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UNIVERSITY OF THE CORDILLERAS BAR OPERATIONS 2011 CIVIL LAW

ATTY. RACHELLE CASTRO
I. PERSONS 1. Retroactivity of Laws, NCC Art. 4 Laws shall have no retroactive effect, unless the contrary is provided. Exceptions to Rule: (1) When the law itself so expressly provides.-- This has two exceptions: (a) when the retroactivity of a penal statute will make it an ex post facto law, (“Sec. 22. No ex post facto law or bill of attainder shall be enacted. Sec. 22, Article III, 1987 Constitution) and (b) When the retroactive effect of the statute will constitute an impairment of the obligation of contract. (“Sec. 10. No law impairing the obligation of contracts shall be passed.” Sec. 10, Article III, 1987 Constitution) (2) In case of Penal statutes.-- Penal laws shall have retroactive effect insofar as they favor the accused who is not a habitual criminal, even though at the time of the enactment of such laws final sentence has already been rendered. (Art. 22, RPC) (3) In case of Remedial statutes.-- Remedial statutes are those which refer to the method of enforcing rights or of obtaining redress of their invasion. (4) In case of Curative statutes.-- Curative statutes are those which undertake to cure errors and irregularities. (5) In case of laws interpreting others.-- These are laws which are intended to clarify doubts or interpret an existing law. (6) In case of laws creating new rights.-- provided that it does not prejudice another acquired right of the same origin. (7) If the law is of an emergency measure and authorized by the police power of the State. (8) Tax laws – which impose taxes may be given retroactive effect. Liability for taxes is incidental to social existence. ( Lorenzo vs. Posadas, 64Phil 353) 2. Territoriality Principle – Operation of law is co-extensive with territorial sovereignty (Art. 14, NCC), particularly in case of penal laws, and laws of public security and safety. Territoriality and Generality Principle Art. 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. There are 2 principles involved here: Territoriality and Generality. Territoriality means that our criminal laws are enforceable only within Philippine territory. Exception to the territoriality principle is Article 2 of RPC. Generality which means that within the Philippine territory, our criminal laws will apply to anyone, citizen or alien . Our penal laws equally apply to aliens who live or sojourn in the Philippines based on the principle that during their stay, they owe allegiance to the country

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GREEN NOTES IN CIVIL LAW
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though temporary in nature. The same rule is embodied in Article 2 of the RPC. UNIVERSALITY AND TERRITORIALITY PRINCIPLE: Universality: Penal laws and those of general welfare and those of public security are binding on all who reside and sojourn in the Philippine territory. (Art. 14) Prohibititve laws concerning persons, their acts and their property, and those intended to promote public order and good morals, shall not be made nugatory by any foreign laws or judgments nor by an action or agreement made in a foreign country. (Art. 17, p. 3) Basis of the rule is the right of the State to protect itself and its policies in order to achieve its ends. “Art. 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” Thus, any offense committed by any person (Filipino or alien) within the territory of the country is an offense against the State. The State has, therefore, the power to prosecute and punish the offender, national of foreigner. Exceptions: (1.) Those, who under principles of public internal law enjoy diplomatic immunities (from suit) such as heads of states, foreign ambassadors or diplomats provided they do not travel incognito. NOTE: Consuls do not have immunities (2.) Those expressly excluded from our jurisdiction due to treaty stipulations EXTRATERRITORIAL JURISDICTION: “The juridical power of the State extending beyond the physical limits of a particular state or country.” (Blacks Law Dictionary., 6 th Ed.) Where the State has jurisdiction over specific crimes although the same was committed outside its jurisdiction. “Art. 2 (RPC) Application of its provisions. – Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship; 2. Should forge or counterfeit any coin or currency note if the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; 3. Should be liable for acts connected with the introduction into these Islands of the obligations and securities mentioned in the preceding number; 4. While being public officers or employees, should commit an offense in the exercise of their functions; or 5. Should commit any of the crimes against national security and the law of nations, x x x 3. Lex Rei Sitae

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GREEN NOTES IN CIVIL LAW
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Art. 16. Real property as well as personal property is subject to the law of the country where it is situated. 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. EXCEPTIONS TO LEX REI SITAE: (1) In case of successional rights to real property, the law that governs is the national law of the decedent (Art. 16, par. 2 Civil Code); as well as capacity to succeed (in inheritance) is also governed by the national law of the decedent (Art. 1039, CC); (2) Contracts involving real property but which do not deal with the title to such real property shall not necessarily be governed by the lex rei sitae. The proper law of the contract governs (3) In contracts where real property is given by way of security, the principal contract of i.e loan is governed by the proper law of the contract; the accessory contract of mortgage is governed, however, by the law of the state where the real property mortgaged is situated. 4. Formalities (LEX LOCI CELEBRATIONIS) – The forms and solemnities of contracts, wills and other public instruments are governed by the law of the country in which they are executed. (Art. 17, par. 1) Refers to the formal or extrinsic validity

5. Renvoi Doctrine – Where our law provides that a foreign law should be applied, such application takes place despite any provision of that foreign law that another law should apply in case of conflict. 6. Nationality Principle “Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon the citizens of the Philippines even though living abroad.” In the Philippines, we follow the nationality or citizenship theory, that is, the national law of the person is applied in matters involving personal relations. In the U.S, and Great Britain, the domiciliary or territoriality theory is followed such that, the law of the domicile is applied on matters involving personal relations. FAMILY CODE: Validity of Marriage – in determining the validity of marriage, it is to be tested by the law in force at the time the marriage was contracted. 1. Requisites for validity of marriage: a. Essential requisites: i. Legal capacity of the contracting parties who must be a male and a female; and • Legal capacity defined: male or female of the age of 18 years or upwards not under any of the impediments in Articles 37 (incestuous marriages), 38 void marriages by reason of public

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or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general. imam.2. the marriage is valid (Art. 5) “to grant the changes in name and sex sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations – it will allow the union of a man with another man who has undergone sex reassignment. consul or vice consul where the marriage is abroad between Filipino citizens .4. marriage in articulo mortis (art. incumbent member of the judiciary within the court’s jurisdiction. in the absence of the latter. any military commander of a unit to which a chaplain is assigned. 531 SCRA 446) Authorized solemnizing officers are: 1. Formal requisites: (Art. 1. any priest.1. p. mayors (Local Government Code) Absence of authority of the solemnizing officer .GREEN NOTES IN CIVIL LAW Prepared by: ATTY. provided they are solemnized in accordance with their customs. 2. 1. co-habitation for at least five years and without any legal impediments to marry each other. BAR OPERATIONS 2011 Page 4 . 34) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witness of legal age. 27) b. any consul-general. (Art.6. Alcantara. (Silverio vs. Note that “No prescribed form or religious rite for the solemnization of the marriage is required. practices. FC) – consent of the contracting parties and not their parents should they 18 years old and up. ii.5. Authority of the solemnizing officer The authority of the officer or clergyman shown to have performed a marriage ceremony will be presumed in the absence of any showing to the contrary. rites. 3) 1. marriage among Muslims or among members of the ethnic cultural communities. A valid marriage license except where no marriage license is necessary: a. (Alcantara vs. rabbi. 1. 1. Republic. (Art. Consent freely given in the presence of the solemnizing officer (Art. during military operation where the marriage is in articulo mortis. any ship captain or airplane chief only when the marriage is in articulo mortis. (Art. b. contracting parties to appear personally before the solemnizing officer and declare • 3. (Art. 537 SCRA 373) Such a marriage is void. where either or both of the contracting parties believing in good faith that the solemnizing officer had the legal authority to do so.the marriage is void. however. a male-to-female post operative transsexual.3. RACHELLE CASTRO policy). residence of either or both parties are in far areas and no means of transportation to appear before the local civil registrar. 28) c. It shall be necessary however. 35. 2) 2. acting within the limits of the written authority granted him. 1. 33) d.

6.” b. 4.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 4. 4. Between an adopted child and a legitimate child of the adopter 4. 35 1. 4 par. 40 “The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis of a final judgment declaring such previous marriage void.2. 37) 3. Between the adopting parent and the adopted child.2. whether legitimate or illegitimate. Between the surviving spouse of the adopting parents and the adopted child. 5. 4.1. Void Marriages 1. 1. (Art. criminally and administratively liable. 1996 where the court held that “where judge solemnizing a marriage outside his court’s jurisdiction. 53 2.9. 38) Between collateral blood relatives.1. 1. with the intention to marry the other. 4.3. 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. Domagtoy.” (Art. whether of the full or half-blood Marriages declared void by reason of public policy (Art. whether the relationship between the parties be legitimate or illegitimate (Art. 3) 4. Between the surviving spouse of the adopted child and the adopter. and Between brothers and sisters. there is a resultant irregularity in the formal requisite.6. 4) Note: Case of Navarro vs. those contracted by any party below 18 years of age Those solemnized by any person not legally authorized to perform marriages Those solemnized without a license Those bigamous or polygamous marriages not falling under Art. Psychological Incapacity of one or both of the contracting parties to perform his or her essential marital obligations (Art.1 3.7. 2) c.4. Between the adopted children of the same adopter 4.3. 41 Article 41 refers to a valid bigamous marriage Those contracted through mistake of one contracting party as to the identity of the other. Between parties where one. (Art. 36) 3. 4. 1. par. BAR OPERATIONS 2011 Page 5 . killed that other person’s spouse or his or her own spouse Marriages under Art.5. while it may not affect the validity of the marriage.2 4. 1.4.5. The absence of any of the essential for formal requisites shall render the marriage void (Art. A defect in any of the essential requisites shall render the marriage voidable. Between ascendants and descendants of any degree. which. and Those subsequent marriages that are void under Art. 6) Effect of absence or defect in any of the requisites : a. 1. Between step-parents and step-children 4. July 19. Incestuous marriages.8. Between parents-in-law and children-in-law 4. Void marriages under Art. up to the fourth civil degree. RACHELLE CASTRO in the presence of not less than two witnesses of legal age that they take each other as husband and wife. may subject the officiating official to administrative liability.

and 10. Those contracted through mistake of one contracting party as to the identity of the other. habitual alcoholism. 53) Either of the former spouses may marry again after complying with the requirements in Art. and valid there as such. 52 (Art. or undue influence Physical incapability to consummate the marriage which appears incurable Affliction with a sexually transmissible disease found to be serious and appears to be incurable Marriage under Article 26 All marriages solemnized outside of the Philippines. 44 “If both spouses of the subsequent marriage acted in bad faith. rank. 2nd par. 52) 7. in accordance with the laws in force in the country where they are solemnized. RACHELLE CASTRO 6. or Concealment of drug addiction. No parental consent for a contracting party who is 18 years of age or over but below 21 years of age. and the delivery of the children’s presumptive legitimes shall be recorded in the appropriate civil registry and registries of property.: “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. existing at the time of the marriage. the subsequent marriage is void. 41 9. shall also be valid in the Philippines except: 7.3 3. health. said marriage shall be void ab initio and all donations by reason of the marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. 46) 4.2 3.4 Non-disclosure of a previous conviction by final judgment of a crime involving moral turpitude Concealment by the wife of the fact that at the time of the marriage . 5. Voidable Marriages (Art. intimidation. Marriages under Art. 26. 2. 53 Art.GREEN NOTES IN CIVIL LAW Prepared by: ATTY.1 3. (Art. (Art. Consent was obtained through fraud 3. otherwise. 6. the Filipino spouse shall likewise have capacity to remarry” BAR OPERATIONS 2011 Page 6 . 5. those contracted by any party below 18 years of age 8.” Failure to comply with the recording requirements under Art. “The judgment of annulment or of absolute nullity of the marriage. or homosexuality or lesbianism existing at the time of the marriage No other misrepresentation or deceit as to character. 52. Those bigamous or polygamous marriages not falling under Art. the partition and distribution of the properties of the spouses. she was pregnant by a man other than her husband Concealment of sexually transmissible disease. Those subsequent marriages that are void under Art. Consent was obtained by force. regardless of its nature. 45) KINDS: 1. Unsound mind 3. fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage.

betting or any other kind of gambling but not losses which shall be borne by the loser. the donee being the guilty spouse 5. Any other regime 7. Conjugal Partnership of Gains c. 76 and 77) a. Any excess shall be considered void. Must be in writing b. and the donee acted in bad faith. they cannot donate to each other in their marriage settlements more than 1/5 of their present property. Signed by the parties c. Form and Modification (Art. as required by law. f. which in these cases are considered void if the marriage does not take place. if any. Absolute Community Property b. If the marriage is not celebrated or judicially declared void an initio except donations made in the marriage settlements. when the spouses have entered into marriage without having chosen any property regime. and in favor or one or both of the future spouses (Art. 2. 82) Limitation – If the future spouses agree upon a regime other than the ACP. 93) Winnings is game of chance. 91) Presumption of property acquired during the marriage. RACHELLE CASTRO 6.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 86) DPN may be revoke by the donor in the following cases: 1. Marriage Settlement . 84) 9. 4. (Art. Absolute Community of Property When ACP governs property regime of the spouses: e. 95) 12. When the marriage takes place without the consent of the parents or guardian. When the marriage is annulled. (Art. Complete Separation of Property d. Upon legal separation. PROPERTY RELATIONS Kinds: a. What constitutes Community Property Consists of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. in consideration of the same. Executed before the marriage d. 10. Any subsequent modification must be made before the celebration of the marriage 8. When the donee has committed an act of ingratitude as provided in the provisions of the Civil Code on donations in general. when the property regime chosen is void g. and the fruits as well as the income thereof. Property acquired during the marriage by gratuitous title by either spouse. unless expressly BAR OPERATIONS 2011 Page 7 . 3. is that it belongs to the community property (Art. when the choose the ACP to govern their property relations during the marriage 11. Donations By Reason of Marriage – those made before the celebration of the marriage. If it is with a resolutory condition and the condition is complied with 6. (Art. Revocation of donation by reason of marriage : (Art. Excluded from ACP a.

Those which are acquired by chance. and upon dissolution of the marriage or of the partnership. as well as the net fruits from the exclusive property of each spouse. If it is more than the value of the property at the time of improvement. c.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. and 7. natural. by barter or by BAR OPERATIONS 2011 Page 8 . b. jewelry shall form part of the community property. Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage. c. That which is acquired by right of redemption. That which each acquires during the marriage by gratuitous title. Whenever an amount or credit payable within a period of time belongs to one of the spouses. RACHELLE CASTRO provided by the donor. the entire property of one spouse shall belong to the CPG. 3. (Art. 13. 116) 2. and the fruits as well as the income thereof. 105) What forms Part of CPG – 1. work or profession of either or both of the spouses. 119) 4. Property for personal and exclusive use of either spouse. 4. is presumed to be conjugal unless the contrary is proved. That which is brought to the marriage as his or her own. However. All property acquired during the marriage. 120 Ownership of improvements made on the separate property of the spouses at the expense of the partnership or efforts of either or both spouses depending on cost of improvement made by the CP and the resulting increase in value. whether the acquisition appears to have been made. Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse. Those obtained from the labor. 120) Excluded from the CPG a. Those acquired through occupation such as fishing or hunting. 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. Losses shall be borne exclusively by the loserspouse. such as winnings from gambling or betting. However. 5. interest falling due during the marriage on the principal shall belong to the conjugal partnership. Art. products. fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance. (Art. unless otherwise agreed in the marriage settlement. (Art. Conjugal Partnership of Gains Concept: The husband and wife place in a common fund the proceeds. contracted or registered in the name of one or both spouses. those acquired by onerous titled during the marriage at the expense of the common fund. 117 1. industrial. testator or grantor that they shall form part of the ACP b. industry. the sums which may be collected during the marriage in partial payments or installments on the principal shall be exclusive property of the spouse. 2. Art. 6. or civil due or received during the marriage from the common property. (Art. The fruits. 3. the net gains or benefits obtained by either or both spouses shall be divided equally between them.

147. and © Art. a man and a woman living together as husband and wife. In the absence of descendants. In the absence contribution shall be deemed equal. 147: 1. 4. their In one of the parties is validly married to another. acquired by both of the parties through their actual joint money. such share shall belong to the innocent party. Property Regime or Unions without Marriage Art. 53. the man and the woman must (a) be capacitated to marry each other. and )c) be without the benefit of marriage. void marriages by reason of public policy under Art. an adulterous relationship. If the party who acted in bad faith is not validly married to another. Failure to comply with the recording requirements after a marriage is declared void Art. incestuous void marriages under Art. 3. without the benefit or marriage or under a void marriage. live exclusively with each other as husband and wife. 147. each vacant share shall belong to the respective surviving descendants. his or her share in the co-ownership shall accrue to the ACP or CPG existing in such valid marriage. • Relationships included under Art. 148. the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. 2. 44 marriage where the absent spouse has been declared presumptively dead and the present spouse as well as the 2 nd spouse of the subsequent marriage are in bad faith. RACHELLE CASTRO exchange with property belonging to only one of the spouses. (b) Art. That which is purchased with exclusive money of the wife or of the husband (Art. When a man and a woman who are capacitated to marry each other. only properties contribution of in common in of proof . X x x When only one of the parties to a void marriage is in good faith. • Relationships included under Art. In cases of cohabitation not falling under Art. 2. a bigamous or polygamous marriage.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 109) Dissolution of the CPG. or industry shall be owned by them proportion to their respective contributions. 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 coownership. in default of or waiver of all of the common children or their descendants. (b) live exclusively with each other as husband and wife. but are NOT CAPACITATED to marry. his or her share shall be forfeited in the manner provided in art. and 5. Complete Separation of Property 15. 37. property. and d. without he benefit of marriage. 38 BAR OPERATIONS 2011 Page 9 . 147. 126) 14. Void marriages under: (a) Articles 36 (psychological incapacity. same grounds as in the ACP (Art. 148: 1.

the child could not have been that of the husband. RACHELLE CASTRO 16. except in the instance provided in the second par. or 3. 2009) Legitimation shall take place by a subsequent valid marriage between parents. 165) Legitimated Children -Only children conceived and born outside wedlock of parents who. Adopted children Purely personal between the adopted child and the adopted parent. “Children conceived and born outside of wedlock of parents who. may be legitimated. IMPUGNING THE LEGITIMACY OF A CHILD Art. at the time of the conception of the former. 167. That in case of children conceived through artificial insemination. Where the husband was able to prove any of the grounds enumerated above. Paternity and Filiation Legitimate children . 18.Children conceived or born during the marriage of the parents are legitimate. Legitimacy of a child may be impugned only on the following grounds: 1. the child will neither be considered legitimate or illegitimate in so far as he is concerned because they are not related to each other.) 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. violence. The annulment of a voidable marriage shall not affect the legitimation. That it is proved that for biological or other scientific reasons. at the time of conception of the former. (Art. 9858 amended Article 177 of the Family Code. or undue influence. which absolutely prevented sexual intercourse. the written authorization or ratification of wither parent was obtained through mistake. 164.Children conceived and born outside a valid marriage illegitimate. In so far as the mother is concerned. 166. unless otherwise provided by the Family code. were not disqualified by any impediment to marry each other. intimidation.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. The child shall be considered legitimate although the mother may BAR OPERATIONS 2011 Page 10 . the child will be considered her illegitimate child. serious illness of the husband. 177) NOTE: R.” (passed on October 13. 2. (Art. 178) The effects of legitimation shall retroact to the time of the child’s birth. were not disqualified by any impediment to marry each other may be legitimated. the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible.A. fraud. Of Art. or were so disqualified only because either or both of them were below 18 years of age. (Art. 180) 17.) b. (Art. (Art.) c. 164) are Illegitimate Children . Art.

The movable (machinery. or implements – The machinery. receptacles. Said chattel mortgage over a building is binding between the parties to said agreement since they are estopped from claiming otherwise. or a person having only a temporary right. those imposed by law such as legal easement and the requirement of • • BAR OPERATIONS 2011 Page 11 . Thus. then it remains personal property.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Machinery is movable by nature and becomes immobilized only when placed on a plant by the owner of the property or plant. Hence. But if the attachment or immobilization is for the use of the lessee which does not inure to the lessor at the end of the lease contract. i. • OWNERSHIP – Limitations on the right of ownership : 1. must tend directly to meet the needs of the industry or works carried on in a building or on a piece land. PROPERTY • A building is by itself an immovable property irrespective of whether or not said structure and the land on which it is adhered to belong to the same owner. RACHELLE CASTRO have declared against its legitimacy or may have been sentenced as an adulteress. must be placed by the owner of the tenement or his agent to be considered as immovable property. a property may have a character different from that provided in Article 415 and 416 (enumerations of immovable and movable properties). the building is considered immovable property.e. With respect to third persons. but not so when placed by a tenant. 19. the tenant acts as an agent of the owner and the immobilization of the machinery takes place by reason of permanent destination to the machinery. etc.g. etc. The parties to a contract of chattel mortgage may. cash registers. unless such person acted as an agent of the owner. 497 SCRA 385 II.” Where the movables are merely incidental e. usufructuary.) must first be “essentially and principal elements of an industry or works without which. etc. 2. said machinery. CA. where a tenant places the machinery under the express provision of lease that it shall become part of the plant belonging to the owner upon the termination of the lease without compensation to the lessee. by agreement. a valid real estate mortgage can be constituted only on the building erected on the land belonging to another. For the machinery. building which by its nature is considered real property. Family Home – when is it deemed constituted? A family home is deemed constituted on a house and lot from the time it is occupied as a family residence. treat as personal that which by nature would be real. Versonla vs. there is no need to constitute the same judicially or extrajudicially. Chattel mortgage on real property – Under certain conditions. instruments. those imposed by the state in the exercise of the power of taxation. typewriters found in hotels and restaurants are merely incidental for these businesses can continue or carry on their functions without these equipments and thus retain their nature as movable property. not parties to the contract. to be considered immovable property. etc. Machinery. such industry or works would be unable to function or carry on the industrial purpose for which it was established. police power and power of eminent domain.

The good faith or bad faith of the possessor is material where the fruits are still pending (ungathered) at the time he gave up his possession. sower. 4. pr interests which the pledge earns or produces but with the obligation to compensate or set-off what he receives with those which are owing him. dividends. 546) . 443) if the crop is still standing or growing at the time the owner of the land recovers it. pledge – the pledge is entitled to receive the fruits. the possessor in bad faith shall return the fruits gathered but has the right to deduct the expenses of planting and harvesting.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. donation. 449. c. planter or sower. those imposed by the Constitution e. a person. 544).. A possessor in bad faith or good faith is entitled to reimbursement for the necessary expenses of preservation of the land (Art.If the products have already been gathered (separated from the land) by the builder. or by last will. 452). income. 2102). Art. should be reimbursed for the expenses incurred for the production. lease of rural lands – the lessee is entitled to the fruits of the land together with the owner. possession in good faith by another – the possessor in good faith is entitled to the fruits received before the possession is legally interrupted (Art. prohibition of alienation in favor of aliens • Article 441.g. 566). (Art. entitled to reimbursement for necessary expenses of preservation of the land incurred by him (Art. • When the fruits or crop have already been gathered or harvested when the owner recovers the possession. and 5. planted or sown without any right to be paid indemnity therefore. first. and then to the principal amount of the credit. planter or sower and they are ordered delivered to the owner of the land. however. those imposed by the grantor of the property on the grantee. other than the owner of a property. 449). (Art. to the owner belongs the natural. owns the fruits thereof: a. Thus all fruits belong to the owner of a thing. getting the civil fruits in the form of rents paid by the lessee. 3. industrial and civil fruits. those imposed by the owner himself such as voluntary easement. But the possessor in bad faith is entitled to reimbursement for the necessary expenses of preservation of the land.g. Builder. (Art. pledge and lease. b. antichresis – the creditor acquires the right to receive the fruits of an immovable of his debtor. usufruct – the usufructuary is entitled to all the fruits of the property in usufruct (Art. but with the obligation to apply them. gathering and preservation of the fruits (Art. • • • Accretions affecting lands registered under the Torrens system: BAR OPERATIONS 2011 Page 12 . 1680 and 1654). the builder etc. mortgage. He is. or planter (BPS) in Bad faith – The BPS FORFEITS what he has built. A builder. the planter in bad faith loses them without the right to any indemnity (Art. Exceptions. The owner gets the fruits without indemnity by the principle of accession continua. 2132) e. to the interest if owing. nor to the fruits. either by contract e. in bad faith has no right of reimbursement for expenses. 452) but without the right of retention until reimbursement which is given to a possessor in good faith (Art. RACHELLE CASTRO legitime succession. d.

his right being limited to the portion which may be allotted to him upon the partition of the property. does not make the sale a nullity per se. Expenses for pure luxury or mere pleasure – are not also refundable not being for preservation. Ownership of a piece of land is one thing and registration under the Torrens system of that ownership is another. the purpose of co-ownership not being for profit. RACHELLE CASTRO - In case of diminution of area – accretion are natural incidents to land bordering on running rivers or streams and are not affected by the registration law. it does not automatically become registered land. • SALE MORTGAGE OF COMMON PROPERTY – each co-owner has the absolute right to freely dispose of his pro indiviso share and of the fruits and other benefits arising from that share but the transferee does not acquire any specific or determinate physical portion of the whole.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. registration does not protect the riparian owner against diminution of the area of his land through the gradual changes in the course of the adjoining stream. or any other transformation which prejudices the condition or substance of the thing or its enjoyment by the others. Preservation of the thing co-owned – the expenses of preservation of the thing or right owned in common and the amount of taxes due thereon should be borne by ALL. Accretions which the banks of rivers may gradually receive from the effect of the current becomes the property of the owners of the banks. or withdrawal of the thing from the use to which they wish it to be intended. alluvial deposit acquired by a riparian owner of registered land by accretion may be subjected to acquisition through prescription by a third person. thereby making the alluvial property imprescriptible. the consent of the MAJORITY of the co-owners is required and all shall contribute. In case of increase in area – although an alluvion is automatically owned by the riparian owner from the moment the soil deposit can be seen. Any alteration made on the right or thing owned in common needs the UNANIMOUS CONSENT of the co-owners and not a mere majority since acts of alteration is an act of ownership and not mere administration. Hence. Alteration is a change in the thing which involves a change from the state or essence in which the others believe it should remain. The sale is valid subject only to the BAR OPERATIONS 2011 Page 13 . If a deed of sale appears to convey a definite or segregated portion of the property under co-ownership that is still undivided. should any improvements be made to embellish the thing or right owned in common. by failure of the owner to register the said accretion within the prescribed period. Useful expenses – even if the value of the community property is thereby increased. unless such expenses were incurred with the consent of the others. So. However. just because the land which receives such accretion is covered by a Torrens title. they are not covered. - • CO-OWNERSHIP  Co-owners obligation to contribute to expenses: 1. A co-owner who advanced them has a right to demand reimbursement from the others in proportion to their respective interests in the co-ownership. 4. 3. These are NECESSARY EXPENSES 2.

not right of legal redemption exists. a sale of the entire property by one coowner will only transfer the rights of said co-owner to the buyer. which term may be extended provided each extension does not exceed 10 years. the sale is valid insofar as his ideal portion is concerned unless the sale is authorized by the other co-owners. when the partition is prohibited by the donor or testator for a certain period not exceeding 20 years. hence. • PARTITION – Article 494 grants the each co-owner the right to demand at any time partition of the thing owned in common. there was no longer any co-ownership to speak of. Registration in the name of co-owner merely creates a trust – registration of land subject of co-ownership in the name of one co-owner is not repudiation of co-ownership for purposes of prescription. when the partition is prohibited by law i. EXCEPTION to the right to demand partition: 1. the community or conjugal property of the husband and wife. 4. When the heirs allowed the one year period of redemption to expire without redeeming their parent’s former property and permitted the consolidation of ownership and the issuance of a new title. when partition would render the thing unserviceable for the use which it is intended. when the co-owners have agreed to keep the thing undivided for a certain period of time. • After partition. But where the heir purchased the property from the mortgagee (to whom the property was sold at the foreclosure sale) after the redemption period had expired and after the mortgagee had consolidated its ownership and a new title was issued in his name. the family home. insofar as his share is concerned for “no co-owner shall be obliged to remain in the co-ownership. a co-ownership existed among the heirs during the period given by law to redeem the foreclosed property. co-ownership ceases to exists. the community is considered to have been terminated and there is no reason to sustain any right of legal redemption.Where the party seeking to redeem is the owner of a portion already determined and identifies. Once the property is subdivided and distributed among the co-owners. not exceeding 10 years. he cannot be considered a coowner and. and the buyer thus becomes a co-owner of the property. The co=ownership in this case may be terminated in accordance with Article 498.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. when another co-owner has possessed the property as exclusive owner and for a period sufficient to acquire it by prescription ( repudiation of the co-ownership having been successful) • • REDEMPTION in co-ownership redounds to the benefit of all. Since a co-owner is entitled to sell his undivided share. party walls and fences . 3. Where a lot and improvement were mortgaged by the deceased parents. RACHELLE CASTRO condition that the interests acquired by the vendee must be limited to the part that may be assigned to the co-owner-vendor in the division upon the termination of the co-ownership. he cannot redeem under Art. Even if the co-owner sells the whole property as his own. 2. 1620 of the New Civil Code.” The action to demand partition is imprescriptible or cannot be barred by laches absent a clear repudiation of the co-ownership by a co-owner clearly communicated to the other co-owners.e. the co-ownership was extinguished. Redemption by one heir during this period would inure to the benefit of all. Article 494(5) • BAR OPERATIONS 2011 Page 14 . 5.

• An oral partition among co-heirs is valid and does not fall under the Statute of Frauds – Oral partition is valid as there is no law that required partition among heirs to be in writing to be valid. Thus the rule on preference of possession as follows: 1. unless the title constituting it or the law otherwise provides (art. 4. and in the meantime. If the dates of possession are the same. the possessor with a title i. 536) if there are two possessors the longer in possession If both X and Y occupied a portion of a land both claiming ownership of the entire parcel of land but Y was first is taking possession. and If they possessed at the same time but X is a squatter while Y is a lessee. The requirement that partition be put in a public document and registered has for its purpose the protection of creditors and at the same time the protection of the heirs themselves against tardy claims. as a general rule. the fact of possession shall be judicially determined. 2005-2009) • 2.e. the law will recognized only one as the actual or real possessor. actual possessor. BEFORE the U. preference shall be in favor of Y. The lease contract with the owner is Y’s title. Y shall be preferred. right or document evidencing his right to support his possession. Partition is not covered by the Statute of Frauds because partition is not a conveyance of property but simply a segregation and designation of the part of the property which belongs to the co-owners. 3. RACHELLE CASTRO provides that no prescription shall run in favour of a co-owner or co-heirs as long as he expressly or impliedly recognizes the co-ownership. The registration merely created a trust in favour of his co-owners. from the land. through force and intimidation. the thing shall be placed in judicial deposit (Arts. 562)  Obligations of the usufructuary: a. • USUFRUCT – gives a right to enjoy the property of another with the obligation of preserving its form and substance. begins  to make an inventory of the property. 538) possession as a fact ma exist at the same time in two or more distinct personalities but. if all the above are equal. The present or actual possessor shall be preferred If X. during the usufruct  to take care of the property  to replace with the young thereof animals that die or are lost in certain cases when the usufruct is constituted on flock or herd of livestock  to make ordinary repairs  to notify the owner of urgent extraordinary repairs  to permit works and improvements by the naked owner not prejudicial to the usufructuary  to pay annual taxes and charges of the FRUITS BAR OPERATIONS 2011 Page 15 .GREEN NOTES IN CIVIL LAW Prepared by: ATTY. and  to give security b. ejected Y. Possession as a fact cannot be recognized at the same time in two different personalities except in the case of co-possession –(Art. Y will still be considered as the present possessor and will be preferred because X cannot be said to have acquired possession (Art.

and to indemnify the naked owner for any losses due to his negligence or of his transferees (Arts. The oath is what is called “ CAUCION JURATORIA” III. the donor who has reserved the usufruct of the property donated. onerous – that the value of which is considered the equivalent of the consideration for which it is given and is thus governed by the rules on obligations and contracts (Art. where the usufructuary asks that he be exempt from the obligation and no one will be injured thereby when the usufructuary is under obligation to give security but cannot afford to do so and no one is wiling to give security for them. modal – that which imposes upon the donee a burden (e. 3. and the proper interest on the sums paid as taxes by the owner (Art.g. 5. 6.e. on the amount spent by the owner for extraordinary repairs (Art. when the naked owner renounces or waives his right to the inventory or security. 2. 596). NOTE: under this instance (no. SIMPLE – or that cause of which is the pure liberality of the donor in consideration of the donee’s merits remunatory or compensatory – that which is given out of gratitude on account of the services rendered by the donee to the donor. 4.GREEN NOTES IN CIVIL LAW Prepared by: ATTY.to take care of the property and retain it until the termination of the usufruct (Art. the court on humane considerations (i. 4. 733) Illegal or impossible conditions in SIMPLE and NOTE: BAR OPERATIONS 2011 Page 16 . 589-590) When no security is needed to be given by the usufurctuary: 1. 612) I lieu of giving a security. the parents who are the usufructuaries of their children’s property. 6) the usufructuary cannot alienate or lease the property for this means that he does not need it if he does alienate his right of usufruct. except when the parents contract a second (or subsequent) marriage. and to pay for court expenses and costs regarding the usufruct the termination of the usufruct to return the thing in usufruct to the naked owner unless there is a right of retention to pay legal interest at the time that the usufruct lasts. 594). services to be performed in the future) less than the value of the gift. where the title constituting the usufruct relieves the usufructuary from the obligation . DONATION o Kinds: 1. RACHELLE CASTRO      c. MODES OF ACQUIRING OWNERSHIP A. 2. provided they do not constitute a demandable debt. at    • to pay interest on CAPITAL paid by the naked owner to pay debts when the usufruct is constituted on the whole of a patrimony to secure the naked owner’s or court’s approval to collect credits in certain cases to notify the owner of any prejudicial act committed by third persons . poor family badly in need of a house_ may allow the usufructuary to enjoy the property upon taking an oath –“by virtue of a promise under oath”. 3.

the rule applicable would be Art. 759) Inofficiousness. or adoption of a child of the donor subsequent to the donation. 771) Donees. or adoption of a child of the donor (Art. 3. then the donation is an onerous one. the donation exceeds that which the donor can give by will (Arts. appearance. 3. They cannot renounce their right during the lifetime of the donor. rights and obligations to the extent of the value of the inheritance. appearance. • birth. rights & obligations to the extent of the value of ther inheritance transmitted The transmission takes place only by virtue of death The transmission takes place either by will or by operation of law The transmission is from one to another Q: When does succession take place? BAR OPERATIONS 2011 Page 17 . 750) failure of the donor to reserve sufficient property to pay off his existing debts (Art. 727) In modal donations. (Art. Being contractual in nature. failure of the donor to reserve sufficient means for support of himself or his dependent relatives (Art. RACHELLE CASTRO REMUNATORY donations shall be considered as not imposed. If the donation is onerous (or modal as to the onerous portion). 771). 774. and birth. 1183 on obligations and contracts. (Art. • REVOCATION OF DONATION – affects the whole donation and is allowed during the lifetime of the donor: 1. (Art. 4. SUCCESSION Q: What is meant by succession? A: Succession is a mode of acquisition by virtue of which the property. 760) • Who may ask for reduction? Only those who at the time of the donor’s death have a right to the legitime and their heirs and successors in interest may ask for the reduction of inofficious donations. of a person are transmitted through his death to another or others either by his will or by operation of law. NCC) Q: How may succession be characterized? A: Succession involves the following: It is a mode of acquisition The property. 752. 765) REDUCTION OF DONATION – this generally affects a portion only of the donation and is allowed during the lifetime of the donor or after his death: 1. If the burden is considered the equivalent of the thing or right given. devisees and legatees who are not entitled to the legitime and the creditors of the deceased can neither ask for the reduction nor avail themselves thereof (Art. a burden (which is necessarily future) less than the value of the gift is imposed upon the donee.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 2. 772) B. 2. 765) Ingratitude of the donee (Art. the illegal or impossible condition will render the donation void. non-fulfillment of a resolutory condition imposed by the donor (Art.

NCC) Q: What are the types of succession? A: Succession may be: (1) Testamentary. who is a decedent? A: "Decedent" is the general term applied to the person whose property is transmitted through succession. 775. (Art. (Art. (Art. 777. (Art. NCC) Q: What may be entrusted by the testator to a third person? A: 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. hence. to control. NCC) Q: Who is an heir? A: An heir is a person called to the succession either by the provision of a will or by operation of law. or accomplished through the instrumentality of an agent or an attorney. NCC) Q: In succession. institutions or establishments to which such BAR OPERATIONS 2011 Page 18 . NCC) Q: What does the inheritance consists of? A: The inheritance includes all the property. NCC) Q: Define testamentary succession. NCC) Q: What is a will? A: An act whereby a person is permitted. and The designation of the persons. 780. NCC) Q: How is mixed succession effected? A: Mixed succession is that effected partly by will and partly by operation of law. (Art. whether or not he left a will. to take effect after his death. with the formalities prescribed by law. or (3) Mixed (Art. 784. because the making of a will is a strictly personal act. NCC) Q: May a testator designate another person to make a will for him? A: No. 782. 776 and 781. (2) Legal or intestate. NCC) Q: Who are devisees and legatees? A: Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. 774-777. 778. to a certain degree the disposition of his estate. (Art. (Art. it can not be left in whole or in part to the discretion of a third person. (Art. he is also called the testator. rights and obligations of a person which are not extinguished by his death and also those which have accrued thereto since the opening of the succession. 779. NCC) Q: When is the right of succession transmitted? A: The rights to the succession are transmitted from the moment of the death of the decedent. A: Testamentary succession is that which results from the designation of an heir. RACHELLE CASTRO A: Succession takes place: Death of the decedent Express will of the testator calling succession and/or provision of law prescribing successors The rights or properties subject of succession are transmissible Transferee is still alive (did not predecease the testator) Transferee is capacitated to inherit The transferee accepted of the inheritance.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 782. If he left a will. 783. (Art. made in a will executed in the form prescribed by law. (Art.

on the left margin Each and every page of the will must be numbered correlatively in letters placed on the upper part of each page Contain an attestation clause. 799. NCC) Q: What is the exception to the general rule on the presumption of soundness of mind of the testator? A: The soundness of mind of the testator shall not be presumed: (1) When the testator. stating the following: (a) The number of pages used upon which the will is written (b) The fact that the testator signed the will and every page. unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. should it expressly appear by the will that such was his intention. one month or less. 48 Phil. (Art. NCC) Q: What are the requisites for a valid notarial will? A: A valid notarial will must be: In writing In a language or dialect known to the testator Subscribed at the end by the testator himself or by the testator’s name written by some other person in his presence. or that his mind be wholly unbroken. and by his express direction Attested & subscribed by three or more credible witnesses in the presence of the testator and of one another Each and every page. 795. (Art. (Art. 796-798. 799. RACHELLE CASTRO property or sums are to be given or applied. NCC) Q: What is the effect of the supervening incapacity of the testator? A: Supervening incapacity does not invalidate an effective will. 786. at the time of its execution (Art. NCC) Q: Does the invalidity of one of several dispositions contained in a will result in the invalidity of the other dispositions? A: No. and the character of the testamentary act. NCC) Q: When is a testator of “sound mind”? A: To be of sound mind. (Art. the proper objects of his bounty. NCC) Q: Who are capacitated to execute a will? A: A person who executes a will must be: Not expressly prohibited by law Aged 18 years old and above Of sound mind. or (2) Was under guardianship at the time of the making of the will ( Torres and Lopez de Bueno v. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions. except the last. 792. Lopez. nor is the will of an incapable validated by the supervening of capacity. before making his will was publicly known to be insane. as if the testator had possessed it at the time of making the will. must be signed by the testator or by the person requested by him to write his name. (Art. or unshattered by disease. or caused BAR OPERATIONS 2011 Page 19 . It shall be sufficient if the testator was able at the time of making of the will to know the nature of the estate to be disposed of. Art. 801. NCC) Q: What is the rule as regards after-acquired property? A: Property acquired after the making of a will shall only pass thereby. and by the instrumental witnesses of the will. it is not necessary that the testator be in full possession of all his reasoning faculties.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. unimpaired. 117. NCC) Q: What law governs the validity of the will? A: The validity of a will as to its form depends upon the observance of the law in force at the time it is made. 793. (Art. injury or other cause.

NCC) Q: What are the additional requisites of a notarial will if the testator is blind? A: The will shall be read to the testator twice: 1. 249) Q: How about if the testator makes use of a cross as a sign to authenticate the will. in the presence of the instrumental witnesses (c) All the instrumental witnesses witnessed and signed the will and all its pages in the presence of the testator and of one another (d) It must be acknowledged before a notary public by the testator and the witnesses. 574 SCRA 116) Q: Y is one of the three instrumental witnesses in the making of the will of X. RACHELLE CASTRO some other person to write his name. 189) Q: What is the result of an unsigned attestation clause? Ans: An unsigned attestation clause results in an unattested will. its contents. NCC) Q: What are the additional requisites of a notarial will if the testator be deaf or deaf-mute? A: The additional requirements are: (1) Testator must personally read the will. (Aluad vs. it was held that since the testator is suffering from partial paralysis. (Art. 804-806. (Garcia v. NCC) Q: Is the use of the testator of a thumb mark instead of his signature valid? A: In one case decided by the SC. It is for the reason that a cross does not have the trustworthiness of a thumb mark. Liboro. A statute requiring a will to be "signed" is satisfied if the signature is made by the testator's mark. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. February 12. Is the will attested and subscribed by at least three credible witnesses? A: No. ascendants or illegitimate children excludes collateral relatives from succeeding to the estate of the decedent. to own as BAR OPERATIONS 2011 Page 20 . (Art. if the “cross” is not the usual signature of the testator. 81 Phil. and to assure that his estate is administered in the manner that he intends it to be done. a lawyer and at the same time the Notary Public before whom the will is acknowledged. To acknowledge before means to avow. However. in some practicable manner. Once by the notary public before whom the will is acknowledged. Tambago. (Carlos vs. (2) Otherwise. 90 Phil. if able to do so. 2008) Q: What is the two-fold purpose of acknowledgement in a notarial will? Ans: The acknowledgement in a notarial will has a two-fold purpose: to safeguard the testator’s wishes long after his demise. Both the use of a signature or a thumb mark is good. Once by one of the subscribing witnesses 2. October 17. under his express direction. (Art. the will is void. the act of using his mark instead of his usual signature is valid. then the will is valid for complying with the requirements established by law. It likewise stated that the manner of using a mark in authenticating his will is a matter of preference.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 2008) Q: What excludes the collateral relatives from succeeding to the estate of the decedent? Ans: Only the presence of descendants. 808. Aluad. (Lee vs. Sandoval. (Lopez v. Lacuesta. he shall designate two persons to read it and communicate to him. 807. is the will be valid? A: If the “cross” as used in the will to authenticate the same is the usual signature of the testator.

and (4) executed in a language or dialect known to the testator. or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. whatever be the time of prior dispositions. (Art. because in these cases. NCC) Q: What are the rules when. It is possible that a photostatic copy. to assent. in the execution of the holographic will. NCC) Q: Article 815 of the NCC provides that when a Filipino is in a foreign country. he is authorized to make a will in any of the forms established by the law of the country in which he may be. compliance with the requirements stated in Article 811 of the NCC would still be possible. NCC) Q: Are there exceptions to the rule that the original copy of the holographic will should be presented to the probate court for visual examination before it can be admitted to probate? A: Yes. Consequently.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. (Arts. August 30. Is the law mandatory? A: No. of the NCC affect the validity of the disposition contained in the holographic will. NCC) Q: What law governs the formalities for wills executed by an alien abroad? A: An alien who executes a will abroad may make a will in accordance with the formalities (extrinsic validity) prescribed by the law of: (a) The place of his residence or domicile. If the testator fails to sign and date some of the dispositions. Yap. such date validates the dispositions preceding it. does not render the whole testament void. Such failure however. erasure or alterations in a holographic will. 1958) Q: How do you authenticate additional dispositions? A: To authenticate additional dispositions. the same must be signed and dated by the testator. Q: What are the formalities which are required in the execution of a holographic will? A: From the provisions of Arts. cancellation. BAR OPERATIONS 2011 Page 21 . RACHELLE CASTRO genuine. The word “authorized” makes it permissive. 812. 509. To permit such a situation to obtain would be sanctioning a sheer absurdity. 804 and 810 of the NCC. 104 Phil. the result is that these dispositions cannot be effectuated. ( Cruz v. he would have to avow assent. or even a mimeographed or carbon copy may be substituted for the original document. 813. the will must be: (1) entirely written by the hand of the testator himself. (Gan v. (2) dated by the hand of the testator himself. Villasor. 804 and 810. if the third witness were the notary public himself. it is clear that the testator. there are dispositions which were not signed by the testator? A: Jurisprudence provides that when a number of dispositions appearing in a holographic will are signed without being dated and the last disposition has a signature and date. (c) The Philippines. (b) His own country or nationality. (3) signed by the hand of the testator himself. in a holographic will. the testator must authenticate the same by his full signature. but not its probate. (Art. The requirements in Article 813. and "before" means in front or preceding in space or ahead of. The Article is merely permissive. 815. Such will may be probated in the Philippines. to admit. 54 SCRA 31) Q: Should the attestation clause be in the dialect or language known by the testator? A: No. This is so. because the attestation clause does not form part of the testamentary disposition. (Art. In case of insertions.

(Art. (3) undermine the personal element of a will. 825. or attempt to kill the other because generally. or dumb. stating among other things the number of pages thereof. except in case of voluminous books of account or inventories. perjury or false testimony. what requisites must be present in before such document or paper will be considered a part of the will? A: Such document or paper shall be considered a part of the will if the following requisites are present: (1) The document or paper referred to in the will must be in existence at the time of the execution of the will. (Art. Any waiver or restriction of this right is void. adds to. If the testator is not domiciled in the Philippines: (i) The law of the place where the will was made.g.(Arts. (2) He must be of 18 years of age or more. 1. 816. NCC) Q: When is a subsequent document a codicil and when is it another will? A: It is a codicil when it explains. a witness to the execution of an ordinary will must have the following qualifications: (1) He must be of sound mind. If done outside the Philippines: a. 820. of dumb. joint wills benefit each other. and (4) It must be signed by the testator and the witnesses on each and every page. NCC) Q: Why are joint wills prohibited in the Philippines? A: Joint wills are prohibited in the Philippines because they: (1) encourage undue influence. NCC) Q: How is a will revoked? What law governs revocation? A: It depends upon the place where the revocation is made. 820 and 821. NCC) Q: Can the revocation of a will be waived? A: No. (3) He must not be blind. 827. 828. (4) Any person who is less than 18 years of age. It is another will if it makes an independent disposition. RACHELLE CASTRO (d) The law of the place of execution. par. deaf.. It makes revocation more difficult. Art. (Art. the revocation of a will can never be waived. NCC) Q: Who are qualified to act as instrumental witnesses to the execution of a will? A: According to Article 820 of the New Civil Code. deaf. (Art. or (ii) The law of the place where the testator was domiciled at the time of the revocation BAR OPERATIONS 2011 Page 22 . NCC) Q: If a will. incorporates into itself by reference any document or paper. tearing it up destroys the will of another. and (4) He must be able to read and write. (Art. or alters a provision in a prior will. NCC) Q: Who are disqualified to act as instrumental witnesses to the execution of a will? A: The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines. and (6) Any person who cannot read and write. (3) Any person who is not of sound mind. It becomes a multiple will. (2) run counter to the idea that wills are revocable. murder.. (2) The will must clearly describe and identify the same. (2) Those who have been convicted of falsification of a document.818. (Art. E. 1. (3) It must be identified by clear and satisfactory proof as the document or paper referred to therein. (5) Any person who is blind.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. executed as required by this NCC. 17.

NCC) Q: What is destruction of the will which is contemplated in order to consider the will revoked by destruction? A: There must be a physical destruction of the will itself. The act was already consummated. (Art. If done in the Philippines. His remedy is to execute another will. (4) If it was procured by undue and improper pressure and influence. They either make the will void or valid. (Art. But a valid though ineffective will can revoke. or had been revoked. or all of the compulsory heirs in the direct line. (5) If the signature of the testator was procured by fraud. the allowance of the will. NCC) Q: What is the difference between an invalid will and a valid but ineffective will? A: An invalid revoking will cannot revoke another will. This enumeration is exclusive. 832. NCC) Q: If the testator totally destroyed the will and he changed his mind. (Art. 838. or otherwise mentally incapable of making a will. Devises and legacies are valid insofar as they are not in officious. 854. 830. 835. NCC 2. or threats. or b) execution of a codicil. (Art. either during the lifetime of the testator or after his death. (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. NCC) Q: What are the grounds for the disallowance of a will? A: Article 839 of the New Civil Code provides “The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with. is there revocation? A: Yes. (Art. (Art. BAR OPERATIONS 2011 Page 23 . 829. or the influence of fear. NCC). shall be conclusive as to its due execution. NCC) Q: What is preterition and its effects? A: Preterition or omission of one. There is no such thing as a voidable will. RACHELLE CASTRO b. or (ii) Law of the place of revocation pursuant to Art. (Art. follow Philippine law. (Art. 835. NCC) Q: How is republication made? A: Republication may be made by: a) re-execution of the original will. (Art. If the testator is domiciled in the Philippines: (i) Philippine law because his domicile is here. 839. shall annul the institution of heir. (Art. 17. which has become useless because it was void. (2) If the testator was insane. whether living at the time of the execution of the will or born after the death of the testator. 830. at the time of its execution. NCC) Q: What is meant by institution of heir? A: 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. (3) If it was executed through force or under duress. some. NCC) Q: What is the effect of the allowance of a will? A: Subject to the right of appeal.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. NCC) Q: What is ‘republication’? A: It is the process of re-establishing a will. 840. on the part of the beneficiary or of some other person.

there is no preterition. (4)The first and second heirs must be only one degree apart. NCC. these rights do not include the right of representation. 872. It is void. et. No. The relationship created by the adoption is between the adopting parents and the adopted only and does not extend to the blood relatives of either BAR OPERATIONS 2011 Page 24 . RACHELLE CASTRO Q: What is the effect if an heir who was totally omitted was given a donation or given a very small share? A: If the heir was given a share. All he has to do is to ask for the completion of his share. The testator states the charge imposed by the testator upon the heir. Q: An adopted child inherits like a legitimate child. (6) It must be expressed (Art. Q: What is fideicommissary substitution? A: Fedeicommissary substitution is one by virtue of which a testator institutes a first heir and charges him to preserve and transmit the whole part of the inheritance to a second heir. NCC). al. Q: What is substitucion sub modo and state its requisites? A:Substitucion sub modois what is otherwise known as a modal substitution. Q: What is substitution of heirs? A: Substitution of heirs is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. ( Johnny Rabadillavs CA. a will is an act of pure liberty. 855. (7) It must not burden the legitime ( Arts. Rabadillavs CA. if the first is not enough. 113725. Its requisites are as follows: 1. (8) It must not be conditional. (2) Obligation must be imposed upon the first heir to preserve and transmit the property. Q: If an heir was omitted. If the heir has been given a donation. because it makes the making of a will contractual or with a consideration. 864. 113725. 2. (Art. from where will his share be taken? A: It shall be taken from: (a) The estate not disposed of by the will. 855. 19 SCRA 85). (Art.. (5)Both heirs must be alive or at least conceived at the time of the death of the testator. 863. 3. 2000) Q: What is a disposition captatoria? A: It is 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. G. 857.R. (Art. 867). 904. or (b) Proportionately from the shares of the other compulsory heirs. NCC). Basically. 2000). The testator states the purpose or application of the property left by the testator. 1073.R. Barretto-Datu. there is no preterition since the donation is considered an advance inheritance. The testator states the object of the institution. June 29 . 875. June 29. Q: What are the requisites or limitations of fideicommissary substitution? A: They are: (1) There must be a first heir. even if very small or minimal. NCC). (ART. Is the said entitled to represent his father in the inheritance of his father’s ascendants? Why? A: No. (ART. G. Reyes vs. (Art.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. (3) There must be a second heir. NCC. et al. NCC) Q: Is disposition captatoria valid? Why? A: No. NCC). No. While it is true that the adopted child shall be deemed to be a legitimate child and has the same rights as the latter.

(d) They must survive the reservista. (d) Waiver or renunciation by the reservatarios . 1992. 891. the reservation is extinguished but only insofar as the share of the renouncer is concerned. 92326. 181. the active subject of the reserve disappears. (b) They must be related to the descendant-propositus within the third degree. The renunciation may be either express or implied. De la Paz. or a brother or sister. Q: What is reserva troncal? A: Reserva Troncal is a system of reserve by virtue of which an ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant. et. (d) There must be relatives of the descendant who are within the third degree and who belong to the line from which the property came. September 2. Carillo vs. vs IAC. 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. G. DelaPuerta vs. et al. Sumaya. (Republic vs CA. Q: What requisites must be complied with in order that the reservatarios may qualify as such? A: They are the following: (a) They must be legitimate relatives of the descendant-propositus and the origin. but they must bring to collation whatever they may have receive by virtue of the renunciation or compromise. (b) The death of all relatives of the descendant-propositus within the third degree who belong to the line from which the property came. 48 Phil 551. (See Maghirang vs. 12 SCRA 406. Q: How is reserva extinguished? A: Reserva is extinguished by: (a) The death of the ascendant-reservista. NCC). The renunciation may be before or after the death of the reservista. Testico vs. Del Val. if it is made after the death of the reservista.R. Q: What are the requisites of reserva troncal? A: They are the following: (a) Property was inherited by operation of law by an ascendant from a descendant upon the death of the latter. (Art. If the renunciation is made before the death of the reservista. (e) Prescription of the right of the reservatarios. (b) Acquisition by the descendant from an ascendant upon the death of the latter (c) Descendant should have died without any legitimate issue in the direct descending line who could inherit from him. No.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 1991 Q: What is the legal effect of a renunciation or compromise as regards a future legitime? A: 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. RACHELLE CASTRO party. NCC) BAR OPERATIONS 2011 Page 25 . CA. SCRA 862). when the ascendant – reservista holds the property adversely against them in the concept of an absolute owner. as a consequence of which the resolutory condition which limits the title to the reservista also disappears. 905. 18 SCRA 467. (c) They must belong to the line from which the reservable property came. January 24. (c) Loss of the reservable property for causes not due to the fault of or negligence of the reservista.. Balcita. In such case. such renunciation cannot affect other third degree relatives who may be born subsequently and who survived the reservista.al. (Art.

NCC) Q: What is the meaning of Net Hereditary Estate? A: It is the sum of net asset of the estate plus the value of collationable donations. 908. NCC) In other words. (Art. (Art. Should they exceed the portion that can be freely disposed of. (Art. RACHELLE CASTRO Q: What is the effect of testamentary dispositions which are inofficious or excessive? A: The impaired or diminished legitime of the compulsory heirs shall be reduced upon his petition. (Art. it shall be reduced. Q: What is meant by imperfect disinheritance? A: Imperfect disinheritance refers to disinheritance without specification of the cause. (Art. NCC) Q: What is the order of preference in the payment of inheritance to those entitled thereto? A: The order of preference is: (1) The legitimes shall first be paid. and (4) Lastly. (2) It must be express (Art. NCC). (7) The cause must be stated in the will (Art 918). (Art. When it is inofficious it shall be reduced.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. NCC). 910. When it is inofficious. 907. 918. (Art. in case the free portion is not sufficient. (9) The will must not have been revoked. 916. the other devises and legacies and all other testamentary dispositions to take effect mortis causa. NCC). (3) It must be with a legal cause (Art. is not proved. if contracted. (2) Then the donations inter vivos. (4) There must be a true cause (arts. 918. or for a cause the truth of which. (Art. the preferred devises and legacies. 911. NCC) Q: What are the requisite of a valid disinheritance? A: For disinheritance to be valid the following requisites must be complied with: (1) It must be done in a valid will (Art 916. NCC) Q: Where shall donation made to strangers is charged? A: It shall be charged to the part of the estate of which the testator could have disposed by his last will. or which is not one of those recognized by law. 917 and 918. they shall be reduced. shall be reduced pro rata. Q: Where shall donation given to children is charged? A: It shall be charged to their legitime and the excess to the free portion. 909. (3) Next. NCC) Q: What is meant by Net Asset of the Estate? A: It is the difference between the gross estate less all debts and charges. 909. NCC) Q: Where shall donation received by illegitimate children during the lifetime of his father or mother is charged? A: It shall be charged to their legitime. it refers to all of those cases where the disinheritance is not made in accordance with the requisite formalities prescribed by law. Q: What are the effects of imperfect or ineffective disinheritance? A: They are: BAR OPERATIONS 2011 Page 26 . (5) There must be an existing cause. 908. without distinction. NCC) Q: What is meant by collation? A: It is a fictitious mathematical process of adding the value of the thing donated to the net value of the hereditary estate. NCC). (8) The heir disinherited must be identified. (6) It must be total or complete.

NCC) BAR OPERATIONS 2011 Page 27 . Art. 919. (8) Conviction of a crime which carries with it the penalty of civil interdiction. 921. violence. (2) When the parent or ascendant has been convicted of an attempt against the life of the testator. or attempted against their virtue. (4) When a child or descendant by fraud. 918. (2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more. legacies. NCC) Q: What are the grounds for disinheritance of children? A: The following shall be sufficient causes for the disinheritance of children and descendants whether legitimate or illegitimate: (1) When a child or descendant has been found guilty of an attempt against the life of the testator. (6) The loss of parental authority for causes specified in this Code. his or her descendants. descendants. unless there has been a reconciliation between them. (4) When the spouse has given cause for legal separation. violence. his or her spouse. that is. (2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more. (5) When the spouse has given grounds for the loss of parental authority. and the accusation has been found to be false. (6) Maltreatment of the testator by word or deed. or undue influence causes the testator to make a will or to change one already made. if the accusation has been found to be false. (6) Unjustifiable refusal to support the children or the other spouse. by the child or descendant. RACHELLE CASTRO (1) The institution of heirs is annulled. intimidation. intimidation. or ascendants. 920. or undue influence causes the testator to make a will or to change one already made. his or her spouse. (7) When a child or descendant leads a dishonorable or disgraceful life. (5) When the parent or ascendant by fraud. (5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant. (8) An attempt by one of the parents against the life of the other. Art. violence. if the accusation has been found groundless. (7) The refusal to support the children or descendants without justifiable cause. (Art. intimidation. (3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. or undue influence cause the testator to make a will or to change one already made. NCC) Q: What are the grounds for disinheritance of a spouse? A: The following shall be sufficient causes for the disinheriting a spouse: (1) When the spouse has been convicted of an attempt against the life of the testator. (Art. or ascendants. but only in so far as it may prejudice the person disinherited. in so far as his legitime is concerned. descendants. (2) The devises. (3) When the spouse by fraud. or ascendants. (4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator. (3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator. NCC) Q: What are the grounds for disinheritance of ascendants? A: 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. and other testamentary dispositions shall be valid to such extent as will not impair the legitime.

not only as a compulsory heir with respect to the legitime and as a voluntary heir as regard devises and legacies. 4. or with respect to the legitime only where there is institution of heir. If the owner of the property refuses to alienate it or demands an excessive price. 932. Remuneratory legacies or devises. where there is no institution of heir or the institution does not cover the whole free portion. 5. 933. 950. 3. NCC) Q: What is the legal effect if the testator orders the payment of what he believes he owes but does not in fact owe? A: The disposition shall be considered as not written. (Art. NCC) Q: Is the legacy or devise of a thing belonging entirely to a legatee or devisee valid or ineffective? A: The legacy or devise of a thing belonging entirely to legatee or devisee at the time of the execution of the will shall be ineffective. where there is no institution of any heir. The legacy or devise is not revived because it was void at its inception. It is obvious that is already owned by the legatee or devisee cannot be transmitted to him. the disposition is valid. the disposition becomes valid. But if the alienation is to the testator himself and he continues in his possession at the time of his death. also to his share of the free portion. However if the testator expressly orders the interest pertaining to another be extinguished or paid. orders that it be acquired in order to give it to the legatee or devisee. NCC) Even if the thing is subsequently alienated by the legatee or devisee to a third person. Legacies or devises of a specific determinate thing which forms a part of the estate.. Legacies for support. (Art. and (3) The disinherited parents shall not have the usufruct or administration of the property which constitute the legitime. 931. what is the order of payment that must be followed? A: If the estate should not be sufficient to cover all the legacies or devises. 6. but also as intestate heir as to the free part. (2) The children and descendants of the person disinherited heir shall take his place and acquire the right of compulsory heirs with respect to the legitime and. NCC) Q: If the estate of the testator should not be sufficient to satisfy all the legacies and devises. the heir or the estate is bound to give only the just value of the thing. NCC) Q: What is the effect of valid disinheritance? A: The effects are as follows: (1) The disinherited compulsory heir is completely excluded from the participation in the inheritance. 2. (Art. it remains void. (Art. NCC) INTESTATE SUCCESSION BAR OPERATIONS 2011 Page 28 .GREEN NOTES IN CIVIL LAW Prepared by: ATTY. then the legacy or devise is valid to such interest. Legacies or devises declared by the testator to be preferential. RACHELLE CASTRO Q: What are the effects of reconciliation between the offender and the offended in case of disinheritance? 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. 922. (Art. All others pro rata. their payment shall be made in the following order: 1. 939. Legacies for education. (Art. (Art. 923. NCC) Q: Is the legacy or devise of a thing belonging entirely to a third person valid or void? A: If the testator knowing that the thing bequeathed does not belong to him.

GREEN NOTES IN CIVIL LAW
Prepared by: ATTY. RACHELLE CASTRO

Q: What is legal succession? A: Legal succession is that kind of succession prescribed by the law and presumed to be the desire of the deceased which takes place when the expressed will of the decedent has not been set down in a will. Q: When may legal or intestate succession take place? A: If may take place: 1. if the person dies without a will, or with a void will, or one which has subsequently lost its validity; 2. When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such a case, legal succession shall take place only with respect to the property which the testator has no 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 the code. Q: May a probate court determine ownership of the subject? A; The jurisdiction of the regional trial court as a probate court or intestate court relates only to matters having to do with the settlement of the estate and probate of the will of the deceased persons and does not extend to the determination of questions of ownership that arise during the proceedings. Q: What is the effect of the principle the nearest excludes the farthest to the right of representation? A: It is without prejudice to the right of representation because by virtue of representation the farther becomes just as near. Q: Between a grandfather and a brother, who will inherit intestate from the decedent? A: Although it is true that both as just as near in degree, still it is the grandfather alone who should inherit because the direct line is preferred over the collateral line. Q: How must shares be divided between relatives in the same degree? A. Relatives in the same degree shall inherit in equal shares, subject to the provisions of art 1006 with respect to relatives of full and half blood, and of art 987 par 2, concerning division between the paternal and maternal lines. Q: May a person who repudiates be represented? A: No, and heir repudiating cannot be represented. Q: In a situation where is the sole heir or all heirs repudiate the inheritance, who may be called to succeed? A: The relatives of the following degree, in their own right and not by right of representation. Q: Suppose one of the two heirs is incapacitated and the other repudiated, how may their children inherit? A: The children of the incapacitated may inherit by right of representation and the children of the one who repudiated are excluded for he cannot be represented. Q: Define right of representation. A: A right created by fiction of law where in a representative is raised to the place and degree of the person represented, and acquires the rights which the latter would have if he were living or able to inherit. Q: When may right of representation exist? A: Right of representation exists when there is predecease, incapacity and disinheritance.

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GREEN NOTES IN CIVIL LAW
Prepared by: ATTY. RACHELLE CASTRO

Q: From whom does the representative inherit? A: The representative does not inherit from the person represented but rather from the person whom the person represented could have inherited from. Q: In intestate succession, right of representation will cover what properties? A: The right of representation when proper in intestate succession covers all the person being represented would have inherited. Q: In testate succession, the right of representation will cover what properties? A: The right of representation when proper in testate succession only covers the legitime. Q: May an adopted child represent? A: No, because there is no filiation whether by blood or by law between the adopted child and the parent of the adopter. While a person thru his legal actuation can give himself an heir, he cannot by the same action gives his relatives an heir. Q: May an adopted child be represented? A: No, because there is no filiation whether by blood or by law between the adopted child and the parent of the adopter. While a person thru his legal actuation can give himself an heir, he cannot by the same action gives his relatives an heir. Q: To whom will the representative succeed? A: The representative does not succeed the person represented but the one whom the person represented would have succeeded. Q: Where may the right of representation take place? A: The right of representation takes place only in the direct descending line but never in the ascending. Q: May the right of representation occur in the collateral line? A: Yes, in the collateral line, it takes place only in favor of the children of the brothers or sisters, whether they are of the full or half blood. Q: Between the nephew and grandnephew of the decedent, who will inherit? A: Only the nephew will inherit, the right of representation in the collateral line takes place in favor only of the children of the brothers or sisters. Q: If an illegitimate child predeceased his parents, how will he inherit from his grandparents? A: They shall inherit by right of representation. (Art. 990, NCC) Q: In what extent the right to inherit in the collateral line? A: The right to inherit ab intestate shall not extend beyond the fifth degree of relationship in the collateral line. (Art. 1010, NCC) Q: When will the State entitled to succeed the entire estate of a deceased person? A: In the absence of compulsory heirs, surviving spouse and collateral relatives up to the fifth degree. (Art. 1011) Q: What is accretion? A: 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-devises, or co-legatees. (Art. 1015, NCC) Q: When does the right of accretion take place?

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A: In testamentary succession the right of accretion takes place in the following cases: (1) Predecease of the instituted heir. (2) Incapacity of the instituted heir. (3) Repudiation by the instituted heir. (4) Nonfulfillment of the suspensive condition imposed upon the instituted heir. (5) Ineffective testamentary dispositions. In intestate succession the right of accretion takes place in the following cases: (1) Predecease of a legal heir. (2) Incapacity of a legal heir. (3) Repudiation by a legal heir. It must be noted, however, that, strictly speaking, it is only in case of repudiation that there can be accretion in intestate succession because it is only then that there is a vacancy in the inheritance. However, whether the rules of intestate succession or accretion shall be applied in case of predecease or incapacity, the results are the same. Q: What requisites must exists in order that accretion will take place in testamentary succession? A: The following must exist: (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. (Art. 1016, NCC) Q: What is earmarking? A: It means that there is particular designation or physical segregation from all others of the same class. Q: If a person repudiates his share in the inheritance, to whom will his share go? A: The vacated share will go to his co-heirs. (Art. 1018, NCC) Q: Can an heir who repudiates his inheritance be represented? A: No, for one who renounces cannot be represented. Q: How will the co-heirs inherit if the vacated share is the legitime? A: Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of accretion. (Art. 1021, NCC) Q: How will the co-heirs inherit if the vacated share is the free portion? A: If the vacated share is the free portion, the other co-heirs shall inherit by accretion. (Art. 1021, NCC) Q: In testamentary succession, to whom the vacant share go if there is no right of accretion and no substitution? A: It shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations. (Art. 1022, NCC) Q: What are the three kinds of relative incapacity? A: The three kinds of relative incapacity are: first, because of possible undue influence; second, because of public policy and morality; and third, because of unworthiness. Q: What are those donations that are considered void by reason public morality? A: The following donations shall be void:

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the incapacitated heir has no right of usufruct or administration over the property received by the representative. b. or attempted against their virtue. NCC) Q: Is there a need that the spouse be convicted of adultery? A: No. Q: If a person is incapacitated to inherit. or ascendants. There need not be any criminal conviction for the guilt of the spouse because the guilt of the spouse can be proven civilly. However. (5) Any person convicted of adultery or concubinage with the spouse of the testator. Those made between persons found guilty of the same criminal offence. or who supplants. If the person incapacitated to inherit have children or descendants.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. should fail to report it to an officer of the law within a month. or from revoking one already made. (2) Any person who has been convicted of an attempt against the life of the testator. 1039. his or her spouse. (6) Any person who by fraud. (Art. (4) Any heir of full age who. NCC) BAR OPERATIONS 2011 Page 32 . descendants. having knowledge of the violent death of the testator. only the decedent and no other can erase the effects of such unworthiness. conceals. NCC) Q: What law governs the capacity to succeed of the decedent? A: Capacity to succeed is governed by the law of the nation of the decedent. (Art. this prohibition shall not apply to cases wherein. or alters the latter’s will. (Art. 1033. violence. by reason of his office. or if. The heir must be certain of his right to the inheritance. if the accusation has been found groundless. (7) Any person who by the same means prevents another from making a will. 1032. 1043. (8) Any person who falsifies or forges a supposed will of the decedent. descendants and ascendants. there is no obligation to make an accusation. intimidation. 1028. Q: Who are incapable of succeeding by reason of worthiness? A: 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. according to law. he should condone them in writing. 1035. (Art. (3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more. NCC) Q: What are the instances that the causes of unworthiness will not affect? A: If the testator had knowledge of the unworthiness thereof at the time he made the will. in consideration thereof. the latter should acquire his right to the legitime. RACHELLE CASTRO (1) (2) (3) Those made between persons who were guilty of adultery or concubinage at the time of the donation. He can do this by pardoning the offense either expressly or impliedly. having known of them subsequently. NCC) Q: How may the causes of unworthiness erased? A: Since acts of unworthiness are offenses directed against the decedent. NCC) Q: What are the requisites before acceptance or repudiation is done? A: The requisites before a person may accept or repudiate an inheritance are: a. or undue influence should cause the testator to make a will or to change one already made. (Art. The heir must have free disposal of his property. Those made to a public officer or his wife. The heir must be certain of the death of the decedent. unless the authorities have already taken action. may he still be represented? A: Yes. (Art. and c.

GREEN NOTES IN CIVIL LAW
Prepared by: ATTY. RACHELLE CASTRO

Q: How is acceptance made? A: Acceptance may be express or tacit. An express acceptance must be made in a public or private document. A tacit acceptance is one resulting from acts by which the intention to accept is necessarily implied, or which one would have no right to do except in the capacity of an heir. Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if, through such acts, the title or capacity of an heir has not been assumed. (Art. 1049, NCC) An inheritance is deemed accepted: (1) If the heirs sells, donates, or assigns his right to a stranger, or to his coheirs, or to any of them; (2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs; (3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted. (Art. 1050, NCC) Q: How is repudiation made? A: The repudiation of an inheritance shall be made: a. by a public instrument; b. by an authentic instrument; and c. by a petition to the court having jurisdiction over the testamentary or intestate proceedings but must be presented within 30 days from order of court for the distribution of the estate, otherwise, this is deemed to be an acceptance. (Art. 1051, NCC) Q: What is collation? A: Collation means computing or adding certain values to the estate, and charging the same to the legitime. It also means computing or adding certain values to the estate, and charging the same to the free portion. (Art. 1061, NCC) Q: What is the status of ownership of the estate of the decedent, before its partition, where there are two or more heirs? A: Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. (Art. 1078, NCC) Q: What is partition? A: Every act which is intended to put an end to indivision among co-heirs and legatees and devises is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction. (Art. 1082, NCC) Q: Can a co-heir have the right to demand the division of the estate? A: Every co-heir has the right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit the division applies to the legitime. (Art. 1083, NCC) Q: Can a partition, judicial or extra-judicial, be rescinded on account of lesion? A: Yes, a partition, judicial or extra-judicial, may also be rescinded on account of lesion, when anyone of the co-heirs received things whose value is less, by at least one-fourth, than the share to which he is entitled, considering the value of the things at the time they were adjudicated. (Art. 1098, NCC) Q: Can a partition made by the testator be impugned on the ground of lesion? A: No, the partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsory heirs is thereby prejudiced, or

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GREEN NOTES IN CIVIL LAW
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when it appears or may reasonably be presumed, that the intention of the testator was otherwise. (Art. 1099, NCC) PRESCRIPTION Q: What are the two kinds and period of acquisitive prescription of rights? A: Acquisitive prescription is either ordinary or extraordinary. Ordinary acquisitive prescription requires possession in good faith and with just title for ten years. In extraordinary prescription, ownership and other real rights over immovable property are acquired through uninterrupted adverse possession thereof for thirty years without need of title or of good faith. (Gesmundon, et al. v. CA Gr no. 119870, Dec. 23, 1999, citing heirs of SegundaManingding v. CA, 276 SCRA 601) (Art. 1108, NCC) Q: Against whom prescription runs? A: Prescription, both acquisitive and extinctive, runs against: a) Minors and other incapacitated persons who have parents, guardians or other legal representatives; b) Absentees who have administrators, either appointed by them before their appearance, or appointed by the courts; c) Persons living abroad, who have managers or administrators; and d) Juridical persons, except the State and its subdivisions. (Art. 1108,NCC) Q: Does prescription run between husband and wife, or between parents and children, or between guardian and ward? A: Prescription does not run between husband and wife, even though there be a separation of property agreed upon in the marriage settlements or by judicial decree. Neither does prescription run between parents and children during the minority or insanity or the latter, and between guardian and ward during the continuance of the guardianship. (Art. 1109, NCC) Q: What are the things or properties that cannot be acquired by prescription? A: Properties of spouses, parents and children, wards and guardians, under restrictions imposed by law. (Art. 1109,NCC) Q: Does prescription obtained by a co-proprietor or co-owner benefit the others? A: Yes, prescription obtained by a co-proprietor or a co-owner shall benefit the others. (Art. 1111, NCC) Q: What are the two kinds of acquisitive prescription? A: Acquisitive prescription of dominion and other real rights may be ordinary or extraordinary. Ordinary acquisitive prescription requires possession of things in good faith and with just title for the time fixed by law. (Art. 1117, NCC) Q: What are the characteristics of possession needed for purposes of prescription? A: Possession has to be in the concept of an owner, public, peaceful and uninterrupted. (Art. 1118, NCC) Q: Are acts of possessory character executed in virtue of license or by mere tolerance of the owner available for purposes of possession? A: No, acts of possessory character executed in virtue of license or by mere tolerance of the owner shall not be available for the purpose of possession. (Art. 1119, NCC) Q: How is civil interruption produce? A: Civil interruption is produce by judicial summons to the possessor. (Art. 1123, NCC)

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GREEN NOTES IN CIVIL LAW
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IV. LAND TITLES AND DEEDS • The Regalian doctrine does not negate NATIVE TITLE to lands held in private ownership since time immemorial. In Carino vs. Insular the Supreme Court ruled and recognized the existence of native title to land, or ownership of land by Filipinos b virtue of possession under a claim of ownership since time immemorial and independent of any grant from the Spanish Crown as an exception to the theory of jura regalia. Registration does not vest title. It is merely evidence of such title over a particular land. Our land registration laws does not give the holder any better title than what he actually has. Registration is not a mode of acquiring ownership but is merely a procedure to establish evidence of title over realty. It is merely evidence of ownership previously conferred by any of the recognized modes of acquiring ownership. A certificate of title issued pursuant to a public land patent has the same validity and efficacy as a certificate of title issued through ordinary registration proceedings. A certificate of title shall not be subject to collateral attack nor shall it be altered, modified or cancelled except in a direct proceeding in accordance with law. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding 25 years, renewable for not more than 25 years and not to exceed 1,000 hectares in area. Private corporations or associations are disqualified from acquiring alienable lands of the public domain. However, where at the time the corporation acquired the land, its predecessor-in-interest had been in possession and occupation thereof in the manner and for the period prescribed by law as to entitle him to registration in his name, then the proscription against corporations acquiring alienable lands of the public domain except through lease does not apply for the land was no longer public land but private property. If the possession of alienable and disposable land commenced only after June 12, 1945, one can still apply for registration of the property through prescription (Sec. 14[2] PRD). Properties classified as alienable public land may be converted into private property by ordinary prescription of 10 years or extraordinary prescription of 30 years, without need of title or good faith. Application for confirmation of title under the PRD: 1. The public shall be given notice of the initial hearing by means of publication, mailing and posting. The requirement of giving notice by all three modes is MANDATORY.  Purpose of publication- (a) to confer jurisdiction upon the court over the res; and (b) to apprise the whole world of the pending registration case so that they may assert their rights or interests in the land, if any, and oppose the application, if so minded. A land registration is a proceeding in rem, and the proceeding requires constructive seizure of the land as against all persons,

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6. order a default to be entered and require the applicant to present evidence. BAR OPERATIONS 2011 Page 36 . they cannot be ousted without giving them their day in court in proper independent proceedings. and to that end he may ask the proper court for the issuance of a writ of possession. and none of them had been a party in the registration proceedings. adjudication of the same in registration proceedings cannot be summarily ousted through a writ of possession secured by a mere motion and that regardless of any title or lack of title of persons to hold possession of the land in question. not issue. ORDER OF SPECIAL DEFAULT – when an appearance has been entered and an answer filed. Writ will NOT issue against persons taking possession AFTER issuance of final decree When the parties against whom a writ of possession is sought entered into possession after the issuance of the final decree. 5. the registration court had no jurisdiction over the said included and additional area and its adjudication to the applicant over the additional area is a nullity. The remedy is to institute a separate action for unlawful entry or detainer or for reinvindicatory action. RACHELLE CASTRO including the state. including the Solicitor General who appears for the State. Writ of possession in land registration cases – After the registration of a land is decreed in favor of the applicant. WHEN JUDGMENT BECOMES FINAL – the judgment rendered in a land registration case becomes final upon the expiration of fifteen (15) days to be counted from the date the party concerned receives notice thereof. 3.Where the amendment consists in a substantial change in the boundaries or increase in area of land. as the case may be. AMENDMENT OF THE APPLICATION . provided the same has not been issued before.all the world are made parties defendants and shall be included in the default order. A person who took possession of the land after final. This special order of default is directed only against those who did not enter their appearance and file an answer. a default order shall be entered against persons who did not appear and answer. the amendment shall be subject to the same requirement of publication and notice as in the case of an original application. 7. up[on motion of the application. and this did not include the additional area. the court shall. ORDER OF GENERAL DEFAULT – if no person appears and answers within the time allowed. the writ of possession will. or involve the inclusion of additional are.  Publication is a newspaper is necessary to accord with the due process requirement. 4. A writ of possession may be issued not only against the person who has been defeated in a registration case but also against anyone unlawfully and adversely occupying the land or any portion thereof DURING the land registration proceedings UP TO THE ISSUANCE of the final decree. Publication in a newspaper of general circulation remains an indispensable procedural requirement.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Where no publication has even been made except the initial publication. he as well as any subsequent purchaser of the property has the right to the title and possession of the land. The notice states :TO ALL WHOM IT MAY CONCERN” . the general default is addressed to the whole world. 2.

c. or other proceeding to be set aside. k. i. newly discovered evidence) b. filed within 60 days after the petitioner learns of the judgment. or such proceeding was taken d. final order. Innocent purchasers may be misled into purchasing real properties upon reliance on a judgment which may be reversed on appeal. but improvements or crops on the land may be mortgaged or pledged to qualified persons.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. upon the expiration of the period to appeal from the decision or adjudication by the cadastral court. It is fraught with dangerous consequences. Except in favor of the government or any of its branches. units or institutions or legally constituted banking corp. Reconveyance (Sec. 118. and not more than 6 months after such judgment or final order was entered. associations. CADASTRAL PROCEEDINGS – in the absence of fraud. Decree of registration cannot be issued until after the judgment becomes final Execution pending appeal is not applicable in land registration proceedings. or conveyance of any homestead after 5 years BAR OPERATIONS 2011 Page 37 . No alienation. or corporations. Review of Decree (Sec. Prohibition against alienation of lands acquired under the HOMESTEAD and FREE PATENT Provisions Sec. 53 and 96) – provided the property has not passed to an innocent purchaser for value Damages (Sec. 9. and from that time the land becomes registered property which cannot be lost by adverse possession. f. g. 101. h. REMEDIES of aggrieved party: a. 141 Annulment of Judgment Criminal Prosecution under the Revised Penal Code 11. RACHELLE CASTRO 8. Appeal – within 15 days from receipt of a copy of the decision Relief from judgment or relief from denial of appeal Verified. without such appeal being perfected. 12. CA No. 10. Motion for new trial or reconsideration – within the period for taking an appeal (15 days from receipt of the decision) GROUNDS (FAME . The Torrens title becomes indefeasible and incontrovertible after one year from the issuance of the decree. 32) Claim against the Assurance Fund Reversion (Sec. lands acquired under the free patent or homestead provisions shall not be subject to encumbrance or alienation from the date of the approval of the application and for a term of five years from and after the date of issuance of the patent or grant nor shall they become liable to the satisfaction of any debt contracted prior to the expiration of said period. title to land in cadastral proceedings is vested on the owner. 32 PD 1529) Within one (1) year from the issuance of the decree of registration and that the registration was procured through actual fraud provided that the property has not passed to an innocent purchaser for value e. transfer.

The prohibition starts from the date of approval up to and including the fifth year from and after the date of the issuance of the patent or grant. 119 of the PLA of homestead sold at extrajudicial foreclosure begins to run from the date after the expiration of the 1 year period of repurchase allowed in an extrajudicial foreclosure. • V. In case of judicial foreclosure. 1163. 1164. (4) Acts or omissions punished by law. the 5-year period for legal redemption starts from the date of the execution of the deed of sale. OBLIGATIONS AND CONTRACTS SOURCES OF OBLIGATION Art. x x x.) 1. PERIOD OF REPURCHASE – When mortgage and conveyance allowed already. 13. Five year period starts to run after the expiration of the redemption period under Act. 3135. and (5) Quasi-delicts. (1089a) DUTIES OF DEBTOR IN AN OBLIGATION TO GIVE A DETERMINATE THING (See Arts. 1157. The five year period of redemption fixed in Sec. Sec. However. To preserve or take care of the thing due with the diligence of a good father of a family DILIGENCE OF A GOOD FATHER OF A FAMILY – ordinary care or that diligence which an average BAR OPERATIONS 2011 Page 38 . (3) Quasi-contracts. Any encumbrance made on the parcel of land acquired under a free patent or homestead within five years from the grant of such patent results in the cancellation of the grant and the reversion of the land to public domain. 1166. FORECLOSURES OF MORTGAGE: • MORTGAGOR’S EQUITY OF REDEMPTION – After the execution of a real estate mortgage. in case of judicial foreclosure of mortgage in favor of banking institutions. as amended. 14. Obligations arise from: (1) Law. and not from the date of registration in the office of the Register of Deeds. RACHELLE CASTRO and before 25 years after the issuance of title shall be valid without he approval of the Secretary of Agriculture and Natural Resources. the five year period is computed from this date and not from the date of registration with the Register of Deeds or from the date of the certificate of title. the mortgagor has an equity of redemption exercisable within the period stipulated in the mortgage deed. The patent is considered issued once the order for its issuance is promulgated and therefore. the equity of redemption subsists after the sale and before it is confirmed by the court. 78 of the General Banking Laws grants the mortgagor a right of redemption which may be exercised within one year from the sale – which is from the registration of the sale with the register of deeds. (2) Contracts. within which to exercise the right to repurchase under the PLA.GREEN NOTES IN CIVIL LAW Prepared by: ATTY.

• EXCEPTIONS (no demand necessary) a. or • In the absence of the two. 4.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. When from the nature and the circumstances of the obligation it appears that the designation of the time when the thing is to be delivered or the service is to be rendered was a controlling motive for the establishment of the contract. 1165[3]) REMEDIES AVAILABLE TO CREDITORS FOR THE SATISFACTION OF THEIR CLAIMS BAR OPERATIONS 2011 Page 39 . RACHELLE CASTRO or reasonably prudent person would exercise over his own property NOTE: Rule on Standard of Care • That which the law requires. 3. arises upon fulfillment of the condition or arrival of the period KINDS OF DELAY 1. when the parties made a stipulation as regards the right of the creditor to the fruits of the thing b. or • That stipulated by the parties. Compensatio morae– both parties are in default (in reciprocal obligations). there is no actionable default on the part of both parties RULE ON FORTUITOUS EVENT: • • GENERAL RULE: No liability for fortuitous event EXCEPTIONS: 1. or c. as when the obligor has rendered it beyond his power to perform 2. or b. To deliver the fruits of the thing: Right to the fruits of the thing from the time the obligation to deliver it arises. when the obligation is subject to a suspensive condition or period. When demand would be useless. subject matter is generic. debtor is in delay ) When expressly declared by stipulation or contract When nature of obligation requires assumption of risk When the obligor is in default or has promised to deliver the same thing to two or more persons who do not have the same interest (Art. Mora Solvendi– default on the part of the debtor: • Mora Solvendi Ex re– default in real obligations • Mora Solvendi Ex persona– default in personal obligations • GENERAL RULE: Those obliged to deliver or to do something incur in delay from the time the obligee judicially or extrajudicially demands from them the fulfillment of their obligation. Mora Accipiendi – default on part of creditor when he unjustifiably refuses to accept the performance of the obligation.e. 2. WHEN OBLIGATION TO DELIVER ARISES • GENERAL RULE: From the time of the perfection of the contract (i. When expressly declared by law ( bad faith. diligence of a good father of a family 2. When the obligation or the law expressly so declare. meeting of the minds between the parties) • EXCEPTIONS a. 3.

1380-1389) PURE AND CONDITIONAL OBLIGATIONS PURE – one whose effectivity or extinguishment does not depend upon the fulfillment or non. Accion directa (Arts. petition the court to resolve the contract. if obligation is divisible c. Court shall fix period of payment when parties unable to agree KINDS: 1. Pursue the leviable (not exempt from attachment under the law) property of the debtor. although it may not be known when 2. No retroactivity with reference to fruits or interest and prescription c. Suspensive ( ex die ) –obligation becomes demandable on the day stipulated TERM Interval of time which is future and CONDITION Fact or event which is future or BAR OPERATIONS 2011 Page 40 .GREEN NOTES IN CIVIL LAW Prepared by: ATTY.fulfillment of a condition or upon the expiration of a period and is demandable at once CONDITIONAL – one whose effectivity is subordinated to the fulfillment or non-fulfillment of a future AND uncertain event or upon a past event unknown to the parties CONDITION 1. pre-existing obligation b. Effectivity retroacts to the day of the constitution of the obligation b. testamentary dispositions e. In case of reciprocal obligations. 4. Agreement among parties 2. 5. 6. 3. REMEDY: 1. 1729 and 1652):Right of the lessor to go directly to sublessee for unpaid rents of the lessee. Right of the laborers or persons who furnish materials for a piece of work undertaken by a contractor to go directly to the owner for any unpaid claims due to the contractor Accion subrogatoria – to be subrogated to all the rights and actions of the debtor save those which are inherent in his person Accion Pauliana– asking the court to rescind or to impugn all the acts which the debtor may have done to defraud the creditors (Arts. conditions not to do an impossible thing OBLIGATIONS WITH A PERIOD OBLIGATIONS WITH A PERIOD – An obligation which depends on a future and certain event (See Arts 1193. in simple or remuneratory donations d. RACHELLE CASTRO 1. 2. Resolutory ( in diem ) – demandable at once but terminates upon arrival of the day certain • Day certain – that which must necessarily come. Creditor may preserve rights d. Debtor – recovery of payment by mistake or even w/o mistake IMPOSSIBLE AND ILLEGAL CONDITIONS • • GENERAL RULE: They shall annul the obligation which depends upon them EXCEPTIONS: a. Exact fulfillment of the obligation by specific or substitute performance with a right to damages in either case. 1196) WHEN STIPULATION SAYS “PAYABLE WHEN ABLE” – IT IS WITH A PERIOD. Future and uncertain event or a past event unknown to the parties Suspensive – happening of condition gives rise to obligation • Effects: a.

unless security provided Did not deliver security promised Impaired security through his own acts or through fortuitous event unless he gives new securities equally satisfactory Violates undertaking in consideration of extension of period Attempts to abscond only one prestation has been agreed upon but another may be given in substitution FACULTATIVE - EFFECT OF LOSS OR DETERIORATION THRU NEGLIGENCE. DELAY OR FRAUD OF OBLIGOR: • • Of thing intended as substitute. it is presumed to have been established for the benefit of both creditor and debtor. If the right of choice belongs to the debtor • If through a fortuitous event all were lost. WHEN DEBTOR LOSES RIGHT TO PERIOD: Insolvency of debtor. PERIOD FOR THE BENEFIT OF THE CREDITOR • Creditor may demand the fulfillment of the obligation at any time but the debtor cannot compel him to accept before the expiration of the period PERIOD FOR THE BENEFIT OF THE DEBTOR • • • • • • Debtor may oppose any premature demand of the creditor but he may renounce the benefit of the period by performing his obligation in advance (Manresa. If the obligation does not fix a period.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. when there is a just cause for fixing a period If the debtor binds himself when his means permit him to do so PERIOD FOR WHOSE BENEFIT • • GENERAL RULE: When a period is designated for the performance or fulfillment of an obligation. the existence of the obligation is the debtor. debtor cannot be held liable BAR OPERATIONS 2011 Page 41 . EXCEPTION: When it appears from the tenor of the obligation or other circumstances that the period has been established in favor of one or the other. 4. the obligation is void affected TWHEN COURTS MAY FIX PERIOD: 1. 3. 2. but from its nature and circumstances it can be inferred that a period was intended by the parties If the duration of the period depends upon the will of the debtor In case of reciprocal obligations. RACHELLE CASTRO certain uncertain or a past event unknown to the parties Time w/c must necessarily come although it Future and uncertain fact or event which may or may not happen may not be known when Exerts an influence upon the time of demandability Exerts an influence upon the very or extinguishment of an obligation existence of the obligation itself Does not have any retroactive effect unless Has retroactive effect there is an agreement to the contrary When it is left exclusively to the will of the When it is left exclusively to the will of debtor.no liability Of the substitute after substitution is made – with liability ALTERNATIVE – bound by different prestations but only one is due RIGHT OF CHOICE IN ALTERNATIVE OBLIGATIONS • As a general rule the right of choice belongs to debtor EFFECT OF LOSS OF OBJECTS OF ALTERNATIVE OBLIGATIONS 1.

GREEN NOTES IN CIVIL LAW Prepared by: ATTY. for damages If 1 or more but not all of the things are lost or one or some but not all of the prestations cannot be performed due to fortuitous event or fault of the debtor. the last one must still be given d)Right to choose may be given either to debtor or creditor CULTATIVE JOINT AND SOLIDARY OBLIGATIONS (See Arts. others may be valid but obligation remains c) If it is impossible to give all except one. when expressly stated that there is solidarity 2. FACULTATIVE ALTERNATIVE a)Various things are due but the giving principally of one is sufficient b)If one of prestations is illegal. when the nature of the obligation requires solidarity 4. the creditor may claim any of those subsisting or the price of that which. Interruption in payment by one does not benefit or prejudice the other 3. Insolvency of one debtor does not affect other debtors JOINT DIVISIBLE OBLIGATIONS 1. 1207 – 1222) EXCEPTIONS TO THE PRESUMPTION 1. Each creditor can demand for the payment of his proportionate share of the credit. creditor cannot hold the debtor liable for damages because the debtor can still comply with his obligation If all things. nullity of P carries with it nullity of S c) If it is impossible to give the principal. when a solidary responsibility is imputed by a final judgment upon several defendants(Gutierrez v. Vices of one debtor to creditor has no effect on the others 4. except one. through the fault of the former. were lost. the debtor shall perform the obligation by delivering that which the creditor should choose from among the remainder or that which remains if only 1 subsists • If the loss of 1 of the things occurs through the fault of the debtor. RACHELLE CASTRO • • • 2. Gutierrez) EFFECTS OF JOINT LIABILITY 1. the substitute does not have to be given. while each debtor can be held liable only for the payment of his proportionate share of the debt 2. the choice by the creditor shall fall upon the price of any 1 of them. ALTERNATIVE vs. if it is impossible to give the substitute. the debtor must comply by performing that which remain If all were lost by fault of the debtor the later is liable for the value of the last thing or service which became impossible If right of choice belongs to the creditor • If 1 of the things is lost through a fortuitous event. when the law requires solidarity 3. the principal must still be given d) The right of choice is given only to the debtor BAR OPERATIONS 2011 Page 42 . when a charge or condition is imposed upon heirs or legatees and the testament expressly makes the charge or condition in solidum (Manresa) 5. has disappeared with a right to damages • If all the things are lost through the fault of the debtor. also with indemnity for damages. A joint creditor cannot act in representation of the other creditors while a joint debtor cannot be compelled to answer for the acts or liability of the other debtors FACULTATIVE a) Only one thing is due but a substitute may be given to render payment/fulfillment easy b) If principal obligations is void and there is no necessity of giving the substitute. Demand on one produces delay only with respect to the debt 2.

obligation that is capable of partial performance BAR OPERATIONS 2011 Page 43 . Loss due to fortuitous event after default – there is liability (because of default) DIVISIBLE AND INDIVISIBLE OBLIGATIONS (See Arts. If different terms and conditions – collect only what is due. If with fault – there is liability (also for damage and interest) 3. although each for his own share. Remission made after payment is made – co. c. the fulfillment of or compliance with the obligation requires the concurrence of all the debtors.debtor still entitled to reimbursement Effect of insolvency or death of co-debtor – still liable for whole amount Fault of any debtor – every one is responsible – price.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. • Obligations arising from tort Obligations arising from quasi-contracts Legal provisions regarding obligation of devisees and legatees Liability of principals. b. the indivisibility of the obligation is solidarilty among the debtors remains terminated OLIDARITY SOLIDARY – must be expressed in stipulation or provided by law or by nature of obligation • Instances where law imposes solidary obligation: a. RACHELLE CASTRO JOINT INDIVISIBLE OBLIGATIONS 1. and accessories of a felony Bailees in commodatum EFFECTS: a. Insolvency of one – others are liable for share pro-rata c. is also necessary for the enforcement of the obligation EFFECT OF BREACH • If one of the joint debtors fails to comply with his undertaking. later on collect from any d. interest h. Consequently. Innocent joint debtor shall not contribute to the indemnity beyond their corresponding share of the obligation. it is converted into one of indemnity for damages. The obligation can be enforced only by proceeding against all of the debtors. Payment made before debt is due.ILITY S INDIVISIBILITY SOLIDARITY Refers to the prestation which constitutes the Refers to the legal tie and consequently to object of the obligation The subjects or parties of the obligation Plurality of subjects is not required Plurality of subjects is indispensable In case of breach. otherwise – interest can be charged b. If without fault – no liability 2. debtors because of the breach. No reimbursement if payment is made after prescription or became e. although each for his own share. 1223 – 1225) DIVISIBLE. g. obligation is converted into 1 of When there is liability on the part of the indemnity for damages because of breach. If there are 2 or more debtors. accomplices. EFFECT OF LOSS OR IMPOSSIBILITY OF THE PRESTATION: 1. the concurrence or collective act of all the creditors. damage and Complete/ personal defense – total or partial( up to amount of share only ) if not personal to him illegal f. 2. e. the obligation can no longer be fulfilled or performed. d. no interest can be charged. If there are 2 or more creditors.

takes place of damage. there payment is only to the extent that the payment has been beneficial to debtor iii.GREEN NOTES IN CIVIL LAW Prepared by: ATTY.he takes the place of the debtor. or anyone interested in the fulfillment of the obligation. There is subrogation except if the 3rd person intended it to be a donation 3rd person pays/performs with consent of creditor but not with debtor's consent.must be made by proper party to proper party a. Fulfillment of resolutory condition PAYMENT OR PERFORMANCE . he can be the debtor himself or his heirs or assigns or his agent. Compensation 6. 3RD person pays/performs . c.As a general rule. Payment or performance 2. INDIVISIBLE– one not capable of partial performance • To give definite things • Not susceptible of partial performance • Provided by law • Intention of parties OBLIGATIONS WITH A PENAL CLAUSE (See Arts. principal cannot be demanded.delivery of money and performance. in any other manner of the obligation REQUISITES FOR VALID PAYMENT/PERFORMANCE 1. Subsidiary . Stipulation – granting right Refusal to pay penalty With dolo ( not of creditor ) CAUSES FOR REDUCTION OF PENALTY: 1. Annulment 8. Identity b. Condonation or remission of debt 4. damage can only be demanded in the ff. only penalty can be demanded. Rescission 9. Confusion or merger of rights 5. With respect to prestation itself a. 1231): 1. 1226 – 1230) WITH PENAL CLAUSE – One to which an accessory undertaking is attached for the purpose of insuring its performance by virtue of which the obligor is bound to pay a stipulated indemnity or perform a stipulated prestation in case of breach CHARACTERISTICS OF PENAL CLAUSES: 1. Penalty provided is iniquitous/ unconscionable MODES OF EXTINGUISHMENT OF OBLIGATION (Art.only the creditor's consent. Payor i. BAR OPERATIONS 2011 Page 44 . RACHELLE CASTRO • Execution of certain no of days work • Expressed by metrical units • Nature of obligation – susceptible of partial fulfillment . Payor . Integrity or completeness c. cases: a. Loss of the thing due 3. Novation 7. With respect to parties . Partial/irregular performance 2. b. If performance is done also with debtor's consent .the one performing. except: Penalty is joint or cumulative 2. Indivisibility 2. can be anyone as long as it is with the creditor's consent ii. Exclusive .

PRESUMED IF 1. 3rd person .if any of the ff. In other case – in the place of the domicile of the debtor • • Time of payment . par 1. Parties so stipulate b. RACHELLE CASTRO b. performance is total Anyone in possession of the credit – but will apply only if debt has not been previously garnished iii. Creditor must be in possession of the credit and not merely the evidence of indebtedness • NOTE: With respect to time and place of payment . In the place designated in the obligation 2. Payee . VALID IF 1. Payment by debtor must be made in good faith 2. to be valid: must be debtor’s choice or w/ consent of debtor REQUISITES FOR THE APPLICATION OF PAYMENT: a. or agent ii.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. debtor has been led to make the payment (estoppel) PAYMENT MADE IN GOOD FAITH TO A PERSON IN POSSESSION OF CREDIT SHALL RELEASEDEBTOR. PAYMENT MADE TO AN INCAPACITATED PERSON. Payee i. After payment.creditor or obligee or successor in interest of transferee.VALID IF PROVED AND ONLY TO THE EXTENTOF BENEFIT. Insofar as the payment has been beneficial to him PAYMENT TO 3RD PARTY NOT AUTHORIZED. Incapacitated person kept the thing delivered. Same creditor d. concur: • It must have redounded to the obligee's • benefit and only to the extent of such benefit • It falls under art 1241. 3rd person acquires the creditor’s rights 2.time stipulated Effect of payment– extinguish obligation Except: order to retain debt SPECIAL RULES/FORMS OF PAYMENT 1.must be according to the obligation WHERE PAYMENT SHOULD BE MADE 1. Creditor ratifies payment to 3rd person 3.2. or 2. When application of payment is made by the party for whose benefit the term has been constituted BAR OPERATIONS 2011 Page 45 . APPLICATION OF PAYMENTS – the designation of the debt which payment shall be made. By creditor’s conduct. REQUISITES: 1. Same debtor c. out of2 or more debts owing the same creditor: stipulation or application of party given benefit of period – OK.3 – the benefit is total so. All debts must be due • EXCEPTION: there may be application of payment even if all debts are not yet due if: a. Various debts of the same kind b. If there is no express stipulation and the undertaking is to deliver a specific thing – at the place where the thing might be at the moment the obligation was constituted 3.

Payment is not enough to extinguish all debts HOW APPLICATION IS MADE: a. creditor makes it by so stating in the receipt that he issues – unless there is cause for invalidating the contract If neither the debtor nor creditor has made the application or if the application is not valid. Creditor absent or unknown/ does not appear at the place of payment Incapacitated to receive payment at the time it is due Refuses to issue receipt w/o just cause 2 or more creditor claiming the same right to collect Title of obligation has been lost LOSS OF THE THING DUE LOSS OF THE THING DUE – partial or total/ includes impossibility of performance WHEN IS THERE A LOSS a. Debtor is made liable for fortuitous event because of a provision of law. is made by operation of law CONSIGNATION W/O PRIOR TENDER – allowed in: a. e. c. Indirectly – caused as when debtor is required to enter a military draft OBLIGATION TO DELIVER A SPECIFIC THING • GENERAL RULE: Extinguished • EXCEPTIONS: a. When it disappears in such a way that: its existence is unknown or it cannot be recovered WHEN IS THERE IMPOSSIBILITY OF PERFORMANCE: a. c. The event or change could not have been foreseen at the time of the BAR OPERATIONS 2011 Page 46 . Obligor may be released in whole or in part based on this ground. Monetary obligation OBLIGATION TO DO • GENERAL RULE: Debtor is released when prestation becomes legally or physically impossible without fault on part of debtor 5. contractual stipulation or the nature of the obligation requires assumption of risk on part of debtor OBLIGATION TO DELIVER A GENERIC THING • GENERAL RULE: Not extinguished • EXCEPTIONS: a.agreement is valid only if the same conditions prevailing at time of contracting continue to exist at the time of performance. b.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. If the generic thing is delimited b. Legal impossibility i. REBUS SIC STANTIBUS REBUS SIC STANTIBUS . b. 5. Directly – caused as when prohibited by law ii. Debtor is at fault b. d. then application. RACHELLE CASTRO c. Debtor makes the designation If not. REQUISITES a. When it goes out of commerce c. If the generic thing has already been segregated c. When the object perishes (physically) b. Physical impossibility b.

There must be an agreement b. b. Both parties must be mutually creditors and debtors . right to claim. forget other requirement as long as both consented Facultative– one party has choice of claiming/ opposing one who has benefit of period may choose to compensate: BAR OPERATIONS 2011 Page 47 . Legal – by operation of law.in their own right and as principals b. c. if reason for confusion ceases. Neither debt must be retained in a controversy commenced by 3rd person and communicated w/ debtor (neither debt is garnished) KINDS OF COMPENSATION a. Parties must be capacitated and must consent. Both debts must consist in sum of money or if consumable . of the same kind or quality c. Both debts are liquidated and demandable (determined) e. Waivers or remission are not to be presumed generally F 6. legitime is impaired and ingratitude and condition not followed g. even if not equal debts –only up to concurring amount Conventional – agreement of parties is enough. There must be a subject matter (object of the remission. otherwise there would be nothing to condone) c. execution of the contract The performance is extremely difficult. but not impossible (because if it is impossible. donation. Formalities of a donation are required in the case of an express remission f. CONDONATION CONDONATION/REMISSION OF THE DEBT – gratuitous abandonment of debt. the obligation is revived 7. Cause of consideration must be liberality (Essentially gratuitous. it is extinguished by impossibility The event was not due to the act of any of the parties The contract is for a future prestation 6. d. It must take place between principal debtor and principal creditor only b. express ori mplied REQUISITES: a. CONFUSION OR MERGER CONFUSION OR MERGER OF RIGHTS – character of debtor and creditor merged n same person with respect to same obligation is REQUISITES: a. COMPENSATION COMPENSATION – Set off. as long as 5requisites concur. requires acceptance by obligor. Both debts are due d. rules of donation applies. it is a mode of extinguishment to the concurrent amount the obligation of persons who are in their own right reciprocally debtors or creditors REQUISITES: a. an act of liberality ) d.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. The obligation involved must be same and identical – one obligation only d.even if unknown to parties and if payable in diff places. implied in mortis causa and expressed intervivos e. Revocable. Merger must be clear and definite c. c. Revocable – subject to rule on inofficious donation ( excessive. indemnity for expense of exchanges. RACHELLE CASTRO b. Obligation remitted must have been demandable at the time of remission h.

8. full reimbursement.Delegante – olddebtor 2. if insolvent new debtor – not responsible old debtor because obligation extinguished by valid novation unless: insolvency already existing and of public knowledge or know to him at time of delegacion 1.Delegatario – creditor • BAR OPERATIONS 2011 Page 48 . Stipulation to contrary ii. all parties to consent. EFFECTS OF NOVATION: a. needs pleading and proof. Stipulation pour autrui unless beneficiary consents iii. already (except: intention of parties) c. cause/consideration or principal condition b. commodatum. initiative of old debtor. • • • Not all requisites are present Depositum. If resolutory: valid ii. obliged to w/c is less onerous iv. Old obligation is void b. ii. f. REAL/ OBJECTIVE – change object. PERSONAL/ SUBJECTIVE i. Modificatory novation only. if new is w/o condition – deemed attached to new If new obligation has condition i. new debtor and creditor to consent. ii. subject to full reimbursement and subrogation if made w/ consent of old debtor. if w/o consent or against will . Substituting person of debtor (passive) • EXPROMISION. only beneficial reimbursement. except: i. not responsible since w/o his consent DELEGACION. old debtor released from obligation. RACHELLE CASTRO d. d. e. no new obligation since nothing to novate If S us pensive and it never occurred –as if no obligation. If old obligation has condition i. taxes Judicial– set off. claim for future support. Extinguishment of principal carries accessory. criminal offense. if new debtor is insolvent. initiative is from 3rdperson or new debtor. must be compatible with the new obligation. If Resolutory and it occurred – old obligation already extinguished. If suspensive and did not materialize: old obligation is enforced KINDS OF NOVATION: a.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. all requirements must concur except liquidation Total – when 2 debts are of the same amount Partial – when 2 debts are not of the same amount NOVATION extinguishment of obligation by creating/ substituting a new one in its place Changing object or principal conditions Substituting person of debtor Subrogating 3rd person in right of creditor i. upon order of the court. e. also nothing to novate Old obligation subsists if new obligation is void or voidable but annulled If old obligation has condition.

debtor is not necessarily released 1. two obligations.agreement and consent of all parties. strangers cannot demand enforcement EXCEPTION TO RELATIVITY: 1. Parties must have clearly and deliberately conferred a favor upon a 3 rd person 2. Autonomy of wills – parties may stipulate anything as long as not illegal. heirs. 1300-1304 governed by Arts. 1624 to 1627 debtor’s consent is not required debtor’s consent is required extinguishes the obligation and gives rise to a transmission of right of the creditor to third person without modifying or new one extinguishing the obligation defects and vices in the old obligation defects and vices in the old obligation are cured and not cured takes effect upon moment of novation or as far as the debtor is concerned. one obligation 3. clearly established 2. takes subrogation effect upon notification PRINCIPAL CHARACTERISTICS OF CONTRACTS: 1. not left to will of one of parties Obligatory Force – parties are bound from perfection of contract: Fulfill what has been expressly stipulated All consequences w/c may be in keeping with good faith. RACHELLE CASTRO 3. Mutuality – performance or validity binds both parties. their assigns. Subrogating 3rd person to rights of creditor ( active ) 1. one is extinguished and new one created 4. 2. immoral. 4. c. Accion directa 3. 3. not presumed except as provided for in law: PRESUMED a. 6.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Accion pauliana 2. new debtor is obliged to pay 4. debtor is released from debt 2. The stipulation in favor of a 3rd person should be a part of. Legal. no need for consent. WHEN Creditor pays another preferred creditor even w/o debtor’s knowledge 3rd person not interested in obligation pays w/ approval of debtor Person interested in fulfillment of obligation pays debt even w/o knowledge of debtorom DIFFERENT FROM PAYMENT OF 3 RD CHANGE OF DEBTOR PERSON 1. can be done w/o consent of creditor 2. etc.Delegado – new debtor ii. Neither of the contracting parties bears the legal representation or authorization of 3rd party BAR OPERATIONS 2011 Page 49 . Conventional . That the favorable stipulation should not be conditioned or compensated by any kind of obligation whatsoever 4. b.Stipulation pour autrui REQUISITES OF STIPULATION POUR AUTRUI 1. 5.Takes place by operation of law. not the whole contract 3. 3rd person has no obligation to pay if Insolvent pe CONVENTIONAL SUBROGATION ASSIGNMENT OF RIGHTS governed by Arts. needs consent of creditor – express or implied 3. usage and law Relativity – binding only between the parties.

offer 4. Do ut des – I give that you may give II. Facio ut facias – I do that you may do 3. As to perfection or formation a. reciprocal 5.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Consensual – perfected by agreement of parties Real– perfected by delivery ( commodatum. Upon reaching age of majority – they ratify the same b. Principal – contract may stand alone b. civil interdiction. b. Accessory – depends on another contract for its existence. 2. Do ut facias – I give that you may do III. Death. Facio ut des – I do that you may give IV. may not exist on its own c. Subject Matter 3. deposit ) Formal/solemn – perfected by conformity to essential formalities (donation ) As to cause a. Unilateral – only one of the parties has an obligation b. Onerous – with valuable consideration b. They were entered unto by a guardian and the court having jurisdiction had approved the same BAR OPERATIONS 2011 Page 50 . Preparatory – not an end by itself. Gratuitous – founded on liberality c. Bilateral – both parties are required to render prestations As to name or designation a. a means through which future contracts may be made As to parties obliged a. c. The third person communicates his acceptance before revocation by the original parties Art 1312. Art 1314 KINDS OF CONTRACTS 1. insanity or insolvency of either party before acceptance is conveyed Express or implied revocation of the offer by the offeree Qualified or conditional acceptance of the offer. Consideration WHEN OFFER BECOMES INEFFECTIVE: 1. Consent 2. 4. pledge. ESSENTIAL ELEMENTS OF CONTRACTS: 1. 6. 3. Subject matter communicated RULE ON CONTRACTS ENTERED INTO BY MINORS • • GENERAL RULE: VOIDABLE EXCEPTIONS: a. RACHELLE CASTRO 5. which becomes a counterbecomes illegal or impossible before acceptance is 2. Remunerative – prestation is given for service previously rendered not as obligation As to importance or dependence of one upon another a. Nominate b. Innominate I.

They were contracts for necessities such as food. but here the persons who are bound to give them support should pay therefor Minor is estopped for having misrepresented his age and misled the other party (when age is close to age of majority as in the Mercadov Espiritu and Sia Suan v Alcantara cases. presumption of validity but rebuttable Presumed to Exist . No prejudice to 3rd persons b.either existing or in potency 2. Absolutely disqualified guardian or legal representative Based upon subjective circumstance of Based upon public policy and morality certain person Contracts entered into are merely Contracts entered into are void voidable SIMULATED CONTRACTS 1. etc. take care of themselves and manage their property. RACHELLE CASTRO c.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Within the commerce of man .contracts entered when ward suffers lesion of BAR OPERATIONS 2011 Page 51 . 3. cannot without outside aid. Absolute – no intention to be bound at all. concealed contract binds: a. disease. Relative – there is intention to be bound but concealed. good customs 3. Transmissible Absence of Causa Illegality of Causa Falsity of Causa Causa not stated in contract Inadequacy of Causa Void – produce no legal effect Void – produce no legal effect Voidable – party must prove that cause is untruthful. Licit or not contrary to law. Possible 4. d. weak mind and other similar causes. fictitious only – void from beginning 2. 5. Not contrary to law.burden of proof is on the person assailing its existence Does not Invalidate Contract per se Exceptions: •fraud •mistake •undue influence •cases specified by law. OBJECT REQUISITES: 1. 4. morals. 2. Determinate as to its kind or determinable w/o need to enter into a new contract 5. becoming an easy prey for deceit and exploitation Incapacity INCAPACITY DISQUALIFI CATION Restrains the exercise of the right to Restrains the very right itself contract May still enter into contract t hrough parent. Those under civil interdiction Hospitalized lepers Prodigals Deaf and dumb who are unable to read and write Those who by reason of age. DISQUALIFIED TO ENTER INTO CONTRACTS:(contracts entered into are void) 1.

Law requires contract to be in some form for convenience . For validity (formal/solemn contracts) 2. v. Legality or illegality of motive does not affect the existence or validity of contract CAUSA IN SOME CONTRACTS: 1. Onerous contracts – the prestation of promise of a thing or service by the other Remuneratory contracts – the service or benefit remunerated Pure Beneficence – mere liberality of the donor or benefactor Accessory – identical with cause of principal contract. need ratification to be enforceable c. 3. RACHELLE CASTRO more than 25 auCAUSE Direct and most proximate reason of a contract Objective and juridical reason of contract Cause us always same for each contracting party MOTIVE Indirect or remote reasons Psychological or purely personal reason The motive differs for each contracting party • NOTE: Legality or illegality of cause affects the existence of validity of the contract.donation and acceptance of real property b.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 4. Cession of action of rights proceeding from an act appearing in a public inst. Contracts w/c object is creation. Mutual: instrument includes something w/c should not be there or omit what should be there a. All other docs where amount involved is in excess of 500 ( must be written even private docs ) remedy to conform to real intention of parties due to mistake. Law requires contract to be in some form to be enforceable . Cession. Law requires contract to be in some form for validity .contract is valid and enforceable. Mutual b. Power to administer property for another iv. Mistake of fact c.Statute of Frauds. accident REFORMATION OF CONTRACTS – CAUSES/GROUNDS: 1. the loan which it derived its life and existence (ex: mortgage or pledge) FORMS OF CONTRACT5 – in some kind of contracts only as contracts are generally consensual. For convenience • • GENERAL RULE: contract is valid and binding in whatever form provided that 3 essential requisites concur EXCEPTIONS a. transmission or reformation of real rights over immovables ii. inequitable conduct. needed only to bind 3rd parties Ex: public documents needed for the ff: i. contract is valid but right to enforce cannot be exercised. 2. repudiation. For enforceability (statute of frauds) 3. form is a manner in which a contract is executed or manifested WHEN FORM IS IMPORTANT: 1. clear and convincing proof BAR OPERATIONS 2011 Page 52 . renunciation of hereditary rights/CPG iii. fraud.

Plaintiff must be able to return whatever he may be obliged to return due to rescission 3. 6. clerk. 1534. Under art 1381: Contracts entered into by persons exercising fiduciary capacity 1. party in good faith may ask for reformation 3. 2. Plaintiff has no other means to obtain reparation. Facts put in issue in pleadings • NOTE: prescribes in 10 years from date of execution of instrument WHEN REFORMATION NOT AVAILABLE: 1. 1560. 2. prejudices claim of others Provided for by law . True intention not expressed in instrument d. one party was mistaken b. Entered into by guardian whenever ward suffers damage by more than1/4 of value of object Agreed upon in representation of absentees. 5. It may beset aside in whole or in part. Estoppel when party has brought suit to enforce it KINDS OF DEFECTIVE CONTRACTS: 1. causes failure of instrument to express true intention Unilateral a. negligence . 4. The things must not have been passed to 3rd parties who did not act in bad faith BAR OPERATIONS 2011 Page 53 . Wills 3. Clear and convincing proof e. ii.1538. 4.art 1526. 1539. RACHELLE CASTRO d. contract entered into by defendant w/o knowledge or approval of litigants or judicial authority Payment by an insolvent – on debts w/c are not yet due. if absentee suffers lesion by more than ¼ of value of property Contracts where rescission is based on fraud committed on creditor(accion pauliana) Objects of litigation. When real agreement is void 4. RESCISSIBLE CONTRACTS – Those which have caused a particular economic damage either to one of the parties or to a 3rd person and which may be set aside even if valid.Payments made in a state of insolvency 1. to the extent of the damage caused' REQUISITES: a. lack of skill. There is a written instrument b. 1542. 3. other either acted fraudulently or inequitably or knew but concealed c. There is meeting of minds c. 1556. 2. Simple donation inter vivos 2. typist Others specified by law – to avoid frustration of true intent Requisites: a. • Mistake by 3rd persons – due to ignorance. bad faith of drafter.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 1567and 1659 Under art 1382 . Contract must be rescissible i.

thing already in possession of party in good faith.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Insane unless acted in lucid interval c. creditor did not receive anything from contract b. defect is due to vice of consent or legal incapacity • CHARACTERISTICS: a. 1191 RESCISSION PROPER IN ART. RACHELLE CASTRO 4. In state of drunkenness f. VOIDABLE CONTRACTS– intrinsic defect. consideration of the conveyance is inadequate or fictitious b. Nonobligation or what is incumbent upon him performance by the other is not important Applies only to reciprocal obligation Applies to both unilateral and reciprocal obligations Only a party to the contract may Even a third person who is prejudiced by demand the fulfillment or seek the rescission of the contract may demand the rescission of contract the contract. transfer made between father and son where there is present any of the above circumstances g. Price with interest MUTUAL RESTITUTION NOT APPLICABLE WHEN a. subject to indemnity only. evidence of indebtedness or complete insolvency e. Can be confirmed (NOTE: confirmation is the proper term for curing the defect of avoidable contract) d. years) It must be made within the prescribed period (of 4 OBLIGATION CREATED BY THE RESCISSION OF THE CONTRACT: Mutual Restitution a. Minors ( below 18 ) b. Can be assailed only by the party whose consent was defective or his heirs or assigns WHAT CONTRACTS ARE VOIDABLE: a. Things w/c are the objects of the contract and their fruits b. Deaf mute who can’t read or write d. May be assailed or attacked only in an action for that purpose c. Effective until set aside b. Court may fix a period or grant extension of time Court cannot grant extension of time for for the fulfillment of the obligation fulfillment of the obligation Its purpose is to cancel the contract Its purpose is to seek reparation for the damage or injury caused. In state of hypnotic spell BAR OPERATIONS 2011 Page 54 . transfer of all his property by a debtor when he is financially embarrassed or insolvent f. sale upon credit by an insolvent debtor d. valid until annulled. thus allowing partial rescission of the contract ResciProper in 2. failure of the vendee to take exclusive possession of the property Rescission in Art 1191RESCISSION IN ART. transfer was made by a debtor after a suit has been begun and while it is pending against him c. if there are 2or more alienations – liability of 1stinfract or BADGES OF FRAUD a. 1381 It is a principal action retaliatory in it is a subsidiary remedy character Only ground is non-performance of one’s There are 5 grounds to rescind. Persons specially disqualified: civil interdiction e.

No authority conferred ii. 1344) Tolerated Fraud – includes minimizing the defects of the thing. Mistake. except incase of ratification effected by the guardian to contracts entered into by an incapacitated. • c. exaggeration of its god qualities and giving it qualities it does not have. • • 3. mutual between parties. PRESCRIPTION -Period to bring an action for Annulment i.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. UNENFORCEABLE CONTRACT– valid but cannot compel its execution unless ratified extrinsic defect. the contract can still be annulled. violence. c. iii. BAR OPERATIONS 2011 Page 55 . LAWFUL misrepresentation NOTE: Expression of an opinion – not fraud unless made by expert and other party relied on the former’s special knowledge Fraud by third person – does not vitiate consent. but the person obliged to return the same can beheld liable only for the value of the thing at the time of the loss. contract is VOIDABLE (Art. Causal Fraud (dolo causante) – deception of serious character without which the other party would not have entered into. 1338) Incidental Fraud (dolo incidente) –deception which are not serious and without which the other party would still have entered into the contract. such reason must have ceased. undue influence . knowledge of reason rendering contract voidable ii. only action for damages except if there is collusion between one party and the third person. fraud – 4 years from time of discovery iii. RACHELLE CASTRO KINDS OF FRAUD IN THE PERFORMANCE OF OBLIGATION OR CONTRACTS a.From time guardianship ceases RATIFICATION REQUISITES i. Incapacity . Unauthorized or No sufficient authority – entered into in the name of another when: i. the injured party must have executed an act which expressly or impliedly conveys an intention to waive his right LOSS OF THE THING which is the object of the contract through fraud or fault of the person who is entitled to annul the contract NOTE: Object is lost through a fortuitous event. Ratification cleanses the contract of its defects from the moment it was constituted. b.4 years from time defect of consent ceases ii. b. Intimidation.Both parties incapable of giving consent -2 minor or 2insane persons b. produce legal effects only after ratified KINDS: a. holds the guilty party liable for DAMAGES (Art. In excess of authority conferred ( ultra vires) Curable by Ratification . • • • CAUSES OF EXTINCTION OF ACTION TO ANNUL a. but without interest thereon. or resulted to substantial mistake.

good customs. morals. chattels or things in action at price not less than500. no object. b. restoration is in order. The right to set up the defense of nullity cannot be waived f. Agreement made in consideration of promise to marry iv. d. ii. to the presentation of parole evidence in court. exception: auction when recorded sale in sales book v. it takes it out of unenforceable contracts. v. public order or public policy . Representation as to credit of another TWO WAYS OF CURING UNENFORCEABLE CONTRACTS: a. RACHELLE CASTRO c. If there is performance in either part and there is acceptance of performance. Imprescriptible g. It cannot be confirmed. Agreement for sale of goods.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. the defect is waived 4. object iv. object or purpose is contrary to law. also estoppel sets in by accepting performance. b. VOID OR INEXISTENT – of no legal effect CHARACTERISTICS: a. Agreement for lease of property for more than one year and sale of real property regardless of price vi. A judicial declaration to that effect is merely a declaration c. Agreement to be performed within a year after making contract ii. ratified or cured d. Those lacking in essential elements: no consent. Special promise to answer for debt. no cause (inexistentones) – essential formalities are not complied with ( ex: donation propter nuptias – should conform to formalities of a donation to be valid ) i. It produces no effect whatsoever either against or in favor of anyone b. c.Contracts w/c violate any legal provision. iii. Curable by Acknowledgment . Failure of defendant to object in time. except if pari delicto will apply e. There is no action for annulment necessary as such is ipso jure. Anyone may invoke the nullity of the contract whenever its juridical effects are asserted against him KINDS OF VOID CONTRACT: a. the defect of unenforceability is cured Acceptance of benefits under the contract. default or miscarriage of another iii. Ex: Contract to sell marijuana KINDS OF ILLEGAL CONTRACTS BAR OPERATIONS 2011 Page 56 . Those w/c contemplate an impossible service – no object Those w/c intention of parties relative to principal object of the contract cannot be ascertained Those w/c are absolutely simulated or fictitious – no cause Those which cause or object did not exist at the time of the transaction – no cause/object Those whose object is outside the commerce of man – no Prohibited by law Those expressly prohibited or declared void by law . whether it amounts to a crime or not Illegal/Illicit ones – Those whose cause. If performed.Failure to comply with Statute of Frauds i.

Estoppel by record If agreement is not illegal per se but merely prohibited and prohibition is designated for the protection of the plaintiff – may recover what he has paid or delivered by virtue of public policy Estoppel by judgment Estoppel by laches c.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. property delivered by incapacitated person in the interest of justice. courts may allow recovery of money. d. c. pari delicto cannot apply because 1. estoppel by silence d. If one party is incapacitated. no action against each other. before it takes effect– party w/c is remorseful prevents it EFFECTS OF ILLEGAL CONTRACTS a. where the party who paid or delivered repudiates the contract before the purpose has been accomplished. applies only to illegal contracts and not to inexistent contracts. Contract is for an illegal purpose Contract must be repudiated by any of the parties before purpose is accomplished or damage is caused to 3rd parties Court believes that public interest will be served by allowing recovery (discretionary upon the court ) – based on remorse. b. does not apply when a superior public policy intervenes EXCEPTION TO PARI DELICTO RULE – If purpose has not yet been accomplished and If damage has not been caused to any 3 rd person OTHER EXCEPTIONS: a. person d. unable to understand the consequences of his own action c. RACHELLE CASTRO PARI DELICTO DOCTRINE • Both parties are guilty. b. g. f. those who come in equity must come with clean hands. illegality is accomplished when parties entered into contract. REQUISITES OF ILLEGAL CONTRACTS: a. estoppel in pais (by conduct) incapacitated person does not know what he is entering into. Technical estoppel a. estoppel by acceptance of benefits 2. or before any damage has been caused to a 3rdperson payment of money or delivery of property made by an incapacitated agreement or contract which is not illegal perse and the prohibition is assigned for the protection of the plaintiff payment of any amount in excess of the maximum price of any article or commodity fixed by law or regulation by competent authority contract whereby a laborer undertakes to work longer than the maximum number of hours fixed by law one who lost in gambling because of fraudulent schemes practiced on him is allowed to recover his losses (Art. b. Payment of Usurious interest payment of money or delivery of property for an illegal purpose. • c. BAR OPERATIONS 2011 Page 57 . e. 313 RPC)even if gambling is prohibited.

LACHES PRESCRIPTION . they do not have the necessary efficacy to give rise to an action. it is negligence or omission to assert a right within reasonable time warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it • ELEMENTS • Where nullity arose from defect in essential elements a. delay in asserting the complainant’s rights.Concerned with effect of delay Concerned with fact of delay Question of inequity of permitting the claim to be enforced Question or matter of time EXAMPLES OF NATURAL OBLIGATIONS ENUMERATED UNDER THE CIVIL CODE: 1. RACHELLE CASTRO LACHES OR STALE DEMANDS MUTUAL RESTITUTION IN VOID CONTRACTS • GENERAL RULE: parties should return to each other what they have given by virtue of the void contract in case LACHES • Failure or neglect. lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit NATURAL OBLIGATIONS • they are real obligations to which the law denies an action. giving rise to the situation of which complaint is made and for which the complaint seeks a remedy b. incapacitated– not obliged to return what he gave but may recover what he has given 1. other party is less guilty or not guilty 2. return price plus interest • EXCEPTION: No recovery can be had in cases where nullity of contract arose from illegality of contract where parties are in pari delicto. by exercising due diligence. Performance after action to enforce civil obligation has failed 6. or the suit in not held to be barred. reimbursement of a third person for a debt that has prescribed 3. payment by heir of debt exceeding value of property inherited 7. payment of legacy after will have been declare BAR OPERATIONS 2011 Page 58 . 4. restitution by minor after annulment of contract 4. or of one under whom he claims. Performance after the civil obligation has prescribed 2. for under the law. Delivery by minor of money or fungible thing in fulfillment of obligation 5. injury to the defendant in the event relief is accorded to the complainant.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. return object of contract and fruits b. of the defendant’s conduct and having been afforded the opportunity to institute a suit 3. could or should have been done earlier. The binding tie of these obligations is in the conscience of man. • • It is patrimonial. the complainant having knowledge or notice.conduct on part of the defendant. except: a. for an unreasonable and unexplained length of time to do that which. but which the debtor may erform voluntarily. and presupposes a prestation.

Estoppel by laches LACHES : Failure or neglect. j.must arise. PREPARATORY – because it is a means for entering into further contracts. PARTNERSHIP AND AGENCY Contract of Partnership A. estoppel by silence b. f. or industry to a common fund. although such consent must be manifested in certain cases by the proper formalities. There must be an intention of dividing the profit among the partners since the firm is for common benefit or interest of the partners.the desire to formulate an ACTIVE union. Two or more persons may also form a partnership for the exercise of a profession ( Art. i. The object must be a lawful one. d. Technical estoppel a. ONEROUS – because there is a valuable consideration. or industry to a common fund. for an unreasonable and unexplained length of time to do that which. because it is entered into between two or more persons. CONSENSUAL –because it is perfected by mere consent of the partners. e. property. a. BILATERAL/MULTILATERAL – because it gives rise to reciprocal obligations. BAR OPERATIONS 2011 Page 59 . DEFINITION By the contract of partnership two or more persons bind themselves to contribute money. b. distinct from the separate personality of each of the members.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. because certain contributions have to be made. f. ELEMENTS What are the characteristic or elements of the contract of partnership? The contract of partnership is: a. it is negligence or omission to assert a right within reasonable time warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it VI. PRINCIPAL: because its existence does not depend on the life of another contract. estoppel by acceptance of benefits 2. g. There must be mutual contribution of money property or industry to a common fund. Estoppel by judgment d. in the sense that after it has been entered into. Estoppel by deed b. 1767) B. could or should have been done earlier. k. If a a. h. A new personality-that of the firm. property. by exercising due diligence. There must be a contribution of money. The object must be lawful. What are the essential features of partnership? There must be a valid contract. b. NOMINATE – because it has a particular name under the Civil Code c. estoppel in pais (by conduct) a. RACHELLE CASTRO KINDS: 1. e. Estoppel by record c. The parties must have capacity to enter into a contract. other contracts essential in the carrying out of its purposes can be entered into. with the intention of dividing the profits among themselves. There must be the affectio societatis .

no form is required as a general rule. 1759) D. the contract may even be oral. h. As interest on a loan. though the amount of payment vary with the profits of the business e. As the consideration for the sale of a goodwill of a business or other property by installments or otherwise. ( Magalona v. b. As a debt by installments or otherwise. e. Except in the case of a partnership by estoppels. it may be oral or in writing.regardless of the value – a public instrument is needed. persons who are not partners as to each other are not partners as to third persons. Therefore.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. whether such co-owners or co-possessors do or do not share any profits made by the use of the property 3. The partners are liable after exhaustion of partnership assets to the extent of their personal property except the limited partners. c. c. The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business. In what form shall a partnership be constituted? A partnership may be constituted in any form. The sharing of gross returns does not of itself establish a partnership. What are the legal characteristics of partnerships? Partnership derives its existence from the voluntary agreement of the members. The articles of co-partnership must not be kept secret among members. It has a juridical personality separate and distinct from the partners. b. (Art. a. 2. 4. RACHELLE CASTRO g. but where immovable property or real rights are contributed thereto. Co-ownership or co-possession does not of itself establish a partnership. the same must be registered if real properties are involved. HOW PARTNERSHIP IS FORMED What are the formalities needed in a partnership? The following: a) For validity of the contract (among the parties) as well as enforceability. C. As wages of an employee or rent to a landlord. regardless of the value of the contributions. but no such inference shall be drawn if such profits were received in payment: a. The purpose of the parties must be to obtain profits which shall be divided among themselves. An an annuity to a widow or representative of a deceased partner d. there is mutual agency between the partners. hence. Pesayco 59 Phil 153) Exception: Whenever real properties or real rights in real properties are contributed -. b) For effectivity of the partnership contract insofar an innocent third persons are concerned. whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived. RULES TO DETERMINE EXISTENCE What are the rules for determining the existence of a partnership? They are: 1. the partnership contract must be in a public instrument (Art. d. The partners are liable pro-rata for the contractual liabilities of the partnership. 1771) What are partnership? the formalities needed for the creation of a BAR OPERATIONS 2011 Page 60 .

GENERAL VS. it is not valid as a limited partnership. There is no term.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. UNIVERSAL VS. Partners or some of them who have acted habitually continues the business without or liquidation of the partnership affairs. a public instrument is needed. F. Universal partnership which are of two kinds: i. When does the partnership end? It ends on the expiration of a fixed term or accomplishment of a particular undertaking. b. universal partnership of all present property ii. even without such registration. it becomes a partnership at will. b) Real Property – regardless of the value contributed. to be effective against third parties.000 or more – must be in a public instrument and registered in the Securities and Exchange Commission. A partnership for the practice of a profession is a particular partnership As to liability of the partners- BAR OPERATIONS 2011 Page 61 . c) Limited Partnership – must be registered as such in the Office of the Securities and Exchange Commission. LIMITED Classify partnerships? As to object – 1. partnership is still valid and possesses a distinct personality. Evidently. But even if this is not complied with. it may still be considered a general partnership. possesses juridical personality. Civil Code). RACHELLE CASTRO a) Personal Property 1) Less than P3.e. and as such. Moreover.000 (total) – may be oral 2) 3. Particular Partnership i. Express – This has a definite period b. there is an alienation here of a real right on real property. However. the partnership must also be registered in the Registry of Property of the province where the real property contributed is found. Implied – Upon achievement of its purpose When do the relationships of a partner begin which each other? The relationship begins from the moment of the execution of the contract. the requirements are merely for administrative and licensing purposes. universal partnership of profits 2. After all. PARTNERSHIP TERM How may the duration of the partnership be agreed upon? a. Except that if it does end on this basis. PARTICULAR. otherwise. with an attached inventory. express or implied. otherwise the partnership is VOID and has no juridical personality even as between the parties. (Art 1773. Hence. E. What are the instances where it becomes a partnership at will? a. there is an agreement that it will continue to exist.

and it is well-known that generally. naked ownership is retained by each of the partners. The following are the distinctions between universal partnership of all profits and universal partnership of all present property : In universal partnership of all profits – a) Only the usufruct of the properties of the partners becomes the common property (owned by them and the partnership).Blum. as a rule. Define a universal partnership of profits: A universal partnership of profits comprises all that the partners may acquire by their industry or work during the existence of the partnership ( Art. legacy. 1780) Distinguish universal partnership of all profits from universal partnership of all present property. aside from the contributed properties only the profits of said contributed common property (not other profits). The following are the reasons why future (by inheritance. the contribution of the partners consists of: a) All the properties actually belonging to the said partners. contracts regarding successional rights cannot be made. as well as all the profits which they may acquire therewith ( Art. Is future property included in universal partnership of all present property? No. known. a partnership demands that the contributed things be determinate. b) Secondly. future property cannot be BAR OPERATIONS 2011 Page 62 . Limited partnership – where there is at least one general partner and at least one limited partner. (see also Jacson v. b) The profits acquired with said properties. the limited partner being liable only to the extent of his contribution. 1778) What is a universal partnership of all present property? In partnership of all present property. 1 Phil 4) b) All profits acquired by the industry or work of the partners become common property (regardless of whether or not said profits were obtained through the usufruct contributed). with the intention of dividing the same among themselves. In universal partnership of all present property – a) All the property actually belonging to the partners are contributed – and said properties become common property (owned by all the partners and by the partnership) b) As a rule. c) Thirdly. and donation) property cannot be included in the stipulation regarding the universal partnership of all present property: a) First. and certain. a universal partnership of all present properties really implies a donation. UNIVERSAL PARTNERSHIP: Define a universal partnership of all present property: A universal partnership of all present property is one in which the partners contribute all the property which actually belongs to them to a common fund. RACHELLE CASTRO 1. General partnership – where all the partners are general partners who are liable with all their property after all partnership assets are exhausted 2.GREEN NOTES IN CIVIL LAW Prepared by: ATTY.

b. When does the partnership end? It ends on the expiration of a fixed term or accomplishment of a particular undertaking. Limited partnership – where there is at least one general partner and at least one limited partner. General partnership – where all the partners are general partners who are liable with all their property after all partnership assets are exhausted. RACHELLE CASTRO donated. Except that if it does end on this basis. What are the effects of a partnership at will? The rights and duties of the partners remain the same as they where at such termination. There is no term. PARTNERSHIP BY ESTOPPEL What is estoppel? Estoppel is a bar which precludes a person from denying or asserting anything contrary to that which has been established a truth by his own deed or representation. PARTICULAR PARTNERSHIP: What is a Particular Partnership? Is a partnership where for its object are determinate things for the use of their fruits.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Implied – Upon achievement of its purpose When do the relationships of a partner begin which each other? The relationship begins from the moment of the execution of the contract. Determinate things – their use or fruits b. What is meant by partner by estoppel? BAR OPERATIONS 2011 Page 63 . What are the objects of a particular partnership? a. Hence. What are the instances where it becomes a partnership at will? a. 2. Partners or some of them who have acted habitually continue the business without liquidation of the partnership affairs. the limited partner being liable only to the extent of his contribution. express or implied. G. it becomes a partnership at will. Specific undertaking c. either express or implied. Through estoppel. Express – This has a definite period b. or the exercise of a profession. or specific undertaking. Exercise of profession How may the duration of the partnership be agreed upon? a. GENERAL DISTINGUISHED FROM LIMITED PARTNERSHIP As to liability of the partners1. What is a partnership at will? It is a continued business by the habitual managers although the period has ended or the purpose has been accomplished. there is an agreement that it will continue to exist. an admission or representation is rendered conclusive upon the person making it and cannot be denied or disproved as against the person relying thereon.

include their names in the firm name. he is merely liable pro rata with the other persons BAR OPERATIONS 2011 Page 64 . have given credit to such partnership shall depend upon whether a partnership obligation has been created or not.) In such a case. when no partnership obligation has been created. If partnership obligation has been created. or consents to another or others representing him to any one. NCC) What is the character of the liability of a partner by estoppel to persons who. This is a case of partnership by estoppel. relying on such representations. 1825. 1825) If a person is admitted as a partner into an existing partnership. It will be only then that a partnership obligation shall result. such as when there is actually no partnership or even where there is. RACHELLE CASTRO A partner by estoppel refers to a person who represents himself. he is liable as though he were an actual member of the partnership. NCC. (Art 1815. relying on the representation that the former is a partner in an actual or apparent partnership. as a partner either in an existing partnership or in one that is fictitious or apparent. including the partner by estoppel. have given credit to such partnership? The character of the liability of a partner by estoppel to a person who. unless there is a stipulation to the contrary. can hold the partnership as well as all of the partners. not all of the members thereof had given their consent to the representation. not being members of the partnership. However. then the liability of the person who represented himself to be a partner or who consented to such representation and the actual partners is considered a partnership liability. gave credit to the partnership. he shall be liable to the extent of his separate property after the partnership assets have been exhausted. He directly represents himself to anyone as a partner in an existing partnership or in a non-existing partnership with one or more persons not actual partners. When is an existing or actual partnership bound by the representation made by or in behalf of a person (partner by estoppel) that he is a member of the partnership? The only instance under our law when an existing partnership is bound by the representation made by or in behalf of a partner by estoppel is when all of the Partners had given their consent to such representation. NCC) When can a partnership by estoppel exist? If all the actual partners consented to the representation. He indirectly represents himself by consenting to another representing himself as a partner in an existing partnership or in a non-existing partnership (Art. A good example of this would be those who.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. How does a person not a partner become a partner by estoppel? He becomes a partner by estoppels under any of the following cases: a. shall he be liable for all the obligations of the partnership incurred by the partnership before his admission? Yes. (Art 1825. (Art. liable in accordance with Art 1816 of the NCC. to what extent shall he be liable? For these obligations. any third person who. relying on the representation that the former is a partner in an actual or apparent partnership. The person becomes an agent of the partnership and his act or obligation that of the partnership. or b. he shall be liable for all the obligations arising before his admission as though he had been a partner when such obligations were incurred but his liability shall be satisfied only out of partnership property. (Art. 1826) For obligations of the partnership incurred after he was admitted into the partnership.

whose appointment is contained in the articles of co-partnership? a. JOINT VENTURE Distinguish partnership from joint-stock company a. 1800) b. despite the opposition of his partners. 1825. The law considers them as partners and the association as a partners and the association as a partnership only in so far as it is favorable to third persons by reason of equitable principle of estoppel. MANAGEMENT – Arts. In a partnership the management as a general rule is vested in all the partners. d. A partnership is an association of persons while a joint-stock company is an association of capital. unless he should act in bad faith. 1800-1803 What are the rights and obligations of a managing partner. 2. In a partnership the capital is not divided into shares while in a jointstock company the capital is divided into shares as in a corporation. (Art. while in a joint-stock company the management is entrusted to a board of directors. His power is irrevocable – meaning he can be removed from management only for just and lawful cause and by vote of controlling interest. PARTNERSHIP VS. (Art. Execute all acts of administration. b. express or implied. RACHELLE CASTRO consenting to the representation. The partner who has been appointed managing partner after the constitution of the partnership may: 1. A contract. The partner who has been appointed manager in the articles of copartnership may: 1. PROFESSIONAL PARTNERSHIP Particular Partnership . unless he should act in bad faith. 2. 3. H. He cannot execute acts of strict dominion without the consent of all the other partners. or without a stipulation that one of BAR OPERATIONS 2011 Page 65 . NCC) Does estoppel create a partnership? It must be emphasized that estoppel does not create partnership as between alleged partners.e.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. His power is revocable – meaning he can be removed from management at any time for any cause whatsoever. 3. (Art. In a partnership the partner cannot assign his interest in the partnership to a third person thereby making him a partner without the consent of the other partners. despite the opposition of his partners. is essential to the formation of a partnership. He also cannot execute acts of strict dominion without the consent of all the other partners. while in a joint-stock company a member can transfer his share or shares to another at any time without the consent of the other members. Execute all acts of administration. A partnership for the practice of a profession is a particular partnership J.i. c. I. 1800) What are the powers of two or more managing partners whose respective duties are not specified? If two or more partners have been appointed managing partners without specification of their respective duties.

Make any important alteration in the immovable property of the partnership. 1800. if he really is in bad faith the controlling interest should remove him. RACHELLE CASTRO them shall not act without the consent of all the others. may: a. b. (11 Manresa 381). (Art. their powers are the following: 1. In case one or more oppose the act of one. (2) If in BAD faith. In case of tie. All the partners shall be considered agents of the partnership and whatever any one of them may do alone. even if it may be useful to the partnership. provided it is an act of administration shall bind the partnership. then the decision of the majority of the managing partners shall prevail.) If appointment is made other than in the Articles of Partnership is the power revocable or irrevocable? Power to act may be revoked at any time. he is presumed to be acting in good faith. he may do all acts of ADMINISTRATION (not ownership) despite the opposition of his partners. If one or more of the managing partners shall oppose the acts of others. 4. there must be UNANIMITY (including his own vote). 2. unless there is imminent danger or irreparable injury to the partnership. then the matter shall be decided by a vote of the controlling interest. None of the partners without the consent of the others. In removing the managing partner appointed in the Articles of Partnership. moreover. What is the extent of power of the managing partner so named in the Articles of Partnership? (1) If he acts in GOOD faith.1) (2) To remove him WITHOUT CAUSE. 2. 3. 2. If the refusal or consent by the other partners is manifestly prejudicial to the interest of the partnership. what is the vote required? (1) To remove him for JUST cause. The concurrence of all shall be necessary for the validity of any act. BAR OPERATIONS 2011 Page 66 . the court’s intervention may be sought. or FOR AN UNJUST CAUSE. 3. with or without just cause. No one may execute acts of strict dominion without the consent of all the other partners. it shall be settled by the vote of controlling interest. he cannot (however. revocable at any time. (Art. ( Art. but 4. 1800) Who shall manage the partnership in case no manner of management has been agreed upon? 1. it shall be settled by the vote of majority of all the partners. the controlling partners (controlling financial interest) should vote to OUST HIM. The absence or disability of any of them cannot be alleged. 1801) How shall management be exercised in case it is stipulated that none of the managing partners shall act without the consent of the others? 1. In case of a tie.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. par. 1803) If appointment is made in the Articles of Partnership. is the power revocable or irrevocable? Power is irrevocable without just or lawful cause. (Art. Each one may separately execute all acts of administration. What is the logic behind the rule stated above? Such appointment is a mere delegation of power.

of such opposition. goes ahead and executes the act. who had knowledge. What is the rule when there are two or more managers? Specific Rules . the manager has all the powers necessary for the attainment of such object. he can be removed. they have stripped themselves of all participation in the administration. but of course. the acts of the firm would be unstable. When must there be unanimity in the actuations of the BAR OPERATIONS 2011 Page 67 . What happens when there has been an effective opposition. Suppose there is a tie. What are the powers of a managing partner? A managing partner can be presumed to have all the incidental powers to carry out the object of the partnership in the transaction of business. or who could have known. it shall be void. he cannot exercise the powers expressly denied him. Reason – for them to delay or for them to protest after third parties are affected would be unfair to said third parties. his contract with an innocent third person binds the principal. When the articles of association do not specify the powers of the managing partner. (Here the decision of the MAJORITY shall prevail. and when the object of the company is determined.Each may separately execute all acts of administration (unlimited powers to administer). RACHELLE CASTRO What is the extent of power of such manager? Extent of power: As long as he remains manager. on principle. and the contract is one within the scope of the administration of the partnership. When will the act be valid despite opposition of other managers? It will be valid with respect to the third person who contracted with a partner. each one is considered as exclusive and sole manager as to the acts within the sphere of his authority. Moreover. not only as among the members but also as to third persons. The partner contracting is an agent of the partnership and within the scope of his authority. if the other people oppose and he persists. and even more. he can perform all acts of ADMINISTRATION. What is the exception to the rule? Except if any of the managers should oppose. the powers of a general agent.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. subject to the exception. he has. ignoring such objection. such as when one is given charge of sales and another of purchases. but still the manager goes ahead and execute the act opposed? Opposition by one partner to the projected act by another is sufficient to prevent it. that when powers are specifically restricted. When must the other managers make the opposition? Before the acts produce legal effects insofar as third persons are concerned. if such third person is not of the opposition.) Who has the right to oppose? The right to oppose is not given to non-managers because in appointing their other partners as managers. what is the rule? The partners owning the CONTROLLING INTEREST prevails – provided they are also managers. however. and if the latter. What if there is a specification of duties among the managers? If the separate duties of the managers are specified.

BAR OPERATIONS 2011 Page 68 . the concurrence of all shall be necessary for validity of the acts. His rights in specific partnership property. without prejudice to the liability of the guilty partner. and not to routine transactions. it is imperative that if unanimity is required it is essential that there be unanimity. the obligation to secure the consent of the other partner rests upon the partner entering into the contract. II. What is the reason for the above stated rule? The reason for this rule is the necessity of protecting third persons from fraud and deceit. naturally come within the scope of the general authority of the manager of a business. for the absence or incapacity is no excuse. the act shall not be valid. RACHELLE CASTRO managers? In case it should have been agreed that none of the managing partners shall act without the consent of the others. 1802. unless there is imminent danger of grave or irreparable injury to the partnership. unless the contrary has been previously manifested to the third person. In joint management. if the third person acted in good faith and the transaction refers to matters within the business of the partnership? The contract cannot be annulled. it has been held that a sale by a partner of partnership assets without the consent of the other managers is not valid. is unanimity still required? Yes. if such unanimity is present. Thus. Suppose one the managers is absent or incapacitated. for the presumption is that he acts with due authority and can bind the partnership applies only when they innocently deal with a partner apparently carrying on in the usual way the partnership business. and the absence or disability of anyone of them cannot be alleged. It is presumed that such consent has been given. This is for his own protection. the partnership is not bound. It would be wise therefore if the third person could inquire whether or not unanimity is required. What are the property rights of a partner? a. It is not imposed upon the third person who enters into the contract and who is not required to verify whether the partner entering into the contract has previously obtained the consent of the others. What is the exception to the rule that absence or incapacity is no excuse? When there is imminent danger of grave or irreparable injury to the partnership. of which they can be easy victims. and if so. otherwise. What then is the duty of a third person dealing with a partnership requiring unanimity in the actuations of its managers? The rule that third persons are not required to inquire as to whether or not a partner with whom he transacts has the consent of all the managers. such as ordinary purchases and sales for a firm engaged in the business of buying and selling merchandise of all kinds.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. who has the duty in securing the consent of the other partner? In such case. What happens to a contract entered into by one partner made. RIGHTS AND OBLIGATIONS OF PARTNERS AMONG THEMSELVES PROPERTY RIGHTS OF A PARTNER 193. that is. Furthermore. not only without the consent of the other but even against his will. the requirement of the previous approval by the other partner obviously refers to the execution of formal contracts in writing. Because under Art.

owns every property in the common patrimony.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. A partners’ right in specific partnership property is not subject to attachment or execution for his personal obligations. RACHELLE CASTRO b. 1812) 197. but to the partnership itself. or the representatives of a deceased partner cannot claim any right under the homestead or exemption laws. or any of them. What is a partner’s interest in the assets of the partnership? A partner’s interest in the partnership is his share in the profits and BAR OPERATIONS 2011 Page 69 . 1810) As regards specific partnership property. The partnership. and c. as a juridical person. (Art. e. 1811) What are the incidents of this co-ownership? They are: a. What is the nature of a partner’s interest in the partnership? A partner’s interest in the partnership is his share in the profits and surplus. b. (Reason: It is hard to determine how much it exactly is until after liquidation) (3) A partner’s right in a specific partnership property is not subject to attachment or execution. but he has no right to possess such property for any other purposes without the consent of his partners. His interest in the partnership. ( Art. A partner’s right in specific partnership property is not subject to legal support. (Reason) (4) A partner’s right in specific partnership property is not subject to legal support under Art. What is the effect of this provision to the separate and distinct juridical personality of the partnership? This Article seems to be inconsistent with the idea of a separate juridical personality of the partnership. cannot claim any right under the homestead or exemption laws. His rights to participate in the management. c. the partners. When partnership property is attached for a partnership debt. (2) A partner’s right in specific partnership property is not assignable except in connection with the assignment of rights of all the partners in the same property. what relationship exists between and among the partners? A partner is a co-owner with his partners of specific partnership property. When partnership property is attached for a partnership debt the partners. except on a claim against the partnership. d. ( Art. or the representatives of a deceased partner. subject to any agreement between the partners. What are the rights of a partner in a specific partnership property? (1) A partner has an equal right with is partners to possess specific partnership property for partnership purposes. 291. but he has no right to possess such property for any other purpose without the consent of his partners. ( Art. A partner has an equal right with his partners to possess specific partnership property for partnership purposes. A partner cannot assign his right to specific partnership property for his personal purpose but he can assign it in connection with the assignment of the rights of all the partners in the same property for partnership purpose. The social patrimony does not belong to the partners. 1811) 196. The partner’s interest in the partnership is his personal property. but can be attached or subject to execution for a claim against the partnership. or any of them.

however. or of being sold and conveyed. RACHELLE CASTRO surplus.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. directions. has an equal right with his partners to possess specific partnership property for partnership purposes. or 2. b. and when affairs of the partnership are settled. What is a partner’s interest in the assets of the partnership? A partner has no individual property in any specific assets of the firm. because his interest in the partnership is his personal property. The interest of one partner in the assets of a partnership does not entitle him to any particular portion of such assets. With separate property. but each partner’s interest in the partnership property is his share in the surplus after partnership debts are paid and partnership accounts have been settled. 1814) Can a partner assign his whole interest in the partnership to another without the consent of the other partners? Yes. One partner has no right to the exclusive possession and control of specific partnership property as against the other partner. by any one or more of the partners. but has no right to possess such property for his personal or other purposes without the other partner’s consent. 1812) partner’s interest in the partnership is his personal property. With partnership property. subject to agreement between the partners. 1. accounts and inquiries which the debtor partner might have made. 1814) May the interest so charged be redeemed and with what property shall it be redeemed? a. A partner. Such interest is “property” and is susceptible of being seized under legal process. such partner shall receive the share to which he is entitled. The court which issued the charging order may even: a. In case of sale directed by the court may be purchased without causing a dissolution. ( Art. as well as of being made liable for his separate debts. ( Art. appoint a receiver of the debtor partner’s share of the profits. 1814) What other right may a partner whose interest has been so charged avail of? With respect to his interest in the partnership. being his personal property. make all other orders. BAR OPERATIONS 2011 Page 70 . after partnership debts have been paid. but merely confers upon him a right to an accounting with other members of the partnership. What constitutes a partner’s interest in the partnership? The interest of a partner in partnership property and business is the net balance found to be due him after payment of partnership debts and adjustment of partnership accounts between himself and his co-partner. and any other money due or to fall due to him in respect of the partnership. his interest in the partnership on due application to a competent court by any judgment creditor may be charged for the payment of the unsatisfied amount of the judgment debt with interest thereon. ( Art. until a balance of accounts is struck between him and his co-partner and the amount of his interest is ascertained. or which the circumstances of the case may require.The (Art. (Art. The interest charged may be redeemed at any time before foreclosure. Is a partner’s interest in the partnership subject to attachment or execution for his personal debts? Yes. or b. he may avail himself of the exemption laws. by any one or more of the partners with the consent of all the partners whose interests are not so charged or sold.

The contribution must be made at the time the partnership is entered into unless a different period is stipulated. with a right to demand accounting and settlement. If money has been promised. Obligation to account for and hold as trustee unauthorized profits e. c.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. unless consented to by the other partners. The partner must exercise due diligence in preserving the property to be contributed before he actually contributes the same. actual or constructive that transfers ownership What are the rules on the duty to warrant? a. The fruits referred to are those arising from the time they should have been delivered. the fruits thereof should also be given. d. e. But such mere conveyance does not itself dissolve the firm. the partnership is deprived of the whole or a part of the thing purchased. 1813) The assignor is still the partner. The warranty in case of eviction refers to specific and determinate things already communicated. (Art. in general the partnership remains. b. There is eviction whenever by final judgment based on a right prior to the sale or an act imputable to the partner. Duty to credit the firm c. ( Art. No demand is needed to put the partner in default c. therefore. In the absence of an agreement to that effect. Obligation not to engage in another business What are the rules of the partners regarding the duty to contribute ? a. Duty to pay damages caused by his fault d. either of two things may happen: 1) The partnership may still remain. When is a partner considered a debtor of the partnership? A partner is considered a debtor of the partnership for whatever he may have promised to contribute thereto. d. or 2) The partnership may be dissolved. b. ( Art. If a partner is in bad faith. A partner who promises to contribute to the partnership becomes a promissory debtor of the partnership. What are the effects of conveyance by a partner of his interest in the partnership? If a partner conveys his whole interest in the partnership. What are the rules on the duty to deliver the fruits? a. the conveyance by a partner of his whole interest in the partnership does not dissolve the partnership. 1786) What is the remedy against a partner who fails to contribute? BAR OPERATIONS 2011 Page 71 . It is delivery. 1813) OBLIGATIONS OF PARTNERS TO THE PARTNERSHIP: What are the specifics obligations of a partner? a. No demand is needed to put the partner in default f. but also for those that could have been produced. RACHELLE CASTRO 1813) Will the assignee become a partner? No. interest and damages from the time he should have complied with his obligation should be given. b. he is liable not only for the fruits actually produced. without a need of any demand. Duty to contribute b. If property has been promised.

In the absence of stipulation. (Art. *The capitalist partners have the right to exclude him from the firm with damages. b. ( Art. how shall said goods be appraised? The appraisal must be made in the manner prescribed in the contract of partnership. 1788) What rule shall apply in the event a partner converts partnership money to his personal use? The partner shall be liable for the amount he may have taken from the partnership coffers with interest and damages from the time he converted the amount to his own use.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. BAR OPERATIONS 2011 Page 72 . b. without consent of the other partners. (Art. To contribute the property at the beginning of the partnership or at the time stipulated. as prescribed in the contract and in the absence thereof. ( Art. it shall be made by experts chosen by the partners and according to current prices. 1789) An industrial partner cannot engage in business for himself. To be liable for the fruits thereof from the time the property should have been delivered without the need of any demand. Any subsequent change thereof shall be for the account of the partnership. The remaining partners can avail of the benefits said industrial partner earned plus damages. it is shifted to the partnership. Does this prohibition apply to a business the same as the business of the partnership? Still the industrial partner is liable because all his industry must be devoted to the partnership. RACHELLE CASTRO Action is one for collection because the defaulting partner is a debtor. 1788) What are the consequences if an industrial partner. without necessity of demand. by experts chosen by partners and at the current price. If the capital or part thereof which a partner is bound to contribute consists of goods. 1789) What if there is no competition between the business of the partnership and the industrial partner? or. c. He can be excluded in the firm. will the risk of subsequent change in their value still be burdened by the latter? No. (Art. May an industrial partner engage in business for himself? a. 1786) How is appraisal made if the contribution is a property? Firstly. engages in another business? Or. or *The capitalist partners can avail themselves of the benefits which the industrial partner may have obtained with a right to damages ( Art. unless the partnership expressly permits him to do so. What are the obligations of a partner with respect to his promise to contribute property? They are: a. To answer for the warranty in case of eviction in the same cases and in the same manner as the vendor is bound with respect to the vendee. The prohibition extends to any kind of business be it the same or different from the business of the partnership. What are the liabilities of the partner who has undertaken to contribute a sum of money and fails to do so? The partner becomes a debtor for the interest and damages from the time he should have complied with his obligation. 1787) After the goods have been contributed by the partner.

This rule applies whether the partner who receives his share is authorized to manage or not. (Art. ( Art. However if the defaulting partner is already dead. If the managing partner gives receipt to the firm. No.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Collecting partner is a managing partner. amount collection shall be applied in proportion. may partnership contract be rescinded? General rule. Which partner is not bound to contribute additional fund despite imminent loss of the business of the partnership? The industrial partner is not bound to contribute additional fund because having contributed his entire industry he has nothing more to contribute. What is the obligation of a partner who has received in whole or in part. RACHELLE CASTRO How much is to be contributed in the partnership? The partners shall contribute equal shares to the capital of the partnership if there is no stipulation to the contrary. of the creditor applies by way of application provided the debt to the partner is more onerous to the debtor. Also. he is in a position to give preference to his credit. Two debts from the same debtor b. (Art. rescission is proper. his share of a partnership credit when the other partners have not collected their share and the partnership debtor thereafter becomes insolvent? The partner who has collected his share must bring to the partnership capital what he received even though he may have given a receipt for his share only. If managing partners gives receipt for his debt. who shall be responsible? It is the very partner who by his fault or negligence caused loss or damage to the partnership. In case of imminent loss of the business of the partnership which partners are required to contribute additional capital to save the business of the partnership? The capitalist partners are under obligation to contribute additional capital to save the venture unless there is an agreement to the contrary ( Art. 1791) If a partner fails to contribute within a stipulated time what was promised. as a capitalist partner he is bound to contribute additional fund unless there is an agreement to the contrary. if not there is a basis for suspicion that the partner is acting for his own benefit. c. 1794) BAR OPERATIONS 2011 Page 73 . But if he is partly industrial and capitalist partner. b. What are the requisites if a debt is collected where the debtor owes both a partner in his personal capacity and the partnership? a. (Art. 1791) What are the rules when there exists a credit to the firm and payment is made to a partner who is also a creditor of the same debtor? a. rescission is not the proper remedy. the remedy should collect what is owing. 1793) If the partnership suffers loss or damage due to the fault or negligence of a partner. By way of exception. 1791) What is the remedy in case a capitalist partner refuses to contribute additional fund when he is bound to do so? The capitalist partner who refuses to contribute additional capital to save the venture shall be obliged to sell his interest to the other partners. it is the firm’s credit that is extinguished. Both debts are due and demandable c.

The debts and obligations of the partnership are. 8 Phil 544.. Construction Co. for among themselves he shall be exempted from loss. How do you reconcile the exception of an industrial partner from loss and his pro-rate liability for partnership contractual obligations? The exception of an industrial partner from loss is applicable only among the partners themselves. also the debts and obligations of each individual member of the firm. The industrial partner is liable for his pro-rate share to the extent of his personal property after partnership assts have been exhausted. ( Art. Since it is a duty. How are partners including industrial ones liable for contractual obligations of the partnership? All the partners. (Art. duty also not to be at fault. including the industrial partners. in substance. Partner has a duty to secure benefits. RACHELLE CASTRO Can the partner who is responsible for the damage compensate them with the profits and benefits which he may have earned from the partnership by his industry? No.). or his liability was condoned by the creditor (Island Sales. subject to adjustment among the partners. but the industrial partner is not exempt from partnership liability to third party creditors. before the partners shall become liable with their personal property. are liable to creditors of the partnership for the obligations contracted in the name and for the account of the partnership. III. When is a partnership contractual obligation incurred? BAR OPERATIONS 2011 Page 74 . 1794) Why are damages not offset by benefits? a.) cannot increase the liability of the other partners. United Pioneers Gen. as used in the law. Yulo. v. 65 SCRA 554. Inc. What is meant by the subsidiary liability of the partners with regards to the partnership debts and obligations to third persons? The liability of the partners to the creditors of the partnership is subsidiary because they become liable only after all the partnership assets have been exhausted. 1816) What is meant by the term “pro rata” in the distribution of the partnership liability among the partners? Pro rata. profits may have been realized. The fact that a partner has left the country and the payment of his share of the liability cannot be enforced (Co-Pitco v.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. But the courts may equitably reduce his responsibility if through his extraordinary efforts in other activities of the partnership. The liability to debtor (partners) is pro rata and subsidiary with all their property for contractual obligations of the partnership.Pro-rata liability here. b. It means that partnership assts first be exhausted for the payment of partnership obligations. unless a particular partner assumes a separate obligation to perform a partnership contract or make himself solidary liable on a partnership contract. But the industrial partner can seek reimbursement for what he has paid from the other partners. must be understood to mean equally or jointly and not proportionately which is its literal meaning because pro-rating is based on the numbers of partners and not on the amount of their contributions to the common fund. compensation takes place presuppose 2 persons who are reciprocally liable of each other. OBLIGATIONS OF PARTNERSHIP/PARTNERS TO THIRD PERSONS What is the rule regarding the liability of the partners for the contractual obligations incurred by the partnership? Or. does not mean proportionate to the partner’s contribution but is understood to mean equally divided among the partners.

The exemption of the industrial partner to pay losses relates exclusively to the settlement of the partnership affairs among the partners themselves and has nothing to do with the liabilities of the partners to third persons. for apparently carrying on the ordinary business of the partnership. However. (Art. 9 Phil. for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership. no act of partner in contravention of a restriction or authority shall bind the partnership to persons having knowledge of the restriction (Art 1818. unless the partner so acting has in fact no authority to act for the partnership in the particular matter.” (This is binding on the binding on the firm even if the partner was not authorized.) When can a partner bind the partnership? A partner binds the partnership when the following requisites are present: (a) When he is expressly authorized or impliedly authorized. (Art. including the execution in the partnership name of any instrument. 326) In the absence of any agreement to the contrary. and the act of every partner. Munoz. but void and of no effect in so far as it affects the rights of third party creditors. provided that the third party is in good faith) When will the act of the partner not bind the partnership? BAR OPERATIONS 2011 Page 75 . Neither on principle nor on authority can the industrial partner be relieved from liability to third persons for the debts of the partnership (Compania Maritima v. (b) When he acts in behalf and in the name of the partnership. and the person with whom he is dealing has knowledge of the fact that he has no such authority. (b) When the act is for “ apparently carrying on in the usual way the business of the partnership. who shall act as agent of the partnership? Every partner is an agent of the partnership for the purpose of its business. 1818) What is the effect of a stipulation among the partners contrary to the pro-rata subsidiary liability of the partners? Such stipulation is valid and enforceable among the partners. although they have knowledge of the act. 67 Phil 509).1818) What is the mutual agency rule? Art 1818 provides for the mutual agency rule which states that. Third persons are not bound to inquire into the existence of the restriction but may rely on the presumption that a partner may bind the partnership (Litton v. Hill & Coron. “every partner is an agent of the partnership for the purpose of its business.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. RACHELLE CASTRO A partnership contractual obligation arises from a contract which is entered into in the name and for the account of the partnership. and Is an industrial partner exempted from liability to third persons for the debts of the partnership? No. What are the instances of implied authorization of a partner to bind the partnership? The following: (a) When the other partners do not object. An industrial partner therefore is not exempted from liability to third persons for the debts of the partnership. last par. by a partner authorized by the partnership.” Should a third person inquire on the restrictions imposed by the partnership upon a partner before dealing with the partnership through the said partner? No.

by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his copartners. loss or injury is caused to any person. (Art 1816. by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with authority of his co-partners. (Arts 1822. What are the requisites prescribe by law in order that a partnership may be held liable to a third person for the act of one of the partners? It must be observed that the act of one of the partners for which a partnership may be held liable. the only requisite prescribed by the law is that the act must be performed b y a partner inn the ordinary course of the business of the partnership with BAR OPERATIONS 2011 Page 76 . may constitute either a contractual obligation (Art 1816. NCC. (Art 1822 NCC) Who shall be charged liable for partnership tort? All partners are liable solidarily with the partnership for any penalty or damage arising from a partnership tort. the following requisites must concur: 1) the contract must be entered into in the name and for the account of the partnership and under its signature. 1824. Art. 1823. or had no knowledge of the act or omission. NCC) In the case of an obligation arising from a criminal offense or a quasi-delict. NCC) or an obligation arising from a criminal offense or a quasi-delict. How is partnership tort committed? A partnership tort is committed in any of the following ways: a.) In the case of a contractual obligation. 1823) Where.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Where the partnership in the course of its business receives money or property of a third person and the money or property so received is misapplied by any partner while it is in the custody of the partnership. Where. and 2) He must be acting in the ordinary course of business or with the authority of his co-partners even if the act is not connected with the business. or any penalty incurred. ( Art. This rule remains true even though the other partners did not participate in or ratify. b) When the act is not for apparently carrying on in the usual way of the partnership and the partner has no authority.” still the partner has in fact no authority and the 3 rd persons know that the partner has no authority. the partnership is liable therefor to the same extent as the partner so acting or omitting to act. 1822. not being a partner in the partnership. or c. Where one partner acting within the scope of his apparent authority receives money or property of a third person and misapplies it. 1824) Can the partnership be held liable for the wrongful act or omission of a partner even though the other partners did not participate in such act or omission? The law expressly provides that the partnership is liable for the wrongful act or omission of any partner acting in the ordinary course of the business of the partnership if loss or injury results thereby. loss or injury is caused to any person. not being a partner in the partnership. RACHELLE CASTRO a) When. although for “apparently carrying the usual way the business of the partnership. What are the requisites for liability under Article 1822? The following are the requisites for liability under Article 1822: 1) The partner must be guilty of a wrongful act or omission. b. (Art. 2) the partner must be authorized to act for the partnership.

ratify or have knowledge of such torts. 2) Where the partnership in the course of its business receives money or property of a third person and the money or property so received is misapplied by any partner while it is in the custody of the partnership. What is the test to determine whether or not the other members of a partnership are liable as a joint tort-feasors together with the guilty partner? The test of the liability is based on a determination of the question whether the wrong was committed in behalf of and within the reasonable scope of business of the partnership. BAR OPERATIONS 2011 Page 77 . Jur 261-262. d) If the wrongful act or omission was committed after the firm had been dissolved and same was not in connection with the process of winding up. although they do not participate in.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. the ac t itself having been done in their behalf and interest. Based on the principle of mutual agency. whether such authority is real or apparent. and (3) termination. 1830 What are the three final stages of a partnership? The three final stages of a partnership are: (1) dissolution. (See 40 Am. then the person doing the act and causing the injury is alone responsible. Sauve. the partners are liable as joint tort-feasor. RACHELLE CASTRO the authority of his co-partners. (2) winding up. (Munasque v CA 139 SCRA 533) IV. who in good faith relied upon the authority of a partner. Such liability is not dependent on the personal wrong of the individual member of the partnership against which the liability is asserted. Can the partnership be still held liable for the wrongful act of one of its partner even if the latter acted outside the agency or common business of the partnership? If the injury results from a wanton or willful act of one of the parties committed outside the agency or common business. If it was so committed. although wrongful. unless the act which constituted the tort was authorized by the members of the partnership or subsequently ratified by them. did not make the partner concerned liable himself. NCC) When can the firm and the other partners not be held liable? a) If the wrongful act or omission was not done within the scope of the partnership business and for its benefit or with the authority of the copartners. Iron v. b) If the act or omission was not wrongful c) If the act or omission. is the partnership liable for torts committed by a partner? Based in the said principle. Why does the law provide for solidary liability in cases falling under Art 1822 and 1823? The obligation of partners to third persons is solidary because the law protects the latter. (Art 1822. 27 Wash (2 nd) 562) Art 1823 provides that the partnership is bound to make good the loss: 1) Where one of the partner acting within the scope of his apparent authority receives money or property of a third person and misapplies it. DISSOLUTION – Art. the partnership or every member of a partnership is liable for torts committed by one of the members acting in the scope of the firm business.

(Art. although dissolved continue to exist and its legal personality is retained at which time it completes the winding-up of its affairs. (b) By the express will of any partner. Thus dissolution refers to the change in partnership relation and not the actual cessation of the partnership business. The partnership continues to exist for the purpose of winding up of partnership affairs. It signifies the end of the partnership life. Dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on the business of the partnership (Art. in point of time. Define dissolution of partnership. Does dissolution terminate the partnership? The dissolution of a partnership must not be understood to mean its extinguishment. refers to that moment when partnership affairs are wound up. (68 CJS 842) What is winding up? Winding up is the process of settling the business or partnership affairs after dissolution. 1829) What are the causes of dissolution of a partnership? Dissolution is caused: 1) Without violation of the agreement between the partners: (a) By the termination of the definite term or particular undertaking specified in the agreement. 2) In contravention of the agreement between the partners where the circumstances do not permit dissolution under any other provision of this BAR OPERATIONS 2011 Page 78 . including the partitioning and distribution of the net partnership assets to the partners. who must act in good faith. It represents the demise of a partnership. The partnership continues until the winding up is completed. but affairs should be liquidated and distribution made to those entitled to the partners’ interest. 47 Phil 464) Is the partnership terminated upon dissolution? Or. NCC) The winding up refers to the process of liquidating partnership affairs.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. the partnership is note terminated. thereafter. (d) By the expulsion of any partner from the business bona fide in accordance with such a power conferred by the agreement between the partners. (c) By the express will of all the partner who have not assigned their interests or suffered them to be charged for their separate debts either before or after the termination of any specified term or particular undertaking. (Testate Estate of Mota v. no new partnership business should be undertaken. On dissolution. RACHELLE CASTRO The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on of the business. Termination. (Art 1828. What is termination? Termination is that point in time when all partnership affairs are completely wound up and finally settled. The partnership. (Art 1828) It is that point in time when the partners cease to carry on the business together. What is the principal significance of dissolution? The principal significance of dissolution is that. 1828) Dissolution is the change in the relation of the partners caused by any partners ceasing to be associated in the carrying on of the business. No. when no definite term or particular undertaking is specified. Serra.

What are the requirements to form a limited partnership? They are as follows: 1. which a partner had promised to contribute to the partnership. HOW LIMITED PARTNERSHIP IS FORMED/AMENDED 3. b. There should be one or more limited partners who contribute to its capital. has only transferred to the partnership the use or enjoyment of the same. by the express will of any partner at any time. Dissolution of partnership does not abrogate its contracts. A limited partnership is formed by compliance with the statutory requirements. (40 Am Jur. in any case by the loss of the thing. c.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 1830) Do the rights and powers of the partners and the existence of the partnership terminate upon dissolution? The term “dissolution” is thus descriptive of that change in the partnership relation which ultimately culminates in its termination. which continue until performed or otherwise become operative. RACHELLE CASTRO article. but the limited partner as such shall not be bound by the obligations of the partnership beyond his capital contribution. 1843) 2. B. The partners must sign and swear to a certificate which shall state: a. LIMITED PARTNERSHIP A. (Art. 3) By any event which makes it unlawful for the business of the partnership to be carried on or for the members to carry it on in partnership. when the partner who contributed it having reserved the ownership thereof. perishes before the delivery. 291. 6) By the insolvency of any partner or of the partnership. 4. 7) By civil interdiction of any partner. The name of the partnership. but do not take part in management and are not liable for the obligations of the partnership to the extent of their personal property. Define a Limited partnership? A limited partnership is one formed by at least one general partner and one limited partner. The partnership debts are satisfied first form the partnership assets and subsidiarily from the personal property of the general partners.) What is the effect of dissolution of the partnership? The dissolution of the partnership affects only future obligations of the business. and as to past transactions the partnership continues until it satisfies all its pre-existing obligations. There should be one or more general partners who manage the business and are liable after partnership assets have been exhausted to the extent of their personal property for obligations of the partnership. 2. The location of the principal place of business. Dissolution is not in itself a termination of the partnership or of the rights and powers of the partners. but the partnership shall not be dissolved by the loss of the thing when it occurs after the partnership has acquired the ownership thereof: 5) By the death of any partner. 8) By the decree of court under the following article (Art. BAR OPERATIONS 2011 Page 79 . What are the characteristic features of a limited partnership? They are the following: 1. The character of the business. DEFINITION 1. 4) When a specific thing. for many of these persist during the winding up process which follows dissolution. adding thereto the word “Limited”. Dissolution has no effect on debts due from the partnership to third parties except that partners may not act for each other any further than may joint debtors. share in the profits. 3.

if given. civil interdiction. if given. 2. and n. The name and place of residence of each member. if given. The name of the partnership is changed. general and limited partners being respectively designated. of one or more of the limited partners.A time is fixed for the dissolution or for the return of a contribution. The time. 2. There is a false or erroneous statement in the certificate. or is sentenced to a civil interdiction and the business is continued under an agreement to that effect stated in the certificate. 1844) 4. The right. of a limited partner to demand and receive property other than cash in return for his contribution. to be made by each limited partner and the times at which or events on the happening of which they shall be made. the right. What is the effect of non-compliance with the statutory provisions governing the formation of a limited partnership? The partnership formed is not a limited partnership but shall be considered a general partnership where all the partners are personally liable. 8. if agreed upon. as to contributions or as compensation by way of income. Must the certificate of limited partnership contain all the requisites enumerated above? Not necessarily. A change in the amount or character of the contribution of any limited partner. 2. g. where originally no time has been specified in the certificate. When shall the certificate be amended? Any change in the partnership which does not bring about a dissolution will cause the amendment of the certificate as in the following cases: 1. k. if given. of the remaining general partner or partners to continue the business on the death. What are the requisites for the amendment of the certificate? They are: 1. becomes insolvent or insane. 7. 1864) 7. RACHELLE CASTRO d. m. if given. Filing for record the certificate in the office of the Securities and Exchange Commission. 6. 6. e. The amended certificate must set forth clearly the change or changes made. 1844) 5. A general partner retires. and the nature of such priority. 10. (Art. (Art.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. The character of the business is changed. of a limited partner to substitute an assignee as contributor in his place. The right. the share of the profits or the other compensation by way of income which each of the limited partner shall receive by reason of his compensation. if any. The amount of cash and a description of and the agreed value of the other property contributed by each limited partner. dies. j. and the terms and conditions of the substitution. i. h. of the partners to admit additional limited partner. when the contribution of each limited partner is to be returned. The amended certificate must contain the provisions required of any certificate of limited partnership. 3. l. An additional limited partner is admitted. The additional contributions. 4. The right. ( Art. 5. What is required is substantial compliance in good faith with the above requirements. the term for which the partnership is to exist f. insanity or insolvency of a general partner. the right. A new general partner is admitted. BAR OPERATIONS 2011 Page 80 . A persons is substituted as a limited partner. or with the consent of all the partners. The time stated in the certificate for the dissolution of the partnership or for the return of the contribution have been changed. 9.

When shall the certificate be considered amended or cancelled? The certificate is considered amended or cancelled upon filing for record with the Securities and Exchange Commission the following: 1. have a formal accounting of partnership affairs whenever circumstances render it just and reasonable. 2. 6. 2. The amended certificate must be signed and sworn to by all the partners including the substituted limited partner or the new limited partner or the new general partner as the case may be. ( Art. Have the partnership books kept at the principal place of business of the partnership. (Art. What are the rights of a purely limited partner in a limited partnership? A limited partner has the same rights as a general partner to: 1. ( Art. 1865) 11. (Art. 4. (Art. that after such payment is made whether from the property of the partnership or that of a general partner. RIGHTS AND OBLIGATIONS OF A LIMITED PARTNER 12. 1865) 9. Have dissolution and winding up by decree of court. To the return of his contribution as stipulated in the certificate. Have on demand true and full information of all things affecting the partnership. The amended certificate must be filed with the Securities and Exchange commission. 1851) What are the similar rights of a limited partner to that of a general partner? These are: BAR OPERATIONS 2011 Page 81 . 10. the partnership assets are in excess of all liabilities of the partnership. In case of cancellation of the certificate who shall sign such? The writing to cancel the certificate must be signed by all the partners. The writing either to amend or cancel the certificate signed by all the partners. What is the procedure to be taken by a partner who desires the cancellation or amendment of a certificate in the event the partner designated in the partnership to execute the writing refuse to do so? The person desiring the cancellation or the amendment of the certificate may petition the court to order such cancellation or amendment thereof.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 1865). except liabilities to limited partners on account of their contributions and to general partners. RACHELLE CASTRO 3. And as a limited partner. 5. he shall have the right to receive s share in the profits or other compensation by way of income stipulated for in the certificate provided. shall order the Securities and Exchange Commission to record the cancellation or amendment of the certificate and in the latter case will order to be filed with the Securities and Exchange Commission a certified copy of the decree setting for the amendment. 3. Who shall execute the writing to either amend or cancel the certificate? It shall be the partner designated in the certificate. (Art. Have the right to inspect and copy any of them at a reasonable hour on a business day. The Court then finding that the petitioner has the right to do so. 4. 7. 1865) 8. A certified copy of the order of the court in case the amendment was ordered by the court. 1865) C.

1853) 15. 1858) AGENCY: Define Agency. hence. Right to ask for dissolution and winding up by decree of court 6. His only right as a limited partner is as regards his contribution. Distinguish Agency from Partnership. What are other rights available to a limited partner? He has also the right to have dissolution and winding up by decree of the court. What are the liabilities of a limited partner to the partnership? A limited partner is: 1. 13. 2. 3. he shall be liable as a general partner ( Art. it does not need another contract for it to exist. 4. in addition to the existence of his rights and powers as a limited partner. takes part in the control of the business. Right to receive return of contributions provided the partnership assets are in excess of all its liabilities 82. while a partner acts for himself and for the other partners and for the partnership. An agent does not act for himself but for his principal. Right to have partnership books kept at principal place of business Right to inspect/copy books at reasonable hour Right to have on demand true and full info of all things affecting partnership Right to have formal account of partnership affairs whenever circumstances render it just and reasonable 5. Nominate – because it has a specific name under the Civil Code 4. he is liable with his separate property for the obligations of the partnership. Right to receive share of profits/other compensation by way of income 7. Preparatory – because it is a means for entering into further contracts. 5. Liable for the difference between what he has actually contributed and what he is supposed to contribute as stated in the certificate. 2. with the consent or authority of the latter. When shall a limited partner be held liable as a general partner? If the limited partner. as though the partnership is not a limited partnership. 1868) What are the characteristics of the contract of agency? They are: 1. RACHELLE CASTRO 1. 1848) 14. (Art. What are the rights and liabilities of a person who is both a general and limited partner in the same partnership? He has the same rights and powers and subject to the same restrictions of a general partner. 2. Consensual – because the contract is perfect by mere consent. As regards his contribution he is entitled to the same right like the other limited partners to have a return of his contribution as though he was purely limited partner. meaning takes part in management. Distinguish Agency from Loan An agent may be given funds by the principal to advance the latter’s BAR OPERATIONS 2011 Page 82 . Principal – because it can stand alone. 3. (Art. Bilateral (if it is with compensation) – because it creates a reciprocal rights and obligations. Liable for any unpaid contribution which he agreed in the certificate to make at a future time. (Art.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. By the contract of agency a person binds himself to render some service or to do something in representation or on behalf of another. 6. Unilateral (it is without compensation) – because it creates obligations only on one party – the agent.

Agency is a contract while Negotiorum Gestio is a quasi-contract. his silence or inaction according to the circumstances. the latter thereby becomes a duly authorized agent with respect to the person who received the special information. By public advertisement – in which case the agent is considered as such with regards to any person. while in sale ownership is transferred to the buyer. But in Agency the representation is conferred while in Negotioum Gestio the Negotiorum Gestor acts not only without the authority of the owner but also without his knowledge. How is agency created? Agency may be: 1. A lot however depends on the intent of the parties. Express – the agent is given actual authority by the principal either orally or in writing.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Distinguish Agency to Sell from Sale. 1874) As to scope of business how is agency classified? Agency is classified into: BAR OPERATIONS 2011 Page 83 . the lessor of service does not represent his employer. agency may be oral. 2. (Art. but where the agency is for the sale of a piece of land or any interest therein. 1869) In what form shall the agent accept the agency? Acceptance by the agent may be: 1. the employee or lessor of service exercises ministerial powers. his failure to repudiate the agency knowing that another person is acting on his behalf without authority. The agent represents the principal. or b. (Art. his acts which carry out the agency. the authority of the agent should be in writing otherwise the sale is void. RACHELLE CASTRO business. Implied: a. from his silence or lack of action. whether or not his own business is successful. In agency to sell ownership to the goods is not transferred to the agent. while the gestor acts according to the presumed will of the owner. while the buyer is directly responsible for the price. 1873) In what form shall a contract of agency be entered into? s a general rule agency can be oral or written. from the acts of the principal. 1869) In what form shall the contract of agency be entered into? As a general rule. (Art. unless the law requires a specific form. or b. (Art. Implied from: a. 1870) What are the way whereby the principal may announce the appointment of an agent? The announcement may be either: 1. Distinguish Agency from Negotiorum Gestio. or c. while a borrower is given money for purposes of his own. The agent accounts for the price to the principal. The agent acts according to the express will of the principal. or 2. and he must generally return it. By special information – that is the principal especially informs another that he has given a power of attorney to a third person. (Art. Distinguish Agency from Lease of Service. In both there is representation. The agent exercises discretionary powers. or 2. Express.

GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Special powers of attorney are needed in the following cases: 1. to submit questions to arbitration. 1880) In compromise it is the agent who agrees to some concessions but in arbitration it is a third person who acts as arbitrator. Agency couched in specific terms. and 2. unless the latter act be urgent and indispensable for the preservation of the things which are under administration. 5. (Art. 6. 15. and Special agency. To make such payments as are not usually considered as acts of administration. 3. (Art. To enter into any contract by which ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration. 7. To obligate the principal as a guarantor or surety. 2. and a special power to mortgage does not include the power to sell. (Art. Agency couched in general terms. 4. 1878) If an agent is given a special power to sell the property belonging to his principal has he also the same power to mortgage the same? No. 1877). 13. To make gifts. he may have not trust in third person who the agent may BAR OPERATIONS 2011 Page 84 . To compromise. A special power to compromise does not authorize submission to arbitration. except customary ones for charity or those made to employees in the business managed by the agent. 11. even if the principal should state that he withholds no power of that the agent may execute such acts as he may consider appropriate. 10. To create or convey real rights over immovable property. 1876). (Art. (Art. To bind the principal in a contract of partnership. State the acts for which a special power of attorney is needed. 12. 8. As to the extent of the power conferred how is agency classified? It is classified into: 1. Any other act of strict dominion (Art. While it is true that the principal may have trust in the agent’s judgment in the compromise. A special power to sell excludes the power to mortgage. When is agency special? Agency is special when it covers only one or more specific transactions. To accept ore repudiate an inheritance. To bind the principal to render some service without compensation. To effect novations which put an end to obligations already in existence at the time the agency was constituted. RACHELLE CASTRO 1. General agency. What acts may the agent perform if his agency is couched in general terms? An agency couched in general terms comprise only acts of administration. 9. or even though the agency should authorized a general and unlimited management. To lease any real property to another person for more than one year. to waive objections to the venue of an action or to abandon a prescription already acquired. To loan or borrow money. To waive any obligation gratuitously. To ratify or recognize obligations contracted before the agency. 2. 1876) What is general agency? The agency is general when it comprises all the business of the principal. 14. 1879) Does a special power to compromise imply the power to submit to arbitration? No. to renounce the right to appeal from a judgement.

1886) 5. (Art. 1909) Is the principal bound by the acts of the agent which are within the scope of his authority but in violation of the instructions of the principal? The principal is bound so long as the agent’s acts are within the scope of his authority. as if the transaction were his own. The principal has a right to demand from the agent damages for his failure to comply with the agency. The principal has no right of action against the persons with whom the agent has contracted. (Art. To render an account of his transactions and to deliver to the principal whatever he may have received by virtue of the agency. should delay entail any danger. To answer for his fraud or negligence. To pay interest on funds he has applied to his own use. To answer for damages to the principal should he prefer in case of conflict. (Art. he can be the lender but at the current rate of interest. To finish the business already begun on the death of the principal. 2. 1896) 10. The instructions concern only the agent and the principal. The third persons likewise have no right of action against the principal. except when the contract involves things belonging to the principal. (Art. 3. Not to carry out the agency if its execution would manifestly result in loss or damage to the principal (Art.. (Art. (Art. 1893) 4. When the agent exceeds his authority. can the agent himself be the borrower? No. 1884) What are the obligations of the agent? They are the following: 1. unless there is consent from the principal on the ground that while the agent maybe a good lender he may not be a good borrower. and 2. 1891) 9. 1887) 6. To carry out the agency. What are the effects if the agent acts in his name? 1. can he himself be the lender? Yes. because a third persons dealing with the agent is only bound to investigate the authority of the agent but is not duty bound to investigate the instructions of the principal. 2. The agent must act in the name or on behalf of the principal. 3. To advance the necessary funds should there be a stipulation to do so. (Art. RACHELLE CASTRO have trusted. 1890) When does an agent who acts as such incur personal liability? The agent who acts as such incurs personal liability: 1. his own interests to those of the principal (Art. 1887) In case an agent has been empowered to borrow money. 1897) BAR OPERATIONS 2011 Page 85 . (Art. 1888) 7. (Art. To answer for the damages which through his nonperformance the principal may suffer. To act in accordance with the instructions of the principal . The agent is the only one directly bound in favor of the third persons with whom he has contracted. The agent must act within the scope of his authority 2. 1890) If the agent has been authorized to lend money at interest. 1889) 8. There is no prejudice in this case upon the principal since the same rate of interest is to be paid whoever is the lender. hence if the agent violates said instructions he will be liable to the principal for any loss or damage resulting therefrom. (Art. be the agent or any other person (Art. 1884) 4.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. (Art. What are the requisites to be followed so that the principal will be bound to third persons with whom the agent has contracted? They are: 1. When the agent expressly binds himself.

In case the agent acts in the name of the principal but in excess of his authority and the principal does not ratify the contract. but if the third party is aware of the limits of the powers of the agent. (Art. To advance to the agent. (Art. even if the agent has in fact exceeded the limits of his authority according to an understanding between the principal and the agent. if such act is within the power of attorney. 1907) Enumerate the obligations of the principal. which may result from the credit sale. If he fails to do so the sale shall be considered to have been on cash basis insofar as the principal is concerned. he must reimburse the agent. To comply with all the obligations which the agent may have contracted within the scope of his authority. 1910) 2. (Art. 1904) Can the commission agent sell on credit? The commission agent cannot sell on credit without the express or implied consent of the principal (Art. Should the agent have advanced them. (Art. provided if the agent is free from all BAR OPERATIONS 2011 Page 86 . (Art. can the third party hold the agent personally liable? The third party can hold the agent personally liable. 1906) Who is a Guarantee Commission agent or a “del credere” agent? A guarantee commission is one who receives on a sale. But the commission agent shall be entitled to the interest or benefit. The agent has no liability. as written. RACHELLE CASTRO Who shall be bound by the contract entered into by an agent who acts in the name of the principal and within the scope of his authority? It is the principal. an act is deemed to haven performed within the scope of the agent’s authority. They are: 1. the contract shall be void. 1900) Who is a commission agent? A commission agent is one who is authorized to buy or sell for the principal personal property and for which purpose said personal property is placed in his possession. 1905) What is the liability of the commission agent who sells on credit without the express or implied consent of the principal? 1. What is the obligation of the commission agent who handles goods of the same kind and mark belonging to different owners? The commission agent shall distinguish them by countermarks and designate the merchandise respectively belonging to each principal. 1905) What is the obligation of the commission agent who is authorized by the principal to sell on credit? The commission agent must furnish the principal with a statement of the names of the buyers. should the latter so request. 1898) As to third persons when is an act of an agent deemed to be within the scope of his authority? So far as third persons are concerned. the sums necessary for the execution of the agency. even if the business or undertaking was not successful. He is liable to the principal for the cash price of the goods’ 2. (Art.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. in addition to the ordinary commission. in which case he shall bear the risk of collection and shall pay the principal the proceeds of the sale on the same terms agreed upon with the purchaser. another called a guarantee commission. (Art. As a rule the agent is not bound unless the agent undertakes to secure the principal’s ratification.

1911). civil interdiction. insanity or insolvency of the principal or of the agent. 1912) To indemnify the agent for all damages which the execution of the agency may have caused the latter. When it was stipulated that the expenses would be borne by the agent. fault. The principal may revoke the agency at will. (Art. By the expiration of the period for which the agency was constituted. How is agency extinguished? Agency is extinguished: 1. (Art. 1915) Under what cases shall the principal be not liable for the expenses incurred by the agent? Under the following: 1. from the day on which the advance was made. 1913). 4. By the withdrawal of the agent. When the agent incurred them with knowledge that an unfavorable result would ensue. RACHELLE CASTRO 3. (Art. The reimbursement shall include interest on the sums advanced. 2. (Art. 1919) Is agency generally revocable? Yes. If the agency has been entrusted for the purpose of contracting with BAR OPERATIONS 2011 Page 87 . 6. If the agent acted in contravention of the principal’s instructions. 5. without fault or negligence on his part. (Art. unless the latter should wish to avail himself of the benefits derived from the contract. Is the principal bound by the obligations incurred by the agent in excess of his authority? The principal shall not be bound unless he ratifies it expressly or impliedly. 3. By the dissolution of the firm or corporation which entrusted or accepted the agency. (Art. What the expenses were due to the fault of the agent. 1914) When shall the principal be held solidarily liable with the agent? Even when the agent has exceeded his authority. (Art. There are two or more principals. By its revocation.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. BY the death. the principal is solidairly liable with the agent if the former allowed the latter to act as though he had full powers. 2. 1918) 2. 4. and compel the agent to return the document evidencing the agency. or that the later would be allowed only a certain sum. (Art. 3. By the accomplishment of the object or purpose of the agency. 1920) When shall the revocation of the agency not prejudice third persons? 1. (Art. Under what circumstances shall two or more principals be held solidarily liable to the agent? Under the following circumstances: 1. The two or more principals have appointed the agent for a common transaction. if the principal was not aware thereof. 1910) What is the remedy of the agent I the case where the principal does not reimburse the agent for the funds advanced by him and for the damages the agent has suffered in the execution of the agency? The agent may retain I pledge the things which are the object of the agency until the principal effects the reimbursement.

1929) When does death of the principal not revoke the agency? The agency shall remain in full force and effect even after the death of the principal if: 1. Can the agent withdraw from the agency at any time? Like the principal who can generally revoke the agency at will. though notice of the revocation in a newspaper of general circulation is a sufficient warning to third persons. (Art. If the agent had general powers. the agency is created for the mutual interest of both the principal and the agent. If a bilateral contract depends upon the agency. if the principal should suffer any damage by reason of the withdrawal. 1923) 2. RACHELLE CASTRO specified persons. or the agency was constituted in the interest of a third person who has accepted the stipulation in his favor. must continue to act until the principal has had the opportunity to take the necessary steps to meet the situation. (art. Where a partner is appointed manager of a partnership in the contract of partnership and his removal from management is unjustifiable. Where the agency is a means of fulfilling an obligation already contracted. 1921) 2. its revocation shall not prejudice the latter if they were not given notice thereof. without knowledge of the death of the principal or of any other cause which extinguishes the agency. 1. the agent likewise may withdraw from the agency at any time. However. is valid and shall be fully effective with respect to third persons who may have contracted with BAR OPERATIONS 2011 Page 88 . 1922) Give instances of implied revocation of the agency. 1924) When is agency irrevocable? 1. the agency was constituted in the common interest of the principal and the agent. unless the withdrawal of the agent is based upon the impossibility of continuing the performance of the agency without grave detriment to himself. (Art. (Art. the agent must indemnify him. by giving due notice to the principal. revocation of the agency does not prejudice third persons who acted in good faith and without knowledge of the revocation. 1927) What is meant by an agency coupled with an interest? An agency is coupled with an interest if: 1. dealing directly with third persons. (Art. the agency is created not only for the interest of the principal but also for the interest of a third person. 3. 2. (Art. 1928) What is the obligation of the agent after his withdrawal from the agency? The agent.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. The agency is revoked if the principal directly manages the business entrusted tot eh agent. even if he should withdraw from the agency for a valid reason. The appointment of a new agent for the same business or transaction revokes the previous agency from the day on which notice thereof was given to the former agent. 1930) How does death of the principal affect the validity of the acts of the agent who was not aware of the death of the principal? Anything done by the agent. (Art. or 2. An agency coupled with an interest cannot be revoked by the sole will of the principal. 2. (Art.

In ERS. the contract deals with a future thing. emptio res speratae is the sale of a thing having a potential existence. in ES. EMPTIO SPERATAE AND EMPTIO SPEI: 1. in ES. RACHELLE CASTRO him in good faith. In ERS. 2. otherwise. In contract of sale. the contract is a barter. there is no contract for lack of an essential requisite. Is such intention does not clearly appear. An accepted unilateral promise to buy or to sell a determinate thing for a price certain is binding upon the promissory of the promise is supported by a consideration distinct from the price. it shall be considered a barter if the value of the thing given as part of the consideration exceeds the amount of the money or its equivalent. SALES • CONTRACT OF SALE FROM CONTRACT TO SELL: 1. full payment is a positive suspensive condition. if less. while emptio spei is the sale of a hope or expectancy. 1932) VII. This is in conformity • • • BAR OPERATIONS 2011 Page 89 . (Art. 2. so that if it does not. 1931) Does death of the agent extinguishes agency? Yes. while in Contract to sell. 3. if the cash added to the thing traded is more than the value of such thing. since the subject matter is the hope itself. in ERS. the vendor has lost and cannot recover ownership until and unless the contract is resolved or rescinded. In a contract of sale. title passes to the vendee upon the delivery of the thing sold. the contract is a sale. In contract of sale. the transaction shall be characterized by the manifest intention of the parties. the sale produces effects even though the thing itself does not come into existence. nonpayment is a negative resolutory condition. • BARTER – “if the consideration of the contract consists partly in money. in ES.” Such that. while in contract to sell. but his heirs must notify the principal thereof. 3. by agreement. ownership is reserved in the vendor and is not to pass until full payment of the price. it is the vendor who is still the owner and must bear the loss and not the vendee. and when he seeks to eject the vendee because of noncompliance by such vendee with the suspensive condition stipulated. but before the thing sold has been delivered? If the object of a contract is lost before delivery. Who between the vendor and the vendee must bear the risk of loss after the contract of sale has been perfected. the uncertainty is with regard to the quantity and quality but not with regard to the existence of the thing.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. while in contract to sell. it is a sale. A promise to buy and sell a determinate thing for a price certain is reciprocally demandable. the sale is subject to the condition that the thing should exist. title remains in the vendor. 4. the contract deals with a present thing which is the hope or expectancy. the uncertainty is with regard to the existence of the thing. and partly in another thing. and in the meantime adopt such measure as the circumstances may demand in the interest of the principal. he is enforcing the contract and not resolving it. (Art.

SALE OF PERSONAL PROPERTY BY INSTALLMENT. cancel the sale. if one has been constituted. Possession along with ownership is transferred to the vendee by virtue of the notarized deed of conveyance. title to and ownership of property are immediately vested in the vendee a retro.” R. The acceptance and encashment by the owner of a check representing the purchase price of his property sold through his agent constitute ratification of the contract of sale and produces the effects of an express power of agency. and contains nothing impossible or contrary to law. nevertheless reveals the intention of the parties to charge real property as security for a debt. In a contract of sale.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. there is no contract. In the last case. An action for reconveyance of the property on a void contract does not prescribe. subject only to the resolutory condition that the vendor repurchases it within the stipulated period. No. When there is merely an offer by one party without acceptance by the other. 2.” Earnest money is part of the purchase price advanced by the vendee to the vendor as a token of the perfection of the contract. the vendor loses ownership over the property and cannot recover it until and unless the contract is resolved or rescinded. it shall be considered as part of the price and as proof of the perfection of the contract. The owner of the thing must bear the risk of loss. • EARNEST MONEY’ “Whenever earnest money is given in a contract of sale.A. An equitable mortgage has been defined “as one which although lacking in some formality. A contract of sale is consensual in nature and is perfected upon the mere meeting of the minds. remedies of the vendor 1. or other requisites demanded by a statue. should the vendee’s failure to pay cover two or more installments. commercial. he shall have no further action against the purchaser to recover any unpaid balance of the price. then the action for the declaration of the contract’s nullity is imprescriptible. 1486) • • A contract executed by an agent without authority to sell is not void but simply unenforceable. or form or words. exact fulfillment of the obligation should the vendee fail to pay. If the deed of sale is void. Foreclose the chattel mortgage on the thing sold. (Art. Under a pacto de retro sale. RACHELLE CASTRO with the principle of res perit domini. 3. residential) the right of the seller to cancel the contract upon • • • • • • • • • BAR OPERATIONS 2011 Page 90 . 1474) A stipulation that the installments or rents paid shall not be returned to the vendee or lessee shall be valid insofar as the same may not be unconscionable under the circumstances (Art. An option to buy or a promise to sell is different and distinct from the right to repurchase that must be reserved by means of stipulations to that effect in the contract of sale. should the vendee’s failure to pay cover two or more installments. 6552 otherwise known as the “Realty Installment Buyer Protection Act” recognizes in conditional sales of all kinds of real estate (industrial. Any agreement to the contrary shall be void.

1537) a. Personal Property aa. 1497) 2. 1499) cc. a. is the operative act of transfer (but the between the parties). Provided no actual impediment to physical delivery (e. Constructive i. BAR OPERATIONS 2011 Page 91 . RACHELLE CASTRO nonpayment of an installment by the buyer.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 3(b) of R. 1500) C. delivery of title. or the exercise by the vendee of his rights with the vendor’s consent. GENERAL OBLIGATIONS: A. Delivery of the keys (Art. par. 2) bb. which cancellation may be done outside the court particularly when the buyer agrees to such cancellation provided that such cancellation by the seller must be in accordance with Sec. Generally ownership is transferred upon delivery to (Art. aa. Deterioration. FORM (MANNER OF DELIVERY) 1. To deliver the thing sold with its accessions and accessories (Art. iii. Common agreement (Art. the registered transaction prevails over the earlier unregistered right. Real Property: by public instrument. 1513. . • Between two transactions concerning the same parcel of land. If the title has passed. whether there has been actual delivery or not. A demand letter is not the same as the notice of cancellation or demand for rescission by a notarial act required under said law. which requires a notarial act of rescission and the refund to the buyer of the full payment of the cash surrender value of the payments on the property. Knowledge gained by the first buyer of the second sale cannot defeat the first buyer’s rights. Physical or Real (Art. 1498. 1496) and De Consituto (constitutum possessorium): By retention of the thing by seller under another right subordinate to the right of the buyer.A. No. To preserve the thing with the proper diligence of a good father of a family (Art. 6552. (Quasi-tradition). B. Except: registered property (Act 496). 1163). bb. except where the second buyer registers in good faith the second sale ahead of the first. Transfer of Ownership to the Buyer a.g. 1514). (Art. 1585) express or implied. when a third party is in lawful possession) or contrary stipulation exists. loss or improvement (Theory of Risks) 1. 1477. • EFFECT OF SALE ON THE SELLER I. Registration contract is binding ii. 1501) : By execution of a public instrument. By negotiable document of title (Arts. A contract of sale may either be absolute or conditional – one form of conditional sale is what is now popularly termed as a “Contract to Sell” where ownership or title is retained until the fulfillment of a positive suspensive condition normally the payment of the purchase price in the manner agreed upon. acceptance by the buyer (Art. 3. Incorporeal property (Art. the risk is upon the buyer.

made title does not passi. par.F. If a bill of lading is transmitted with a draft par. of the fixed (or 2. disposal of 2. the buyer lading iii. par. so that 3. b. Compare this with the rule that possession of movables in good faith is equivalent to 559 bb. except in cases of: i.1) notwithstanding delivery Implied reservation of title arises wheni. 1503. trial or satisfaction” (Art. In case of Express reservation of title in the seller. 1478) ii.” When delivery does not transfer title: 1.1) In sales ‘F. 1523. 2-5). Art. Recording laws. But where goods are deliverable to the order buyer or his agent and the seller retains the lading (Art. ii. title passes – i. (Art. Until payment (Art. When the seller has a voidable title (Art. Goods are deliverable to the order of the shipper or (Art. Upon the retention by the buyer beyond the time reasonable time) without notice of rejection. Upon the buyer’s signifying approval or ii. 1502. par.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. title. in which case title passes upon draft is dishonored.O. 1505): The buyer better title. Delivery to the carrier is delivery to the buyer unless title reserved (Art. RACHELLE CASTRO 1. has no 1438) ii.I. Until fulfillment of the condition (1503. 4. iii.” or ‘F. 5. In “delivery on approval. or the order of the buyer. acceptance. Statutory power to sell or order of the court to the (to sell) Sales in merchat’s stores. the and without notice avoided. is 3. the bill transfers title to the buyer for value and without notice that the draft was not honored. 2) aa. DOCUMENTS OF TITLE TO GOODS DEFINED (Art.1): “…any document BAR OPERATIONS 2011 Page 92 . 1506).B. Estoppel of the owner to deny the seller’s title (Art. of it is indorsed in blank. 1503.S. iii.” In sales “C. 3) title passes subject the seller for security purposes. par. No.A. sale is good if bough for value before the seller’s title is Sale to two different persons by the same seller When the seller is not the owner (Art. fairs. officer iv. acceptance. par. Where the buyer refuses to accept without justification 1588) title passes when the goods are placed at the the buyer. Upon the buyer’s doing an act signifying adoption contract. or markets aa.4). 4. if the should return the bill of But if the bill provides that the goods are deliverable to the buyer. 1636. agent of the bill of to the lien of attached (1503.

1251). ii. Subject to the seller’s duty to notify the buyer under Art. BAR OPERATIONS 2011 Page 93 . 1521) b. (Art. 1521. expressly of impliedly.F”. or title is reserved.O. In sales “F. goods represented by such document. The possessor (if a third person) must acknowledge holding the goods for the buyer. In sales.) A. PLACE – i. the price includes insurance and freight to the place of destination but goods travel at the risk of the buyer B. In the absence of stipulation or usage: 1. either by indorsement or delivery. III. RACHELLE CASTRO used in the ordinary course of business in the sale or transfer of goods. 1523) A. last par. TIMEi. The seller must insure the goods if stipulated or required by usage. Definition of “unpaid seller” (Art. where the thing was at the time of sale (applying the rule of Art. Delivery to the carrier is deemed as delivery to the buyer (but carrier must acknowledge holding the goods for the buyer) (Art.3) II. At the place of business or residence of the seller 2.A.2) b. to the place of business or residence of the buyer (par. 3. as proof of the possession or control of the goods. a. or B. RIGTHS OF THE UNPAID SELLER OF GOODS I. As stipulated or established by usage (Art. or authorizing… the possessor of the document to transfer or receive. If it is stipulated that the seller will send the goods to the buyer (Art. If no notice is given.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. If the thing (specific) was elsewhere. “C. Whose goods are in his possession and property in the goods has not passed to the buyer.S” (free alongside ship) the goods are delivered at the specified place at no expense to the buyer. par. Expenses of delivery are borne by the seller (Art. To whom the whole price has not been paid or tendered. Otherwise. The seller must arrange the transportation.” TIME AND PLACE OF DELIVERY: a. 1521) ii. Unless the contrary intent appears. As stipulated.” (free on board) or “F. 1247) (Art. 1525. and title to the goods is presumed to pass at that place. B. and the parties knew it. Who has been conditionally paid by a negotiable instrument which has been dishonored.1) A. If there is no stipulation.B. a. or stoppage in transit is exercised. c. 1523 for insurance purposes. on reasonable terms.I. the seller must give notice so that the buyer may insure. An unpaid seller is onea. the goods travel at the seller’s risk (par. or b. 1523). 1525) An unpaid seller may be onea. at a reasonable time and hour (which is a question of fact) (Art.

When by such partial delivery. It may be exercised notwithstanding the seller’s possession as agent or bailee for the buyer (Art. No. 1527) when it arises – i. B. acknowledges buyer. iii. or d. Effect of a judgement for the price of goods obtained by Requisites for the exercise. Where the sale is without stipulation as to credit. When the lien exists: 1. 1. 1528) aa. i. By waiver thereof. 1636. Whose goods are in his possession but property in the goods has passed to the buyer. but the term credit has expired. Exception: aaa. 1529. 1531. II. BAR OPERATIONS 2011 Page 94 . or c. When the buyer becomes insolvent 2. the seller i. No. When the lien is lost. When the buyer is said to be insolvent: See Art. Instances (Art. par. 1528) b. the intention was to waive the lien or right of retention (Art. Rights of an unpaid seller (Art. Cases (Art.1) a. par. When goods are deemed to be in transit – aa. ii. cc. 1526. The lien is not lost (Art. 1529) i. 2. par. When the seller delivers the goods to the carrier or other bailee for transmission to the buyer without reserving the ownership in the goods. The buyer is or becomes insolvent (Art. Whose goods has not passed to the buyer but property in the goods has not passed to the buyer. par. bb. 1526) A. a.2) (Stoppage in transit). If the buyer or his agent obtains deliver. 2 and Art. Whose goods are not in his possession and property in the goods has passed to the buyer. If the buyer rejects them and the carrier continues in possession. 1626 No. iii. RACHELLE CASTRO b. The lien may be exercised on the remainder (Art. 1527. Effect on the right if there has been partial delivery: i.2 (does not require judicial proceedings). When goods are no longer in transit (See Art. Where the sale is on credit. A Lien on the goods or right to retain them (Art. 2) Right to stop in transit (Art. 2. 1530). ii. From the time they are delivered to the carrier or bailee for transmission to the buyer until the buyer takes delivery bb.4) aa. ii. If at destination the carrier or bailee holding them for the If the carrier or bailee wrongfully withholds possession from the buyer. 1530) i. When the buyer or his agent lawfully obtains possession of the goods.2) 3. 1.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 1526. The goods are in transit (Art.

II. 1545): the party whose obligation is dependent upon it need not perform. 1532. i.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 1554). 1. including – i. aa. Eviction (dispossession) of the buyer (Art. unless he is an expert and was relied upon. 1552). 1532. iii. that the goods are of merchantable quality and fit for a known purpose. 2. b. The document must be surrendered (Art. How stoppage in transit is exercised (Art. Return the value (not the price) at the time of eviction. 1559). Obligation of the seller. par. 2. 1546): affirmation of fact inducing the buyer to purchase in reliance thereon. Sale for tax delinquency not notified to the buyer (Art. 1557) (the buyer need not appeal.2) the 1532. B. Implies (Arts. 1555) a. The seller (vendor) is duly summoned in the suit against the buyer (Art. Based on a right anterior to the sale. RACHELLE CASTRO b. 1532. aaa.2). 1532): 1. 1558) and made a co-defendant (Art. Express (Art. 1551).1). Requisites – a. By a final judgment (Art. 1546) III. Conditions (precedent) A. The vendee is deprived of the qhole or a material part of the thing purchased. To re-deliver the goods to the seller. Art. 1549) 3. 1548) (this is applicable to a judgement debtor in judicial sales unless the judgement provides otherwise. By obtaining actual possession of the goods (Art. par. If the goods are covered by negotiable document of title – aa. A statement of the seller’s opinions is not warranty. ii.1). To his principal. Rules of Court). 1547 and 1562): that the seller has a right to sell. BAR OPERATIONS 2011 Page 95 . Effect of the warranty (Art. c. Art. a. CONDITIONS AND WARRANTIES I. Warranty Against Eviction. Obligation of the carrier or bailee in possession of goods. 1. To the person in actual possession of the bb. There has been no express waiver by the buyer with knowledge of the risk (Art. (Art. A. 1550) ii. Upon failure of the conditions (Art. sec. The seller in good faith must – 1. goods. B. To pay the expenses of deliver (art. Warranties (stipulations promissory): Kinds – A. par. that there are no hidden defects or encumbrances. By giving notice of the claim (Art. Adverse possession completed before the sale (Art. par. aa. To whom must notice be given – aa. (See Rule 9.

1562) or of fitness for a purpose known to the seller. Return the income or fruits that the buyer had to Costs of the suit. or 2. and ii. If the Vendor is not aware of the vice: He must – i. Return the price less the value. 2. If the Vendor is aware of the vice: He must – i. They existed prior to the sale. 1563) where no implied warranty exists. d. g. The seller in bad faith is subject to the liabilities of the seller in good faith under – 1. and Expenses of the contract. interest and ornamental expenses (useful expenses are to be recovered from the party causing the eviction. The rules of the preceding paragraph ( par. and iii. and ii. 1577) prescription). Return the price (not the value). Not visible or could not be known to the buyer. surrender. If the vendor is in bad faith: He must – i. 4. A. No stipulation against the warranty has been agreed B. 1586) f. Effects of warranty against defects or vices: a. 1571) or 40 days (from delivery) in case of animals (Art. If the thing is lost by fortuitous event or by the fault of the buyer 1. Reduction of the price (with damages in case of bad faith) b. 1567) – 1. even if an expert (Art. not from the seller). They must be notified to the seller within a reasonable time from discovery (Art. The vendee may elect between (Art. b. at the buyers’ option. 2. less the 2. There were not known to the buyer. – OBLIGATIONS OF THE BUYER BAR OPERATIONS 2011 Page 96 . 1561) because of the implied warranty of quality (Art. 1566). Plus payment of damages. Requisites – The vices must be – a. remedies are – C. Action must be within 6 months (Art. e. Loss of an important part (Art. Refund expenses. Withdrawal from the contract.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Refund the expenses of the contract. c. Waiver of warranty against eviction by the buyer (vendee): Warranty against Redhibitory (Hidden. Pay damages. The vice need not be known to the vendor (Art. Except: Sales under a patent or trade name (Art. 1561). RACHELLE CASTRO 2. c. Return the price with interest. They must be serious (as to render the thing unfit) (Art. Indemnity OR rescission. C. 1568) 1.a). The 1. If the vendor is in good faith: He must return the price value when lost. If the thing is lost due to hidden vice (Art. 1556) (partial Eviction). Pay damages. b. Physical) Vices (of movables). plus 3. c. and ii.

C. last par. B. 1526). D. time and Place (Art. or 2. 1598). The Vendor gives security for the return of the price. The seller must allow the buyer to examine. The thing produces fruits which pertain to the buyer under Article 1164. 1530). if the buyer is insolvent and the price (Art. Unjustified refusal of the buyer to accept does not bar transfer of title (and risk) (Art. b. 1528): a. b. or 4. par. If there was no previous examination. B.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. According to stipulation (unless the buyer loses the benefit of the period). 1256). or 3. 1169. a. Stoppage in transit. Grounds – 1.) (the buyer is not entitled to an examination unless the contract or usage to the contrary permits examination) (Art. on C. 1 & 2). if the payment is not tendered (art. seller’s tender reciprocal obligations). is unpaid must be such. Suspension of delivery (retention) by the seller – 1. not as bailee for In sales on credit. 1584. if the buyer loses the benefit of under Art. There is no right to suspend payment if: 1. if there is no contrary stipulation. disturbance. 2. When goods are in transit (Art. The buyer justifiably refusing to accept need not return the thing (Art. the buyer must have a reasonable opportunity to examine (Art. 1536) or the 1527). Seller’s lien on the goods in his possession (Art. The stipulation so provides. The stipulation provides for payment despite risk of or 2. or 2. exclusive) Payment of Interest on the Price: )Art. How stoppage is made (Art. 1587) but only has to notify the seller. Vindicatory action. ii. 1532) After default (moratory interest) from the time of the or performance (art. RACHELLE CASTRO I. Actual disturbance of possession or ownership. 1. 2. b. BAR OPERATIONS 2011 Page 97 . 1588). 1531): the goods in the possession of the carrier as the buyer. The disturbance is by mere act of trespass. a. Except in case of a stipulation that the goods are not to be delivered by the carrier unless paid for (C. Reasonable ground to fear a disturbance caused by – i. Payment of Price and Interest: A. the term buyer is insolvent (Art. Even before default. 1590) after delivery. if the buyer so demands. d.O. 1584. 1198 (art. Suspension of payment by the buyer (Art. To Accept Delivery: A. par. But the seller may make consignation (Art. Legal Guaranties for Payment of the Price: a. Foreclosure of mortgage (which grounds are b.D. if – 1. In cash sales. II. The vendor cause the disturbance to cease. 1524). This duty arises – a. 3). c. 2. At the time and place of delivery.

The seller has a lien or made stoppage transit (Art. 1. unless negotiable receipt issued is not carrier or bailee. 1534) Judicial (Art. 54). 1533) (without bringing an action). Notice ( or some other overt required (otherwise rescinded) to the Failure to give notice is relevant the question of default unreasonable time. Resale may be public or private. RACHELLE CASTRO i. The remedy is applicable in case of i. upon stipulated (Art. on for an and cc. Express reservation in the event of default. ii. Giving opportune notice to the carrier or Effect of notice on the carrier or bailee Art. He is not accountable for the profit. or bb. 2) the surrendered to the e. The buyer is in default for an un reasonable time in paying the Aaa. 3. Rescission of Transfer of Title 1. if – aa. if – aa. iii. price. par. or ii. ii. in ii. Notice to the buyer is not essential. 1191). Provided: the seller has a lien stoppage in transit. original due course of a title (Art. The seller cannot buy directly or indirectly. if no period was 1593). Default for an unreasonable time on the part buyer. The seller is to exercise reasonable care and judgment iv. He may sue for damages due to the breach. Perishable goods. Bbb. 1534). bb. bailee. Extrajudicial rescission (Art. or of the or made 2. The buyer fails to accept at the time.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. BAR OPERATIONS 2011 Page 98 . iii. 4. but not against the holder in negotiable document of Effect on the seller: i. Expressly reserve. act) is transfer of title is not but need not be communicated buyer. In case of goods (corporeal movables) – i. The carrier or bailee must redeliver. The buyer at resale acquires good title against the buyer. without just The buyer fails to tender the price receipt. Resuming actual possession. ii. i. 1532. f. stipulated reasons. 1535). Resale of goods (Art. Procedure in Resale (See p. 3. i.

b. then the at the time of refusal. 2. c. II. BAR OPERATIONS 2011 Page 99 . Neither does the rule apply to a mere sell Action for the Price and Damages Action for the price (of personal property) (art. 1591). 1534) the goods have not been 1597) In case of real property (Art. After ownership has passed. RACHELLE CASTRO unless delivered. 1. although title has not passed. When there is an available market – 1. contract to 3. The buyer may until given judicial or notarial demand for despite a stipulation to the contrary Exceptions: i. No notice or demand is required (Art.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. A. Then the seller may treat the goods as the buyer’s and sue for the price. Failure to pay. and price is not paid. The goods were offered and refused. b. That the seller at any time before judgment. 1596) of the goods A. where it is stipulated to be payable irrespective of delivery or transfer of title. Inability to perform. The difference between the contract price and the market price at the time when acceptance should be made. and 4. Grounds – a. Generally – 1. or Intention not to perform. The buyer’s wrongful failure to accept and pay (the goods maybe resold) b. manifested Refusal of the buyer to accept delivery of the goods. Measure of damages a. bb. if no period for payment was given. I. and 2. Defense of the buyer: i. The goods can not readily be resold. (See Art. The loss naturally and directly resulting (in the ordinary course) from the breach. either – aa. The buyer’s repudiation or countermand before the goods are placed in a deliverable state. 1592). price. reserved by ii. The seller notifies the buyer that he holds the goods as bailee for the buyer. and 3. the seller immediately for rescission even due. i. The rule does not apply where title was the seller In case of danger of loss of the thing and after delivery (Art. (pacto comisorio). 1595). B. pay rescission. The buyer did not notify repudiation before the goods were placed in a fully deliverable state . may sue if he price is not yet iii. if: 1. market price If no time was fixed for acceptance. Grounds – a. Action for damages for non-acceptance (Art.

The seller has no option to retain the goods by paying damages. warranty. Unless the deterioration was due to the breach of He fails to notify the seller in due time of the election to rescind. the buyer – 1. 1599. b.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. The buyer ceases to be liable for the price upon tender or return goods. 2. The buyer either – 1. c. b. When repudiation is made or notified before the seller complete preparations for fulfillment – 1. The seller gives notice of his election to rescind. He may recover the price paid – 1. and The profit the seller would have obtained under the contract. or c. Buyer’s choices: a. He knew of the breach of warranty when he accepted the goods. the buyer holds the bailee. or b. The judgment may be absolute or conditional as the court deems fit. The liability is for expenses incurred. of the Effects of Buyer’s Election to Rescind (Art. The liability consists in the difference in value at the time of delivery and the value if the warranty were not broken. 1597) by the seller (against the buyer) A. The buyer can not rescind. par. Buyer’s Action for Seller’s Specific Performance (Art.4) a. 1598). 1599. Concurrently with the return. Buyer’s Action for Breach of Warranty (Art. 2. 1. If the seller refuses to accept the return. IV. Action for Total Rescission (Art. 1599). asking for par. 1191. To accept the goods and sue for damages. To refuse or return the goods and sue for damages. D. B. He fails to return the goods in substantially the same condition. if – a. d. c. Manifests inability to perform. Commits breach of contract. In which case. but the buyer may ask for rescission after specific performance. or 2. has E. refuse or return the goods and recover price. or 2. the price B. III. Has a right of stoppage in transit and resale. as the seller under Article 1526. par.2) C. BAR OPERATIONS 2011 Page 100 . Immediately after the tender. if the latter is impossible (Art. A. or 3. The options are alternative.5) a. To rescind the contract. To accept or keep the goods and set off damages against the b. V. The goods were not delivered. goods as and Loss in Case of Breach of Warranty of Quality (Art. Repudiates. RACHELLE CASTRO c. c. Requisites: a. Has a lien on the goods to secure repayment of the price. (express or implied) A.

GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Causes of Extinguishment – A. Compensation f. General causes (Art. Redemption. with the obligation to comply with the provisions of Article 1616 and other stipulations which may have been agreed upon B. form of words or other requisites. A. Nature: Conventional redemption is – a. Article 1600 applies to perfected as well as consummated sales. I. Equitable mortgage defined – one in which although it lacks some formality. b. A potestative resolutory condition d. 1602) (1) (2) (3) (4) (5) (6) When the price of a sale with right to repurchase is unusually inadequate. show the intention of the parties to charge a real property as security for a debt and contains nothing impossible or contrary to law. When the vendor remains in possession as lessee or otherwise. A real right and enforced against a third person climing under purchaser the II. Concept. Fulfillment of the resolutory condition j. Loss of the thing due c. RACHELLE CASTRO 1. Defined: Conventional redemption shall take place when the vendor reserves the right to repurchase the thing sold. Condonation or remission d. prescribed by a statute. Contracts of sale with right to repurchase in the following cases – (Art. BAR OPERATIONS 2011 Page 101 . 1. When the purchaser retains for himself a part of the purchase price. Legal II. An express condition. Conventional 2. Rescission i. 1231) – a. Annulment h. A. I. In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any The following are presumed to be equitable mortgages – a. Special Causes – a. Unless special circumstances show greater damage. Novation g. Prescription B. When upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed. c. Payment or performance b. B. Conventional redemption includes transactions presumed to be equitable mortgages. Confusion or merger e. When the vendor binds himself to pay the taxes on the thing sold. An accidental element (must be stipulated).

Ryes. BAR OPERATIONS 2011 Page 102 . It is a clause common to “pacto de retro” and has received court sanction 2. are laws. 1606. c.GREEN NOTES IN CIVIL LAW Prepared by: ATTY.3) a. par. An agreement granting the vendor the right to repurchase when he “ has established a certain business” is not a period. not contrary to law nor oppressive. The period during which vendor cannot redeem when added to the period of permitted redemption. last par) the apparent vendor may ask for the reformation of the Where no period is agreed upon – a. A stipulation that in case of failure of the vendor-a-retro as lessee to pay rentals. after the lapse of the 3 years. must not total more than 10 years. b. b. if the parties dispute its nature as a pacto-de-retro sale with the allegation that it does not express their true agreement. F. counted from such lapse. instrument. The period may be extended to 30 days after final judgment was rendered in a civil case claiming that the contract was a true sale with right to repurchase (Art. Contracts of absolute sale in the cases mentioned in Art. which cannot exceed 10 years (Art. A stipulation that the vendor cannot redeem the property until after 3 years should be construed to allow redemption within 4 years. Effect when the transaction is deemed an equitable mortgage.2) C. In such a case the vendor may redeem within 4 years. D. par. III. Period of Repurchase or Redemption. Redemption period was not extended by the enemy occupation (Rivero Rivero. RACHELLE CASTRO b. 1602 (Art. vs. Pendency of litigation suspends the period of redemption b. par. Four years from the date of the contract (Art. The thirty day extension is applicable even should the case be filed after the expiration of the redemption period. (Rosales vs. A.1) B. money or other benefit received as rents by the vendee considered as interest which shall be subject to the usury 1602. 1606. 80 Phil 802) Rulings on the period within which to make a repurchase – a. When a transaction purporting to be a contract of sale with right to repurchase is of doubtful interpretation (Art. provided that the new period stipulated does not exceed 10 years. 1604) other obligation. The legal period of 4 years may be extended by stipulation. the lease shall automatically terminate and the right of ownership of the vendee shall become absolute – is valid. a. Fruits. 1606. 25 Phil 495) E. 1603) 1. Although “pactum commissorium” ( a stipulation for automatic vesting of title over the security in the creditor in case of the debtor’s default) is void. such a clause in a contract is conclusive proof that it is a mortgage and not a sale with pacto de retro C. Within the period stipulated. (Art. c. When a period is agreed upon – (which includes a stipulation of redemption “at any time”) a.

The heir or heirs of the vendee – a. C. Where the courts are functioning regularly. 1610) a. 1. Each can redeem only the part which he may have From whom or against whom may redemption be made – A. Also when the whole property is adjudicated to the vendee in partition (Art. RACHELLE CASTRO d. Creditors of the vendor (Art. acquired. Right of the vendee. IV.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. The stipulation period of redemption is suspended by the filing of an action brought in good faith relating to the validity of a sale with pacto-deretro (it being claimed to be an equitable mortgage) and again commences to run only after decision declaring it to be a sale has become final g. He may only redeem his share (Art. Without prejudice to the provisions of the Mortgage Law and Act heir BAR OPERATIONS 2011 Page 103 . except in case of death of the buyer a retro. He cannot be compelled to redeem the whole (Art. He may compel all the co-owners to redeem the whole (Art. 1. The following are included – a. par. Every possessor whose right is derived from the vendee (Art. 1615). The creditors must have already exhausted the properties vendor (Art. 1. 1614). When the thing sold is awarded to only one C.1) 2. A stipulation granting the vendors the right to redeem “at any time the vendors have the money” should be construed to allow redemption within 10 years f. Requisite – 1. Right of each co-owner. the period in excess of 10 e. 1614) B. 1. When the vendors are co-owners selling jointly and in the same contract an undivided immovable. 1608) a. years is void Where there is an agreed period.2) a. par. of the V. Against each of the heirs for his respective share. The vendee B. b. i. If there is more than one heir (Art. Who may redeem or exercise the right of redemption – A. 1610) Right of the vendee 1. 1612. 1613). To redeem only his share (Art. Exception: a. Heirs of the vendor (Art. i. 1612. separately When a co-owner sells his share of an undivided immovable (Art. Right of the vendor-co-owner i. i. Right of each heir. 1613) NOTE: The rule of the Code in one sale. the redemption term is not suspended or extended by war. 1611) b. He may compel all the heirs to redeem the whole (Art. one redemption. The vendor in whose favor the right is reserved. 1614) ii.

I. 1618) 1. When the subject matter consists of real property (Art. Sale b. VIII. To return the thing sold free from all charges and mortgages constituted by the vendee (Art. Rights of the vendee-a-retro A. General rule: Ownership consolidates in the vendee b. If there are visible fruits at the time of the execution of the sale – a. 496 VI. 1619) C. par. Effect of the vendor’s failure to comply with his obligation – a. of a Requisites – aa. Lease contracts in good faith and according to custom. No reimbursement or pro-rating (Art. b. Share of the vendee: i. Dation in payment c. B. To return the price of the sale b. Legal Redemption 1. That portion corresponding to the time he possessed the land in the last year. 1617. The right is born after the sale 2. A. 1609) Rules on pro-rating of fruits existing at the time of redemption. Fruits must be pro-rated (Art. 1616): a. – i. To compel the vendor or a part of an undivided immovable to redeem the whole property upon the vendee acquiring the entire immovable (Art. LEGAL REDEMPTION Concept. IX To be subrogated to the vendor’s rights and actions (Art.2). 1608) VII.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. The action is directed against the purchaser. after their amount is determined.1) B. To return the expenses of the contract and y other legitimate payments made by reason of the sale c. after hearing the vendor. The vendor’s obligations are (Art. To reimburse the necessary and useful expenses made on the thing sold. 1. 1619) B. par. A. (Land Registration Act) Obligations of the vendor-a-retro A. Defined. 1) is required. 1617. Distinguished from Pre-emption a. (See Art. Other transactions whereby ownership is transferred by onerous title (Art. B. 1617. Exception: 1. Alienation must be by – a. Exception: i. It rescinds the contract and leaves without effect a sale that has been perfected and consummated 3. RACHELLE CASTRO No. counted from the anniversary of the date of the sale. Obligations of the vendee-a-retro A. 1611) in partition proceedings. Consolidation of ownership must be by virtue judicial order. If indemnity for fruits was paid by the vendee when the sale was executed (Art. which must be respected. par. i. Pre-Emption BAR OPERATIONS 2011 Page 104 . If no visible fruits at the time of the sale existed – a.

Effect if two or more co-owners desire to redeem: aa. par. Tenements must be adjacent without solution of surface of continuity. Urban lands (Art. BAR OPERATIONS 2011 Page 105 . Order of preference aaa. Purpose – to end indivision or at least reduce the number of coowners. 1088) is a variety of this by owners Redemption by Adjoining Owners. par. Tenements separated by brooks. The owner of the adjoining land of smaller area B. par. To pay the price of the sale (Art. Legal Redemption by Co-heirs (Art. II. If the areas are the same. Instances – 1. are not included (Art.2) bbb. Exception: aa. D. 1621. RACHELLE CASTRO 1. 3. 1620. I. Requisites 1. Requisites aa. Alienation must be to a stranger. i. Co-owners (Art. Area of the land alienated does not exceed one hectare dd.1 e. ravines. par. CoB. Both adjoining tenements are rural bb. The tenement being redeemed was bough iii. roads. To pay only a reasonable price (Art. par. There must be alienation cc. a.2 ee. 2. Rural lands. not a co-owner 4. 1622) i. par.2) d. Adjoining owners (Art. They may only do so in proportion to the share they may respectively have in the thing owned in common (Art. Co-ownership must exist 2. Requisites: aa. etc. The vendee must own some other rural land Who may exercise the right – aa. When the price is grossly excessive – aaa. 1620. 1620) i. A co-owner (Art. There must be alienation of the shares of all other coowners or any of them 3.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 1623. The right is born before the sale. Both adjoining tenements are urban bb.1). 1621. i. Purpose: To favor the development of rural property in the interest of agriculture ii. the first to request redemption 2. Aaa. keeping strangers out of the co-ownership b.3) Preference (secondary order) A. The contract of sale does not yet exist The action is directed against the prospective vendor The rules are applicable to both movables and immovables Instances by Co-owners A. Redemption by Co-owners a. Who may exercise redemption – 1. Obligation of the redemptioner – 1. 1620. Alienation to said stranger must be before partition c.

taxes f. There is alienation The tenements are adjacent Who may exercise the right – aa. his widow. Other rights available to the adjoining owner aa. Legal Redemption requires no previous notice of intention to redeem b. The Rehabilitation Finance Corporation ii. Special Rules: a. real e. To notify the prospective vendor and vendee of his desire redeem Procedure in Redemption A. and legal heirs within five from the conveyance of lands under a homestead or free Redemption within one year by a judgment debtor or redemptioner of property sold under execution Redemption by the owner of the property sold for delinquent realty Redemption within one (1) year by the mortgagor in sales under – 1. Tender of the price is not a condition precedent to redemption IV. Preference is given to the adjacent owner whose intended use of the land in question appears best justified (Art. (5) years patent d. unilateral or bilateral.3) iii. 1623. for speculation The major portion of the tenement is so that it can not be used for any within a reasonable time. C. ee. whereby a person transmits to another his right or rights against a third party. to III. situated practical purpose dd. Requisite for the Registration of the Sale in the Registry of Property a. 1622. b. 1623) –exercised within 30 from notice in writing by the Obligation of the Redemptioner 1. par. par. 2. It must be accompanied by an affidavit of the vendor that he has given written notice to all possible redemptioners. Order of preference aaa.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. To pay a reasonable price. RACHELLE CASTRO merely cc. a. par. 1634) Redemption by co-heirs in case of a sale by an heir of his hereditary stranger before partition Redemption by the application. Adjoining owners (Art.” BAR OPERATIONS 2011 Page 106 . whether or not an equivalent for the transmission is received from the transferee.1) I. Pre-emption (Art. rights to a c. Co-owners (Art. onerous or lucrative. The Philippine National Bank iii. Effect if two or more adjoining owners desire to exercise the right: A. Extra-judicial foreclosure 2. When to exercise the redemption – a.2) bbb. commutative or aleatory. ASSIGNMENT OF CREDITS AND OTHER INCORPOREAL RIGHTS I. Judicial foreclosures by – i. Within 30 days from the notice in writing by the vendor B. Banks within the purview of the General Banking Act. 1622. ii. Concept: “A contract. Other cases of legal redemption – Redemption by the debtor in the sale of a credit in litigation (Art. days prospective vendor b.

e. It transfers title to the assigned credit to the assignee. the debtor until then is not bound to pay the assignee. The consent of the debtor of the assigned credit is not required for the validity of the assignment: but the assignment is not fully effective against the debtor until he is notified thereof or has actual knowledge of the assignment. mortgage or preference (Art. B. III. As against third persons (but not the debtor of the credit assigned) an assignment of a credit. C.. will be valid against the assignee and discharge the debtor. RACHELLE CASTRO A. by sale. does not answer for the solvency of the debtor unless- B. it is not presumed b. The assignor in good faith shall be responsible for the existence and legality of the credit at the time of sale. such as guaranty. While the Code treats of assignment of credits as a variety of sales the fact is that the assignment may be effected in a variety of ways. pledge. Doubtfulness of the credit assigned must expressly appear. Assignment of real rights upon immovable property. Any compromise or release of the assigned claim made by the assignor before notice. by donation or even by testament. unless it should have been sold as doubtful. right or action shall produce no effect unless it appears in a public instrument. Assignment by way of legacy requires a probated will c. 1198) unless the debtor agreed to the assignment (when he cannot compensate) c. provided the recording is requires (not merely permitted) by law. pays his creditor shall be released from the obligation b. 1. The assignment is a transfer entirely different from the transaction originating it. Warranty by the Assignor a. or the instrument is recorded in the registry of property. The assignor in good faith. is unenforceable inter partes. The debtor may set up compensation of credits acquired after assignment but before notice thereof (Art. Assignment of a negotiable instrument requires indorsement or delivery. in case the assignment involves real property (Art. a. Hence. 1672) The assignee takes the credit subject to all defenses acquired by the debtor before notice or knowledge of the assignment a. 1.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. the debtor who. Is recording sufficient notice? Yes. II. requires a public instrument b. before having knowledge of the assignment. The assignment includes all accessory rights. Assignment of choses in action by sale or onerous contract. A. a. and comes under the Statute of Frauds (a written memorandum is required) d. Essential requisites and formalities. done by way of donation. 1625) a. if involving P500 or more. BAR OPERATIONS 2011 Page 107 . Effect of a valid assignment. i. These depend in each case upon the contract of act giving rise to the assignment. by barter. A. even if the debtor is unaware thereof.

The right must be exercised within thirty days from the date the assignee demands payment from him C. rents or products for a lump sum a. All that vendor paid on account of the estate debts. par. ii. The assignor in good faith must return the price received plus expenses of the contract and payments on account thereof. 2. 1931) Sale and Redemption of litigious credits a. Nature and characteristics BAR OPERATIONS 2011 Page 108 . Judicial costs incurred by him cc. 1632) if the contrary is not stipulated c. 1628) d. Effect of sale – 1. The vendor answers for the legitimacy of the whole in general b. 1629) Compare this with partition between co-heirs (liability for solvency lasts 5 years (Art. Concept of litigious credit – A credit is considered in litigation from the time the complaint concerning the same is answered. iii. 2. A co-heir or co-owner of the right assigned A creditor in payment of the credit The possessor of a tenement or piece of land which is subject to the right in litigation assigned. Sale of rights. One year after maturity. 1630) b. Interest on the price from the day it was paid ii. his liability lasts only – 1. Excepted from the rule are sales (or assignments) made i. Special assignments. The vendee shall reimburse the vendor for – 1. Legal redemption by the debtor – Requisites: i. 1634. (Art. The price the assignee paid bb. unless there is eviction of the whole or of the part of greater value (Art. 1628) 2. A. Expressly stipulated The insolvency of the debtor was know to him personally The insolvency of the debtor was prior to the sale and of common knowledge (Art. (Art. Credits that the vendor had against the estate (Art.2) b. The assignor in bad faith: all of the above plus damages (Art. One year after the assignment. The vendor shall reimburse the vendee for the fruits obtained or anything received from the inheritance sold (Art. or 3. If without enumeration of the items composing it. 2. RACHELLE CASTRO 1. 1633) B. Sale of Inheritance (Estate) a. VI. c. if the debt was already matured 2. 1095) Recovery on the warranty 1. the vendor only answers for his character as heir (Art. There is no warranty of individual items. 1635) to: I. (Art. 1628) Where the solvency of the debtor is warranted by the assignor. if the debt matures after assignment (Art.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. The debtor must reimburse the assignee for – aa.

RACHELLE CASTRO A. Nominate – having a special designation e. When the bailee keeps it longer than the period stipulated or after the accomplishment of the use for which the commodatum was constituted. Defined (See Art. If the thing loaned was delivered with an appraisal of its value unless there is an express stipulation to the contrary 4. 1641) a. Exceptions: 1. D. Or only indemnity for damages (Art. 2. B. In the use of the thing. he cannot be compelled to deliver what he offered. Hence – 1. Bilateral – involving reciprocal prestations c. When the bailee devotes the thing to a different purpose. 1640) C. Consensual –perfected by consent b. Recovery – provided: aa. Principal – capable of existing alone f. 2. Its purpose is the temporary use of the thing loaned 3. Bailee need not be the owner of the subject matter but he must have possessory interest over the thing 5. It is thus personal in character  The bailee is liable for ordinary expenses for the use and the preservation of the thing loaned. Commutative – fulfillment being determined in advance Requisite – a. In case of eviction. If one of the parties should prove that the other did not own the thing promised and given. VIII. It is gratuitous if a consideration is paid then it is a lease. and bb. The death of the bailor or the bailee extinguishes the contract of loan. The thing remains in the possession of the other party. Onerous – consisting in an exchange of equivalent values d. QUASI-CONTRACTS LOAN:  Loan is a real contract because the delivery of the thing loaned is necessary for the perfection of the contract. But barter is not subject to ceiling price laws. The things must belong to the respective parties. the bailee it does not include the fruits unless there is a stipulation to the contrary 4. If the bailee lends the thing loaned to a third person who is not a member of his household BAR OPERATIONS 2011 Page 109 . 1639) 2. 1638) Characteristics – of barter: a.  A bailee is not liable for loss pr damage of the thing loaned due to fortuitous event. the injured party may ask fori.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Without prejudice to third persons who acquired rights in good faith ii. There are two kinds: Commodatum (hiram) and Mutuum (utang)  Characteristics: 1. 3. The provisions on sale are suppletory (Art. but shall be entitled to damages (Art.

• • • In mutuum. if the use of the thing is merely tolerated by the bailor  the bailor may also demand the return of the thing loaned when the bailee has committed any act of ingratitude  MUTUUM . • It is a real contract because the contract is not perfected unless there is the delivery of the subject matter. deposit the depositary is obligated to return the thing deposited upon demand by the depositor. deposit. in cases of precarium – there is precarium when: a. If the bailee. during which time the commodatum shall be suspended. b.g. attachment of the property 2. with the obligation of safely keeping it and returning the same.is a contract whereby one of the parties delivers to another money or other consumable thing with the understanding that the same amount of the same kind and quality shall be paid. 2. goods or credit and court judgments thereon. ownership is transferred to the borrower It may be gratuitous or onerous it is a loan for consumption The legal rate of interest has been raised to 12% and this rate applies only to loans or forbearance of money. The bailor can demand the thing loaned when: 1. chose to save the latter  the bailor has the obligation to allow the bailee to use the thing loaned for the duration or the period stipulated or until the accomplishment of the purpose for which the commodatum was constituted. the thing shall be delivered only upon order of the court. his has an urgent need of the thing loaned. it is to secure or protect the owner’s right. E. 4. deposit is the safekeeping of the thing deposited while in J deposit. BAR OPERATIONS 2011 Page 110 . if the duration of the contract has not been stipulated. deposit refers to movable property while J deposit refers to either to movable or immovable property. RACHELLE CASTRO 5. the loan shall earn 12% per annum. deposit is always onerous. The purpose of E. E. being able to save the thing loaned or his own property of similar nature.  GUARANTY • Is a contract whereby a person binds himself to the creditor to fulfill the obligation of the principal debtor in case the latter should fail to do so. Where the interest rate is not expressly stipulated. 3. c. •  DEPOSIT • A deposit is constituted from the moment a person receives a thing belonging to another. if the use or the purpose of the contract has not been stipulated. E. • Distinctions between Extrajudicial and Judicial deposit: 1. while in J. In E. is constituted by the will of the contracting parties while J deposit is constituted by court order e. 5. deposit is generally gratuitous while J.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Court judgments for damages arising from injury to persons and loss of property which does not involve a loan is at the rate of 6% per annum.

If it may be presumed that an execution on the debtor’s property will not satisfy the obligation 6. The guarantor binds himself to pay only when the principal debtor cannot pay. The guarantor’s liability. 3. When the guarantor has absconded or cannot be sued within the Philippines unless he left a manager or representative 5. This would be a case of suretyship 3. The Surety is a regular party to the undertaking. 4. A guaranty is generally gratuitous unless there is a stipulation to the contrary BENEFIT OF EXCUSSION – the guarantor has the right to the benefit of excussion before he can be compelled to pay. Where there are several guarantors of only one debtor for the same debt. G. the thing delivered shall be returned with all its fruits and accessions. BAR OPERATIONS 2011 Page 111 .GREEN NOTES IN CIVIL LAW Prepared by: ATTY. RACHELLE CASTRO • Characteristics: 1. in this case. is primarily liable and is not entitled to the benefit of excussion or exhaustion of the properties of the principal debtor 2. In case of the debtor’s insolvency 4. It is an accessory contract It is subsidiary and conditional Unilateral The guarantor must be a person distinct from the principal debtor • Guaranty and Suretyship 1. 3. is merely joint and they are not liable beyond the shares which they respectively bound themselves to pay. The S. 2. If the guarantor has bound himself solidarily with the debtor. while a S. Exceptions: 1. is an insurer of the debt • • • The guarantor’s liability cannot exceed the principal obligation. If the guarantor fails to interpose it as a defense before judgment is rendered against him • BENEFIT OF DIVISION – guarantor is likewise entitled to the benefit of division. Liability of the Guarantor depends upon an independent agreement to pay the obligation if the primary party fails to do so. is only secondarily liable. If he is a judicial bondsman and sub-surety 8.  PLEDGE • Is a contract by virtue of which the debtor delivers to the creditor or to a third person a movable or document evidencing incorporeal rights for the purpose of securing the fulfillment of a principal obligation with the understanding that when the obligation is fulfilled. If the guarantor does not set up the benefit of exhaustion and fails to point out to the creditor available property of the debtor within the Philippines 7. the surety assumes liability as a regular party to the undertaking and thus undertakes to pay if the principal debtor does not pay. Where a pledge or mortgage has been given by the guarantor as a special security 9. The Guarantor is an insurer of the debtor’s solvency. 4. If the guarantor has expressly renounced the excussion 2.

RACHELLE CASTRO • Characteristics: 1. The pledge is constituted to secure the fulfillment of a principal obligation 2. But the pledge can apply the fruits .perfected by the delivery of the thing pledged by the debtor (pledgor) to the creditor (pledge) or to a third person by agreement.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. nor the return of the thing pledged is necessary for the pledge to renounce or abandon the pledge. (Art. Subsidiary contract – the obligation incurred does not arise until the fulfillment of the principal obligation to which it secures • Essential requirements: 1. the creditor is NOT entitled to recover the deficiency. But the pledgor is allowed to substitute the thing pledged which is in danger of destruction or impairment with another thing of the same kind and quality. in a statement in writing. If the price of the sale is less than the principal amount due. 2124) BAR OPERATIONS 2011 Page 112 . the debtor is not entitled to the excess unless there is a contrary stipulation. Neither the acceptance by the pledgor or the owner. extinguishes the pledge and the pledgee becomes a depositary. The sale of the thing pledged extinguishes the principal obligation whether the price is more or less than the amount due. Accessory contract 3. dividends or interest. 2. A contrary stipulation is void. Pledgor cannot ask for the return of the thing pledged until the principal obligation is fully paid including interest due thereon and expenses incurred for its preservation. if owing and thereafter to the principal of his credit (Art. The person(s) constituting the pledge or mortgage have the free disposal of their property or that they are legally authorized for the purpose • The pledge has not right to use the thing pledged or to appropriate the fruits thereof without the authority of the owner. 2115) • •  • A pledge renouncing a pledge. Unilateral contract which creates an obligation only on the part of the creditor to return the thing pledged upon the fulfillment of the principal obligation 4. The pledgor or mortgagor must be the absolute owner of the thing pledged or mortgaged 3. (Art. income.  REAL MORTGAGE • Characteristics: 1. Even the rights of a mortgage or other encumbrances may be the object of another mortgage. REALTY AS SUBJECT MATTER – only real property or alienable rights and interest therein may be the subject matter of real estate mortgage. Real contract.  If the price of the sale is more than the amount due the creditor. 2132) unless there is a stipulation to the contrary.

• MORTGAGE DISTINGUISHED FROM ANTICHRESIS: 1.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. whoever the possessor may be. whether the transfer be with or without the consent of the mortgagee. to the fulfillment of the obligation for whose security it was constituted. INSEPARABILITY – the mortgage lien and the property affected are inseparable so that whoever may subsequently acquire title to the mortgaged property is bound by the terms of the mortgage. or creditors or their successors-in-interest. REAL RIGHT – a mortgage lien is a real right and as such it is good and binding against the whole world and may be enforced by real action against all persons who may have existing rights or interest in the same property. the creditor takes over it in case of Antichresis. REM is required to be constituted by means of a public instrument. unless there have been several things given in mortgage and each of them guarantees only a determinate portion of the obligation. If the • • BAR OPERATIONS 2011 Page 113 . 6. 3. to the principal obligation. another difference is in the formality required for their constitution. in M. if any still remain.. the debtor retains it in case of mortgage. In the latter case. the creditor does not gather or receive them. INDIVISIBILITY – even though the debt secured may be divided among the debtors. his mortgage credit. ACCESSORY OBLIGATION – the consideration of the mortgage is the same as that of the principal obligation it secures. it registered prior to the mortgage. 2130) The mortgagee has the right to alienate or assign to a third person. CM may be constituted in a private document only provided the latter is accompanied with an Affidavit of Good Faith. WITH RESPECT TO FRUITS – in A M. AS TO POSSESSION – if the property given in security. in a. A mortgage coupled with the delivery of the land to the creditor becomes an antichresis 2. the creditor generally receives them with the obligation to apply them to the payment of interest due and. the creditor is obliged to pay for the taxes and charges upon the estate. the mortgage shall remain as one and indivisible. 4. the creditor may claim from the third person in possession of the mortgaged property. it is the debtor who pays • REAL ESTATE MORTGAGE DISTINGUISHED FROM CHATTEL MORTGAGEaside from the subject matter. the payment of the aprt of the credit secured by the property which said third person possess. RETENTION OF POSSESION – the mortgagor retains possession of the mortgaged property inasmuch as a mortgage is a mere lien and title to the property does not pass to the mortgagee.. In A. The mortgage directly and immediately subjects the property upon which it is imposed. 3. The transfer of the mortgage credit does not affect the debtor unless he is notified of it. RACHELLE CASTRO 2. 5. in whole or in part. A stipulation forbidding the owner from alienating the immovable mortgaged shall be void (Art.

however. after the sale of the mortgage property. with interest. as amended. par. RIGHT OF REDEMPTION – is the right of the mortgagor. The right to claim payment of deficiency after foreclosure of real mortgage prescribes in ten (10) years.” • • - the Affidavit of Good faith is required to be appended to such mortgage and recorded therewith The absence of such affidavit vitiates a mortgage as against creditors and subsequent encumbrances. • REAL MORTGAGE AND CHATTEL MORTGAGE REGISTRATION – A deed of mortgage covering registered land is considered registered from the time the same is recorded in the entry book. There is no right of redemption. in case of a Chattel mortgage. CHATTEL MORTGAGE: • SUBJECT MATTER. and for no other purpose. and one not entered into for the purpose of fraud. 3135. RACHELLE CASTRO debtor pays to the original mortgagee in ignorance of the assignment. unenforceable as against third persons. he will be released from debt. within one year from the sale.only personal property including equity in shares of stock. the amount paid by him. • REDEMPTION BY MORTGAGOR: 1. vessels SALE OF CHATTEL MORTGAGE without consent of the mortgagee – Article 319. in judicial foreclosure under the Rules of Court. and that the same is a just and valid obligation. AFFIDAVIT OF GOOD FAITH – “We severally swear that the foregoing mortgage is made for the purpose of securing the obligations specified in the condition thereof. the EQUITY OF REDEMPTION is the right of the mortgagor after the judgment in foreclosure proceedings. to redeem the property by paying to the purchaser in the sale or to the sheriff who made the sale.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. growing crops even if they ate ‘ungathered products” they are considered personal property that may be the subject matter of a chattel mortgage. only equity of redemption. The right of redemption is provided in (1) foreclosure by banks or banking institutions as provided in their charters or in the General Banking Act. be valid as between the parties even in the absence of the affidavit of good faith. the document must be recorded in the chattel BAR OPERATIONS 2011 Page 114 . to pay into the court the amount of the judgment debt. and (2) extrajudicial foreclosures under Act No. within a period of not less than 90 days before the sale or confirmation of the sale. 2. however. The chattel mortgage may. • CLAIM FOR DEFICIENCY – the mortgagee has the right to claim for deficiency resulting from the price obtained in the sale of the property at public auction and the outstanding obligation at the time of the foreclosure proceedings. 2 of the Revised Penal Code provides – any mortgagor who shall sell or pledge personal property already pledged or mortgaged under the Chattel Mortgage Law without the consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the Office of the Register of Deeds of the province or city where such property is located incurs criminal liability.

it is indispensable that the possession of the property be held and retained by the creditor or someone else designated by common consent. • FORECLOSURE OF CHATTEL MORTGAGE. in pledge. • • • • • RIGHTS OF THE CREDITOR IN ANTICHRESIS: 1. the right to have the thing sold upon non-payment at maturity. antichresis is a real right and an accessory contract. which cannot exist without a valid principal obligation. In the firt. title in the property rests upon the purchaser and the confirmation retroacts to the date of the sale. Antichresis compared with pledge – 1. the contract shall be considered to be one of mortgage and • BAR OPERATIONS 2011 Page 115 . although their application is determined by law.it is a condition precedent that before foreclosure may be resorted to. entry in the Day Book is sufficient. in order that the creditor may administer the same and avail himself of the fruits. 2. without stating that said fruits are to be applied to the payment of interest. ANTICHRESIS: • “By the contract of antichresis the creditor acquires the right to receive the fruits of an immovable of his debtor. Antichresis is a consensual contract in the sense that it can be perfected without delivery of the thing pledged. the right to the fruits and income of the thing. It is not essential in antichresis that the property pass to the possession of the creditor or a third person. and afterwards to that of the principal of the credit. the contract may still subsist even if the possession of the thing given in security is returned to the debtor. 3. only real property or immovable may be the object of A.Chattel mortgage creditor may maintain an action for deficiency. (Sec. in Antichresis. 14. DEFICIENCY. 2. All rights of the mortgagor in the property terminates and is vested in the purchaser.” Art. But it differs from pledge in that it refers to immovable property . CML) EFFECT OF FORECLOSURE – when the foreclosure is validly confirmed by the court. 3. with the obligation to apply them to the payment of the interest. as when the creditor desires to be exempt from the obligation to pay its taxes and other expenses necessary for its preservation. there must be entry. As to subject matter. COMPARED WITH PLEDGE AND MORTGAGE – like pledge and mortgage. it is necessary that there be a violation of the condition of the chattel mortgage and that at least 30 days shall have elapsed since then. if owing and thereafter to the principal of his credit. and from mortgage in that the creditor has the right to receive the fruits of the thing.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. RACHELLE CASTRO mortgage register. it is movable or personal property’ to constitute a valid pledge. if any. the right to retain the thing until the debt is paid. the right of preference to the proceeds of the sale of the thing When a contract of loan with security does not stipulate the payment of interest but provides for the delivery to the creditor by the debtor of the real property constituted as security for the payment thereof. not only in the Day Book but also in the Chattel Mortgage Register. 2132. while in chattel mortgage. 4.

The sum spent for these purposes shall be deducted from the fruits. Prove the Prosecution. casual the contrary is connection proved. • • Payment of interest shall be specified in writing which is essential for the validity of the contract of Antichresis. between negligence and damage done BAR OPERATIONS 2011 Page 116 . The creditor.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. the creditor being entitled to ask the courts that the said real property be sold to satisfy his credit. malicious. DISTINGUISHED FROM OTHER SOURCES OF OBLIGATION: CONTRACT QUASI DELICIT Vinculum Juris Contract Negligent act/omission (culpa. ELEMENTS OF QUASI DELICT/TORTS 1. unless otherwise stipulated. Fault or negligence is present 4. There no pre-existing contractual relation between the parties 5. quasi-delicts A. ff. The debtor cannot recover the enjoyment and use of the real property given in antichresis thereon. EFFECT OF NON-PAYMENT OF DEBT – the creditor in antichresis cannot by mere possession of the real property which he received by virtue of an antichresis acquire ownership over the same for failure of the debtor to pay the debt within the stipulated time.: Accused is 1. If the fruits are not sufficient to cover the taxes and charges. negligence innocent until 3. any agreement to the contrary being void. Damage or injury is caused to another 3. is obliged to pay the taxes and charges upon the estate. He is also bound to pay the expenses necessary for its presevation and repair. Causal connection between damage done and act/omission B. unless there is a stipulation to the contrary. the deficiency shall be borne by the creditor. damage presumed 2. proof Prove the ff. RACHELLE CASTRO not antichresis. force Majeure Pre-existing There is precontract existing contract Burden of a Contractual party. in bad faith) Preponderance of Proof beyond evidence reasonable doubt Exercise of diligence of good father of a family in the selection and supervision of employees No pre-existing No pre-existing contract contract Victim. Existence of a contract 2. • ix. breach DELICIT Act or omission committed by means of dolo (deliberate. Act or omission 2. imprudence) Proof needed Defense available Preponderance of evidence Exercise of extraordinary diligence (in contract of carriage).: 1.

DEFENSES: 1. In cases where negligence is presumed or imputed by law. public policy considerations 2. the courts will leave them as they are. Causal connection between negligence and damage (to be actionable)Defendant’s negligence must be the proximate cause of injury sustained by the plaintiff to enable plaintiff to recover. b. E.GREEN NOTES IN CIVIL LAW Prepared by: ATTY.delict Liability of employer Solidary Reservation Civil aspect of the quasi requirement delict is impliedly instituted with criminal action. there can be no recovery 3. Doctrine of last clear chance.the theory here is that both parties are equally negligent.the adequate and efficient cause which in the natural order of events and under the particular circumstances surrounding the case. BAR OPERATIONS 2011 Page 117 . Damage/ injury 3. WHAT MUST BE PROVED Delict Subsidiary Civil aspect is impliedly instituted with criminal action Not a bar to recover civil damages 1. but under 2000 Crimpro Rules it is independent and separate Effect of judgement of Not a bar to recover civil acquittal in a criminal damages EXCEPT when case involving same judgement pronounces act/omision that the negligence from which damage arise is non-existence D. RACHELLE CASTRO C. DELICIT Difference Quasi. Concept of proximate cause.this is only rebuttable/presumption juris tantum. Principle of res ipsa loquitur (the thing speaks for itself).even though a person’s own acts may have placed him in a position of peril and an injury results.he is considered partly responsible only. if plaintiff’s own conduct is the cause of the injury there can be no recovery. 2. plaintiff must prove negligence of defendant Exception: a. to constitute a defense. would naturally produce the event.grounded on the difficulty in proving through competent evidence. may still recover from defendant but must be reduced by the courts in proportion to his own negligence.the theory here is that the plaintiff was also negligent together with the defendant. the injured is entitled to recover if the defendant through the exercise of reasonable care and prudence might have avoided injurious consequences to the plaintiff. Negligence. Thus. If plaintiff’s negligence is only contributory. Contributory negligence. proximate cause of injury or damage must be the negligence of defendant. CIVIL LIABILITY IN QUASI-DELICIT vs.in action for quasi-delict. This defense is available only in an action by the driver or owner of the other vehicle involved. Concurrent negligence.

there is no legal injury 9. FORTUITOUS EVENT. PRESCRIPTION Injury to right of plaintiff/quasi delict – 4 years Defamation . 10. EXERCISE OF DILIGENCE OF GOOD FATHER OF FAMILY IN SELECTION AND SUPERCVISION OF EMPLOYEES 11. DAMNUM ABSQUE INJURIA. or which through foreseen were inevitable Exception: assumption of risk 8. Joint tortfeasors 2. LAW. things.a person is not expected to exercise the same degree of care when he is compelled to act instinctively under a sudden peril because a person confronted with a sudden emergency may be left with no time for thought and must make a speedy decision upon impulse or instinct * applicable only to situations that are sudden and unexpected such as to deprive actor of all opportunity for deliberation * but action must still be judged by the standard of the ordinary prudent man * absence of foreseeability 5. 7.a principle that involves damage without injury.Responsibility for fault or negligence under quasi delict is entirely separate and distinct from civil BAR OPERATIONS 2011 Page 118 . Defendant knew of such position of the plaintiff c.GREEN NOTES IN CIVIL LAW Prepared by: ATTY.no person shall be responsible for those events which cannot be foreseen.1 year When no specific provision. therefore no liability is incurred. DOCTRINE OF ASSUMPTION OF RISKVolenti non fit injuria * Intentional exposure to a known danger * One who voluntarily assumed the risk of an injury from a known danger cannot recover in an action for negligence or an injury is incurred * plaintiff’s acceptance of risk (by law/contract/nature of obligation) has erased defendant’s duty so that his negligence is not a legal wrong *Applies to all known danger 6.diligence is required by law/contract/ depends on circumstances of persons. Defendant had the least clear chance to avoid the accident by exercise of ordinary care but failed to exercise such last clear chance and d. RACHELLE CASTRO Elements: a. PROSCRIPTION AGAINST DOUBLE RECOVERY. EMERGENCY RULE. DUE DILIGENCE. Accident occurred as proximate cause of such failure Who may invoke: plaintiff Inapplicable to: 1. places. As against 3rd persons 4. A plaintiff was in a position of danger by his own negligence b.specific provision of law. Defendants concurrently negligent 3. must be counted from the day they may be brought 12.

Plaintiff has no legal capacity to sue e. In case of disagreement. Claim set forth in pleading has been paid. PERSONS VICARIOUSLY LIABLE. Public policy. Lack of jurisdiction over subject matter c. extinguished i. Condition precedent for filling claim has not been complied with F. Under their authority and BAR OPERATIONS 2011 Page 119 . Minor children Who live in their company Note: Father and mother shall jointly exercise parental authority over common children. Pleading asserting claim states no cause of action h.deeper pocket/capacity to pay 2. PERSONAL LIABLE QUASI-DELICT 1. 14.MOTION TO DISMISS a. 13.law on imputed negligence. there being no fault or negligence is obliged to pay for the damage done (art 2176) 2.whoever by act or omission causes damage to another. father’s decision shall prevail (art 211). abandoned.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. a person who himself is not guilty of negligence is made liable for conduct of another Reason: 1. There is another action pending between same parties for same cause f. Violation of duty on account of relationship. RACHELLE CASTRO action arising from the RPC but plaintiff cannot recover damages 2x for same act or omission of the defendant. Claim is unenforceable under the provision of statute of fraud j. Lack of jurisdiction over person of defendant b.guardians are liable for damages caused by the minor or incapacitated persons who are i.he is negligent a. TORTFEASOR. waived.) PARENTS.the father. and incase of his death or incapacity the mother are responsible for the damage caused by: i. Cause of action is barred by prior judgment /statute of limitations g.the obligation imposed in 2176 is demandable not only for one’s own act or omission but also for those persons for whom one is responsible (art 2180) VICARIOUS LIABILITY. b. Venue improperly laid d. ACT OR OMISSION IS NOT THE PROXIMATE CAUSE OF THE DAMAGE OTHER GROUNDS.) GUARDIANS. ii.

subsidiary liability of employer attaches in case of insolvency of employer for as long as the employer is engaged in business/industry) Defenses available to employers: i. head of establishment in Arts care are made expressly liable and Trades are made expressly liable Liability of school. students and apprentices ii.those given the authority and responsibility shall be solidarily and principally liable for damages caused by act/omission of the unemancipated minor.) EMPLOYERS. entity or institution engaged in child care shall have special parental authority and responsibility over the minor child under their supervision.employers shall be liable for damages caused by their employees and household helpers i. RACHELLE CASTRO ii. admin. Family code.) SCHOOLS. j.) STATE. TEACHER. In the service of the branches in which he latter are employed OR ii.The school.) OWNERS AND MANAGER OF ESTABLISHEMENT/ENTERPRISE. DIFFERENCE BETWEEN ARTICLES 218 AND 2180 ART 218 ART 2180 School. teachers engaged in child Teachers. admin. as long as they remain in their custody Note: Family code.owners and managers of establishment or enterprise are responsible for damages caused by their employees i. or institution). ADMINISTRATOR. instruction or custody( authority and responsibility shall apply to all authorized activities whether inside or outside the premises or the school. Pupils. even though the former are not engaged in any business or industry (unlike in RPC. act/omission was made outside working hours and in violation company’s rules and regulations e.teachers or heads of establishments of arts and trades shall be liable for damages caused by their: i. art 218. judicial guardian or person exercising substitute parental authority over said minor shall be subsidiarily liable.the state is responsible when it acts through a special agent. parents. entity. Acting w/in the scope of their assigned task ii. Exercise of due diligence in election and supervision of employees of ii.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. teachers is No such express solidary nor subsidiary solidary and parents are made liability is stated subsidiary liable Students involved must be minor Students involved not necessarily minor Issues: BAR OPERATIONS 2011 Page 120 . art 219. its administration and teachers or the individual. but not when the same is caused by an official to whom task doe properly pertains in which case art 2176 is applicable f. Live in their company c. in occasion of their function d.

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1. Whether or not schools are liable?Gen rule: schools are not liable as partly defendants exception: a.) FC 218- schools are expressly made liable b.) St. Francis case rule- school’s liability as employer c.) PSBA case ruling- school has liability based on contract So thatIf culprit is a teacher, follow St. Francis ruling (sue school as employer)

a.)

b.) If culprit is a stranger, follow PSBA ruling (sue school based on contract) c.) If culprit is a student- apply 2180

2. Does 2180 apply to school of Arts and Trades only? No. applies to all including academic institution per weight of jurisprudence based on obiter of Justice JBL Reyes in the Exconde case 3. Base of liability of teacher- principle of loco parentis (stand in place of parents) 4. So long as they remain in their custody • • Not literal anymore; before: boarding and living with teacher due to peculiar characteristic of trade and arts school As long as they are in the protective supervisory capacity of teacherspecial parental authority

3.

PERSONS EXPRESSLY MADE LIABLE BY LAW (even without fault) a. PROSSESSOR OF AN ANIMAL OR WHOEVER MAKES USE OF THEM EVEN IF THE ANIMAL IS LOST OR ESCAPED Except: 1. Force majeure 2. Fault of the injured or damaged person b. OWNER OF MOTOR VEHICLE- in motor vehicle mishap, the owner is solidarily liable with the driver if: 1. He was in the vehicle and 2. Could have through due diligence prevented the misfortune c. MANUFACTURERS & PROCESSORS OF FOODSTUFFS, DRINK, TOILET ARTICLES & SIMILAR GOODS- they are liable for death and injuries caused by any noxious or harmful substances used although no contractual relations exists between them and the consumers d. DEFENDANT IN POSSESSION OF DANGEROUS WEAPONS OR

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SUBSTANCES SUCH AS FIREARMS AND POISON- there is a prima facie presumption of negligence on the part of defendant if death or injury results from such possession Exception: The possession or use thereof is indispensable in his occupation or business e. PROVINCES, CITIES AND MUNICIPALITIES- shall be liable for damages for the death or injuries suffered by any person by reason of the defective condition of roads, streets, bridges, public buildings and other public works under their control or supervision f. PROPRIETOR OF BUILDING OR STRUCTURE- responsible for the damages resulting from any of the ff: i. ii. Total or partial collapse of building or structure if due to lack of necessary repairs Explosion of machinery which has not been taken cared of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place By excessive smoke, which may be harmful to persons or property By falling of trees situated at or near highways or lanes, if not caused by force majeure By emanations from tubes, canals, sewers or deposits of infectious matter constructed without precautions suitable to the place

iii. iv. v.

g. ENGINEER, ARCHITECT OR CONTRACTOR- if damage of building or structure is caused by defect in construction which happens within 15 years from construction; action must be brought within 10 years of collapse h. HEAD OF FAMILY THAT LIVES IN A BUILDING OR PART THEREOF- liable for damages caused by things thrown or falling from the same G. SPECIAL TORTS 1. Art 19, 20, 21 (catch-all provision) a. ABUSE OF RIGHTS (Art 19) i. ii. ELEMENTS: There is a legal right or duty Which is exercised in bad faith For the sole intent of prejudicing or injuring another b. GENERAL SANCTION (Art. 20) For all other provisions of law which do not especially provide their own sanction

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i.

ELEMENTS: In the exercise of his legal right or duty

ii. Willfully or negligently causes damage to another c. CONTRA BONUS MORES (Art 21) i. ii. iii. 2. 3. 4. ELEMENTS: There is an act which is legal But which is contrary to morals, good custom, public order or public policy And it is done with intent to injure

UNJUST ENRICHMENT- Arts. 22, 23, 2142 & 2143 OSTENTATIOUS DISPLAY OF WEALTH- Art. 25; thoughtless extravagance for pleasure or display during a period of public want or emergency VIOLATION OF RIGHT OF PRIVACY AND FAMILY RELATIONS Art. 26- every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The ff. acts though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: i. prying into the privacy of another’s residence ii. iii. iv. meddling with or disturbing the private life or family relations of another intriguing to cause another to be alienated from his friends vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition

5.

DERELICTION OF OFFICIAL DUTY OF PUBLIC OFFICERS May be brought by any person suffering from material or moral loss because a public servant refuses of neglects, without just cause to perform his official duty (art 27). REQUISITES: a. Defendant is a public officer charged with the performance of a duty in favor of the plaintiff b. He refused or neglected without just cause to perform such duty (ministerial) c. Plaintiff sustained material or moral loss as consequence of such non- performance d. The amount of such damages, if material

6. UNFAIR COMPETITION- unfair competition in agricultural, commercial, or industrial enterprises or in labor through the use of force, intimidation, deceit. Machination , or other unjust, oppressive or high-handed method (Art 28) 7. MALICIOUS PROSECUTION ELEMENTS:

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iii.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. That in bringing it the prosecutor acted without probable cause and d. NUISANCE a. omission. condition of property.those which are in their nature not nuisances. that is. or anything else which: i. Civil action 3. That it finally terminates in his acquittal c. the demand be first made upon owner or possessor of property to abate the nuisance ii. by improper and sinister motive 8. Abatement. managed. surroundings. steps must be made: i. or shock. defies. iv. or disregards decency or morality.affects a community or neighborhood or any considerable number of persons REMEDIES AGAINST PUBLIC NUISANCES: 1. VIOLATION OF RIGHTS AND LIBERTIES OF ANOTHER PERSON 9. RACHELLE CASTRO a. the ff. Public officers 2. or the manner in which they may be conducted. or annoys or offends the senses. PUBLIC. without judicial proceeding WHO MAY AVAIL OF REMEDIES: 1. b. DEFINITION. v. ii. but may become so by reason of their locality. Private persons.if nuisance is specially injurious to himself.any act of . or any body of water hinders or impairs use of property KINDS: NUISANCE PER SE. establishment. etc. that the abatement be approved by the district health officer and executed with the assistance of local police BAR OPERATIONS 2011 Page 124 . or obstructs or interferes with the free passage of any public highway or streets. that such demand has been rejected iii. That the defendant was himself the prosecutor/ he instignated his commencement b. That he was actuated by legal malice . Prosecution under the RPC or any local ordinance 2. injures or endangers the health or safety to others.denounced as nuisance by common law or by statute NUISANCE PER ACCIDENS.

DAMAGES BAR OPERATIONS 2011 Page 125 .000 PRIVATE. RACHELLE CASTRO iv. the ff.adequate compensation for a) The value of loss suffered b) Profits which oblige failed to obtain Exception: a. ii. demand be first made upon owner or possessor of the property to abate the nuisance That such demand has been rejected that the abatement be approved by the district health officer and executed with the assistance of local police that the value of destruction does not exceed P3. by stipulation IX. which takes the children who accepted it out of the category of a trespasser and put them in the category of invitees towards whom the owner of the premises or instrumentality owes the duty of ordinary care Kinds of Damages: (MENTAL) MORAL EXEMPLARY NOMINAL TEMPERATE ACTUAL LIQUIDATED 1. iii. DOCTRINE OF ATTRACTIVE NUISANCE.a class of cases within the general rule that one is liable for the injury resulting to another from failure to exercise the degree of care commiserate with the circumstances o The attractiveness of the premises or of the dangerous instrumentality to children of tender years is to be considered as an implied invitation. steps must be made: i. ACTUAL/COMPENSATORY. c.if nuisance is specially injurious to himself.000 iv. provided by law b.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. affect an individual or a limited number of individuals only REMEDIES AGAINST PRIVATE NUISANCES: (1) Civil action (2) Abatement. that the value of destruction does not exceed P3. without judicial proceedings WHO MAY AVAIL OF REMEDIES: (1) Public officers (2) Private persons.one that is not included in the foregoing definition.

) Forfeiture of bonds in favor of the government for the purpose of promoting public interest or policy (ex: bond for temporary stay of alien) CONTRACTS AND QUASI CONTRACTS 1. liquidated damages take the place of actual damages except when additional damages incurred 2. attorney’s fees.) Pray for the relief that claim for loss be granted 3.) Damages for death a) Minimum amount: P50.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. need to be pleaded 2. but not the necessary and inevitable result of the wrongful act.) If damages other than actual are sought 3.natural.) Loss or impairment of earning capacity (in case of physical disability) 3.000 b) Loss of earning capacity unless deceased had permanent physical BAR OPERATIONS 2011 Page 126 . It is sufficient that damages may be reasonably attributed to the nonperformance of the obligation • • CRIMES AND QUASI CRIMES Defendant is liable for all damages that are natural and probable consequence of the act/omission complained of Not necessary that damages have been foreseen or could have been reasonably foreseen a) VALUE OF LOSS SUFFERED. necessary and logical consequences of a particular wrongful act which result in injury. Damages in case of good faitha.) Plead or allege the loss GENERAL DAMAGE. Parties have foreseen or could have reasonably foreseen at time obligation was constituted 2. need not be specifically pleaded because the law itself implies or presumes that they resulted from the wrongful act SPECIAL DAMAGES.) Liquidated damages previously agreed upon.) Prove the loss WHEN LOSS NEED NOT BE PROVED: 1.) Loss is presumed (ex: loss of a child or spouse) 4. fines or penalties. Natural and probable consequence of breach of obligation and b. medical and hospital bills.damages which are the natural. Damages in case of bad faith a. RACHELLE CASTRO WHAT MUST BE DONE TO COLLECT ACTUAL DAMAGES: 1. cost of ligation Damages recoverable: 1.) Medical and hospital bills 2. interests.destruction of things.

Plaintiff derived some benefit as result of contract c. In case where exemplary damages are to be awarded. attorney’s fees (other than judicial costs) are not recoverable. that the defendant acted upon the advise of counsel d. laborers and skilled workers i) Actions for indemnity under workmen’s compensation and employer liability laws j) Separate civil action to recover civil liability arising from crime k) When double judicial costs are awarded 5. except: a) Stipulation between parties b) When exemplary damages are awarded c) When defendant’s act/omission compelled plaintiff to litigate with 3rd persons or incur expenses to protect his interest d) Malicious prosecution e) Clearly unfounded civil action or proceeding against plaintiff f) Defendant acted in gross and evident bad faith in refusing to satisfy plaintiff’s just and demandable claim g) Legal support actions h) Recovery of wages of household helpers.) Judicial costs 6. the defendant has done his best to lessen the plaintiff’s loss or injury 3. That since the filing of action. Plaintiff has contravened the terms of contract b. quasi-contracts and quasi-delicta. MORAL DAMAGES-(PBMF-MWSS) ] BAR OPERATIONS 2011 Page 127 .GREEN NOTES IN CIVIL LAW Prepared by: ATTY.discretionary on part of the court WHEN DAMAGES MITIGATED: 1. That the loss would have resulted in any event e.) In contracts. RACHELLE CASTRO disability not caused by defendant so that deceased had no earning capacity at time of death c) Support.) Contributory negligence 2.) Interest. if deceased was obliged to give support (for period not more than 5 years) d) Moral damages 4.) Attorney’s fees.as a general rule.

Physical suffering b. j. Illegal search g. Quasi-delicts causing physical injuries c. slander or other form of defamation h. Illegal or arbitrary detention or arrest f. raped or abused l. abducted. Wounded feelings g. rape or other acts of lasciviousness d. Social humiliation h. Spouse. Adultery and concubinage e. 32. The parents of the female seduced . abduction. ascendants and brother and sisters for acts mentioned in art 309 BAR OPERATIONS 2011 Page 128 . descendants. Fright e.26. RACHELLE CASTRO a. Libel. Moral shock f. Besmirched reputation c. by reason of defendant’s culpable action and not intended to enrich a complainant at the expense of defendant IN WHAT CASES MAY MORAL DAMAGES BE RECOVERED (enumeration not exclusive): a. and 35 k. 28. 29. 34. Acts mentioned in art 309 of the RPC relating to disrespect of the dead and interference with the funeral Acts and actions referred to in arts 21. Serious anxiety Notes: • Sentimental value of real or personal considered in adjudicating moral damages property may be • The social and economic/financial standing of the offender and the offended party should be taken into consideration in the computation of moral damages • Moral damages is awarded only to enable the injured party to obtain means. 30. Seduction. Criminal offense resulting in physical injuries b. diversions or amusements that will serve to alleviate the moral suffering he has undergone. Malicious prosecution i.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. 27. Mental anguish d.

adjudicated in order that a right of the plaintiff. Right of plaintiff is violated c. temperate. (Business Managers) (PRO) Rachelle May Gallego Paul Dean Mark Pila (SSG Representative) (Ex-officio) Brenda Filipinas Danganan Atty. may be vindicated or recognized.imposed by way example or correction for the public good. EXEMPLARY OR CORRECTIVE DAMAGE. in addition to the moral. Partial or irregular performance 6. Some pecuniary loss b.GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Must be reasonable 5. liquidated to compensatory damages. Isagani Calderon BAR OPERATIONS 2011 Page 129 . Carillo (Treasurer) Art Miguel B. and not for the purpose of indemnifying the plaintiff for any loss suffered by him ELEMENTS: a. Sanlao and Angelito Velasquez Jr. which has been violated or invaded by the defendant. Iniquitous or unconscionable b. Purpose is not to identify but vindicate or recognize right violated 4. TEMPERATE OR MODERATE DAMAGES-more than nominal but less than compensatory where some pecuniary loss has been suffered but its amount can’t be proved with certainty due to the nature of the case REQUISITES: a.in cases of willful injury to property or breaches of contract where defendant acted fraudulently or in bad faith 3. NOMINAL DAMAGES. Plaintiff has a right b. ******************************************************************* THE BARRISTERS’ CLUB OFFICERS: Virgel Amor Vallejos (Chancellor) (Secretary) Seychelles June M. Art 2220.those agreed upon by the parties to a contract. Loss is incapable of pecuniary estimation c. RACHELLE CASTRO m. Doringo Janilet Mishelle R. to be paid in case of breach thereof WHEN LIQUIDATED DAMAGES MAY BE EQUITABLY REDUCED: a. LIQUIDATED DAMAGES.

GREEN NOTES IN CIVIL LAW Prepared by: ATTY. Agranzamendez (Dean.College of Law) BAR OPERATIONS 2011 Page 130 . RACHELLE CASTRO (Adviser) Atty. Reynaldo U.