and obligations existing at the time of
death.
The Heir here should only be liable to the extent of 1M - yun
lang naman ang naiwanan talaga sakanya. We also cannot
deny that these shares of stock earned interest and
dividends worth 1.5M and we the earned dividends shall be
added to the value of the shares of stocks would be
sufficient to pay off the obligation. (Total: 2.5M)
Q: Can we justify making the heir pay the entire 2M?
A: Yes. (Art. 781, NCC)
We apply this for purposes defining the limitation to the
obligation of the heir to answer to the obligations left
behind by the decedent. Unfair din naman sa
pingakakautangan ng decedent kung iiwanan mo sya sa ere,
when there is property left behind and we have Art. 781,
allowing us to use the accrued properties.
Note:
This is not really acquired properties. This would be
accruals to the properties. Sa after acquired properties with
regard to execution of a last will and testament. Sa 781, we
are speaking of accruals as of the time the decedent died.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
3rd ELEMENT: SUCCESSION
(will be discussed under Wills)
4th ELEMENT: ACCEPTANCE
No one may be forced to act as someone else’s heir. You
always have a choice.
ACQUISITION OF POSSESSION
Art. 533. The possession of hereditary property is
deemed transmitted to the heir without interruption and
from the moment of the death of the decedent, in case the
inheritance is accepted.
If you reject the inheritance, you are deemed to have never
been in possession even though in reality you are the one in
possession of the said inheritance from the time the
decedent died.
In property, madaling ma-transmit because you are dealing
with tangible assets. But in rights and obligations, it is
possible that some rights and obligations will not survive
the death of a decedent. Once you are still alive, everything
you own, properties, rights and obligations, these would
comprise your patrimony. Pero once you die, there will be
certain rights and obligations which will not cross-over and
survive your death. They will be extinguished.
Kailangan malaman what rights and obligations survives
death. Usually, madali lang naman yan, the first rule of
thumb would be to determine what is the nature of the
rights and obligations?
If it is purely personal, then necessarily it will die with the
decedent. Kung hindi naman siye purely personal, it may be
of such a character where the law provides that it dies with
the decedent, tulad ng right to usufruct. It may be
extinguished by the death of the usufructuary. Sabi nga
natin, it may be alienated-the right of usufruct, but it cannot
be inherited. And then, there are certain rights too which
are made intransmissible. Apart from the purely personal
ones, there are those which are intransmissible by express
agreement or by contractual stipulation. In which case,
these two will not form part of the inheritance.
WILLS
If you have testamentary succession, the basis for
succession here would be the last will and testament that
the testator leaves behind. If you’re going by intestate
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succession, then the basis here would be the presumed will
of the decedent. Now on one hand, he have the express will
because whatever the testator wants to happen, it is the
expressed in his last will and testament. Pero if it is
intestate succession, the law simply presumes that had the
decedent been able to execute a last will and testament to
provide for the people that he would want to provide for
then these people identified under the law on intestate
succession, will be the people that he would put in the will.
At tignan niyo, sino yung mge legal heirs, and you can see
too that the compulsory heirs are necessarily also the legal
heirs. And that once you have a compulsory heir in the
direct line, all the other possible legal heirs in the collateral
line would be excluded. The interplay of compulsory heir
succession saka intestate succeesion that if we have
compulsory heirs, this people would also be your legal
heirs. At kapag ang compulsory heirs mo would be those in
the direct line, wala ng pag-asa pa yung collaterals, out na
sila. Bakit? Kasi your compulsory heirs, would be those
related to you in the direct line, your immediate family. Ang
stranger lang dito would be the spouse. And the spouse too
is the only compulsory heir who may succeed alongside
collateral relatives who are intestate heirs. Dahil ito sa the
law presumes that had he been able to execute the last will
and testament, he would want those people in the direct
line to succeed you. This is called preference of lines.
And within the direct line, may preference pa rin tayo. So
dito makikita niyo yung rule of preference of line, direct line
vs. the collateral line. And within the direct line, the
descending line is preferred over the ascending line because
presence of people in the descending line generally will
exclude those in the ascending except if the people in the
descending line happened to be illegitimate.
TESTAMENTARY VS. INTESTATE SUCCESSION
We also understand now why testamentary succession is
preferred over intestate succession kasi yung testamentary
succession, it constitutes the express will of the testator as
opposed to simply the presumed will that is the basis for
intestate succession. That’s why testamentary succession
always prevails over the intestate succession.
In fact, kung halimbawang may namatay, the presumption
was that he did not leave a last will and testament and there
is a proceeding for the settlement of his intestate estate,
that proceeding will be suspended once a petition for a
probate of his will filed. Uunahin muna yung probate
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

proceedings. And it will be determined, whether there is
still even a need for the settlement of its intestate estate.
BASIS OF TESTAMENTARY SUCCESSION:
LAST WILL AND TESTAMENT
The way that the law defines a will under Article 783 is that
it’s supposed to be an act whereby a person is permitted
within formalities prescribed by law who control to a
certain degree the disposition of his estate to take effect
after his death.
Article 783. A will is an act whereby a person is
permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of this estate,
to take effect after his death. (667a)
after death, do you think the bank would still lend you
money? Hindi na. So anong mangyayari sa economy natin?
It will come to a halt dahil hindi na magkakaron ng
transaction that would last for more than one’s lifetime.
But with these, we know that there would be a continuation
of the legal personality of the decedent. What vehicle would
that be? It will be his estate. Kasi yun naman yung goal nung
estate eh, it will settle all the obligations and then deliver
whatever remains to the rightful heirs.
At wag niyo ring isipin na porket dadaan muna sa
settlement of estate yung inheritance and only what
remains would be delivered to the heirs, that it means that
the heirs are not be liable for the obligations. No. They are
still liable because whatever is paid out of the estate to
satisfy obligations would mean reduction of whatever they
will be receiving.

And to me, it’s very significant that it’s worded this way, that
So effectively, sino rin ang nagbayad? Sila din and with the
the law speaks of the will as an act kasi alam naman nating
same recognized limitation that they cannot be held liable
lahat that under Article 804, it is required that a will must
for obligations of the value on the inheritance. Yun nga lang,
be in writing. So it cannot be an act. Also, the law says it is
tatandaan niyo, for purposes of the satisfaction of
an act whereby a person is permitted with the formalities
obligations and the determination of the limitation, we will
prescribed by law to control disposition of his estate to take
be applying Article 781.
effect after his death. So why does the law say “permitted”
when the disposition of one’s property is the hallmark of
ownership. Diba that’s one of the attribute of ownership, Article 781. The inheritance of a person includes not
yung jus posedendi. Pero pagdating sa will, the law speaks only the property and the transmissible rights and
though wala ng karapatan talaga yung testator at obligations existing at the time of his death, but also
pinapahintulutan na lang siya. those which have accrued thereto since the opening of
the succession. (n)
The reason is that, upon a person’s death, his personality is
also extinguished, his capacity to act is also extinguished.
Dapat with his death, he will no longer have any say on Article 804. Basic Requirement.
what happens to his property.
Article 804. Every will must be in writing and executed
Q: Would that be an advisable scenario?
in a language or dialect known to the testator. (n)
A: No kasi pag minsan nga, meron ka ng last will and
testament na naiwanan, nagkakagulo pa rin yung mga
tagapag-mana. Eh mas lalo na kapag sasabihin mo na your
And these requirements is applied to both kinds of wills
right to control the disposition of your estate would be
that we have, the notarial and the holographic wills. Both
cut-off upon the death, that is one reason. Another reason is
are required to be in writing and required to be in a
that, we need the personality of the decedent to continue
language or dialect known to the testator.
even after his death, why? For the satisfaction of the
obligations. Dahil it is a given that people will not live
Now, if you would look at the requirements for a notarial
forever, but transactions specially the big ones, they may
will or holographic will, there is no requirement that this
outlive personalities.
familiarity with the language or dialect on which the will is
written be alleged in the will itself. Hindi kinakailangan
So palagay mo ba kung halimbawang umutang ka sa bangko
sabihin doon. This will usually come out in the probate
to finance your business and don’t have this provision of the
proceedings.
law which recognizes the continuation of one’s personality

Page 80 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
But we do have a jurisprudence to the effect, saying that if
the will is written in a language or dialect spoken in the
place where the testator is based, it is presumed that he is
familiar or he knows that language or dialect.
Supposing sasabihin sa inyo that the testator was illiterate,
hindi siya nakapag-aral and the will was made in an English
language. Can we automatically conclude that he did not
understand the will because it is not written in English even
that he is illiterate? No because maybe hindi siya
nakapag-aral, nakapag-basa or nakapag-sulat pero
halimbawang Amerikano naman siya and he speaks English.
So kahit pa Pilipino siya kasi tignan mo yung mga bata
ngayon, ang accent nila ngayon is Disney accent, yung
accent nila papasa na sa mga call center.
CHARACTERISTICS OF A WILL
1. Purely personal
2. Free and voluntary
3. Must be disposed of property
4. Essentially revocable
5. Formal
6. Unilateral
7. Act Mortis Causa
Q: What do we mean when the Will is purely personal?
Does it require that it is the testator himself to type or
write down the contents of his Will?
A: Unless it is holographic, you can actually delegate the
mechanical act of writing down or preparing the
instrument embodying his last Will and Testament. In
purely personal aspect of the execution of the Will, this
pertains to the duration and efficacy of the designation of
the heirs, devisees, or legatees; the determination of the
portions which are to be received. These are things which
cannot be left to the discretion of a third person.
Now, having said that, I want to call your attention to Article
786.
Article 786. The testator may entrust to a third person
the distribution of specific property or sums of money
that he may leave in general to specified classes or
causes, and also the designation of the persons,
institutions or establishments to which such property or
sums are to be given or applied. (671a)
Dito kasi, pinapayagan ‘yung testator natin to leave the
distribution of specific property or sums of money to
specified classes or causes, and then incidental to that
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power to distribute is the determination of the specific
persons, instrumentalities, or institutions who will be
receiving.
Now, at first glance, titignan ninyo – parang mas malaki pa
nga ‘yung discretion na binibigay sa third person because
he will be able to determine who will be receiving and how
much they will be receiving under Article 786 compared to
Article 785. Sabi sa Article 785, kapag pinangalanan na
‘yung mga tao, hindi na pwedeng i-delegate sa ibang tao
iyong power to determine how much each of these named
persons will be receiving.
Article 785. The duration or efficacy of the designation
of heirs, devisees or legatees, or the determination of the
portions which they are to take, when referred to by
name, cannot be left to the discretion of a third person.
(670a)
The only distinction is that – Sa Article 786 kasi, the
disposition is in favor of specific causes or classes. ‘Yung
discretion na ibinibigay sa third person, it is within the
context of that disposition.
Q: What does the law mean by this?
A: Again, we assume that we are dealing with a notarial will.
The way it works in practice is that the testator will be
discussing with his lawyer, and the testator will express
what he wants to be done in his estate after his death, and
that would include naming his heirs, specifying what
properties they will be receiving, how much they will be
receiving, what the conditions are for them to receive the
properties, what would the duration, if any, that they will be
enjoying the rights and properties that will be bequeathed
to them. Lahat ng ‘yan galing sa testator. Si lawyer will just
take this and reduce it into writing in the formal instrument
that is the Last Will and Testament.
Now, it is essentially revocable, and this what sets it apart
from a donation inter vivos. It must dispose of property. If
there is no disposition of property, then you will not have a
last will and testament. You may have some other
instrument. It is not necessarily without effect because it
may not qualify as a last will and testament, but it may
qualify as some other instrument.
You also know that the Will will still be valid even if its only
provision is one of disinheritance because when you
disinherit, that is effectively a disposition in favor of those
who will be inheriting in lieu of the disinherited
compulsory heir. Sino ba ito? If the right of representation
exists, the representative would be stepping up and would
be inheriting. If there is no right of representation, it would
be a disposition in favor of the other intestate heirs.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

The attestation shall state the number of pages used

NOTARIAL WILL
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
You might wonder, why do we still have a provision
some other person to write his name, under his express
allowing notarial wills when we also recognize holographic
direction, in the presence of the instrumental witnesses,
wills? And if we will compare holographic wills and notarial
and that the latter witnessed and signed the will and all
wills, definitely mas madaling gumawa ng holographic will.
the pages thereof in the presence of the testator and of
It is a more practical version of a Last Will and Testament.
one another.
Kaya lang mayroong downside ang holographic will. Hindi
If the attestation clause is in a language not known to the
siya kasing secure ng notarial will. So, iyong integrity and
witnesses, it shall be interpreted to them. (n)
authenticity, it is not as safely secured as a notarial will, and
then when it comes to proving the execution of a
Article 806. Every will must be acknowledged before a
holographic will, since there is no requirement for
notary public by the testator and the witnesses. The
witnesses and our only basis would be the identity of the
notary public shall not be required to retain a copy of the
handwriting in which the holographic will was written, then
will, or file another with the office of the Clerk of
that also poses a problem in the probate kasi tatandaan niyo
Court.(n)
ha, what is being identified here is not only the signature,
but the entire handwriting constituting the holographic will,
and being familiar with a person’s signature is not the same Requirements:
as being familiar with his handwriting.
1) Subscribed by the testator or his agent in his presence
Unlike a notarial will, sa dami ng requirements, you are and by his express direction at the end thereof, in the
assured however that the testator was really the one who presence of the witnesses.
executed the same kasi to begin with, you need witnesses.
2) Attested and subscribed by at least 3 credible
witnesses in the presence of the testator and of one
Article 805. Every will, other than a holographic will,
another.
must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other
3) The testator must sign every page, except the last
person in his presence, and by his express direction, and
page, on the left margin in the presence of the witness.
attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
4) The witnesses must sign every page except the last
another.
page, on the left margin in the presence of the testator
and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
5) All pages must be numbered correlatively in letters
also sign, as aforesaid, each and every page thereof,
placed on the upper part of each page.
except the last, on the left margin, and all the pages shall
be numbered correlatively in letters placed on the upper
6) It must contain an attestation clause stating the
part of each page.
number of pages of the will and the fact that the testator
under his express direction signed the will and every
page, in the presence of the witnesses, and the fact that
the witnesses witnessed and signed the will and every
page thereof in the presence of the testator and of one
another.

7) Acknowledgment before a notary public.

Q: What does the law mean by subscription?

A: Subscription is the signing of the testator and the
witnesses’ names upon the same paper for the purpose of
identification of such paper as the will which was executed
by the testator. (Rabuya, 2021)

Page 82 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: But what signature do you affix and how do we know
that whatever mark or whatever was written down is
actually the testator’s signature?
A: From your personal experience, you ought to know that
your signatures have changed through the years. Whatever
the testator intends to be his signature should be accepted
as his signature.
Q: Can the testator adopt an entirely new signature for
purposes of executing his will?
A: This can still be done but it is not advisable because this
can be used by people who are denied in probate.
Although the law does not require a full signature and in
fact a mark would be sufficient, it also goes without saying
that the mark should be associated with you.
There is jurisprudence which rejected the use of a cross (+)
to identify the testator kasi ‘yung cross is not really reliable
unless written in a way that it is distinct enough to associate
the testator.
Secondly, what will be the basis to associate it with you? In
that particular case, there is no showing that the testator is
illiterate. In lieu of a cross (+), a thumbmark is more
acceptable because a thumbmark is distinct for every
individual, and you can easily authenticate it.
Example: Kunwari, ikaw si Zorro, you are identified with
letter Z. That is fine because may basis eh. Si Zorro ka. That
is how you identify yourself
If you are Zorro, and you are identified with the letter Z,
then that is fine. We have a basis, you are Zorro, and that is
how you identified yourself. If Mr. Parulan signed a Z, then,
if I was the opposing counsel, I would say that that is not a
signature, as he was never known as Z, he has never signed
as Z. I will then create a doubt.
It is also required that the testator sign at the end of the
will.
This is interpreted as logical end, as opposed to the physical
end.
Logical end means that there are dispositions to terminate.
It would terminate after the last disposition has been made.
The testator, the ownership here, is the dispositions, and by
affixing his signature at the end of the dispositions says that
he has provided for these dispositions. He is acknowledging
that whatever dispositions that preceded his signatures
were all provided for, were all made by him.
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In the same way our witnesses here are supposed to
subscribe their names at the end of the attestation clause.
Our witnesses here, their only participation is the act of
attesting to the due execution of the last will and testament.
But it doesn’t matter if they do not understand the language
to which the disposition was written, because it is not their
business, they don’t have to know. What they need is what
was stated in the attestation clause.
If the entire will. Including the attestation clause was
written in Bisaya, the attestation clause will be interpreted
to the witnesses if they do not understand Bisaya. The rest
of the will won’t be interpreted to them.
The law also requires that the testators sign in the presence
of the witnesses, and the witnesses in turn, must sign in the
presence of the testator, and one another.
Q: What determines presence?
A: Presence is determined by sight and proximity. These
two must concur.
Q: When do you have sight?
A: The law doesn’t require that the testator and witnesses
be huddled together. It is enough that by simply casting
their eyes at the right direction, they would be able to see
what was happening.
Example:
Witness #1 was at one corner, and we are having the
signing on the desk in front, like a classroom set up of a
professor’s table. And the witnesses and the testator shall
go there one by one to sign, and while they’re not signing,
they will be in the different corners of the room. That would
still be sight, as in any given time, they can turn their heads,
cast their eyes, and they would know what was happening.
However, it is not enough to just see.
If you will just see, you won’t understand the context.
Remember the set up in UST, we have big windows? Now, if
everyone else is in the room, you are Witness #3 and you
are outside having a smoke, and you can see them all
standing, going to the table, signing.
In my opinion, that will not satisfy the proximity. You will
not be able to see if there was duress being employed
towards the testator, whether he is saying enough to
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

understand what was going on. These things are the things
If the attestation clause is in a language not known to the
you should witness in a closer distance, and not outside witnesses, it shall be interpreted to them. (n)
through a glass window. You won’t be able to appreciate it.

The testator or his agent, and the witnesses, must sign each
Another thing, through technology, is the whole proceeding
and every page except the last, on the left hand margin. The
would be videotaped. And prior to making the testators
sign, especially if the testator is old, questions would be purpose of these signatures on the left margin is to identify
the physical document as the last will and testament that
asked of him. “Asan ka ngayon, anong petsa ngayon, anong
was published to the witnesses. This is no different from
pangalan mo, sino ang mga asa paligid mo” so if someone
contracts which requires that their initials be signed in the
would question the testamentary capacity of the testator,
document. If these aren’t signed, the danger is that there
you would have these added evidence.
may be insertion of pages, or changes, etc. That is meant to
protect the integrity and identity of the physical document.
Q: If we can record, why can’t we just record the last will
and testament? Can’t we just do a selfie video? May
Since that is the purpose of the signature, it doesn’t matter
teleserye about a last will and testament that was
where you put your identifying signature. It won’t render
videotaped and nagpatayan sila for that.
A: No. Wills are required to be in writing. the document ineffective if you sign on the right. As long as
the purpose is achieved, we shouldn’t be too technical about
that requirement. The purpose is to identify, to authenticate
Even if it could be argued that it is more convenient, but the
law requires, or allows only one form. It must be in writing. the document.

Q: What happens if the page containing the attestation

The law requires credible witnesses and the notary public
cannot be made as a witness, because he cannot
acknowledge himself. So, if the notary public was there, and
there was no other witness except the three which includes
him, the will becomes null and void.
Art. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself
or by the testator's name written by some other person
in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in
the presence of the testator and of one another.
The testator or the person requested by him to write
his name and the instrumental witnesses of the will,
shall also sign, as aforesaid, each and every page
thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on
the upper part of each page.
The attestation shall state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of
one another.
clause is signed on its left margin but its witnesses
failed to sign after the attestation clause? Will the
signatures on the left margin be able to cover for the
failure to sign after the attestation clause?
A: No. The act of signing on the margin is only meant ot
authenticate, to identify, to protect the integrity. It is a
mechanical act. If you sign on the left margin, you are not
making any declaration. You are simply identifying that this
is the document published to you.
Attesting to a will is more substantial. It is not a mere
mechanical act. When you forget to sign the attestation, that
will render the will null and void. Identifying the document
does not carry with it attestation to the document.
Q: In a reverse situation, where the margins were not
signed, but the attestation clause was signed by the
witnesses?
A: This ought to be sufficient. The substantial act in signing
the attestation of the will necessarily carries with it the act
of identifying that page on which the attestation clause
appears.
Art. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself

Page 84 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
or by the testator's name written by some other person
in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in
the presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall
be numbered correlatively in letters placed on the
upper part of each page.
The attestation shall state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (n)
This means that the numbers must be in words, must be
spelled out. Three, not 3. This is to protect the document.
Since the Civil Code was published in 1950s, they thought
that it would be better to place it in different words(?). But
now, in these times, with technology, you can easily edit
things. Scan, manipulate, then scan again, then print. So
these safeguards may not be possible anymore.
Requirement of the upper part of each page, it doesn’t
matter where you put the paging (kahit sa ilalim).
ATTESTATION CLAUSE
Art. 805. (par. 3)
….
The attestation shall state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (n)
Page 85 of 128
Q: What if you failed to say that the will is signed on
behalf of the testator by a third person, by his agent?
(when in fact, it is what happened because of an emergency
suffered by the testor ex: matanda na at di na maka-continue
suddenly and unexpected)
A: This inadvertent omission will render the will null and
void. (hindi kasi nakalagay sa attestation na a third person
signed for the testator)
Q: How can this be saved?
A: If on top of having a third person sign the will of the
testator, have him affix his thumb mark on the will. Affixing
his thumb mark is equivalent to subscription. In which case,
what is stated in the attestation is still true. (the signature of
the third person is now a mere surplusage)
Q: If in fact a third person is asked to sign for the
testator, what should he write down?
A: He should write the name of the testator.
ACKNOWLEDGEMENT BEFORE A NOTARY PUBLIC
Appear before the notary public and you acknowledge to
him under oath that the instrument constitutes your free
and voluntary act.
Jurat is a statement by the notary public that was
subscribed and sworn to before him.
In one case, the last will and testament does not have an
acknowledgement, but it has a jurat. The SC said it was null
and void because what the law requires is that it should be
acknowledged by the notary public.
Q:Should the acknowledgement be done at the same
time that the will is executed? Should be part of the
execution of the will?
A: No, because the acknowledgement is not part of the act
of executing the will or publishing the same to the
witnesses. The acknowledgement can be done after. The law
does not even require that the testator and the witnesses
make the acknowledgement simultaneously or in the
presence of one another. So long as they appeared before
the notary public.
In practice it is better to have the acknowledgement done
after the execution of the will.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

Also have to remember that the commission of the Notary

Public defines the territory in which he can notarize the
instruments.
Example:
If your commission is in Quezon City. You can only notarize
instruments in QC. You cannot notarize documents in
Makati.
In a case, the will was notarized by a Notary Public in New
Manila, but he was commissioned in Las Pinas. Problem, he
was so honest. He stated that he notarized in Quezon City,
instead of stating that it was in Las Pinas, where he is
commissioned. It is stated in the document that it was
acknowledged before him in QC. The Supreme Court said
that it is as though it was never notarized at all. In which
case, the last will and testament was declared to be null and
void.
Although there is a dissenting opinion that that is not
anymore the fault of the testator. That is something beyond
his control. And the fact that he went out of his way to
execute his will and go through all the trouble, only to have
everything that he did, all his efforts be rendered nugatory,
just because of the oversight on the part of the lawyer.
Parang unfair naman din.
SPECIAL REQUIREMENTS
In case the testator be a Deaf or Deaf Mute
Article 807. If the testator be deaf, or a deaf-mute, he
must personally read the will, if able to do so; otherwise,
he shall designate two persons to read it and
communicate to him, in some practicable manner, the
contents thereof.
He must personally read the will, if he was able to do so; or
otherwise, the contents of the will would have to be
communicated to him by 2 persons who are designated for
that purpose.
In case the testator be Blind
Article 808. If the testator is blind, the will shall be read
to him twice; once, by one of the subscribing witnesses,
and again, by the notary public before whom the will is
acknowledged.
The will shall be read to him twice, by one of the surviving
witnesses and again, by the Notary Public where the will is
acknowledged.
Supreme Court held that the requirement under Art.808,
applicable to blind testators should also apply to those with
poor vision, not necessarily blind, and illiterate. So long as
the purpose was achieved, then the manner prescribed in
Art.808 need not be followed to the letter.
In one instance, what was done by the assisting lawyer, or
the lawyer who drafted the last will and testament, was
that, instead of following what was stated in Art.808, he
distributed copies to everyone, and then he read allowed. So
everyone, the witnesses, the testator, the Notary Public,
they followed what he was reading silently, using the copies
given to them.
Needless to say, the purpose of Art.808 which is to verify
that what was being signed by testator is the same will, the
same instrument that he really wanted to be executed, this
was achieved, even though a different way was adopted. So
long as the purpose of the law in imposing the requirement
is achieved, then no need to be too technical about the
requirement or manner in which the requirement was
satisfied.
Article 809. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in
the language used therein shall not render the will
invalid if it is proved that the will was in fact executed
and attested in substantial compliance with all the
requirements of article 805.
Art. 809 pertains to the liberality that the law says ought to
be observed in the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence. According to
the law, in the absence of all these things, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial
compliance with all the requirements of article 805.
Long before jurisprudence came out, saying that this should
not be applied too liberally, Justice JBL Reyes is already of
the opinion that, we will only apply Art.809 which espouses
liberality, if the defect, if the omission may be supplied by
examining the 4 corners of the will itself. If the omission,
the defect cannot be corrected in that manner, then the will,
will have to be declared a nullity.
There was one case where the attestation clause was so
poorly crafted. Halatang kinopya lang kasi, at siguro ang
kumopya pa was the secretary, and not even the lawyer so
hindi niya nan a-check. The attestation clause said, that,
“this will consisting of so many pages was executed by the

Page 86 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
testator in the presence of the witnesses.” And then,
tumuloy na siya sa “and the witnesses signed the attestation
clause in the presence of one another.” So obviously, there
were missing words. Have these words been present, then
the attestation clause would have been perfect. Ang need
lang sabihin is, the testator signed in the presence of the
witnesses, and the witnesses signed in the presence of the
testator and of one another. Dito, nawala yung “in the
presence of the testator.”
Supreme Court said, no amount of examining the will would
supply this omission, because the will itself would not be
able to tell you that this in fact happened. Kelangan dito
yung declaration ng witnesses. It cannot be supplied by
examining the will. And since it cannot be supplied by
examining the will, then we cannot apply Art.809. We
cannot afford to be liberal about it, and say that there is
substantial compliance.
Now, it’s different from a situation where the attestation
clause failed to state the number of pages, comprising the
will. Kasi, if meron ka naman paging dun sa will. Nilagay mo
is “Page 1 of 17 Pages”, “Page 2 of 17 Pages”, it tells you that
maybe, even though the attestation clause fails to state the
number of pages comprising the will, still a mere
examination of the will would tell you how many pages
there are in the will, 17 pages. Or maaaring wala nga dun
yung total, pero dun sa acknowledgment, the Notary Public
may state “acknowledged before me this will comprising of
17 pages”.
Q: Can you apply Art.809 now?
A: Yes, because the omission may be supplied by an
examination of the will itself.
HOLOGRAPHIC WILL
Article 810. A person may execute a holographic will
which must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form,
and may be made in or out of the Philippines, and need
not be witnessed.
Article 811. In the probate of a holographic will, it shall
be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly
declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.
In the absence of any competent witness referred to in
the preceding paragraph, and if the court deem it
necessary, expert testimony may be resorted to. (619a)
Page 87 of 128
A will that is required to be entirely written, dated and
signed by the hand of the testator. Subject to any
requirements, it may be made in and out of the Philippines,
it is not required to be witnessed.
The very basis of authenticating of a holographic will would
be the handwriting of the testator. If a copy of the
holographic will cannot be located after the death of the
testator, there is no way that it may still be admitted to
probate. Unlike if it is a notarial will which is executed and
it could no longer be located no copy may be located after
the death of the testator and of course, excluding the
possibility that there was revocation. The notarial will may
still be admitted to probate, provided that evidence is
adduced regarding the fact of its lost, the due execution of
the notarial will as required by law, and, evidence of what
its contents are.
But in case of a holographic will, there is at least a
photocopy of the same, then that would be sufficient to
allow its admission into probate. Because if there is a copy,
there will be a basis for authenticating the handwriting of
the testator.
Q: Now, how exactly are you supposed to make a
holographic will?
A: Basically, it is not different from writing whatever it is
that you wish to dispose of. You just need to identify
yourself and that the will is dated. Then you write down the
dispositions that you want.
Q: Do you have to complete your holographic will in one
seating?
A: No. Because a holographic will, being informal as it is, is
something that you may work on over a period of time.
What would only happen is that whenever you make an
addition, you will have to date and sign the same. That is
your way of authenticating the additional dispositions.
Now, you may also make several dispositions and so long as
you sign each of them, and you sign and date the last one,
then the date of the last one is sufficient to be used for the
other dispositions. Ganoon ka-informal ang holographic
will.
The law, however, is quite strict when it comes to the
probate of a holographic will.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
ARTICLE 811. In the probate of a holographic will, it
shall be necessary that at least one witness who knows
the handwriting and signature of the testator explicitly
declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.
In the absence of any competent witness referred to in
the preceding paragraph, and if the court deem it
necessary, expert testimony may be resorted to.
Ngayon class, mag-produce ka nga lang ng isa who would be
able to identify the handwriting of a person mahirap na.
What more kung tatlo pa, if there is an opposition.
That is why even though the first paragraph may seem to
imply that it is mandatory that there should be at least one
person who can identify the handwriting, we have to take
this in the context of the tenor of the second paragraph.
Under the second paragraph, expert testimony is allowed.
Q: What if you want to erase or insert a provision or
disposition in your holographic will.
A: According to Art. 814, in case that any insertion,
cancellation, erasure, or alteration in a holographic will, the
testator must authenticate the same by his whole signature.
ARTICLE 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will, the testator
must authenticate the same by his full signature
GR: From this article, the takeaway should be that if there is
no authentication as required by law, then the holographic
will must remain as originally written – we will not accept
the insertions, cancellation, etc. It is as though such changes
were not made.
XPN: If what was erased or cancelled happens to be the
substantive portion of the will, so that what took place was
not a mere erasure or cancellation but is actually a
revocation.
Note: In case of revocation, the law does not require any
authentication.
QUALIFICATIONS OF WITNESS
Unlike testators, a witness to a will cannot be blind, deaf, or
dumb, nor can they be illiterate. Otherwise, he cannot
discharge his duties as a witness. There are higher
standards imposed for a person to be a witness to a will.
Page 88 of 128
WITNESS AS A HEIR
The fact that a witness is a beneficiary under the will will
not disqualify him as a witness, but it may disqualify him,
his spouse, or his child, to be such heir, devisee or legatee,
unless there are 3 other people acting as a witness to the
same will. This is to protect the integrity of the will; to
discount the possibility of undue influence or improper
pressure.
However, if what was provided in the will is the payment of
an obligation to a creditor, that will not be taken as a
disposition that would disqualify the creditor from
receiving payment. What is involved here is not merely a
disposition, but a satisfaction of an obligation.
JOINT WILLS ARE NOT ALLOWED
A joint will is not allowed by the law, neither can it be
executed by Filipinos abroad. The reason being is that if it is
a joint will, it will destroy the purely personal character of a
last will and testament.
PATENT AND LATENT AMBIGUITIES
Q: Do we allow the reception of intrinsic evidence
ambiguities in the will of both patent and latent
ambiguities?
A: Yes, latent ambiguities are those that are not immediately
apparent. It is brought out by consideration of extraneous
circumstances. Under the law, you are allowed to resolve
this by first examining the four corners of the will and also
admitting extrinsic evidence except for any oral
declarations that may be attributed to the testator.
As to patent ambiguities, those that are apparent on the face
of the will, you must examine the will but you are also
allowed to interpret the words of the will taking into
consideration the circumstances under which they were
written. In that sense, extrinsic evidence may still be
admitted in patent ambiguities, but it is narrower in
relation to the admittance of this evidence in latent
ambiguities since in patent ambiguities, you are limited to
the interpretation of the words using the context of the
circumstances when they were written.
REVOCATION OF WILLS
Another term used for describing a will as revocable is that
is ambulatory in character. You cannot revoke a will for any
reason or no reason.
Furthermore, given the fact that no documentation is
required in revocation, it may happen that people will not
even know that the testator executed a will and revoked it
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
thereafter. It may happen that you wrote a holographic will
but you tore or burned it. Hence, it existed then was
destroyed without everyone knowing.
That is partly the essence of a will, and where the freedom
comes from. For example, the treatment of a person to a
testator may be affected which will affect how the testator
feels about the heir, i.e. he may change his mind about
revoking the will.
There are many ways to revoke a will:
1. Execution of a subsequent will meant to revoke
a prior will.
One method of revoking a will would be executing a
subsequent will meant to revoke a prior will. In that case,
the revocation was documented. However, with the more
practical means of burning, destroying, etc., there is no
documentation needed and there may be no proof that
exists that the will was revoked through destruction.
2. Physical destruction
There is no documentation needed in this case.
3. Presumption of Revocation
For example, your grandfather secretly disclosed to you that
he made a will wherein you will inherit something from the
free portion. It was made as a secret to prevent animosities
between the heirs. Supposing upon his death, you couldn’t
find his will, the law provides a presumption that if it can be
shown that at the time of death of the decedent, the testator
had access to the will and that such will can no longer be
located, then it is presumed that he has destroyed the
same as a means to revoke it.
This is without prejudice to you finding the will again even
many years after and submitting the same for probate;
there is no prescription [for wills]. This is because the idea
is to always give effect to the testamentary intent.
ESSENCE OF REVOCATION
Until the testator dies, the will does not take effect.
Q: Thus, what is the point of revoking something that
has not taken effect, what are you putting an end to?
A: It is not proper to say that you are putting an end to the
will since the will has no effect. What you are putting an end
to is the potential capacity of the will to operate at the time
of death of the testator.
MANNERS OF EFFECTING REVOCATION
There are three ways to revoke:
Page 89 of 128
1. By implication of law – this takes place when we
have legal separation and disposition is in favor of
the guilty spouse. The legal separation will trigger
the revocation of the testamentary dispositions or
the entire will itself if the all the dispositions are in
favor of the guilty spouse by implication of law. In
this case, the testamentary capacity of the testator
no longer matters since the revocation arises from
law.
2. Execution of a subsequent will or codicil –
Testamentary capacity is required here. The
revoking will must be admitted to probate;
otherwise, the preceding will remains subsisting
and is not revoked.
a. Express – the revocation is expressly stated.
b. Implied – two wills will be admitted to
probate and determine whether their
dispositions or provisions are compatible or
so inconsistent or contradictory to each
other that they cannot co-exist. Arriving at
that conclusion, we will be guided by the
same rules of interpretation that the law has
laid down for wills. Under the law, it states
that we will strive to give every provision
some effect rather than suppressing anyone
of the disposition made by the testator
because the idea is to always give effect to
testamentary intent. This is the same in our
interpretation in laws, we also do not favor
implied repeals and we also try to harmonize
the different provisions of the law. It is the
same here.
REVOCATION OF WILLS AND TESTAMENTARY
PROVISIONS
Article 830. No will shall be revoked except in the following
cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will
with the intention of revoking it, by the testator himself, or
by some other person in his presence, and by his express
direction. If burned, torn, cancelled, or obliterated by some
other person, without the express direction of the testator,
the will may still be established, and the estate distributed
in accordance therewith, if its contents, and due execution,
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court.
There are three ways by which a last will and testament
may be revoked:
1) By implication of law – testamentary capacity need not
be present anymore since this is independent of the will of
the testator.
Example of revocation by implication of law:
Decree of Legal Separation
Testamentary dispositions in favor of the guilty
spouse will be revoked by operation of law.
Take note of the qualification. Just because there
is a decree of legal separation, it will not
necessarily follow that testamentary dispositions
will be revoked. Only those made in favor of the
guilty spouse by the innocent spouse.
Q: Why do we have revocation by implication law?
A: Because this takes place whenever circumstances
change. From this change in the circumstances the law
presumes that the intention to benefit the
heir/devisee/legatee is no longer present. Just in the case of
a legally separated couple. The law presumes that the
innocent spouse would no longer want to have the guilty
spouse as his or her heir.
2) By the execution of a subsequent will or codicil –
testamentary capacity is needed.
Crucial to this revocation is the admittance to probate of the
revoking will. If it is not admitted to probate, then we
cannot speak of revocation at all.
A complication here will arise if there are several wills. As
you must understand, there are two (2) ways to revoke
through a subsequent will or codicil:
1) Express revocation – the revoking will specifies the
prior wills that it is revoking. Hindi pwedeng meron kang
revocatory clause couched in general terms saying that
this will supersede and revoke all prior wills which are
inconsistent with it. Because that is simply restating the
rule for implied revocation. That will not qualify as an
express revocation.
2) Implied revocation – there is an implied revocation
whenever the provisions in various wills are incompatible
with one another. So incompatible that they cannot
co-exist.
Page 90 of 128
Q: Ano ‘yung complication?
A: Kasi if you have an express revocation then you can do
with simply submitting the revoking will for probate. You no
longer have to submit the supposedly revoked will,
particularly if the revocation is in its entirety (meaning the
entire prior will is revoked by the revoking will). So if you
have this expressly revoking will then you only have to
submit this for probate. If admitted, then no need to submit
the prior supposedly revoked will to probate anymore kasi
it does not matter anymore. Revoked siya eh nitong ating
present will.
Q: Kailan mo lang siya kailangang i-submit?
A: If this revoking will does not pass probate. In which case,
you do not have a valid revoking will. The implication of this
is that there is still a chance for the prior supposedly
revoked will. At that instant, dapat i-presenta mo ngayon
‘yung prior supposedly revoked will because it was never
revoked. Why not? Because the revoking will was not
admitted to probate.
Q: Now, let’s go to a situation where we have various
wills but there is no express revocatory clause. What
will happen then?
A: Well, we can only come to the conclusion that there is an
implied revocation if by comparing all the dispositions we
find out that there are conflicting, incompatible dispositions
or provisions.
The problem is if what you have is a revocation by
implication, then you will have to wait until the death of the
testator for all of these dispositions to take effect. Why?
Because they are dependent on death. They are dispositions
mortis causa. And similarly, since they are contained in
separate wills, and none of them have been expressly
revoked, then it follows too that all of these wills must be
submitted for probate kasi until they pass probate then we
cannot give them effect. It is a mandatory requirement that
all wills must pass probate. Mas komplikado dahil imbes na
isa lang ang isu-submit mo sa korte for probate, you will
now have to submit all of the wills for probate. Because only
after that they are admitted to probate, will it become
relevant to compare the dispositions and finding out
whether they are incompatible or not. ‘Yan ‘yung
complication doon.
NOTE: If the revoking will does not pass probate then you
will not have a valid revocation simply because there is no
subsequent revoking will. Hindi papasok dito ‘yung
doctrine of dependent relative revocation kasi
pinag-uusapan lang natin is a prior will and a supposedly
revoking will. And then your supposedly revoking will is not
admitted to probate.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
3) Physical destruction – testamentary capacity is needed.
Of the three, revocation by physical destruction may prove
to be the trickiest to navigate. If only because we do not
have documentation. Unlike in the execution of a last will
and testament where we have at least a paper trail in the
case of a holographic will or witnesses and notarization in
the case of a notarial will, ‘yung revocation by physical
destruction this is often a secret affair. Kadalasan, si
testator lang ang nakakaalam at siya lang ang
nakaka-[inaudible]. So dalawa ngayon ang pag-iisipan natin
dito. Was there really physical destruction? If there was, was
there intention to revoke? Because these two must
coincide: animus revocandi and physical destruction.
One without the other will not give effect to revocation.
Here, we do not have any basis at all as to what is the
intention of the testator is but there was one case where the
Supreme Court was prepared to declare that there was such
an intention to effect the revocation of the present will to be
the dependent on the validity of a subsequent will that
would be executed in the future.
What was invoked here was a will that was executed about
20 years apart. The first will was in 1918 and the second
will was in 1939 and both wills have the same provision.
The disposition was in favor of the wife.
Bakit nagkaron ng controversy? Because since there were
two wills and the latter will being the most recent. This was
the one presented to probate by the [inaudible]. It did not
pass probate.
So ano yung ginawa niya rito? Nag-hahanap siya ngayon ng
kopya nung first will, hindi niya nakita yung original. Pero
nakita niya yung kopya na supposedly iniwanan sa kaniya
nung asawa for here safe keeping. So she presented this for
probate and this was opposed by the brothers of the
husband.
Sabi ng brothers, well hindi mo na makita yung original so
mag-aapply dito yung presumption that the same was
revoked through physical destruction. At maliwanag naman
yun, and you understand bakit nila ginagawa yun, because
since it was the wife who survived the husband together
with the siblings then the presence of that last will and
testament will exclude all of the siblings from inheriting as
opposed to having the estate settled through intestate
succession in which case, the wife would be concurring with
the siblings. Kaya it was imperative for the brothers to take
out the last will and testament.
Siguro sa unang tingin kung ikaw ay abogado nung mga
kapatid, you’ll be very confident, the law is on your side
pero na-blind side sila because sabi ng Supreme Court – No,
you have to apply the doctrine of relative revocation
Page 91 of 128
because even assuming that the will was indeed revoked.
The fact is that the husband ensure that the wife gets
everything. At siguro iniisip ng husband, na since matagal
na niyang na-execute yung first will, baka luma na, parang
may expiry date because sometimes ganiyan naman
mag-isip yung mga ordinaryong tao, pag masyado ng
matagal baka hindi na effective kasi hindi na fresh. So baka
inisip niya kailangan niyang mag-execute ng bago if only to
reiterate his wishes.
Pero ginawang basehan yun ng Supreme Court that this
shows that he was insecure about his ability to secure a
valid will in the future. May duda siya, so just in case maging
invalid yung kaniyang future will which would provide for
the same thing, the revocation of the first will was made
conditional on the effectivity of the subsequent will which
was yet to be executed.
I know what you’re thinking, parang masyado naming
stretched or strained ang Supreme Court. Parang the
assumptions were generously made. But I’d like to believe
that strained as the application may have been, it is still the
right call. Kasi talagang gusto ng asawang lalaki na sa
asawang babae niya mapunta yung kaniyang kayamanan.
Examples of revocation through physical destruction:
1. Si testator, sinabi niya susunugin ko na ‘yung last
will and testament ko, inabot niya sa kanyang
yaya/assistant para itapon sa apoy, and then the assistant is
able to take out the document from the envelope containing
it before throwing the envelope into the fire. So you have
intention to revoke (animus revocandi), but you do not have
physical destruction.
2. Si testator, siya ay nagliligpit ng kalat niya sa
kanyang table and then bawat papel na nakuha niya,
kanyang pinupunit and without realizing it napasama na
‘yung last will and testament niya. Here you have physical
destruction, but there is no animus revocandi. No intention
to revoke. So wala pa ring revocation.
NOTE: This delineation that we are making between there
being intention to revoke vs. there being none or there
being physical destruction vs. there being none, malaya
natin itong nadi-discuss because we are controlling the
facts in the discussion. Para tayong may CCTV doon sa ating
sample testator at nakikita natin ‘yung galaw niya.
Sa totoong buhay, wala. What will you have? You will have
glimpses of events. Maaaring nalaman mo na lumapit siya sa
abogado nagpagawa ng last will and testament, pinuntahan
mo ‘yung abogado, na-confirm niya na may last will and
testament pero hindi naman siya nag-iwan ng kopya dahil
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
hindi naman siya required na magtabi ng kopya ng last will
and testament.
And then nakausap mo ‘yung kanyang confidante, sinabi
sa’yo, pinakita sa kanya ‘yung last will and testament, but
after the testator’s death, you will be looking high and low
in his residence hindi mo makita. What will be your
conclusion? Did he destroy it by himself with the intention to
revoke? Or was it inadvertently destroyed without him
realizing it and therefore there was no intention to revoke?
These are questions that we may never know the answers
to kasi wala ngang documentation ‘yung revocation.
We have to presume rin because otherwise, the issue
relating to whether the estate would be governed by testate
or intestate succession, will forever be left hanging. E
kailangan tayong mag-move on, ‘di ba? So we presume that
if it has been established that the testator executed a
last will and testament and it could no longer be found
after his death and it was further established that he
had access to the same, then the failure to find it
anywhere would give rise to the presumption that he
has revoked the last will and testament through
physical destruction. ‘Yan yung magiging basehan para sa
ating settlement of the estate through intestate succession.
WAYS BY WHICH A WILL MAY BE REVOKED BY
PHYSICAL DESTRUCTION
The law actually specifies four (4) ways:
1. Burning;
2. Cancelling;
3. Tearing; or
4. Obliteration
Although siguro, at first glance, iniisip natin dati crumpling
is a way of revoking. But you would note that crumpling the
document is not among the means of physical destruction
allowed under the law. So what the law does not include,
it necessarily excludes. If the document is simply
crumpled, it was not torn, it was not burned, there was no
obliteration, there was no cancellation, then we cannot say
that there is physical destruction.
Q: Should the physical destruction be in its entirety?
A: No. You only need to cancel or obliterate the substantive
portion of the will which makes disposition. By taking out
the will of the heir, there is no disposition anymore.
Q: What about burning or tearing?
A: The document need not be totally torn or burned for
there to be revocation. It’s all a matter of intention. There
are the Subjective and Objective phase.
Page 92 of 128
In the subjective phase, the testator is not yet done with
the physical destruction and is still ongoing. Since it is
ongoing, he can still change his mind and desist. If he
desisted during this phase, there is no need to republish or
re-execute the will because revocation is still not yet
effective. The determination of the subjective phase goes to
the intention of the testator through his acts.
Example:
He finds out that his heir has gone against his wishes.
Nilabas nya ang last will and testament sabay punit and
now has two pieces of the same. He proceeds to tear it up
again. The paper has now been reduced to 4 smaller pieces.
If at that point, he puts the paper down and walks away,
that act implies he is done which means the subjective
phase is completed and revocation is now on the objective
phase. He can no longer take it back. It is his act of putting
the paper down and walking away which shows that the
revocation is deemed completed.
But if instead of putting it down and walking away, he
proceeds to tear it up again to make it 8 and after that,
nagmakaawa yung nanay sakaniya then he stops tearing the
paper, that action would indicate that the physical
destruction is not yet complete. He desisted in the
subjective phase, the effect of which is that the will can still
be given effect without need for republication. Pwede pa
pagtagpitagipiin yung will and it would still be valid.
A last will and testament is ambulatory in character.
- If the testator is going to revoke a last will and
testament, he need not explain the reasons for such. It
can always be revoked at anytime by the testator for
any reason or no reason at all.
- But he is not prohibited from also explaining his
reasons for doing so. This may be done by executing a
new will which contains the reasons for revoking the
prior will.
- Danger of specifying the cause for revocation: under the
law, if the cause for revocation is for illegal or false
cause, revocation may not be given effect if illegality or
falsity of the cause is shown to be existing. Note that
there are authorities question this provision since a will
may be revoked for any reason or no reason at all so
dapat pasok na din dyan yung illegal or false cause.
Hence, the best advice to a client who wants to revoke a
will is not to specify the cause so that it may no longer
be disproven.
DOCTRINE OF RELATIVE REVOCATION
Refers to a conditional revocation. The validity of revocation
depends on the legality of the subsequent will that was
executed in lieu of the will revoked by the testator. This is
revocation with the present intention of executing a
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
subsequent will such that if the subsequent will fails or is
not executed, the revocation will have no effect.
If you express this in a subsequent revoking will then that
intention will be captured because there is documentation.
“I am revoking this prior will with the present intention of
executing a subsequent will in the future with the intention
that if that subsequent will fails or is not executed, then this
revocation will also have no effect anymore.”
Doctrine of Dependent Relative Revocation
(GN 2021):
Where the testator’s act of destruction is connected with
the making of another will, so as fairly to raise the
inference that the testator meant the revocation of the
old to depend upon the efficacy of the new disposition,
the revocation will be conditional and dependent upon
the efficacy of the new disposition; and if, for any reason,
the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will
remains in full force.
But a mere intent to make at some time a will in place of
that which is destroyed will not render the destruction
conditional. It must appear that the revocation is
dependent upon the valid execution of a new will.
The theory on which this principle is predicated is that
the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills
on two different occasions and instituted his wife as his
universal heir. There can therefore be no mistake as to his
intention of dying testate. (Molo v. Molo, G.R. No. L-2538,
September 21, 1951)
NOTE: Failure of the new testamentary disposition upon
whose validity the revocation depends is equivalent to
the non-fulfillment of a suspensive condition and thus
prevents the revocation of the original will.
Q: But what if you are revoking by physical destruction
and there is no documentation? How will deduce the
intention of the testator to justify the application of the
doctrine of relative revocation?
A:
If revocation is through the execution of a subsequent will:
Will A – existing will
Will B – will meant to revoke will A
Will C – will meant to revoke and replace will A
Will B’s only purpose is to revoke, not to replace will A.
After several years, there is another will (Will C) executed
by the testator which contains a stipulation that it is meant
Page 93 of 128
to be the replacement of will A in relation to its revocation
by will B. If Will C turns out to be invalid and not admitted
to probate,
then what happens? We can now apply the doctrine of
dependent relative revocation. Kasi maliwanag that the
revocation by WILL B of WILL C is conditional on the
effectivity of WILL C. And since WILL C was not admitted to
probate then, under the doctrine of dependent relative
revocation, WILL A will have to subsist.
In the same scenario, supposing ang nangyari ay WILL B
was not admitted to probate, what happens now to WILL A?
WILL A will subsist but not because of the application of the
doctrine of relative relcoation but simply because, there
was no compliance with the requirement of a valid
revocation to the execution of a subsequent will dahil WILL
C will be yung ating [inaudible] was not admitted to
probate, was not valid.
Pag doctrine of dependent relative revocation, you must
have at least 3 wills. And the invalid will must be the last
will meant to be the replacement for the first will. But if the
invalidity pertains to the revoking will, then the first will
will subsist not because of the application of the doctrine
because it is not applicable. But simply because there is no
valid revocation through the execution of the subsequent
will.
REPUBLICATION AND REVIVAL OF WILLS
Republication – restoring to validity.
Q: How do you do this?
A: Either you republish, you execute a will or a codicil
referencing a previously revoked will to restore it to
validity. Pwede rin naman the previously revoked will may
be re-executed.
But, if you are dealing with a will that was previously
executed and failed to comply with the formalities of the
law then you cannot republish it for purposes of restoring it
to validity. You will have to re-execute the will.
CONCEPT OF REVIVAL OF WILLS
Q: Ano ba yung revival?
A: Dun sa republication, republishing a will. You would need
to execute or do an act to restore a will to validity. Sa revival,
it’s different, it’s automatic. The pertinent provision is
found in Article 837.
Article 837. If after making a will, the testator makes a
second will expressly revoking the first, the revocation of
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
the second will does not revive the first will, which can be
revived only by another will or codicil. (739a)
The converse would be true if the first will is revoked by
implication by a second will then the revocation of the
second will would automatically revive the first will.
And you understand why this is the rule. [nawalan ng
audio] hindi yung parang merong inconsistency dito. Bakit
natin isiping may inconsistency? Kasi ano ba yung sinasabi
natin before? That a will will not take effect until after the
death of the testator. Pero if you would look at Article 837, it
appears that the express revocation is in effect immediately.
Kasi even though the expressly revoking will is a
self-revoke, the revocation of the first will revoked by the
second expressly revoking will remains.
Kasi kung theory is lahat ng will na ito ay dadalhin natin sa
korte to be admitted to probate. So you have how many
wills? We have 3:
1. FIRST WILL
2. SECOND EXPRESS REVOKING WILL
3. THIRD WILL
We are not even concerned with how the THIRD WILL
revoking the second will. We are only concerned with the
manner in which the second will revokes the first will pag
express revocation.
So namatay si testator and then we now have these 3 wills.
So ano yung gagawin natin? We submit muna the THIRD
WILL being the latest. And if the THIRD WILL which
revoked the FIRST WILL and submitted to probate, what
happens to your SECOND EXPRESS REVOKING WILL? It’s
potential to come into existence is no longer present. It’s
not even correct to say that the SECOND EXPRESS
REVOKING WILLceased to have effect because the theory is
that it never became effective. Why not? Because it was
revoked by the third will.
If it never became effective, then necessarily its express
revocation of the first will should have also not taken effect.
Kasi nirevoke na siya ni THIRD WILL. So, if that is the case,
then logically, the FIRST WILL should be subsisting and
should not be considered as having been revoked by the
second expressly revoking will.
Pero may explanation diyan si Senator Tolentino. Sabi niya,
the reason why Art. 837 provides for this rule is that, the
revocatory clause is not a disposition. So it can be given
instantaneous effect. In other words, it does not have to
take effect after the death of the testator. It takes effect
Page 94 of 128
immediately. So that, when the SECOND EXPRESS
REVOKING WILL was drawn, was executed and it provided
for the express revocatory clause, then that express
revocatory clause immediately and instantaneously took
effect, and what is that effect? To take out the first Will. That
is why when the third Will was executed and it meant to
revoke the second expressly revoked Will, then all the third
Will was able to do is to put an end to the potential of the
testamentary provisions contained in the second Will but it
can no longer touch and undo the effect of the
instantaneous and express revocation kas inga it has taken
effect. That is the reason why even though the second
expressly revoking will is itself revoked, its revocation will
not revive the first Will. The first Will remains revoked
unless it was restored to validity via subsequent will or
codicil.
Isn’t this inconsistent because there is a requirement that
the revoking Will must be admitted to probate, and
supposedly you can only effect a revocation through the
execution of a subsequent Will if that subsequent Will is
valid and admitted to probate. That is true. Kaya nga sabi ko
sa inyo kanina, if the revoking Will is not admitted to
probate, there is no revocation to speak of at all.
Q: Now, how do we reconcile that requirement of
probate or validity of the revoking will?
A:
ARTICLE 837. If after making a will, the testator makes
a second will expressly revoking the first, the
revocation of the second will does not revive the first
will, which can be revived only by another will or
codicil. (739a)
The reconciliation would be by treating the requirement of
probate passing probate not as a suspensive condition but
as a resolutory condition so that if the revoking will does
not pass probate, then the revocation that it has given
immediate effect to will now become undone or
extinguished for failure to fulfill the condition that it passes
probate.
Q: Ngayon, what about the situation with implied
revocation? Why do we have a different conclusion if
there was an impliedly revoking Will instead of an
expressly revoking Will?
A: In that situation, the revocation of the impliedly revoking
Will will revive the first revoked Will. The reason for this
that tatandaan niyo sa implied revocation, your basis for
saying that there is implied revocation would be
incompatibility of testamentary provisions, and
testamentary dispositions do not take effect until after the
death of the testator. So, if after the death of the testator,
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
nakaline up ang ating mga last Will and Testament, and then
you would be making comparisons. If they are incompatible
and cannot co-exist, so the conclusion is that the second
Will has impliedly revoked the first Will. First Will cannot
exist because of the Second Will. And then tinignan mo
‘yung third Will, “Aba, si Third Will pala takes out the second
will”. Then assuming that these three wills are admitted to
probate, and third will has taken out second will out of the
equation, what will be the conclusion? Nawala ‘yung
malaking hadlang sa buhay ni First Will. Nawala ‘yung
source of incompatibility. The only reason why you were
saying the first Will is revoked is because of the existence of
the second impliedly revoking Will. Take out the second
will, there would be no incompatibility anymore. No
incompatibility means no implied revocation. No implied
revocation means first will continues to exist. First will is
revived.
PROBATE
Q: What is probate?
A: Probate would be the proceeding whereby the Will will
be submitted to court for the determination of its
compliance with the formalities of law. The thing with the
probate proceeding is that the court hearing the probate is
only vested with limited jurisdiction.
Q: What would be that limited jurisdiction?
A: Only to determine the extrinsic validity of the Will. The
probate court is not supposed to touch on the intrinsic
validity of the Will. This will have to be determined in a
different proceeding – settlement of the estate of the
testator.
Rule: If there are questions on the intrinsic validity of the
dispositions, then that would be the venue for those
questions (settlement of estate)
As you must also know, there are exceptions because
sometimes the parties themselves would present the issue
relating to intrinsic validity to the court OR sometimes the
issue relating to intrinsic validity would be so apparent and
palpable and to disregard it would simply mean prolonging
the agony of the parties kasi doon palang makikita mo na
eh.
Page 95 of 128
Nuguid vs. Nuguid
G.R. No. L-23445 | June 23, 1966 |Sanchez, J.
In this case, we had a sister, securing a last Will and
Testament, and leaving everything to a sibling. Ang
problema buhay pa ‘yung magulang nila, and the
parents were not mentioned at all. So, obviously, there
was preterition.
The Court said: Rather than simply pass upon the
validity of the judgment of the Probate Court and gloss
over this very glaring issue of preterition only to have
the parties come back to us, we better tackle the issue
head on kasi ‘yung effect ng preterition as you also
know is to annul the institution of heirs, and this is
what happened in this case.
In another case, the testator left a will and apparently he
had a side chick. In his will, he named the side chick
(mistress) as the executrix of his estate. Here, the wife
questioned the appointment of the mistress. Ngayon, he
conveniently dies and he leaves his controversial will. Since
the issues of qualifications spilled over the validity of the
dispositions made in favor of the mistress, then the Court
said, this can be passed upon as well kahit probate
proceedings lang ito because the parties themselves
submitted this issues to the court to pass upon the validity
of the dispositions in your favor and we don’t want to do
that at this point. But sometimes, may mga litigants na
nakikita sa movies na ang abogado ay tumatayo na lang
bigla at nag haha pas ng mesa at sumisigaw, hahanapin nila
sainyo yan. Kailangan ganyan ka-passionate. And when they
see that you are laid back, baka palitan ka niyan. That is a
risk you have to take because you have the be the best for
your client, not what your client wants to see.
Gusto niya ng fireworks, eh motion to suspend lang eh,
motion to postpone lang at gusto niya makipagsigawan ka
sa kapwa mo abogado, hindi naman pwede iyon. Hindi
naman tama na awayin mo ang kapwa mo abogado.
Mamaya kailangan mo humingi ng extension, edi para hindi
niya i-oppose. Kapag friendly kayo, minsan papalusutin na
lang niya ang questions mo, hindi yung object nang object
siya. After the hearing, yayain mo mag-kape. Hindi, wag mo
yayain mag-kape unless magkaibigan na talaga kayo, kasi
your clients are very jealous. If they see you patronizing
with the opposing counsel, iisipin nilang binebenta niyo na
ang kanilang kaso.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
DISALLOWANCE OF WILLS
Art. 839. The will shall be disallowed in any of the
following cases:
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or
the influence of fear, or threats;
(4) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary or of some
other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time of
affixing his signature thereto. (n)
INSTITUTION OF HEIRS
SECTION 2. - Institution of Heir
Art. 840. Institution of heir is an act by virtue of which a
testator designates in his will the person or persons who
are to succeed him in his property and transmissible
rights and obligations. (n)
Art. 841. A will shall be valid even though it should not
contain an institution of an heir, or such institution
should not comprise the entire estate, and even though
the person so instituted should not accept the
inheritance or should be incapacitated to succeed.
In such cases the testamentary dispositions made in
accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs. (764)
A will is supposed to contain a disposition in order to be
valid as a will.
If it doesn’t contain any disposition, it is not a last will and
testament, but it may be some other kind of instrument. If it
is not a last will and testament, then it doesn’t have to
Page 96 of 128
comply with the formalities and requisites of the same, as
well as it will not undergo probate.
Q: Does it follow that every will must provide for an
institution of an heir?
A: No. When we speak of disposition, we are not limited to
the institution of heirs. Disposition includes the form of
making devices and legacies.
Q: Is it possible to have a will that only includes devices
and legacies?
A: Yes. As mentioned before, if a will only includes a
provision for disinheritance, it is possible too. That is
tantamount to a disposition in favor of those who are
inheriting in lieu of the disinherited heir.
Art. 842. One who has no compulsory heirs may dispose
by will of all his estate or any part of it in favor of any
person having capacity to succeed.
One who has compulsory heirs may dispose of his estate
provided he does not contravene the provisions of this
Code with regard to the legitime of said heirs. (763a)
Q: How many heirs are there?
A: You can have more than one heir. You can name several
persons to inherit an aliquot portion of your estate.
Q: Who are the compulsory heirs?
A: Descendants and ascendants, and the surviving spouse.
The compulsory heirs are the ascendants and the
descendants subject to the rule that those in the descending
line would exclude those in the ascending line, save for
illegitimate children. They do not exclude the illegitimate
ascendants.
If the decedent is illegitimate, the ascending line would be
excluded both the legitimate and the illegitimate
descendants.
Art. 843. The testator shall designate the heir by his
name and surname, and when there are two persons
having the same names, he shall indicate some
circumstance by which the instituted heir may be known.
Even though the testator may have omitted the name of
the heir, should he designate him in such manner that
there can be no doubt as to who has been instituted, the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
institution shall be valid. (772)
Q: How do we institute and heir?
A: Name a person as your heir.
Q: How much can you give to this person?
A: Depends on whether you have compulsory heirs or not.
That is the limitation: the presence of compulsory heirs. If
so, the person is limited only to the free portion. If you do
not have compulsory heirs, you can give the entire estate.
Q: How do you designate an heir?
A: Ideally, you must name.
Q: How should you name?
A: Whole name. First name, Middle name, Surname.
Art. 844. An error in the name, surname, or
circumstances of the heir shall not vitiate the institution
when it is possible, in any other manner, to know with
certainty the person instituted.
If among persons having the same names and surnames,
there is a similarity of circumstances in such a way that,
even with the use of the other proof, the person
instituted cannot be identified, none of them shall be an
heir. (773a)
Q: If you fail to name, is it fatal?
A: Not necessarily. Ultimately, the only requirement of the
law is that you should have some kind of description
wherein the institution of the heir could be identified.
“I am naming as heir to ¼ of my estate a student from UST
FCL who will place in the Top 10 of the 2023 Bar.” No name,
but we have a description, circumstances where the
instituted heir may be identified.
Art. 845. Every disposition in favor of an unknown
person shall be void, unless by some event or
circumstance his identity becomes certain. However, a
disposition in favor of a definite class or group of persons
shall be valid. (750a)
What is not allowed is if you have nothing to go by. If the
heir will be “secret”, then that is not allowed. How would
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you dispose of the property to someone who is unknown,
but is also non-identifiable?
Art. 846. Heirs instituted without designation of shares
shall inherit in equal parts. (765)
There is also this rule of equality, which would apply if you
have more than one heir.
You have several heirs which you instituted to inherit a
certain aliquot portion or the entire estate. Then the
presumption of the law is that they will be inheriting
equally.
Q: What is the exception?
A: If there is a testator who would specify the portions that
they will take.
Q: Is that allowed?
A: Yes. That is the purpose of a last will and testament: to be
unfair. If fairness and equality is what you long for, better
die intestate. That is what is provided in the law. Everyone
in the same class would be inheriting equally. If you want to
favor some over the others, you have to execute a last will
and testament.
Art. 847. When the testator institutes some heirs
individually and others collectively as when he says, "I
designate as my heirs A and B, and the children of C,"
those collectively designated shall be considered as
individually instituted, unless it clearly appears that the
intention of the testator was otherwise. (769a)
Q: Supposing that there are some who are individually
designated, and some who are collectively designated,
what does this mean?
A: Pinangalanan yung iba, and yung iba, lump sum.
Q: “I am instituting A, B, and C, and the children of D” If
that is how the institution is made, then, how should we
treat all of these heirs? Let’s say, the children of D are:
X, Y, and Z. So, how many in all will be inheriting?
A: A, B, C which are three; and X, Y and Z which are three. In
total, we have six (6) people. The law says, those collectively
designated shall be considered as individually instituted,
unless it clearly appears that the intention of the testator
was otherwise.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
In this scenario, all six shall be considered individually
designated, and we apply the rule of equality, and we shall
give them all ⅙ of the estate.
Q: Would there be any difference if we treat those
collectively designated as being entitled to only one (1)
portion in the institution?
A: Yes. This is akin to succeeding per stirpes.
Q: What would happen?
A:
A = 1 (¼)
B = 2 (¼)
C = 3 (¼)
Children of D = 4 (¼)
X = 1/12
Y = 1/12
Z = 1/12
Q: Where would the Children of D get better shares?
A: If they are considered as individually designated. There,
they would receive ⅙. Here, they would receive 1/12. ⅙ is
twice as much as 1/12. Nalugi sila ng 50%.
Q: If you are instituting a person as your heir, are your
required to justify your institution? Are you supposed
to give a reason?
A: No. Last will and testament yan eh. You can do whatever
you want, subject to limitations of officiousness. It cannot
impair the legitime. If you have no consideration, when you
have no compulsory heirs, you can do whatever you want.
You don’t have to justify.
If you name your side chick as your heir, don’t say na side
chick mo siya. Bigyan mo na lang. Bahala na sila, your wife
and her lawyer, to prove that she is your mistress. And, you
are giving inheritance to her in consideration of your
relationship with her. If you don’t say that she is your
mistress, how will you prove that? Hindi naman
mapapatunayan yun. If you say it, then you are giving them
a bullet against your mistress. Diyan lumalabas yung
kasabihan na “silence is golden.”
Q: Supposing you did provide your reason for making
the institution, what could be the possible
consequence?
Page 98 of 128
A: Those interested will, excluding that heir, would try to
prove the falsity of the cause for the institution.
Don’t say na “Hindi naman siguro, para namang…” Hay,
class. Nagkakaroon ng transformation yang mga kaanak
matapos mamatay yung magpapamana. The things you
thought were not possible before…
Kunwari, si side chick eh accepted naman doon sa pamilya
ng lalaki… believe me, once he dies, wala na rin yun. They
will question her.
First, the relatives will get a lawyer, and the first thing the
lawyer would say is, “Tanggalin mo na mana ni side chick,
question-in natin yan.” The relatives might say “Wag na
Atty., nagmahalan naman sila…” [HAHAHA NAURRR] and
the lawyer would say, “Hindi, sa batas talaga eh bawal yan.”
And sometimes, if you give a justification to someone and
they’ll think it is legal, then they’ll do whatever it takes to
get it, since they will go with what you say. Dapat yan ang
batas.
Q: Supposing the cause was stated and the same is false,
and the falsity is proven, would that be enough to set
aside the disposition?
A: No, unless it can be shown that it’s the only reason why
the disposition is made. If it can be shown that the testator
would not have made the institution had he known the
falsity of the cause. Example, he though you saved him.
Nahulog siya sa ilog tapos tumalon ka after him, and at that
moment, sabay mo kayong nasagip. Hindi mo pa naman siya
nasasagip, pero pakiramdam niya, you attempted to save
him. So, that was the reason he stated. “I am instituting Ms.
Cruz, because even though I did not know her, she jumped
in when I fell into the river, in an attempt to save me,
disregarding the danger to her own life.” Yun pala tinulak
lang din si Ms, Cruz, and she has no intention to save the
testator. In that case, the institution should not be
sustained, because obviously, that was the only reason of
the testator of making the disposition, and obviously, had
the testator known that Ms. Cruz was simply pushed, he
would not have made that disposition.
INCREASE/REDUCTION OF SHARES
The testator can designate the shares, that each heir would
be taking. Sometimes if you would add the sharings, then it
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

would exceed 1 whole, and sometimes, it would not reach 1 Two Conditions:
whole. So what would be the step that must be taken? 1. If it was the intention of the testator that the
instituted heirs should become sole heirs to the
Firstly, look into the intention, if it is really to give the entire whole estate, or the whole free portion
estate to the instituted heirs. 2. their aliquot parts together do not cover the whole
inheritance
This is when the totality of the shares would not amount to
the entire estate, to 1 whole. Take Note of these two conditions. That’s the time that we
increase.
Example:
If wala naman sinabi, that he’s instituting X, Y and Z as heirs Example:
of the entire estate. And then the totality of their shares We have 3 heirs, we have:
only amount to 2/3s, no need to increase, because he may
want the remaining 1/3 to be distributed through intestate A – 1/6
succession. B – 1/6
C – 1/3
But if there is an indication that the entire estate is being
given, and the shares do not equate to 1 whole, then you And then if you’ll add, 1/6 + 1/6 + 1/3, that would only
need to increase each share. amount to 2/3s, so kulang ng 1/3. Do we increase their
shares? Yes, because of the intention of the testator to name
them as heirs to the entire estate.
ESTATE IS CONVERT NEW NEW COMPUTE SHARES WITH
360K TO DENO RATIO INCREASES Q: How do you increase?
SIMILAR MINA S A:
FRACTIO TOR
NS 1. Convert them to similar fractions, meaning to say,
they should have the same denominators.
A – 1/6 A – 1/6 1+1+2 1/4 1/6(360) + 1/4(120) =
=4 60+30 = 90
A - 1/6 = 1/6
B – 1/6 B – 1/6 1/4 1/6(360) + 1/4(120) = B – 1/6 = 1/6
60+30 = 90 C – 1/3 = 2/6
C – 1/3 C – 2/6 2/4 1/3(360) + 1/2(120) =
120+60 = 180 2. Once you have converted them, get the numerators,
EXCESS: and add them together, and they will now become
120K the denominators that you will be using for your
fractions in distributing the excess.

1 + 1 + 2 = 4 (new denominator)
INCREASING OF SHARES
3. Retain the original numerators.
Example of how to Increase Shares:
A - 1/6 = 1/6 to 1/4
Here, we have Art. 852. Take note of the first sentence, B – 1/6 = 1/6 to 1/4
C – 1/3 = 2/6 to 2/4 (1/2)

Article 852. If it was the intention of the testator that 4. Compute

the instituted heirs should become sole heirs to the
whole estate, or the whole free portion, as the case
may be, and each of them has been instituted to an
aliquot part of the inheritance and their aliquot parts
together do not cover the whole inheritance, or the
whole free portion, each part shall be increased
proportionally. (emphasis supplied by Ma’am)
A – 1/6(360) + 1/4(120) = 60+30 = 90
Your original share of 1/6 of 360k (the estate), will
now be increased by ¼ of 120k (the excess), which
is equivalent to 60 + 30 = 90.
B - 90, since his share is the same as A’s share.

Page 99 of 128
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

C - 1/3(360) + 1/2(120) = 120+60 = 180

C–½ C – 2/4 ⅖ ½ (100) – ⅖
(25)
5. Total
= 50-10 = 40
A - 90: his share of 60 was increased by 30
EXCESS TOTAL = 100K
B – 90 (same with A): his share of 60 was increased
: 25K
by 30
C – his original share of 120 was increased by 60
Here, in 853, we will do the opposite. We are going to
Total: 90 + 90 + 180 = 360k (so the entire estate reduce because here each of the instituted heirs has been
has been distributed among the heirs. We increase given an aliquot for part of the inheritance, and the parts
their shares because of the intention of the testator when added together would exceed the whole inheritance
to have them sole heirs to the entire estate, or to or the whole free portion. Reduction proportionately would
the entire free portion.) be warranted and we will follow the same procedure.

But if we do not have that indication of the
intention of the testator, we will leave them as is.
We will not increase. The excess will go by intestate
succession, since whatever is not disposed of by the
last will and testament will have to go by intestate
succession, giving us a mixed succession,
combination of testate and intestate.
We will enumerate the shares, ¼ +½ +½
New Ratios = ⅕ ,⅖ ,⅖ = 1
So yung total natin kanina would be 1 ¼ , we exceeded by
¼ . We need to reduce by ¼ The excess is 25,000. The goal
is to reduce the sharing by 25,000.

Share of A
DECREASING OF SHARES
Here, the original share of A is ¼ of 100K is 25k. Based on
our computations, the proportionate share that would have
Same rule/steps in reducing shares. Example when there is to be taken from A is ⅕ of the excess 25k or 5k. (25-5 = 20K)
a need to reduce.
Share of B
Article 853. If each of the instituted heirs has been given Here, the original share of B is ½ of 100K is 50k. Based on
an aliquot part of the inheritance, and the parts together our computations, the proportionate share that would have
exceed the whole inheritance, or the whole free portion, to be taken from B is ⅖ of the excess 25k or 10k. (50-10 =
as the case may be, each part shall be reduced 40K)
proportionally. (n)
Share of C
Here, the original share of C is ½ of 100K is 50k. Based on
our computations, the proportionate share that would have
ESTATE CONVE NEW NE COMPUTE FOR
to be taken from C is ⅖ of the excess 25k or 10k. (50-10 =
IS RT TO DENOMI W SHARES WITH
40K)
100K SIMILA NATOR RAT INCREASES
R IOS
If you add this, you now have 100K. These will be the
FRACT
deductions you made for each of A, B and C, 5k, 10k and
IONS
10k, for a total of 25K or the excess.
A– ¼ A–¼ 1 + 2 +2 = ⅕ ¼ (100) – ⅕
5 (25) PRETERITION
= 25-5 = 20
Inadvertent omission, unintentional omission as opposed to
B–½ B – 2/4 ⅖ ½ (100) – ⅖ a defective disinheritance. In a defective disinheritance,
(25) there could be no doubt with the intention of the testator
= 50-10 = 40 which is to exclude the disinherited heir. Only his action is
thwarted by a failure to comply with the requirements of
the law for valid disinheritance.

Page 100 of 128

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
In preterition, there is an omission, but since there was no
categorical disinheritance then the law is reluctant to say
that the omission was done on purpose.
Problem is it is so hard to determine if there really has been
an omission for as to say that preterition exists.
Article 854. The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of
heir; but the devises and legacies shall be valid insofar as
they are not inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without
prejudice to the right of representation. (814a)
For us to say there is preterition, the omitted compulsory
heir must be the real compulsory heir. He must be the
compulsory heir at the time of death of the decedent, the
testator. Because if he predeceases the testator then, he will
no longer be the real compulsory heir. Sino na? It will be the
person next in line. It can be his child, his grandchild or
anyone else.
Maaari ,that the target really was the father, who is the child
of the testator. He was the one who was omitted. But the
father predeceased the testator and he was replaced by his
own son, or the grandson in relation to the testator. If the
grandson was however, included in the will of the testator
then we cannot speak of preterition anymore. Even though
the son who is the father of the grandson was omitted. With
his death, he is no longer the real compulsory heir.
Note: When the law says that only compulsory heirs in the
direct line may be preterited then the law is also effectively
saying that all of the compulsory heirs may be preterited
except for the surviving spouse. The surviving spouse is the
only compulsory heir who is not in the direct line, in fact the
spouse is not in any line at all.
Q: When do we say that there is an omission?
A: There is an omission if the compulsory heir is not
mentioned in the will either as a compulsory heir or
testamentary heir or in whatever capacity.
Akala ko ba na you do not have to provide for the
compulsory heirs in the will because they will succeed by
operation of law even if you don’t mention them? But if you
have seen samples of last will and testament, then you
would also know that what usually happens is that at the
beginning when the testator is setting forth his details, then
one of the first few lines will be devoted to the identification
Page 101 of 128
of his immediate family. Usually, when you so identify your
immediate family that would be a recital of who you
compulsory heirs are. (anak, apo, magulang, lolo at lola)
When you make that enumeration, necessarily you are also
reciting who your compulsory heirs unless wala kang mga
anak. In determining if there is preterition or not, is to see if
Art. 906 applies. If Art. 906 applies then the consequence of
preterition cannot take place.
Article 906. Any compulsory heir to whom the testator
has left by any title less than the legitime belonging to
him may demand that the same be fully satisfied. (815)
Remedy is to demand that his legitime be completed. That is
the only remedy. This is incompatible with the remedy
provided for preterition, which is to annul the institution of
heirs and to also set aside devises and legacies, in so far as it
may impair the legitime.
Necessarily kung pasok yung remedy ng 906, you cannot
annul the institution of heirs which means you cannot sya
that there is preterition. If we would look at Art. 906, it is
very broad because sinasabi nito by any title. (legacy, devise,
donation, testamentary disposition, intestate succession)
Balikan natin yung estate ni Edward Christensen, if you
would recall si Helen and Mary Lucy. It just so happened na
may iniwanan kay Helen na legacy. That is why ang
kailangan lang ay makumpleto ang kanyang legitime. But,
imagine had there been no legacy left of her, and it was
shown she was preterited, then she would have been
entitled to half of the estate because the institution of Mary
Lucy would have been set aside on the count of preterition,
and intestate succession would have governed the estate of
Edward in which case, they would have inherited equally.
It is only when you cannot apply Art. 906, you may now set
aside the institution of heirs. In preterition, there is no
qualification that you will only set aside to the extent that
there was an impairment of the legitime. No, you will set
aside it completely which is different from defective
disinheritance. In defective disinheritance, you will annul
the institution of heirs but only to the extent that there was
an impairment.
Benefit sa preterited compulsory heir is his stance to gain
the entire estate. Why? – kasi kung ikaw ang compulsory
heir ikaw na rin yung intestate heir. Kunwari ikaw yung
nag-iisang anak, at preterited ka, kahit na may mga kapatid
na naiwanan yung tatay mong kinalimutan ka, kahit na may
magulang pa, your mere presence as a son, will exclude the
siblings, the parents and you will be inheriting both as
compulsory and as an intestate, legal heir.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

ARTICLE 906. Any compulsory heir to whom the testator

But, kung defective disinheritance lang ang ating
pinag-uusapan and someone else was instituted as sole heir
to the entire estate, then ang mangyayari si that you will
only get your legitime. Because the institution of heirs will
only be set aside up to the extent that there was impairment
of your legitime.
Now we may ask why the effects are different. Kasi nga, sa
defective disinheritance, maliwanag yung intention ng
testator. Yun nga lang, he was not able to carry it out
correctly. But in preterition, the intention to omit is one
thing which the law is not willing to concede. Kasi para sa
batas, it is unthinkable that the testator would deliberately
omit a compulsory heir in the direct line.
Now, I would like to call your attention to the last paragraph
of Art. 854
has left by any title less than the legitime belonging to
him may demand that the same be fully satisfied.
Let us try to illustrate this:
He omitted his son. He did not provide in the will; he did not
give anything to his son – they are estranged. As it turned
out, the son is already married and the wife is already
pregnant with their first-born. Then the wife and the son
met an accident which resulted in the death of the son. So,
the son here who was omitted predeceased the testator.
Sabi natin if that happens, kahit na preterited siya, dapat
hindi na siya yung real compulsory heir that would bring
the annulment of the institution of heirs solely because he
predeceased.

ARTICLE 854. The preterition or omission of one, some,
or all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of
heir; but the devises and legacies shall be valid insofar as
they are not inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without
prejudice to the right of representation.
Q: Does this mean that if the omitted compulsory heir
predeceases the testator and he dies with a
representative, then does it mean that the institution of
the testamentary heirs would remain annulled?
A: No. Ang titignan dito would be if the representative
himself is preterited. If the representative is also preterited,
then the institution of heirs would still have to be annulled.
But this time around, the preterition would be in relation to
the representative and not with the compulsory heir who
was also preterited but predeceased the testator.
Now, he has a child and let us say that after the death of the
preterited son, the testator suffered a heart attack. Now, the
child in the womb of the mother would already have a
presumptive personality. Being named as heir would be
beneficial to the child. So, the child could already be
considered born at the time the testator died. Then if the
child is born after, then the presumptive personality will
become a full civil personality. And the fact that he was not
mentioned in the will nor given anything by the testator,
would by itself give rise to another instance of preterition.
This is what the law means by saying “without prejudice to
the right of representation”. The representative himself is
also preterited which will result in the annulment of the
institution of heirs.

We look again to the provisions of Art. 854 as to who may

be preterited. Because it says here “whether living at the
time of the execution of the will or born after the death of
the testator”. Definitely, if the representative was born after
the death of the testator, then in all likelihood he may not
have known about the child who may still be in the womb of
the mother at the time of his death.

Not having known that the child existed, the likelihood too,
is that he could not have given anything to the child which
in turn precludes the application of Art. 906.

Page 102 of 128

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

ARTICLE 856. A voluntary heir who dies before the

So, what happens is that is that the ones on the next level –
testator transmits nothing to his heirs.
the grandchildren – will now be inheriting in their own
right because all of the people on the level closest to the
A compulsory heir who dies before the testator, a person
decedent have all renounced and they cannot be
incapacitated to succeed, and one who renounces the
represented.
inheritance, shall transmit no right to his own heirs
except in cases expressly provided for in this Code.
This may be an exception to the rule that now obtains under
the law. Because under the law on the chapter on the right
of representation, grandchildren are to inherit by
If you would read Art. 856, the first impression that you
representation. Kaya lang, if the children are all not
would get is that there would be an instance where the
inheriting due to renunciation, then we cannot apply that
compulsory heir who dies, becomes incapacitated,
rule. We are forced to say that the grandchildren will inherit
renounces, or gets disinherited would be transmitting
in their own right.
rights to his own heirs. And that is NOT true. As you can see
in the table, a compulsory heir who is incapacitated, who
This may be an exception to the rule in the right of
renounces, or who is disinherited transmits no rights.
representation wherein grandchildren are to inherit by
right of representation.
But there would be instances where there would be right of
representation (ROR). And when do we have such right?
However, if the [initial heirs] [?] are not all inheriting
because they all renounced, then we cannot apply this rule;
1. For compulsory heirs – there is ROR in
meaning that the grandchildren will inherit by their own
case of PREDECEASE, INCAPACITY, and
rights. This is significant because if you are inheriting by
DISINHERITANCE.
right of representation, it is by stirpes. On the other hand, if
you are inheriting by your own right, it is per capita.
Q: Now, wouldn’t the right of representation be a
vehicle for the compulsory heir to transmit rights to his
For example, A has 1 child, B would have 2 children, C will
own heirs?
have 3 children for a total of 6 children. If they [A, B, C] were
A: No. When you speak of right of representation, the
disinherited, incapacitated, or pre-deceased the testator, the
representative does not inherit from the person
grandchildren by provision of law must still inherit per
represented. The representative inherits directly from the
stirpes.
person from whom the person represented would have
inherited. There is no transmittal to speak of.
Ordinarily, if the first layer or first level is completely
vacant, those in the next level will be inheriting in their own
2. For testamentary heir – there will be NO
right. But when it comes to grandchildren, the difference is
TRANSMITTAL, and NO RIGHT OF
significant as it is per stirpes; you will be dividing the estate
REPRESENTATION.
by three, then each set would be succeeding 1/3rd of the
estate.
Q: What do we have for testamentary succession?
A: NONE. The closest that may be akin to ROR is
That one child of A will receive 1/3, the 2 children of B will
substitution – it is not exactly the same but approximates
each receive 1/6, while the 3 children of C will each receive
ROR.
1/9.
3. For legal heirs – there is ROR in case
But if there was renunciation among all the children of the
PREDECEASE and INCAPACITY.
testator [A, B, C], there can no longer be any right of
representation. Hence, it is an exception to what the law
In legal succession, the ROR exists within the direct line and
provides. Hence, what will happen is that the children of A,
the collateral line (nephews and nieces). Now, beyond
B, and C will be dividing the estate into 6, each getting 1/6.
nephews and nieces, there is no ROR anymore – hanggang
In effect, the child of A will lose half of his/her original
doon lang when it comes to the collateral line.
share, the two children of B will receive what is essentially
the same value of the share in the previous computation.
When it comes to renunciation, we do not have a right of
However, the 3 children of C will be getting an increase from
representation. So, what happens to the vacated portion of
1/9 to 1/6 each.
the inheritance? If there are children of the decedent, and
the children all renounced. They cannot be represented.

Page 103 of 128

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
SUBSTITUTION
There are two kinds of substitution:
1. Simple
a.Brief/Contentious
b. Reciprocal
2. Fidei Commissary Substitution
The essence of substitution is that you do not want your
intestate heirs to inherit. In simple substitution, you
appoint a substitute in default of the original heir in case
the latter is unable to inherit due to incapacity,
pre-deceased, etc.; you may specify what ground for which
they will be substituting.
You can have variations. It may be brief or contentious. You
can have two or more substitutes for 1 person, or 1
substitute for 2 or more persons. In a reciprocal
substitution, we have the same people being the substitutes
between one another.
FIDEI COMMISSARY SUBSTITUTION
In fidei commissary substitution, you are restricting the
flow of the circulation of the property. The second heir or
fidei commissary will be inheriting after the fiduciary;
essentially controlling the flow of the property for two
lifetimes.
The fiduciary is obligated to preserved and to transmit,
thus, talking away his/her discretion regarding the
property. Even if the fidei commissary were to die ahead of
the fiduciary, it would not mean that it would go to the heirs
of the fiduciary. What is important here is that both the
fiduciary and he fidei commissary are both alive at the time
of death of the testator. It no longer matters if the fidei
commissary were to predecease the fiduciary because his
right to the inheritance has already vested when the
testator died.
For example, if the fidei commissary dies ahead of the
fiduciary, and the rights have been vested, the property will
now go to the former’s heirs.
If the period is not specified, it would mean that the
fiduciary will enjoy the property for his entire lifetime.
Usually, when we have the prohibition to alienate, the
maximum period would be 20 years. However, here, the
period may be one lifetime, wherein the fiduciary will only
transmit the property to the fidei commissary heir upon his
death.
Apart from the obligation imposed upon the fiduciary to
preserve and transmit, the law also says that you cannot
have a valid fidei commissary substitution unless the
Page 104 of 128
fiduciary and the fidei commissary heirs are related by 1
degree apart.
Before, there was an issue as to what this 1 degree meant,
by which the Supreme Court had settled that this pertains
to the relationship between the fiduciary and the fidei
commissary; that they must be first-degree relatives, i.e.
either the child or the parent.
In one case, PCIB v. Escolin [G.R. Nos. L-27860 and L-27896
March 29, 1974], the husband and wife were married with
no kids but had siblings on both sides. The wife executed a
last will and testament whereby she left everything to the
husband. It was explicitly provided in the will that the
husband whatever he wanted with the inheritance that he
received from her. Should there be anything left from the
inheritance at the time of death of the husband, whatever
remains should be given to her siblings. The wife died, then
the husband. There were still properties from the
inheritance of the husband that still existed at the time of
his death.
The siblings of the husband argued that the remaining
properties were theirs since it was the husband’s estate.
However, the siblings of the wife pointed out that whatever
remains from what the husband inherited at his death will
go to them.
The siblings of the husband assailed the validity of the fidei
commissary substitution since there was no obligation
imposed on the husband to preserve and transmit to the
siblings of the sister since he was given the power to do
whatever he wanted; which may very well include disposing
or destroying the properties.
The Supreme Court stated that there is no valid fidei
commissary substitution due to the absence of the
obligation to preserve and transmit. However, there is a
conditional institution made, that is if there are inheritance
from the wife still existing in the estate of the husband at
the time of his death; this pertains to the legacy of the
residue.
Hence, there is no valid fidei commissary substitution, but
there is a valid conditional disposition.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Art. 867. The following shall not take effect:
(1) Fideicommissary substitutions which are not made in
an express manner, either by giving them this name, or
imposing upon the fiduciary the absolute obligation to
deliver the property to a second heir;
(2) Provisions which contain a perpetual prohibition to
alienate, and even a temporary one, beyond the limit
fixed in article 863;
(3) Those which impose upon the heir the charge of
paying to various persons successively, beyond the limit
prescribed in article 863, a certain income or pension;
(4) Those which leave to a person the whole part of the
hereditary property in order that he may apply or invest
the same according to secret instructions communicated
to him by the testator.
This article pertains to what cannot be or must be done. For
instance, if it is a fidei commissary substitution, then it must
be given this name or the obligation to preserve or transmit
must be expressly imposed.
Secret instructions are not allowed. The prohibition against
alienation cannot exceed 20 years.
EFFECT OF NULLITY OF FIDEI COMMISSARY
SUBSTITUTION
The institution of the original heir will still be valid and still
subsist but there will be no rights given to fidei commissary
anymore.
TESTAMENTARY DISPOSITIONS SUBJECT TO A PERIOD
OR TO A MODE
Article 871. The institution of an heir may be made
conditionally, or for a certain purpose or cause. (790a)
The institution of heirs, the making of devises and legacies,
these will be an affair that is exclusive to the testator
because he will be calling the shots. He determines under
what circumstances the heirs, the devisees, and legatees
will be inheriting. Part of this determining whether there
would be conditions attached to the institution, whether the
institution will be affected by periods or if there will be
modes that would have to be carried out by the heir,
devisee, or the legatee.
Page 105 of 128
LIMITATIONS ON THE PART OF THE TESTATOR IN
COMING UP WITH THE CONDITIONS, ETC.
IMPOSSIBLE OR ILLEGAL CONDITIONS
Article 873. Impossible conditions and those contrary to
law or good customs shall be considered as not imposed
and shall in no manner prejudice the heir, even if the
testator should otherwise provide.
He is not allowed to impose impossible or illegal conditions.
While he may provide for them, under the law, they will be
considered as not written. This is a whole different in the
case of ordinary contracts.
ORDINARY CONTRACTS TESTAMENTARY
DISPOSITIONS
If you impose a condition The impossible or illegal
which is impossible or conditions are deemed as
illegal, that imposition will not written
bring about, not just the
nullity of the condition
imposed, but also of the
contract or obligation.
In most cases, the conditions The reason for this is that
imposed also would be the even if you take away the
consideration for the condition which is illegal or
contract. The obligor is going impossible, there will still be
to give, because the obligee a consideration supporting
will be fulfilling this the disposition i.e. the
condition. Take that away, liberality of the testator.
there will be no
consideration to support.
SCRIPTURA CAPTATORIA
Article 875. Any disposition made upon the condition that
the heir shall make some provision in his will in favor of the
testator or of any other person shall be void.
Testator cannot provide for the so-called scriptura
captatoria or dispositions which would require the
beneficiary to make a similar beneficial disposition in
favor of the testator. Parang condition, “I will give you my
house, if you would also provide for me in your last will and
testament.
Q: Why is this prohibited?
A: Because that would impair the personal character of the
last will and testament.
It somehow reduces the last will and testament into an
ordinary contract kasi para nag-bargain na kayo. You
negotiated with each other.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
CONDITIONS RELATING TO MARRIAGE
Article 874. An absolute condition not to contract a first or
subsequent marriage shall be considered as not written
unless such condition has been imposed on the widow or
widower by the deceased spouse, or by the latter's
ascendants or descendants.
Take note that what is regulated is only the prohibition to
marry. But if the condition relates to requiring the
beneficiary to contract marriage, then the law does not
prohibit the same.
If the condition prohibits the beneficiary from contracting a
first marriage and the prohibition is absolute, then that
condition would be null and void.
If the prohibition only applies if the [inaudible] absolutely,
where [inaudible] beneficiary to marry, the next logical
question would be, is when do we have a relative
prohibition? It is relative if the prohibition only applies
under certain circumstances e.g. they are only prohibited
from marrying before the age of 26, they are only
prohibited from marrying in the United States, they are only
prohibited from marrying this particular person or anyone
from this particular clan. In these cases, the prohibition
would be sustained as valid kasi relative lang siya.
But if the prohibition relates to contracting a
second/subsequent marriage, then it will not always be
void even if the tenor of the prohibition is absolute. Because
the law provides for exceptions:
1. If the prohibition is imposed by the deceased spouse.
May mga tao kasing ganun eh, talagang hindi nila
matatanggap na maga-asawa ng iba ‘yung kanilang
kabiyak/husband or wife.
2. If the prohibition if imposed by the ascendants or
descendants of the deceased spouse. The reason why
this is allowed when imposed by these people is that
emotionally, people tend to be very jealous of the
people they love. They do not want to see themselves
[inaudible]. And then the family of this person who died
would feel the same way kaya nga nagkakaroon ng
problema between the children and their stepmother.
Classic tale sa fairytales. Because there will always be
that resentment kasi nga pakiramdam nung mga anak o
nung magulang nung namatay, ay pinapalitan ‘yung
mahal nila sa buhay. To that extent, those feelings of
possessiveness or jealously, these are validated by this
provision of the law.
Page 106 of 128
Now, the conditions, the periods, the modes to be imposed,
these would take on the same character as the periods, the
conditions, the modes provided for under the law on
obligations and contracts.
Article 876. Any purely potestative condition imposed
upon an heir must be fulfilled by him as soon as he learns of
the testator's death.
This rule shall not apply when the condition, already
complied with, cannot be fulfilled again.
Article 877. If the condition is casual or mixed, it shall be
sufficient if it happen or be fulfilled at any time before or
after the death of the testator, unless he has provided
otherwise.
Should it have existed or should it have been fulfilled at the
time the will was executed and the testator was unaware
thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature that it
can no longer exist or be complied with again.
Article 878. A disposition with a suspensive term does not
prevent the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of the
term.
Article 879. If the potestative condition imposed upon the
heir is negative, or consists in not doing or not giving
something, he shall comply by giving a security that he will
not do or give that which has been prohibited by the
testator, and that in case of contravention he will return
whatever he may have received, together with its fruits and
interests.
Article 880. If the heir be instituted under a suspensive
condition or term, the estate shall be placed under
administration until the condition is fulfilled, or until it
becomes certain that it cannot be fulfilled, or until the
arrival of the term.
The same shall be done if the heir does not give the security
required in the preceding article.
The conditions would affect the creation of the right itself.
When you speak of a period, it only suspends
demandability, but the right is already existing. ‘Yung mode,
it does not affect the creation, but it is obligatory. ‘Yun ang
pagkakaiba niya sa condition.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
CONDITION MODE
A lot depends on whether or The mode would have to be
not it is fulfilled but there is fulfilled because a mode
no obligation imposed on the would be a specific purpose
beneficiary to fulfill the or objective that the testator
condition. says should be carried out in
relation to the inherited
Sometimes, the fulfillment of property. Pwedeng sabihin
the condition is not even ng testator na “I’m giving you
dependent on the will of the the land, but you have to
beneficiary if we have a build a chapel on that land., “I
mixed or casual condition or am giving you that land, but
kahit na potestative ‘yan, he you have to build or take care
is not obligated to fulfill it. of my mausoleum on that
He may fulfill it if he wants land.” So may benefit pa rin
or he may choose not to sa kanya, pero may kaakibat
fulfill it if hindi niya gusto. na obligation.
KINDS OF CONDITION
1. Suspensive
A condition the fulfillment of which will give rise to the
acquisition of a right. While the condition has not arrived
yet, in the meantime, the rights and obligations of the
parties are suspended.
2. Resolutory
A condition where the rights already acquired are lost upon
fulfillment of the condition. It is also known as condition
subsequent.
KINDS OF PERIOD
1. Suspensive
Suspensive period is an obligation that begins only when
the day certain arrives.
2. Resolutory
A resolutory period takes effect at once, but terminates
upon arrival of the day certain.
RESOLUTORY CONDITION VS. RESOLUTORY PERIOD
In terms of effect, parehas lang ‘yung resolutory condition
at resolutory period because they will both bring about the
extinguishment of the right.
‘Yun nga lang sa resolutory condition, wala kang katiyakan
that the right will be extinguished because there is
uncertainty. For resolutory period, it is written that the
Page 107 of 128
right will be extinguished because it is made subject to a
period which will definitely arrive.
SUSPENSIVE CONDITION VS. SUSPENSIVE PERIOD
Suspensive condition and suspensive period, dito malaki
‘yung pagkakaiba.
In suspensive condition, until the condition is fulfilled, no
right is created. In suspensive period, the right is already
there, but demandability is suspended.
There would be an important consequence arising from this
distinction kasi if we are dealing with a suspensive
condition, then there must be testamentary capacity
both at the time of death of the testator and at the time
the condition is fulfilled. So that if the
heir/devisee/legatee was alive at the time that the testator
died, but he later on also died before the condition is
fulfilled, then he does not acquire any rights to the
inheritance. The rights do not vest.
Compare this to a disposition subject to a suspensive
period, the testator dies, he is survived by the
heir/devisee/legatee whose institution is made subject to a
suspensive period, before the arrival of the period, the
heir/devisee/legatee also dies, what happens to the
inheritance? It will go the heirs of such
heir/devisee/legatee. Kasi the right to the inheritance
has already vested. What was only suspended was its
demandability.
MODAL INSTITUTION
Article 882. The statement of the object of the institution,
or the application of the property left by the testator, or the
charge imposed by him, shall not be considered as a
condition unless it appears that such was his intention.
That which has been left in this manner may be claimed at
once provided that the instituted heir or his heirs give
security for compliance with the wishes of the testator and
for the return of anything he or they may receive, together
with its fruits and interests, if he or they should disregard
this obligation.
Ang kahalintulad/kaparehas ng modal institution would be
the institution subject to a resolutory condition or
resolutory period.
All of these institutions subject to a resolutory condition,
resolutory period, or mode all become effective at once at
the time of death of the testator. It’s similar to an ordinary
obligation subject to a resolutory condition or resolutory
period. They also become effective at once but subject to
extinguishment once the resolutory period or condition
takes place.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: Why in the modes, the institution of devices and
legacies will take effect immediately?
A: Because that is the only way by which the mode may be
carried out. If you are going to make a modal institution and
you would say that you have to build a house on a land that
is open to all family members, you cannot do that unless
you are given the rights over the land right away. How can
you build something that does not belong to you? How can
you enter possession? So the effect of resolutory conditions
and resolutory periods are applied to modal institutions.
Conditions may also be:
1. Potestative
2. Casual
3. Mixed
These are significant when it comes to the time and
manner of fulfillment.
Note: when we say instituted heir, I refer to heirs, legatees
and devisees.
Potestative condition
- GR: The instituted heir is supposed to fulfill
condition as soon as he learns the death of the
testator.
- XPN: If condition is already fulfilled or is of the type
that it cannot be fulfilled anew.
If the potestative condition is negatively imposed (you
are prohibiting the instituted heir from doing something
which he can otherwise do), then by not doing anything, the
heir is already fulfilling the condition.
Q: What if after he receives the inheritance, he does
what is prohibited of him?
A:
First: give back what is given to him
Second: if he can no longer return the same (ex. He already
sold it), the estate may proceed against the security he has
given. Because he will have to post caucion muciana
Caucion Muciana – Guarantees that in case he violates the
prohibition imposed upon him by way of a negative
potestative condition, he will return whatever he has
received together with the fruits. Should he not be able to
do so, the estate shall have the right to proceed with the
security he posted.
If it is casual or mixed, fulfillment of the casual or mixed
condition at anytime before or after the death of the
testator is sufficient. It is essentially out of the control of the
heir.
Page 108 of 128
Note: the law makes a qualification as to whether the
condition was already fulfilled at the time of execution of
the will. Remember that the time the will was executed
refers to a point in time separate and distinct from the time
of death. Because there is always the possibility that there
will be a length of time between these two points.
If the condition was already fulfilled at the time the will was
executed and the testator knew that it was already fulfilled
but still provided the same in the will, then it would still
have to be fulfilled again. (Ratio: The testator might not
be satisfied with the prior fulfillment of the condition).
XPN: if it is of such character that it cannot be fulfilled anew
Q: In a suspensive condition, who gets the inheritance
pending the fulfillment of condition in the meantime?
A: It can go to the administrator. The property will be
placed under administration. Once condition is fulfilled, it
will revert to the instituted heir.
Q: What happens if a long period of time has lapsed and
the condition is yet to be fulfilled?
A: There will be a determination at some point that the
condition will never be fulfilled, if sufficient time has lapsed.
If this is the case, then the inheritance will form part of
intestate succession
Q: If the institution is made subject to a suspensive
term, what do we do during the time prior to the arrival
of the term? Who will be called to succession?
A: The inheritance will go to the legal heirs. After arrival of
the period, then the inheritance will be given to the
instituted heir.
Q: What will be the assurance of the instituted heir that
he will be receiving the inheritance intact?
A: A bond may be required of the legal heirs for the same
purpose – to answer for their obligation to deliver the
inheritance to the instituted heir.
Q: What are the three instances when caucion muciana
will be required to be given?
A: Caucion Muciana is required in case when:
a. there is a negative potestative condition.
b. in case the institution is subject to a
suspensive period
c. in case of modal institution
CONCEPTS COMMON TO COMPULSORY SUCCESSION &
INTESTATE SUCCESSION
These concepts come after the legitime and yet in the
legitime pala we are already applying right of
representation and in determining the legitime, they need
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

to know the value of the net hereditary estate and to be able collateral relative kapag they would be tracing their origin
to do that, you need to know how to effect collations. So in the same ancestral. In this case, it would be, the parents.
dapat, you know these concepts prior to discussing
legitime. And then, the brother if he has kids would be, then that
would mean that the kid would be the nephew of D.
1. Rule of Proximity
2. Rule of Preference of Lines You can see that in the instances in the graph where we
3. Right of Representation define the relative by the relationship, the definition is
4. Right of Accretion always from the point of view of D. (e.g. Surviving Spouse of
5. Rules on Collation D, mistress of D, parents of , brother of D, nephew of D) Do
not interchange the point of view. It’s always from the point
of view of the decedent. So si nephew, wag mong gagawing
son of the brother. It must be the nephew of D. And then si
brother, wag mong gagawing son of the parent, it would be
the brother of the decedent. That way, hindi kayo malilito
kasi nga ang pinag-uusapan naman natin dito ay succession
to the estate of D.

If you are given a problem where there are so many

characters, and you feel that we would still need to make a
graph, the first thing that you look at, find out if there are
children of if there are grandchildren. The moment that
there are children or grandchildren, then you can ignore all
other relatives, save for the surviving spouse. Kasi
automatic, the presence of E, A, B and C, out na si parents,
out na si brother, out na si nephew. So malinis na agad yung
slate niyo kasi nandito na si E, A, B and C who are all
children. Why? Kasi they relatives in the direct line. And the
Sabi natin, we have to deal with the first concept which
direct line is preferred over the collateral line. So out na si
should be relationships. And in these relationships, papasok
brother and si nephew.
na diyan yung rule of proximity.
And in the direct line, the descending line is preferred over
So this would show the relationships that a person may
the ascending line. So out na si parent. The only time that
have during his lifetime. And these people that he is related
will not happen is if the only person in the descending line
to would be the same people who may have rights of
happens to be an illegitimate child because halimbawa, si E
succession to his esate. So, sino yung ating decedent diyan?
lang ang natira, wala si A, B, and C and wala din si
Si D. And he is married to SS as surviving spouse and since
F,G,H,I,J,K,L, si E lang, and E is illegitimate, E will not exclude
they are married, all their children are legitimate.
the parent. They will be concurring unless D too happens to
be illegitimate. Because if D happens to be illegitimate, then
(Kapag yung line ay unbroken that means illegitimate yung
the illegitimate child will exclude the so-called illegitimate
affiliation natin.)
parent.
Then si D, meron din siyang mistress, si M. And of course
When you are able to clear out the graph, of all other
since this is an illicit relationship, then you could have an
people, we apply the rule of exclusion based on the
illegitimate child if they would have children.
preference of lines.
And then you can see that si D, also had grandchildren from
Q: How do we apply the Rule on Proximity?
E, the illegitimate child and grandchildren from his two
A: Those who are nearer would exclude those who are
legitimate children (B&C).
farther. At sino yung farther dito? Sabihin na natin, we have
E, A, B and C. Definitely, the children would exclude the
Pero yung mundo ni D, hindi lang yan limited sa immediate
grandchildren. Bakit? Because children are nearer in
family niya. Si D would have parent too and probably
degree. Children are first degree relatives of D.
siblings. So here, we have D and the brother. Now, si brother
would be his first collateral relative and you would know sa
If we have a vacancy in any one of these lots for the
children, it now becomes possible for the relative of farther

Page 109 of 128

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
degree to inherit alongside the relatives of the nearer
degree by virtue of right of representation.
Q: When do we have the right to representation?
A: If you are dealing with compulsory succession, you have
it for disinheritance, incapacity predeceased but not for
renunciation. If you are dealing with intestate succession,
same grounds, same for disinheritance. Kasi this
inheritance would be peculiar to compulsory succession.
Dito binigyan natin ng cross si, A , B and C. The cross
indicate that they predeceased D. Iwas predeceased. That
means that it is possible for us to have the right of
representation.
What would I’m going to dscuss at the this point would be
the old rule. When I say old rule, the rule prior to the ruling
in Aquino vs. Aquino. Sa old rule what happens is that B,
cannot be represented by I and J because B is legitimate, I
and J are illegitimate. The iron curtain rule would have
prevented I and J from representing B. C on the other hand
since he only had legitimate children, he will be represented
by K and L. And then E, since he is illegitimate, he can be
represented by F and G his legitimate children as well as by
H, his illegitimate child.
Kaya nga hindi natin pinapayagang mag-inherit si I at si J
kasi sa Iron Curtain Rule, the illegitimate child cannot
inherit from the legitimate relatives of the parents. Sino
‘yung legitimate relatives na tinutukoy natin sa kasong ito?
Si B. But no such prohibition exists for the illegitimate child
of the person represented who happens to be illegitimate
himself kaya si H he would be able to represent E. Now,
again, this was the rule prior to Aquino vs. Aquino.
Right now, Aquino vs. Aquino says that the illegitimate child
would be able to represent his father to the succession to
the estate of the legitimate parent of his father, but what the
law did there – It did not say that Article 992 is no longer
applicable instead the law applied Article 982 because what
does Article 982 say?
Article 982. 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. (933)
Q: Is this significant?
A: Yes. It would seem that even if we lose E, B, and C
altogether such that the nearest relatives would be the
grandchildren as a class, they will not be inheriting in their
own right. Under Article 1982, they would still be inheriting
by right of representation. So, iyon ‘yung ginamit ng
Supreme Court sa Aquino vs. Aquino.
Page 110 of 128
Sabi ng Supreme Court, Article 982 does not make any
distinction between those who are legitimate and those
who are illegitimate. So long as you are a grandchild or a
descendant, you will inherit by right of representation. That
is also why we are only applying this rule to the descending
line. We are not prepared as of yet to say that the
illegitimate nephew may inherit by right of representation
from the legitimate brother of his parent kasi walang
counterpart provision ang Article 982 which applies to the
collateral line.
Q: Effectively, ano ang nagawa ng Article 982?
A: It has carved out an exception from Article 992 insofar as
grandchildren and other descendants are concerned.
Q: Sabi natin, kahit nabakante itong lahat ng ‘to, if all of
these people who would disappear for one reason or
another, sabi natin these people here would always
inherit by right of representation or per stirpes. Now,
sabi ko rin sainyo, what if we lost all these people
because they all repudiated? Would this now allow the
grandchildren to inherit in their own right or per
capita?
A: We are asking this question because we know very well
that when there is renunciation, when there is repudiation,
there is no right of representation. To my mind, if there is
repudiation, we cannot apply Article 982 kasi the law
provides that you cannot represent if there has been
repudiation but admittedly we do not have as of yet a ruling
on that point so it can go either way. We can argue that
since there is repudiation, there can be no representation
and therefore the grandchildren will have to inherit in their
own right, but we can also say that Article 982 is absolute
when it speaks in absolute terms. Walang exception.
Now, important point again: If you have this kind of a
problem at may illegitimate child involved and there is
possibility of representation, we have to remember the
sharing between legitimate and illegitimate children. Sa
level na ito, E would only be getting half the share of each
one of A, B, and C.
Q: Here, how would you divide the estate assuming na
silang apat lang?
A: So, A, B, and C would twice be getting the share of E so A
will be getting 2, B will be getting 2, and C will be getting 2,
then E would be getting 1. 1 is half the share of A, B, and C.
2+2+2 = 6+1 = 7
E 1/7
A 2/7
B 2/7
C 2/7
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

As you can see, ang ginawa natin inapply na kaagad natin

‘yung proportionate sharing. Hindi tayo nag-apply noong
legitime, but we have to check that there should be no
impairment of legitime doon sa ginawa nating direct
application of the proportionate sharing.

Q: Ano ba ‘yung legitime dapat ni A, B, and C?

A: A should get ½ of the estate divided by three (3) all over
six each. In this case, how much is each of them getting? A
should be getting 2/7.

You have to determine: ‘Yung 2/7 ba would that be less than

1/6.

2 divided by 7 = 0.28
1 divided by 6 = 0.16

‘Yung matatanggap nila would still be much higher than the

legitime. Hence, we do not have an impairment of the
legitime so we can proceed. Pwedeng diretso nalang natin
i-apply ‘yung proportionate sharing.
Now, makikita niyo na that E would also be represented by
two (2) legitimate children and one (1) illegitimate child.
So, anong ibig sabihin niyan? You will have to apply the
proportionate sharing again sa level nitong ating mga
representatives. So, ‘yung 1/7 ni E will be divided among F,
G, and H with the same proportionate sharing.
So, 2 kay F; 2 kay G; then 1 kay H. Hence:
F 2/5 divided by 1/7 = 2/35
G 2/5 divided by 1/7 = 2/35
H 1/5 divided by 1/7 = 1/35
Now, the total of the shares given to F, G, and H must be
equal to the share that should have pertained to E.
2/35 + 2/35 + 1/35 = 5/35 (reduced to its lowest term =
1/7, which is the share of E)
RIGHT OF REPRESENTATION IN THE COLLATERAL LINE
It is important for us to kill the parent. Because if we have a
parent here, then we have a relative in the direct line,
meaning, lahat sila wala nang rights. That is why the parent
will have to die.
Now, we have the decedent. We have the brother, sister,
uncles, and aunts.
Uncles and Aunts, again, that is why references are
important. Uncles and Aunts to whom the decedent…
because we have nephews and nieces. Nephews and nieces
of “D”, “B”, and “C”.
Q: Uncles and Aunts of D, kaano-ano sila nieces and
nephews?
A: Lolo at lola sa collateral line.
Uncles, aunts, nephews, and nieces, are relatives of the
same degree of the decedent. Theoretically, they should be
inheriting simultaneously with one another. They should
not be excluding each other.
But, under Art. 1009, the law says that:

Art. 1009. Should there be neither brothers nor sisters

nor children of brothers or sisters, the other collateral
relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or

preference among them by reason of relationship by the
whole blood. (954a)

Page 111 of 128

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
And so, may special rule. This is the exception to the rule of
proximity. This is because, the nearer relatives usually
exclude the father relatives.
Here, we have the relatives of the same degree where the
nephews and nieces excludes the uncles and aunts.
If there is, as in this case, a sibling of the decedent who
predeceases him or who is incapacitated, then that
predeceased sibling or incapacitated sibling may be
represented by his own children.
Example (refer to diagram above):
“B” was predeceased. And “B”’s children, one is legitimate,
and another is illegitimate.
What happens is that C shall be inheriting in his own right,
but, here, there would be a right of representation in favor
of nephew “J”. Sa collateral line’s right of representation, it is
only up until the line of nephews and nieces, and does not
go beyond.
This is unlike in the direct line. In the direct line, the right of
representation continues even beyond the grandchildren,
but, there is no right of representation in the ascending line,
so, it is only up until the nieces and nephews.
Here, Art. 992 (Iron Curtain Rule) would still be
operational. This means, “I”, being an illegitimate child,
cannot represent his parent, “B” in the succession to the
estate of “D” who is the legitimate relative of “B”. So,
excluded si “I”. Now, “K” who shall be inheriting by right of
representation, who should be inheriting per stirpes, will
now be effectively inheriting per capita, because he is still
inheriting per stirpes, but, in terms of sharing, the share that
he will get is the same as the share of C because he is the
only representative.
That is the right of representation as to collateral relatives.
RIGHT OF ACCRETION
Right of accretion also exists in succession.
CHAPTER 4
PROVISIONS COMMON TO TESTATE AND INTESTATE
SUCCESSIONS
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SECTION 1. - Right of Accretion
Art. 1015. Accretion is a right by virtue of which, when
two or more persons are called to the same inheritance,
devise or legacy, the part assigned to the one who
renounces or cannot receive his share, or who died
before the testator, is added or incorporated to that of his
co-heirs, co-devisees, or co-legatees. (n)
In other words, in the right of accretion, there is an increase
in the share of the other co-heirs. While it is important that
this group of heirs should be succeeding to the same
inheritance.
Q: In what kind of succession do we have the right of
accretion?
A: Testamentary succession, and in intestate succession, but
we do not have it in collateral, compulsory succession.
Right of Accretion in Intestate Succession
In intestate succession, if we have several heirs of the same
class, and there is a vacated share, then automatically, the
vacated share would now go to the other heirs in the same
class.
In heirs of the same class, we emphasize this: If we have
children with regard to the intestate inheritance, we have
legitime, and intestate portions that they will receive in case
the decedent dies without a will. In the portion of intestate
succession, we have the children, and the surviving spouse.
In case the surviving spouse renounces the share, the share
of the surviving spouse will not accrue to the children. This
is because the surviving spouse is in a class of his own. He
does not belong to the same class as the children, that is
why he is separated. Remember, when we compute the
legitimes, we divide the estate in half since ½ belongs to the
children, they are separate. And then, we would be getting a
portion from the free portion which is equivalent to the
share of a child, to give to the surviving spouse.
That indicated that the surviving spouse is a class different
from the children. If the surviving spouse renounces, or
cannot inherit due to some reason like he will predecease,
there will be no accretion, and such share will not go to the
children.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: Hindi ba Ma’am, ganon din yun, kasi since wala na si
surviving spouse, then it will go to the kids.
A: Yes, but they will be getting it in their own right. Hindi
nag-accrue sa kanila ang share ni surviving spouse.
Now, it might be different.
Q: Say we have three kids, and one of them predeceased
the decedent. What happens to his share?
A: The share will accrue to the 2 kids who survived. Since
there is the right of accretion.
Q: What can we [inaudible] from the right of accretion?
A: The right of representation. If the intestate heir who
predeceased the decedent has a representative, the vacated
share will not go to the heirs of the same class. Such share
shall go to his representative.
Right of Accretion in Testate Succession
Art. 1016. In order that the right of accretion may take
place in a testamentary succession, it shall be necessary:
(1) That two or more persons be called to the same
inheritance, or to the same portion thereof, pro indiviso;
and
(2) That one of the persons thus called die before the
testator, or renounce the inheritance, or be incapacitated
to receive it. (928a)
What the law means is that even if there should be
specification of the shares that they will be taking, it will not
prevent the right of accretion so long as the designation
does not make them owners of specific portions.
Better and easier way of understanding this: We simply
approximate what takes place in intestate succession.
Because in intestate succession, that’s why we’re saying
there’s a right of accretion because if you have one on one
heir, then co-ownership is created. So, that is what you also
look for in testamentary succession.
If the effect is to create co-ownership, if the institution
would create a co-ownership among the testamentary heirs,
then one of them predeceases, one of them becomes
incapacitated or renounces, then there is a right of
accretion.
Even if you say, “I am instituting you to ½ of my estate”, and
you will get 1/3, that person will get 1/6, 1/6, 2/3 of the
estate. Kahit i-designate niya yung kanyang specific
portions, ending pa din is co-ownership over that portion.
Yun lang, alam mo na yung extent of co-ownership niya.
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Pero kung tatanungin mo, alin dyan yung pag-aari mo
bilang 1/6 ng co-owner? You don’t know being the
co-ownership is still existing. That is also what happens in
intestate succession. It is the same that they have the right
of accretion.
REMEDY AGAINST THE RIGHT OF ACCRETION
Intestate Succession – the right of accretion may be
prevented by the right of representation, and SAME AS IN
TESTAMENTARY SUCCESSION. But since we don’t have the
right of accretion, the nearest counterpart of the right of
representation in intestate succession, would be
substitution. If there is substitution, there wouldn’t be
accretion.
The grounds are the same, which will warrant substitution.
So if there’s a substitute, the substitute will take the vacated
portion.
COMPULSORY SUCCESSION
In compulsory succession, there is no right of accretion.
Because if you have a vacated portion, and there is no right
of representation, then the vacated portion will go to the
other compulsory heirs in their own right.
IMPORTANT: That there is no right of accretion in
compulsory succession. Because if you put a right of
accretion in compulsory succession, it will affect the shares
of the surviving spouse, the shares of illegitimate children,
both of which are dependent on the share of each legitimate
child.
In this case, your basis will not be the increased share
because of the accretion. The basis will still be the original
share sans the accrued portion.
Example:
We have 3 legitimate children. These 3 would be entitled to
their legitime of ½ divided by 3, so 1/6 each.
But A, the 1st child predeceased the decedent. We said, NO
ACCRETION, so therefore, let’s just divide to 2 the legitime.
Ending, B and C would have ¼ each.
What is the share of the surviving spouse?
- The same share as a legitimate child, so surviving
spouse gets ¼ as well, since that’s the share of the
legitimate child (B – ¼ and c – ¼), in their own
right.
Compare this to the hypothetical situation, where we have
accretion in the legitime.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Earlier we said, tig-1/6 sila. Then, the vacated portion of
1/6 will be divided to them, so their share will increase. But
since we are recognizing that there is accretion, the share of
the surviving spouse will have to depend on the original 1/6
share, yung wala pa tayong computation nung accrual, nung
hindi pa tayo nagdadagdag because of the accrual.
How much yung accrual dito? 1/6 divide by 2, so 1/12.
Ending, effectively, in reality, a legitimate child shall receive
1/6 + 1/12 (representing the accretion).
Surviving Spouse – 1/6 (based on the original share of the
legitimate child, because the additional 1/12 is not included
in the computation of the shares of the surviving spouse,
since this is not really the share of the legitimate child. The
1/12 is simply an accrual, an addition. This is if we have
accretion in compulsory succession. But we don’t have, so if
there is a predeceased, there is disinheritance, incapacity or
renunciation in the compulsory heirs, the vacated share will
approve to the other compulsory heirs in their own right. So
ending, ¼ for each of the two surviving compulsory heirs,
and the surviving spouse will also benefit, since the basis of
his share will be ¼.)
Just like in intestate succession, what will prevent the
compulsory heirs from gaining the vacated portion in their
own right would be the right of representation as well.
COLLATION
They used the term collation to refer to several things.
1. may mean making an inventory
2. contextually means bringing back the value only
3. as a stretched meaning, collating in terms of
impugning the value of the donation either to the
free portion or the legitime
If you’ll read the provisions of the law, you’ll think, “I
thought all donations should be collated. Why here, if the
testator said, donation to compulsory heirs will not be
subject to collation, then it will be respected.” You might be
wondering.
Pero kasi magkaiba ng gamit. Sa unang gamit ng collation,
you have to bring back the value of all donations inter vivos
made during the lifetime of the decedent, unless the same is
exempted by the law.
In the other sense that the term collation is used, what the
law meant is, if the testator were to provide that the
donation made to a compulsory heir should not be subject
to collation, then it means that, you will still bring back its
value because that is the rule, but you will no longer
impugn that to his legitime. You will not consider that as an
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advance payment of his legitime. Instead, you will impugn
that to the free portion.
So, if the free portion can accommodate him, then that’s
fine. But if the free portion cannot anymore accommodate
him, then that’s the time that we will have to impugn the
excess to the legitime of the compulsory heir.
Q: But why should we still do that? Why impugn in the
free portion, why is there a need to impugn in the
legitime?
A: Because impugning into the free portion is also our way
of determining whether it may be accommodated. If it
cannot be accommodated, and it’s a donation to a stranger
(anyone who is not a compulsory heir is a stranger), then
that donation would have to be considered as inofficious.
Lumagpas na siya sa free portion at kelangan na siyang
bawasan, kelangan na siyang i-revoke.
We will give priority to those donations made earlier as
opposed to those donations of a later date. Halimbawa, nag
increase sa free portion, lumampas na sya kailangan mag
bawas. We will start the reduction, revocation with the
more recent donations.
If the donation that you’re impugning to the free portion is a
donation made to a compulsory heir then yung sobra, yung
hindi ma a-accomodate sa free portion, wala ka ng
pupuntahan, pwede natin ‘tong i-impugn sa legitime niya.
Na- accommodate na ng legitime na, we don’t have to
reduce or revoke the donation anymore. You would just give
him the difference (kung ano pa yung kulang).
Donations sa kanya lumampas sa free portion ng 500,000.
Yung 500,000 ibabawas sa legitime niya. Yung legitime
naman niya ay 5,000,000, okay lang kayang-kaya. Ang
matatanggap na lang niya ay 4,500,000.
Art. 908. To determine the legitime, the value of the
property left at the death of the testator shall be considered,
deducting all debts and charges, which shall not include
those imposed in the will.
To the net value of the hereditary estate, shall be added the
value of all donations by the testator that are subject to
collation, at the time he made them.
How to collate – to determine the value of the net
hereditary estate.
In Collation, what you bring back is not the property itself,
but the value – value at the time the donation was made.
We do not care for the increase or decrease in the value of
the property because any increase or decrease from the
time the donation became perfected would already pertain
to the donee as owner. In fact, the estate will not be entitled
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
to the fruits or income of the donated property until the
succession to the estate is open – that will be opened by the
death of the testator.
Q: What donation should be brought back or the value
brought back to the estate?
A: All donations made to compulsory heirs or strangers.
Any person who is not a compulsory heir is considered a
stranger for purposes of effecting the collation.
Q: What shall be collated?
A:
Art. 1069. Any sums paid by a parent in satisfaction of the
debts of his children, election expenses, fines, and similar
expenses shall be brought to collation.
Art. 1070. Wedding gifts by parents and ascendants
consisting of jewelry, clothing, and outfit, shall not be
reduced as inofficious except insofar as they may exceed
one-tenth of the sum which is disposable by will.
Art. 905. Every renunciation or compromise as regards a
future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the
same upon the death of the former; but they must bring to
collation whatever they may have received by virtue of the
renunciation or compromise.
Naibalik na yung value and now you know the amount of
the net hereditary estate. At that point, you will now
determine what will be the legitime of the compulsory heirs
are. After you create the determination, we will now move
to the other sense of collation, which is impugning the value
of what was donated, either to the free portion or to the
legitime.
If you are dealing a donation to a stranger, you can only
impugn it with the free portion. If it exceeds the free portion
it is inofficious and must be reduced or revoked.
If you are dealing with a donation in favor of a compulsory
heir, then you can either impugn it to the free portion or
impugn it to the legitime. BUT, in the absence of an express
provision in the will, exempting the donation made to a
compulsory heir from collation, then you would have to
impugn it to the legitime. Every donation is considered as
an advance of the legitime unless, expressly otherwise
provided by the testator.
Inimpugn mo sa legitime, pero the donation is much bigger
than the legitime, so may excess.
Q: What do we do with the excess?
A: Impugn it to the free portion if it can be accommodated.
If it cannot be accommodated then you will now have to
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reduce or revoke the excess of the donation over the
legitime.
If Donation is 5M, Legitime is 1M only, impugn the 5M sa
kanyang legitime. That means sobra ng 4M, kailangan isoli,
unless kakasya sa free portion. Yung free portion mo nasa
500,000 na lang. Pwede mo i-impugn ung 500,000 out of
the 4M excess, but definitely he would have to return the
3.5M.
The value of the donation, you use that in computing the
value of the net hereditary estate. Parang budget, gagamitin
na pambayad sa lahat ng tagapagmana. Pero etong budget
na to, this will be comprised of actual money, actual
property plus abstract value (hindi hawak to, you only have
it in paper).
Nag donate ka ng 5M, kukunin ko yung value nitong 5M,
ililista ko dito. Pero wala to sa estate, nasa donees. Pero
yung 5M ginamit na to sa computation. What will happen, if
you impugn this sa legitime na 1M, may sobra na 4M. Sa free
portion ang ma accommodate lang ay 500K, may matitirang
3.5M na hindi na impugn sa legitime at sa free portion. Pag
hindi mo to na collect kay donee, wala kang pambayad sa
lahat ng tagapagmana ng estate. That is why you need to
take it from the donee.
5M – original amount, since the na impugn na sa free
portion ung 500K, sa legitime yung 1M, pwede ng iwan
sakanya yung 1.5M, hindi mo na to kailangang kunin
sakanya. It would be useless, kukunin mo ung 1M, tapos
ibabalik mo rin sakanya as his legitime. Kukunin mo yung
500K, tapos ibabalik mo rin sakanya as officious donation
allowable in the free portion, gagawin mo na lang ideduct
mo nalang yung na impugn mo sa free portion, sa legitime
and bawiin mo nalang yung sobra. Yung sobrang 3.5M –
meron ka nang budget. Pwede mo ng bayarang yung ibang
tagapagmana.
ITEMS EXCLUDED FROM DONATION
Art. 1067. Expenses for support, education, medical
attendance, even in extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts are not subject to
collation.
Art. 1068. Expenses incurred by the parents in giving
their children a professional, vocational or other career
shall not be brought to collation unless the parents so
provide, or unless they impair the legitime; but when their
collation is required, the sum which the child would have
spent if he had lived in the house and company of his
parents shall be deducted therefrom.
Note:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
1. Rules for children who will be inheriting by right of
representation are required to bring to collation,
not just donations made directly to them but also
those made to the persons that they are
representing.
2. Hierarchy that we observed in making the
deductions.
We have two applicable provisions here: Art. 911 and Art.
950.
ARTICLE 911. After the legitime has been determined in
accordance with the three preceding articles, the
reduction shall be made as follows:
(1) Donations shall be respected as long as the legitime
can be covered, reducing or annulling, if necessary, the
devises or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro
rata, without any distinction whatever.
If the testator has directed that a certain devise or legacy
be paid in preference to others, it shall not suffer any
reduction until the latter have been applied in full to the
payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than that
of the disposable portion, the compulsory heirs may
choose between complying with the testamentary
provision and delivering to the devisee or legatee the part
of the inheritance of which the testator could freely
dispose.
ARTICLE 950. If the estate should not be sufficient to
cover all the legacies or devises, their payment shall be
made in the following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be
preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing
which forms a part of the estate;
(6) All others pro rata.
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What we apply whenever there is possible impairment (of
legitime) would be the provisions of Art. 911. And Art.950,
we apply that when there are no compulsory heirs – no
possible impairment of legitime.
Just to be clear, the rule we stated earlier that latter
donations must be sacrificed in favor of prior donations is
applied in determining the hierarchy among donations
themselves. But when we are considering donations vs.
legacies and devises, that is when you refer to Art. 911 – if
there is possibility of impairment. If there is no possibility
of impairment like when you are just dealing with legacies
or devises, then you apply Art. 950.
LEGITIME
Q: What is legitime?
A: This is the portion of the estate which the law reserves
for the compulsory heirs of the decedent.
We have compulsory succession, whether or not the
succession is testate or intestate. Your compulsory heirs are
also your intestate heirs.
GR: The presence of compulsory would generally exclude
all the other intestate heirs.
XPN: If the surviving compulsory heir is the spouse. The
spouse will not exclude the other intestate heirs. The
spouse will concur with collateral relatives.
Note: What we have, as a rule, is that heirs could either
exclude or concur with other heirs. We also consider this
rule in compulsory succession. That is why we have what
you call primary compulsory heirs who exclude other
compulsory heirs [e.g., legitimate children or grandchildren
will exclude parents and other ascendants]
GR: Illegitimate children do not exclude anybody
XPN: The parent of that illegitimate child is also an
illegitimate child.
Q: Who are the compulsory heirs?
A:
ARTICLE 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to
their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
(3) The widow or widower;
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
(4) Acknowledged natural children, and natural children
by legal fiction;
(5) Other illegitimate children referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not
excluded by those in Nos. 1 and 2; neither do they exclude
one another.
In all cases of illegitimate children, their filiation must be
duly proved.
The father or mother of illegitimate children of the three
classes mentioned, shall inherit from them in the manner
and to the extent established by this Code.
Note: Under the Family Code, there are no longer any
distinction or classes for illegitimate children.
SHARES IN COMPULSORY SUCCESSION
As you can see, we have here the different compulsory heirs
and the table would show you the different sharing that
would be applicable depending on who will be inheriting
alone and who would be concurring in the inheritance.
As you can see, if the compulsory heir is inheriting alone,
the usual share is ½ of the estate. That holds true for the
compulsory heirs listed under Art. 887.
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But take not in the case of a surviving spouse there is a
qualification.
GR: If the surviving spouse were to inherit alone, the
legitime shall be ½ of the total estate.
XPN: The share may of the surviving spouse may be be
reduced to 1/3 of the total estate. This would happen if the
marriage between the surviving spouse and the decedent
was celebrated in articulo mortis and then the decedent
dies within three months from the time of marriage.
XPN to the XPN: If the surviving spouse and the decedent
were living together as husband and wife for more than 5
years. In which case, the legitime goes back up to ½ of the
total estate.
Rationale: The law is trying to protect the decedent. It is
possible that the surviving spouse is only after the
decedent’s properties.
But this presupposes that the default property regimes is
CPG. Pero ngayon, kahit i-reduce mo sa 1/3 yung share niya,
kalahati na agad ng ACP yung makukuha ni surviving
spouse because the default property regime is now ACP.
Now, in the lower rows (referring to the table), here we
would be tackling the sharing in case of concurrence:
1. If the legitimate children were to concur with the
legitimate parents, the children would be getting ½ and
the parents would be excluded.
2. If the legitimate children would be concurring with the
surviving spouse, the children would be getting ½. The
surviving spouse will get a share equivalent to the
share of each legitimate child.
The parents will be excluded. Then if the legitimate children
would be incurring with the surviving spouse, they will be
getting 1/2; the surviving spouse will be getting a share
equivalent with each legitimate child.
The surviving spouse here will be getting the share of each
legitimate child or if there is only one, you will fix it at 1/4th.
The illegitimate children, following the provision in the
Family Code, will be getting ½ the share of each legitimate
child.
COMPULSORY SUCCESSION
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

Legitimate Children concurring with Illegitimate Children

and Surving Spouse would still receive them half for their
legitime.

The Legitimate Parents or Ascendants concurring with

Illegitimate Children and surviving spouse will be getting
1/2. They do not get excluded by the presence of If they are inheriting alone, they will be inheriting alone,
illegitimate children. they will now receive 1 whole instead of ½.

However, the illegitimate children, they do not get any We will still apply the same Rule of Exclusion and the same
legitime since they will be excluded by the presence of Rule of Concurrence. They are essentially the same, but the
illegitimate children. shares will be bigger in intestate succession.

Legitimate parents with Legitimate Children and Surviving
Spouse will not get anything due to the presence of the
Legitimate Children.
Illegitimate Children concurring with Legitimate Children
and Surviving Spouse will receive ½ share of each
legitimate child with preference given to the surviving
spouse.
If you are sure that there will be no impairment, you can
simply apply the ratios or fractions provided in the law.
There are those phrases “by analogy”, because there is no
specific provision in the law governing the situation and
that we are coming up with the rule by analogy.

Preference means that it is in free portion that you will get

the legitime of both the surviving spouse and illegitimate
children. In distributing the free portion, you have to satisfy
the share of the surviving spouse first, such that if the
portion that remains will no longer be sufficient to cover
the shares of the illegitimate children based on the formula
wherein each one of them will get half the share of the
legitimate child, you will simply divide the portion among
them even if they will not be getting an amount equivalent
to half the share of the legitimate children. Again, this is
because we give preference to the surviving spouse.

Remember that the fewer legitimate children and the more

that you have illegitimate children, the chances are that the
remaining portion will not be sufficient to comply with that
formula of ½ share of a legitimate child being given to each
illegitimate child.
This would be the instance where we have more than two
INTESTATE SUCCESSION heirs concurring. The same rules will still apply.

Page 118 of 128

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
The rules in intestate succession deviate from the
compulsory succession because those Rules in Concurrence
would also touch on how the surviving spouse will concur
with the collateral relatives and how these collateral
relatives will also be relating in concurrence with one
another.
In compulsory succession, you were confined to the direct
line and the surviving spouse. But here, we have the
surviving spouse interacting with the collateral relatives
and the collateral relatives interacting among themselves.
LEGITIME
Article 872. The testator cannot impose any charge,
condition, or substitution whatsoever upon the legitimes
prescribed in this Code. Should he do so, the same shall be
considered as not imposed.
GR: Legitime cannot be burdened with any
conditions/prohibitions.
XPN: Prohibition against partition. This may be imposed
upon the legitime. But it cannot exceed a period of twenty
(20) years, maximum na ‘yun.
The reason why we do not allow perpetual prohibition
against partition and alienation is because the goal really is
to allow the free circulation of property. Otherwise,
everyone will suffer.
Legitime is practically untouchable. There can be no
conditions that may be imposed, no obligations that may be
imposed upon the compulsory heirs for them to receive
their legitime.
The only way by which they may be denied their legitime is
through a valid disinheritance. To be disinherited, there
must be a last will and testament effecting the
disinheritance. Also, the disinheritance can only be made
upon the grounds provided in the law.
If there is no ground cited by the testator or if a ground is
cited, but the same is questioned subsequently by the
disinherited heir on the ground that the ground [for
disinheritance] is not proven then you end up with a
defective disinheritance.
DIFFERENCE IN THE EFFECTS OF PRETERITION AND
THE EFFECTS OF DEFECTIVE DISINHERITANCE
Preterition Defective Disinheritance
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The preterited compulsory The most that may be hoped
heir may stand to get more for by the defect of the
than his legitime. Possibly, disinherited heir is to get his
the entire estate under the legitime. Because the
correct circumstances kasi annulment of the institution
the institution of heir will be of heirs will only be to the
annulled and if there are no extent that there is
legacies or devises, then the impairment of the legitime.
entire estate would go by
intestate succession.
If there are no other
compulsory heirs, then the
preterited compulsory heir
will also be the intestate heir.
Ang ending, he gets
everything.
Article 915. A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for causes
expressly stated by law.
Article 916. Disinheritance can be effected only through a
will wherein the legal cause therefor shall be specified.
Article 918. Disinheritance without a specification of the
cause, or for a cause the truth of which, if contradicted, is
not proved, or which is not one of those set forth in this
Code, shall annul the institution of heirs insofar as it may
prejudice the person disinherited; but the devises and
legacies and other testamentary dispositions shall be valid
to such extent as will not impair the legitime.
Q: What is the reason why a defective disinheritance is
less harmful than preterition?
A: Kasi sa defective inheritance, we cannot discount the fact
that there really was the intention on the part of the
testator to disinherit, only that he was not able to carry it
out validly.
Sa preterition, we do not have the same kind of conviction
or that degree of certainty. What we have is only an
omission which may also be interpreted, as opposed to
being taken as deliberate, as a mere oversight. And the law
would rather err on the side of generosity. It would rather
presume that it was unintentional. Kaya mas extensive
‘yung effect ng preterition.
If there is a valid disinheritance, it does not only disentitle
the heir to his legitime, the effect is universal. He cannot
inherit by testamentary disposition and he cannot inherit
by intestate succession.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Pero sa testamentary disposition, it will be a different
matter if the last will and testament providing for a devise
or legacy to the disinherited heir was executed after the will
disinheriting him. Because that shows the intention on the
part of the testator to provide the disinherited heir with at
least something after his death. This is also without
prejudice to taking the disposition subsequent to the
disinheritance as a form of or an offshoot of reconciliation
between them. If there is reconciliation, then the
disinheritance is also set aside. But again, that would
depend on the circumstances. We have to ascertain whether
or not a reconciliation has in fact, taken place.
Article 922. A subsequent reconciliation between the
offender and the offended person deprives the latter of the
right to disinherit, and renders ineffectual any
disinheritance that may have been made.
For the grounds for disinheritance, I need you to know
these grounds for every kind of compulsory heir: the
grounds for disinheriting a parent or an ascendant, a
spouse, a child or descendant.
GROUNDS FOR DISINHERITANCE
Article 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as
well as illegitimate:
(1) When a child or descendant has been found guilty of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused the testator of
a crime for which the law prescribes imprisonment for six
years or more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of
adultery or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or to change one already made;
(5) A refusal without justifiable cause to support the parent
or ascendant who disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the
child or descendant;
(7) When a child or descendant leads a dishonorable or
disgraceful life;
Page 120 of 128
(8) Conviction of a crime which carries with it the penalty
of civil interdiction.
Article 920. The following shall be sufficient causes for the
disinheritance of parents or ascendants, whether
legitimate or illegitimate:
(1) When the parents have abandoned their children or
induced their daughters to live a corrupt or immoral life, or
attempted against their virtue;
(2) When the parent or ascendant has been convicted of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(3) When the parent or ascendant has accused the testator
of a crime for which the law prescribes imprisonment for
six years or more, if the accusation has been found to be
false;
(4) When the parent or ascendant has been convicted of
adultery or concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or to change one already made;
(6) The loss of parental authority for causes specified in this
Code;
(7) The refusal to support the children or descendants
without justifiable cause;
(8) An attempt by one of the parents against the life of the
other, unless there has been a reconciliation between them.
(756, 854, 674a)
Article 921. The following shall be sufficient causes for
disinheriting a spouse:
(1) When the spouse has been convicted of an attempt
against the life of the testator, his or her descendants, or
ascendants;
(2) When the spouse has accused the testator of a crime for
which the law prescribes imprisonment of six years or
more, and the accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or
undue influence cause the testator to make a will or to
change one already made;
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of
parental authority;
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
(6) Unjustifiable refusal to support the children or the other
spouse.
RESERVA TRONCAL
Another important concept is RESERVA TRONCAL.
Article 891. The ascendant who inherits from his
descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or a
brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of
relatives who are within the third degree and who belong to
the line from which said property came.
As you can see, we have [inaudible], the origin, the
prepositus, the reservista, and the reservatario.
1. The origin - The source of the property. An origin
may be an ascendant or may be a brother or
sister of the prepositus.
2. Prepositus – acquires the property by gratuitous
title. The prepositus is also known as the Arbiter
of the Reserva because he has, in his power, to put
an end to the potential of the property being
subject to reserva troncal.
Q: How will he exercise this power?
A: For one, if he procreates. If he is with issue then that will
prevent reserva troncal because the presence of legitimate
children and descendants will exclude his ascendants from
inheriting through his estate. Mere presence of his
legitimate children or descendants will put an end to
any possibility of reserva troncal being created.
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Another way by which the prepositus would prevent
possibility of reserva troncal is if he disposes the property
even if the disposition may be in favor of a potential
reservista themself.
Example:
The property is in the hands of the prepositus and he
decided to donate to his mother. The fact that he donated it
to his mother would now put an end to the possibility that
the property will be subject to reserva troncal because he
has intervened by making that disposition.
However, if he does not make a disposition and he also has
no legitimate issues and he dies intestate, then that
property would go to the ascending line and lodged in the
possession and ownership of the reservista. The reservista
will be holding on to this property in ownership during his
lifetime. However, that ownership is subject to a resolutory
condition.
Resolutory condition – if there are reservatarios, meaning
to say relatives within the 3rd degree from the prepositus
and within the same line from which the property came,
and these reservatarios survive the reservista, the property
will be given to the reservatarios. The property will not
form part of the net hereditary estate of the reservista.
So if a problem is given to you regarding settlement of
estate, you will have to be on the lookout for potentially
reservable properties. Because if the property is subject
to reserve troncal, then you should not include the
value of that property in the determination of the net
hereditary estate of the decedent/reservista.
Q: During the time the property is in possession of the
reservista, how should we characterize the reservista’s
rights over the property? Usufruct, mere possession or
full ownership?
A: Full ownership. The reservista, during the time the
property is in his possession, is considered to be its owner.
As owner, he can dispose of the property. However, any
disposition he makes must be subject to the same condition
affecting his own ownership. If he makes a transfer of a
reservable property in favor of 3rd persons, that 3rd person
takes that reservable property subject to the same
resolutory condition which is: the ownership rights of the
reservista, whether residing in himself or is transferred to a
3rd person will be extinguished should there be
reservatarios surviving the reservista at the time of his
death. At that point, that property will go to the
reservatario. Any transfer that is made by the reservista is
subject to that qualification.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
Q: Does it matter that the transferee does not know of
the limitation?
A:
GR: It should not matter whether the transferee knows of
such limitation because we have the saying “the spring
cannot rise higher than its source”. You can only transfer
what you have. If your ownership is subject to a certain
condition, then that is the only kind of ownership you can
transfer. You cannot transfer an ownership that is not
burdened by any kind of condition.
XPN:
1. The rules on good faith affecting law on sales;
2. Rules on transfer of real property registered under
the torrens system.
Example:
If the land is covered by the torrens system and there is no
indication in the title that it is subject to reserva troncal,
then the buyer acting in good faith and for value who
acquires this registered property may be taken as entitled
to take the property without any condition other than those
indicated in the title. If there is no reserva troncal
indicated in the title, then the buyer is not bound.
Take note of the interplay: rights of the reservista is
subject to a resolutory condition which will extinguish
said right while the rights of the reservatario is subject
to a suspensive condition, the happening of which will
give rise to their own right. Both conditions refer to the
same event (the death of the reservista survived by the
reservatario), although the effects are different.
Reservista : Resolutory Condition while Reservatario :
Suspensive Condition.
Q: If the exception applies, what can the reservatarios
do? Because it cannot be denied that they have a right
subject to a suspensive condition.
A: They can be likened to creditors in an obligation subject
to a suspensive condition. Under the law on obligations and
contracts, such a creditor subject to a suspensive condition
can take such steps necessary to protect their rights. Ex. If
we are dealing with a reserved property, then the most
logical thing for reservatarios to do is to have the
reservable character of the property recorded and
annotated in its title.
ACCEPTANCE AND REPUDIATION
For acceptance and repudiation this time [inaudible] the
forms in which acceptance and repudiation must be made.
If you would notice its harder to repudiate than it is to
accept. To put very simply, mas madaling tumanggap kesa
mag-reject ng inheritance because when you are rejecting
an inheritance then basically you are effecting a waiver. You
Page 122 of 128
do not want the inheritance, that is why the law would need
you to observe certain formalities. Samantalang if it’s
acceptance, there can be even an implied acceptance.
PARTITION
For partition, I would need you to pay attention to the
provisions of Article 1080.
Article 1080. Should a person make partition of his estate
by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of
the compulsory heirs.
A parent who, in the interest of his or her family, desires to
keep any agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right granted
him in this article, by ordering that the legitime of the
other children to whom the property is not assigned, be
paid in cash. (1056a)
The question that may be asked in relation to Article 1080
would be whether the testator who is effecting an intervivos
partition of his estate is required by law to have a will which
will serve as the basis for the partition. Previously, it was
certain that there must be a will because the counterpart
provision of Article 1080 in the old law spoke of testator
but under the present language, the term used by law is
person.
So nakikita niyo yung nuances ng batas that the
requirements, the requisites are determined by the term
used. So since na-reduce yung term na testator sa lumang
batas sa mere person under the present law, then the
implication is the person effecting the inter vivos partition
does not need to have executed a prior will unlike in the old
law.
That would also be the rule that we have to observe when it
comes to the determinants for capacity to succeed. We have
to check if the provision is using the term person or if it is
using the term testator to determine whether it pertains to
capacity to succeed in intestate succession or capacity to
succeed in relation to testamentary succession.
Problem:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023
The decedent was married to S. They had 3 legitimate
children – A, B, and C. B had 2 illegitimate children – I and
J. C had 2 legitimate children – K and L. The decedent also
had an illicit affair with M.
They had a child, E, who in turn had 3 children – F, G, and
H. Of the 3, H is illegitimate. The decedent made successive
donations to A – a 4M Lot; K – a 4.5M house and lot; and L
– a 4.5M resort.
During their marriage, D and S acquired the following
properties: Lot - 10M, Family home – 8M, and Cash – 10M.
The decedent executed a will where he left legacies to K
and F in the amount of 1M and 2M, respectively.
He died after a lingering illness with the
following liabilities: Hospital Expenses of 2M; and Quasi
delict liability of 2M.
Parenthetically, E, B, and C, predeceased the decedent.
You have the decedent with three (3) legitimate children,
and then he had grandchildren from this children. However,
B, a legitimate child, had two (2) illegitimate children, while
C, the other legitimate child, had two (2) legitimate children
of his own. And we also have a legitimate child E, and E had
three (3) children of his own. Of the three, one (1) is
illegitimate and the other two (2) are legitimate. Now, the
decedent made successive donations.
Q: Is the word ‘successive’ material?
A: Yes. When it comes to donations, we will give preference
to those who are earlier made over those which are later in
time. So, successive means that the first donation was to A
(4 million), the next is to K (4.5 million), and the third
donation was to L (4.5 million).
Q: Now, did the problem indicate the property regime
between the parties?
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A: It did not so we assume that they are covered by the
absolute community of property regime (ACP). If there is no
indication as to the time the parties got married, we assume
that they took place at the time when the prevailing laws
are already existing.
Now, the decedent executed a will, but he only left legacies,
and the legacies are in favor of K and F, in the amounts of 1
million and 2 million.
Q: In this situation, you have compulsory heirs, so there
is danger of impairing the legitime, but what do we
apply? Do we apply Article 911 or Article 950?
A: Article 911 is applicable kasi sabi natin, we only apply
Article 950 where we have a hierarchy of legacies
depending on their classifications when we are dealing with
legacies exclusively, and we do not speak of legitimes or any
danger of impairing the same.
Article 911. After the legitime has been determined in
accordance with the three preceding articles, the
reduction shall be made as follows:
(1) Donations shall be respected as long as the legitime
can be covered, reducing or annulling, if necessary, the
devises or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro
rata, without any distinction whatever.
If the testator has directed that a certain devise or legacy
be paid in preference to others, it shall not suffer any
reduction until the latter have been applied in full to the
payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than that
of the disposable portion, the compulsory heirs may
choose between complying with the testamentary
provision and delivering to the devisee or legatee the part
of the inheritance of which the testator could freely
dispose. (820a)
Now, this paragraph tells us the expenses that may or may
not be chargeable to the estate. So, he left hospital expenses
for his lingering illness in the amount of 2 million and
quasi-delict liability amounting to 2 million.
Q: How would you classify the hospital expenses?
A: This would be support and therefore chargeable to the
estate.
Q: To those who answered 6M, what rule did you apply?
Did you apply Aquino? Who the compulsory heirs are
by applying Aquino or old rule?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

A: -no answer- Because his share in the community property would be

Q: The decedent made successive donations. Is the word
successive here material?
A: Yes, because when it comes to donations, we will give
preference to those earlier made than later in time.
Successive donations were 4M to A, 4.5M to K, and 4.5M to
L.
Q: During the marriage, they have properties. Did we
indicate what regime governs the properties?
A: No. We should assume that they are governed by
Absolute Community
Atty: Do not interchange the community property and
conjugal partnership. There is no indication as to time when
they got married or when it took place. We presume that it
took place with the law prevailing. Kasi kung material ang
application, then dates would have been specified. So the
decedent executed a will but he only left a legacy. The
legacies are in favor of K and F, and in amounts of 1M and
2M.
In this situation, we have compulsory heirs. Hence, there is
a danger of impairing the legitime.
added to his separate properties and their sum would
constitute his gross estate. For us to get to the
determination of the gross estate, we will need to first
determine how much the community property is and how
much his share in the community property will be.
This is also the reason why if a person marries and he dies,
the settlement of his estate will also be the venue for the
liquidation for the community property. This will be
conducted simultaneously because whatever is taken out
from the community property as his estate will be added to
his separate properties to come up with his gross estate.
PART I: COMPUTATION OF THE NET HEREDITARY
ESTATE OF A MARRIED DECEDENT
1. Liquidate the Absolute Community Property
Absolute Community Property
Lot PHP 10M

Q: What do we apply? Art. 911 or 950? House and Lot PHP 8M

A: Article 911 is applicable because you only apply 950 Cash PHP 10M
when we have hierarchy of legacies depending on their
classification when we are dealing with legacies exclusively Total: PHP 28M
and we do not speak of legitimes or impairing the same.
Less Obligations: (PHP 2M) Hospital Expenses
He died. This now tells us the expenses which may or may (Art. 94(1), FC)
not be chargeable to the estate. He left hospital expenses on
account of lingering illness in the amount of 2M and Absolute Community PHP 26M
Property:
quasi-delict liability amounting to 2M.

Q: How will you classify hospital expenses? 2. Determine the Decedent’s share in the Absolute
A: This will be support, and therefore chargeable to the Community Property and add to his Exclusive
community property. The quasi-delict liability, this is a Properties
personal liability. This will be chargeable to the estate of
decedent alone.
Absolute Community PHP 26M / 2
The last sentence tells us that the children E, B, and C all Property:
predeceased the decedent.
Total; Decedent’s share in PHP 13M
Q: Is this material? ACP + exclusive properties:

A: Yes, because this will determine whether there will be

Apply both rules, but the right Rule to observe is the rule
right of representation.
laid down in Aquino v. Aquino, because it is the prevailing
First step would be to determine the share of the decedent doctrinal ruling.
in the community property. Why?
Essence of Aquino v. Aquino: An illegitimate child is allowed
to represent the putative parent in a succession to the

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UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

estate of the ascendant, from whom the putative parent will The legitime of the legitimate children is ½. So ½ divided by
have inherited. Previously, said illegitimate child cannot 3, and that would be the shares of A, the representatives of
represent because of the Iron Curtain Rule. B, and the representatives of C.

Q: Who are the possible representatives? A: would be getting ½ divided by 3 = 1/6

A: Reps. of B (I and J): ½ each of 1/6 = 1/12 each
Under Aquino v. Aquino Ruling Reps. of C (K and L): ½ each of 1/6 = 1/12 each

Under Aquino v. Aquino: Lahat na pwede. Kasi ang may The surviving spouse would be entitled to the same share as
question lang naman dyan kung pwede magrepresent, 1 legitimate child. So, she gets:
would be I and J, because of their illegitimate filiation. But Surviving Spouse: 1/6
Aquino v. Aquino has paved the way for them to be able to
represent. For the illegitimate child, E, he gets half of the share of a
legitimate child (1/6), so, ½ of 1/6 = 1/12.
So, this would be the determination of the heirs and their E = 1/12
shares under the doctrinal ruling of Aquino v. Aquino.
But, since E is survived by his own children having
AQUINO V. AQUINO – DISTRIBUTION OF THE ESTATE: predeceased the testator, then he will be represented. His
DETERMINATION OF THE HEIRS OF THE DECEDENT representation is mixed, legitimate and illegitimate. So, if
mixed, we have to observe the proportions, 2:1. In this case,
HEIRS STATUS REPRESENTA SHARES E, with 1/12 estate, is being represented by:
TIVES
A SURVIVES ½ ÷ 3 = 1/6 2 Legitimate Children
1 Illegitimate Child
B PREDECEAS I&J [½ ÷ 3] ÷ 2 = 1/12
ED EACH
So, 1/12 will be divided among F, G and H, in the following
C PREDECEAS K&L [½ ÷ 3] ÷ 2 = 1/12 proportion: 2 : 2 : 1, or in proportion of 2/5 : 2/5 : 1/5,
ED EACH which is translated to 2/5 of 1/12, which is 2/60, and 1/5
SS SURVIVES ½ ÷ 3 = 1/6 of 1/12, which is 1/60.
E PREDECEAS F, G & H [1/6 ÷ 2 = 1/12] TO
ED BE DIVIDED IN So, 2/60 : 2/60 : 1/60.
PROPORTIONS OF
2:2:1 OR OLD RULE: DISTRIBUTION OF THE ESTATE:
2/5:2/5:1/5 = DETERMINATION OF THE HEIRS OF THE DECEDENT
2/60:2/60:1/60
HEIRS STATUS REPRESENT SHARES
So, since we have a last will and testament providing for ATIVES
legacies, and we also have donations, then we will have to A SURVIVES ¼
determine the legitimes first, to know what or how much B PREDECEAS NONE
the free portion is, and whether the legacies, and/or the ED
donations would still be accommodated in the free portion.
C PREDECEAS K&L ¼ TO BE DIVIDED
ED EQUALLY
Here, basically, this lays out the legitime of each of our heirs.
SS SURVIVES ¼
Q: So, who are the heirs? E PREDECEAS F, G & H 1/8 TO BE DIVIDED
A: ED IN PROPORTIONS
Heirs: We have OF 2:2:1 OR
- 3 children 2/5:2/5:1/5
- Surviving Spouse
- Illegitimate Child Now, under the Old Rule, when there was still the Iron
Curtail Rule applicable, barring illegitimate children,
2 of the 3 children will be represented by their own representing a legitimate child. So, because of this, we will
children because of predeceased. It’s only A who would take out B, wala na agad siyang share, because he cannot be
inherit in his own right. represented. His share will now accrue to A and to C. When
we say accrue, we do not mean accretion because there is

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UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

no accretion in compulsory succession. What we mean here Next step:

is A and C would be benefitted, because they would now be Distribution of the inheritance.
inheriting ¼ each, instead of 1/6. So: The second concept of Collation will now be applied which
is imputation. Yung unang inapply, Collation in the concept
A: will get his ¼ in his own right of gathering the value.
B: and his children would not get anything, no right of
representation Aquino v. Aquino
C: would be represented by K and L, and the ¼ will be
divided to them equally, 1/8 each MONETAR IMPUTATIO
Surviving Spouse: will get ¼, because that is equivalent to EFFECTS OF
HEIRS SHARES Y N OF
the share of a legitimate child IMPUTATION
VALUE DONATION
E: who predeceased the testator, will be represented by F, G 1/6 OF Will receive
and H. 1/8 that would be given to him, will be divided in A 4M 4M – 4M
24M nothing
proportions of 2 : 2 : 1. So:
I & J –
● F and G: 2/5 of 1/8 I – 2M
B 1/12 OF
● H: 1/5 of 1/8 J – 2M
24M EACH
Under the Old Rule, remember when I mentioned to you the Excess to be
K & L –
upside of the absence of the right of accretion in K – 2M 2M – 4.5M imputed to FP
C 1/12 OF
compulsory succession. The impact would be in the L – 2M 2M – 4.5M (6M – 2.5 –
24M EACH
determination of the share of the surviving spouse. 2.5)
Titingnan niyo dito, since A and C received ¼ each, not 1/6 OF
SS 4M
because of the right of accretion, but in their own right, the 24M
surviving spouse, ang share din niya is ¼. Samantalang, if F – 2/5
we apply the right of accretion here, and we said that, the 1/12 OF
(2M)=
share of A is really 1/6, C is 1/6, and then the 1/6 that 24M OR
800K
should have gone to B (1/12 each), was only added to each 2M to be
G – 2/5
one of them. So, A’s share would be 1/6 + 1/12. In which divided in
E (2M)=
case, the share of the surviving spouse would not have been proportion
800K
¼, but only 1/6. The increase of 1/12 will not be considered of 2:2:1 or
H – 1/5
to her. Since, the increase of 1/12, HAD THERE BEEN 2/5;2/5;1/
(2M)=
ACCRETION IN COMPULSORY SUCCESION, is not the share 5
400K
of A. It’s simply an accrual on account of the right of
accretion. So that’s the difference arising from the absence Here, we are computing the shares of each of the heirs. 1/6
of the right of accretion in compulsory succession. of 24M = 4M. But, remember si A there was a donation
made in his favor amounting to 4M. There was no provision
And we said that na ang share talaga ni A ay 1/6, C ay 1/6 of stipulation in the will prohibiting implication of the
and 1/6 na should have gone to B, 1/12 each was only donation in favor of A. We will impute it in his legitime. The
added to each one of them. difference is 0. Implication is that he will not be receiving
anything. (wala na siyang tatanggapin in actuality kasi
Ang share talaga: natanggap na niya dati)

A = 1/6 + 1/12 Do we mean he is not entitled to his legitime? – No. We

B = 1/6 + 1/12
SS = 1/6
Ang share ni surviving spouse would not have been ¼, but
also 1/6. Hindi iko-consider yung increase na 1/12, kasi
yung increase na 1/12 had there been accretion in
compulsory succession, is not the share of A. It is simply an
accrual on the Right of Accretion.
simply say na wala nang iaabot physically na pera yung
estate kasi nasa kanya na. It has been advanced. Kaya sa
table ang nakalagay, monetary value of his legitime. But if
you impute the donation the effect is that he will not receive
anything anymore.
Shares of representatives of B, si I and J would be 1/12 of
24M each. That means 2M for I and 2M for J.

This is the difference arising from the absence of the Right K and L will also be getting 2M each. But when it comes to K
of Accretion in Compulsory Succession. and L, we will look on the donations made in their favor.

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UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

There was a donation to K of 4.5M house and lot, and to L of K’s share = 1/3 of 1M
4.5M resort. We will impute the donations to their legitime.
So, that will be the computation under the rule laid down in
K = 2M – 4.5M (excess of 2.5M)* Aquino vs. Aquino.
L = 2M – 4.5M (excess of 2.5M)*
UNDER THE OLD RULE
*If it can be accommodated in the free portion you would
impute that excess to the free portion.
HEI SHARES MONET IMPUTAT EFFECTS
Free Portion: (add the monetary value)
RS ARY ION OF OF
DONATIO IMPUTAT
Free Portion = Net Hereditary Estate – MV of the legitimes
VALUE N ION
MV = 4M + 4M+ 4M + 4M+ 2M
= 18M
A 1/4 6M 6M – 4M Will
actually
Net Hereditary Estate 24M
receive
Less: MV of legitimes (18M) 2M
Free Portion 6M
B

Now, the free portion of 6M would have to answer for the C ¼ to be K – 3M 2M – Excess to
donations as well as the legacies and devises. If the free divided L – 3M 4.5M be
portion is not enough to accommodate the donations and equally 2M – imputed
the legacies and devises, then donations are preferred over between K 4.5M to FP of
legacies and devises – apply the free portion to satisfy the and L 3M; K’s
donations first. will be
covered;
Donations: L must be
K = 2M – 4.5M (excess of 2.5M)* reduced
L = 2M – 4.5M (excess of 2.5M)*
Total = 5M excess from donations. SS 1/4 OF 24M 6M
Free portion = 6M

Hence, the free portion can accommodate the donations if E 1/8 to be F – 2/5
you impute the excess of the donations to the free portion, divided in (3M)=
you will still have an excess of 1M proportions 1.2M
6M – 5M = 1M of 2:2:1 or G – 2/5
2/5; 2/5; (3M)=
Legacies: 1/5 1.2M
K = 1M H – 1/5
F = 2M (3M)=
Total Legacies = 3M 600K
Remaining free portion = 1M

As you can see, the remaining free portion is insufficient to

cover the legacies. Therefore, they must be reduced. Since
we have compulsory heirs here, then we would have to Now, let us add up the legitime so we can determine the free
apply the rule under Art. 911. The legacies will be reduced portion:
proportionately, without regard to their kinds. A = 6M
C = 6M
Proportion between F and K = 2:1 SS=6M
= 2/3 and 1/3 E = 3M
F’s share = 2/3 of 1M 21M

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UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
4D – CIVIL LAW REVIEW AY 2022-2023

representation; or will Art. 992 bar them from doing

Net Hereditary Estate 24M
Less: MV of legitimes (21M)
Free Portion 3M
Art. 911. After the legitime has been determined in
accordance with the three preceding articles, the
reduction shall be made as follows:
(1) Donations shall be respected as long as the legitime
can be covered, reducing or annulling, if necessary, the
devises or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro
rata, without any distinction whatever.
If the testator has directed that a certain devise or
legacy be paid in preference to others, it shall not suffer
any reduction until the latter have been applied in full to
the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than
that of the disposable portion, the compulsory heirs may
choose between complying with the testamentary
provision and delivering to the devisee or legatee the
part of the inheritance of which the testator could freely
dispose.
so?
A: [They can only inherit through their right of
representation]. The only reason we are allowing
illegitimate children to inherit from the legitimate relatives
of their parents is that we have Art. 992 which mandates
without distinction that grandchildren and other
descendants shall inherit by right of representation.
That is the only way by which the Supreme Court can justify
the party from Art. 992, which is the Iron Curtain Rule. The
Supreme Court cannot overcome this since it will amount to
judicial legislation. It was just circumstantial that we have
this provision mandating representation for grandchildren
and descendants regardless of relation.
This is always why we cannot extend the same rule to the
right of representation in the collateral line. In the collateral
line, we will still have to observe the Iron Curtain Rule.
It is probably soon that we will get a provision or an
amendatory law from Congress taking out Art. 992. They
have already done it through the Family Code, i.e. the right
of support between grandparents or grandchildren, we no
longer distinguish legitimate from illegitimate.

Under the old rule, it is P3M. The P3M is not enough to

cover the imputations of the excess donations [P3M] and
legacies [P3M]. We apply ART. 911, we will suppress the
legacies, since there is not enough free portion to cover
them together with the conversation.

With regard to the donations, the free portion will be

enough. The excess will just be P1.5M each, with a total P3M
as the excess which will be equivalent to the free portion.
The donations will be accommodated. The excess is to be
imputed to the free portion of P3M.

THE IRON CURTAIN RULE AND AQUINO V. AQUINO

Art. 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.

Q: With regard to Art. 992 and Aquino v. Aquino, can

illegitimate grandchildren inherit in their own right
from their grandparents and not by right of

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