PRE-WEEK REVIEW ON CIVIL LAW

1) When do laws take effect in the Philippines?

Ans:

15 days after publication in the Official Gazette or in a newspaper of general circulation,

unless it is otherwise provided in the law (Art. 2, Civil Code).

2) a. What is the effect of the acts executed against the mandatory and prohibitory provisions of law?
Ans:

Acts done in contravention of prohibitory and mandatory provisions of law are null and void,
except when the law itself provides for their validity (Art. 5, NCC)

b. State at least 3 exceptions when acts executed against mandatory laws are valid. (see page 3,
ibid)
3) What is the concept of Stare decisis?
Ans:

Judicial decisions interpreting the law shall form part of the Philippine legal system (Art. 8,
NCC)

1) A & B, both Filipino got married. B became naturalized American citizen and got a divorce decree
against A in Rino, Nevada. Divorce is recognized in the United States, but not in the Philippines.
A subsequently got married to C.
a) Is the marriage of A to C valid under Philippine law?
Ans:

Yes. In Llorente vs. Llorente, decided by the Supreme Court of the Philippines in 2000,
the marriage under identical facts was held to be valid, applying the nationality principle to
B under Article 15 of the Civil Code which provides that laws relating to family rights and
duties, or the status, condition and legal capacity of persons are binding upon citizens of
the Philippines, even though living abroad.
Since B was an American when he obtained the Divorce decree, US law, which recognizes
absolute divorce, applies.
In the recent case of Republic vs. Orbecido, decided in 2005, the Supreme Court,
interpreting Article 26, paragraph 2, ruled that:
The intent of par. 2, Article 26 is to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after obtaining a divorce,
is no longer married to the Filipino spouse.
The reckoning point is not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at the time a valid divorce is
obtained abroad by the alien spouse capacitating him to remarry.

2) Will your answer be the same, if B obtained first the Divorce decree before becoming a naturalized
American citizen?
Ans:

No. In Republic vs. Iyoy, 470 SCRA 519 (Sept. 21, 2005), the Supreme Court held that
Article 26, paragraph 2 is not applicable to a Filipino spouse who became a naturalized
American after obtaining the divorce decree. When the divorce decree was obtained, he
was still a Filipino citizen bound by Philippine laws on family rights and duties, status,
condition and legal capacity.

3) A, married to B, got an illegal Divorce against B in the US and then married C. C got mad at A upon
learning that their marriage is void. A filed an action to declare his marriage to B a nullity under Art.
36 of the Family Code. May C intervene in said action?

Notes of hotjurist

In foro conscientiae

Ans:

No, she has no legal interest because she was never a legal wife of the Petitioner. Her
marriage to him is void because at the time of her marriage to the Petitioner, the latter was
still lawfully married to B. (Elmar Perez vs. Court of Appeals and Tristan Catindig,
G.R. No. 162580)

4) Is a Psychiatric report a mandatory requirement in an action to declare nullity of the marriage based
on psychological incapacity under Art. 26 of the Family Code?
Ans:

Psychological incapacity, as a ground for declaring the nullity of a marriage, may be

established by the totality of evidence presented. There is no requirement, however, that
the respondent should be examined by physician or a psychologist as a condition sine quo
non for such declaration. (Marcos vs. Marcos, G.R. No. 136490, Oct. 19, 2000)

1) What is the doctrine of triennial cohabitation?

Ans:

The husband is presumed impotent if the wife remains a virgin after living together for 3
years. (US jurisprudence).

2) Enumerate the instances when fraud constitutes a ground for annulment of marriage.
Ans:

Concealment or non-disclosure of:

1. Previous conviction of crime involving moral turpitude.
2. Being pregnant by another man at the time of the marriage.
3. Sexually transmissible disease (STD) existing at the time of the marriage.
4.

Drug addiction, habitual alcoholism, homosexually or lesbianism existing at the time of

the marriage (Art. 46, F.C.).

Note: No other misrepresentation or deceit as to character, health, rank fortune or chastity

shall constitute such fraud as will give grounds for action for the annulment of marriage.
(Art. 46, FC)
3) In what cases between members of the same family is earnest effort for compromise not
required/necessary?
Ans:

In the following cases which may not be the subject of compromise:

(1) The civil status of persons;
(2) The validity of a marriage or legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.

4) Are chronic lying and fantasizing a ground for declaration of nullity based on psychological
incapacity under Article 36 of the Family Code?
Ans:

Yes, as held by the Supreme Court in a recent case where inveterate lying impairs the
capacity of the liar to perform essential marital obligation, pre-existing and present at the
time of the celebration of the marriage, grave and incurable.

V
1) a) When may the illegitimate children use the surname of the natural father?

Notes of hotjurist

In foro conscientiae

Ans:

When their filiation has been expressly recognized by their father through (1) the record of
birth appearing in the civil registrar (2) in a public document (3) or private handwritten
instrument of the father.
There is no need to go to court to establish filiation and authorization to use the surname of
the father.
Aside from the foregoing, filiation may be established by (1) the open and continuous
possession of the status of an illegitimate child; or (2) any other means allowed by the
Rules of Court and special laws. (Art. 172, Civil Code).

b) Is DNA test admissible proof of parentage?

Ans:

Yes, it is a recognized proof of paternity and filiation.

2) a) When may entries in the civil registry be corrected without a judicial order?
Ans:

For clerical or typographical errors and change of first name or nickname.

3) What are the requirements for a decree of declaration of nullity to be final and executory where
there are assets for partition and there are children borne of the marriage declared null and void?
Ans:

There must be a partition and delivery of the presumptive legitime to the children.

V
1) Is the sale of the reclaimed and the submerged area of Manila Bay to AMARI, a private corporation
valid? Reasons.
Ans:

No, for the following reasons:

a. The sale of the reclaimed lands in Manila Bay registered in the name of PEA falling
under lands of the public domain in favor of AMARI, a private corporation is void for
being contrary to Section 3, Article XII of the 1987 Constitution which prohibits private
corporations from acquiring any kind of alienable land of the public domain.
b. The sale of the still submerged area of Manila Bay to AMARI is void for being contrary
to Sec. 2, Art XII of the 1987 Constitution which prohibits the alienation of natural
resources other than agricultural lands of the public domain.
c.

Private corporations cannot hold, except by lease, alienable lands of the public
domain.

d. Submerged lands, like the waters (sea or bay) above them, are part of the States
inalienable natural resources. Submerged lands are property of public dominion,
absolutely inalienable and outside the commerce of man. This is also true with respect
to foreshore lands. Any sale of submerged or foreshore lands is void being contrary to
the Constitution.
2) Is the salvage zone capable of private ownership and titling?
Ans:

Yes. The salvage zone consisting of lands measuring twenty (20) meters measured
landward from the interior limit of the shoreline is capable of private ownership and being
validly covered by a Torrens Title subject to the easement of public use, more specifically
easement of salvage and costal police imposed by law. (Maristela vs. Director of Lands,
et. al., G.R. No. 34901-R, September 7, 1968; 65 O.G. No. 46, pp. 12744-12747; Art. 9,
Spanish Law of Waters of 1886; Article 51, Water Code; Art. 420, new Civil Code)

3) What is the doctrine of indefeasibility of torrens titles?

Ans:

A certificate of title, once registered, should not thereafter be impugned, altered, changed,
modified, enlarged or diminished except in a direct proceeding permitted by law. The
resolution of the issue is, thus, not dependent on the report of the survey team filed in the
trial court. (De Pedro v. Romasan, G.R. No. 158002, February 28, 2005)

4) Who is an innocent purchase in good faith of registered land?

Notes of hotjurist

In foro conscientiae

Ans:

Where the real property involved is covered by a Torrens title, the buyer, mortgagee, or,
any person dealing with said realty need not go beyond what appears on the face of the
title. He is charged with notice only of such burdens and claims as are annotated on the
title. (Clemente vs. Razo, G.R. No. 151245, March 04, 2005)

5) Is the above rule applicable to banks?

Ans:

No. Banks, their business being impressed with public interest, are expected to exercise
more care and prudence than private individuals in their dealings, even those involving
registered lands. Hence, for merely relying on the certificates of title and for its failure to
ascertain the status of the mortgaged properties as is the standard procedure in its
operations, the bank is a mortgagee in bad faith. (Consolidated Rural Bank vs. CA, G.R.
No. 132161, January 2005)

6) What are the requisites for legal easement of right of way?

Ans:

The following:

a) It is surrounded by other immovables and has no adequate outlet to a public highway;

b) payment of proper indemnity;
c) the isolation is not the result of its own acts;
d) the right of way claimed is at the point least prejudicial to the servient estate; and
e)

to the extent consistent with the foregoing rule, where the distance from the dominant
estate to a public highway may be the shortest. (Sps. dela Cruz vs. Ramiscal, G.R. No.
137882, February 4, 2005)

V
1) A constructed a building on the land of B knowing that the land belongs to B. A arranged for the
issuance of a fraudulent title over the land in his name.
a) What are the rights of B with respect to the building?
b) Will your answer be the same if A were in good faith?
Ans:
a) Because A is in bad faith, B may demand demolition of the building at the expense A,
or he may compel A to pay the price of the land.
b) No. If A were in good faith, he cannot be compelled to buy the land if its value is
considerably more than that of the building, if the owner does not choose to
appropriate the building after proper indemnity. He shall pay reasonable rent.
(Rosales vs. Casteltort, October 5, 2005)
2) a) What are the two stages in expropriation proceedings?
Ans:

Expropriation proceedings consists of two stages: first, condemnation of the property after
it is determined that its acquisition will be for a public purpose or public use and, second,
the determination of just compensation to be paid for the taking of private property to be
made by the court with the assistance of not more than three commissioners. (NHA vs.
Givelondo, 404 SCRA [2003])

b) What is the concept of public use?

Ans:

The concept of public use is no longer limited to traditional purposes. Here, as elsewhere,
the idea that public use is strictly limited to clear cases of use by the public has been
abandoned. The term public use has now been held to be synonymous with public
interest, public benefit, public welfare, and public convenience. (Reyes vs. NHA, 395
SCRA 494 [2003])
c) What is the interest rate in expropriation cases?

Notes of hotjurist

In foro conscientiae

Ans:

Legal rate is 6% from the time of taking to the time of payment. Back rentals not
recoverable. (MIAA vs. Rodriguez)

V
1) What are the requisites of:
c)

Reserva Troncal (p. 90, 1st Study Guide for the Bar)

d) Fideicommissary Substitution (p. 90, 2nd Study Guide for the Bar)
2) What is disposicion captatoria? Is it valid? What is its effect on the testamentary disposition?
Ans:

The condition that the heir shall make some provision in his will in favor of the testator or of
any other person is what is known as a condition captatoria. Consequently, if the testator
makes a testamentary disposition in his will subject to such a condition, it is known as a
disposicion captatoria. Under our law, not only the condition but the entire testamentary
disposition shall be void (Art. 875, NCC). The reason for this is that sucession is an act of
liberality and not a contractual agreement. Besides, to permit it would impair the heirs
freedom of disposition with respect to his own property. Furthermore, it would be equivalent
to allowing the testator to dispose of the property of another after the latters death (6
Manresa 241).

3) Distinguish between the free portion and the disposable free portion?
Ans:

Where there are other heirs entitled to legitime, like illegitimate children who are entitled to
of the legitime of the legitimate children, the legitime of the latter shall be taken from the
free portion consisting of of the hereditary estate. The free portion shall no longer be
disposable if the decedent is survived by legitimate children or descendants, the surviving
spouse, and several illegitimate children so that there is nothing left for free disposal (Art.
895, NCC), such as when there is a concurrence of one legitimate child, the surviving
spouse, and 2 or more illegitimate children.

4) Define or explain the following concepts in succession:

a) accretion.
b) collation
Ans:
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 decedent, is added or incorporated to
that of his co-heirs, co-devisees, or co-legatees. (Art. 1015, NCC)

b) Collation, under Arts. 1061 to 1077 of the NCC, refers to the act of restoring to the
common mass of the hereditary estate, either actually or fictitiously, any property or
right, which a compulsory heir, who succeeds with other compulsory heirs, may have
received by way of donation or any other gratuitous title from the decedent, during the
lifetime of the latter, but which is understood for legal purposes as an advance of his
legitime.

V
1) What are the requisites of a contract?
Ans:

The following: (1) consent (2) object certain (3) cause or consideration.

2) What is a contract-implied-in-fact? Give an example (see p. 101, 1st Study Guide for the Bar)
3) What are the essential characteristics of contracts?
a) Obligatory force binding on the parties.
b) Relativity of contract binding only on the parties except where there is a stipulation pour atrui in
favor of a third party accepted by the latter.

Notes of hotjurist

In foro conscientiae

c) Mutuality of contracts based on essential equality between the contracting parties. The obligation
is void for being potestative if its compliance and validity depends exclusively upon the will of one of
the contracting parties.
d) Autonomy or freedom of contracts the parties may make any stipulation or covenant provided that
it is not contrary to law, morals, good customs or public policy.
e)

Complimentarity of contract or contracts construed together principle the implementing

agreement cannot vary the main agreement of which it is a part.

X
1) A sells his car to B to be delivered to and be paid by B after one week. On the 3rd day, the Car is hit
by lightning and is totally wrecked.
Who bears the risk of loss?
Ans:

A because ownership still remains with him and will be transferred to the Buyer only upon
delivery. The owner bears the risk of loss. Res perit domino. B is not obliged to pay A.

2) a. Distinguish between conventional subrogation of rights of creditors and assignment of credit.

b. Does assignment of credit require the consent of creditors?
Ans:

No. Mere notice to creditor is sufficient. Please read pp. 134 to 136 of the 2nd Study Guide
for the Bar for a comprehensive discussion)

3) a. Define obligation?
Ans:

A judicial necessity to give, to do or not to do (Art. 1156).

b. What are the sources of obligation?

Ans:
1) Law, e.g., support, easement.
2) Contract law between the parties provided it is not contrary to law, morals, good
customs, public order or public policy.
3) Quasi-contract based on the equitable principle of unjust enrichment.
a)

solutio indebeti to return what is received by mistake; and

b) negotionism gestio to compensate for any benefit done even without an

agreement. In the Revised Penal Code, under Justifying Circumstance No. 4, Art. 11,
the person benefited by avoidance of greater evil or injury is civilly liable for the
damage, the only justifying circumstance when there is a civil liability involved in
consonance with the equitable principle to prevent unjust enrichment at the expense of
another. The person benefited, not the actor, is liable.
4) Felonies acts or omissions punishable by law.
5) Quasi-delicts or tortuous acts by any person who, there being fault or negligence causes
damage to another.
c. Define the following:
1) Fortuitous event
2) Expromision
3) Delegacion
4) Novation
5) Dacion en pago

Notes of hotjurist

In foro conscientiae

d. What are the different kinds of an obligation? (read 2nd Study Guide for the Bar pp. 115-131)
e. What are the modes of extinguishing an obligation?
Ans:

The following:
1) NO Novation
2) CO Compensation
3) RE Remission or Condonation of debt
4) PA Payment or performance
5) LO Loss of the thing due
6) AN Annulment
7) RE fulfillment of a Resolutory condition
8) RE Rescission
9) PRES - Prescription

X
1) Explain the concept and nature of natural obligations.
Ans:

Natural obligations, not being based on positive law but on equity and natural law, do not
grant a right of action to enforce their performance, but after voluntary fulfillment by the
obligor, they authorize the retention of what has been delivered or rendered by reason
thereof (Art. 1423).

2) What is the concept of quasi-contracts?

Ans:

Article 2142. Certain lawful, voluntary and unilateral acts give rise to the juridical relation of
quasi-contract to the end that no one shall be unjustly enriched or benefited at the
expense of another.

3) Define:
a. Negotiorum gestio
b. Solutio Indebiti
Ans:
a.

Negotiorum gestio Article 2144. Whoever voluntarily takes charge of the agency or
management of the business or property of another, without any power from the latter, is
obliged to continue the same until the termination of the affair and its incidents, or to
require the person concerned to substitute him, if the owner is in a position to do so.

b.

Solutio Indebitii Article 2154. If something is received when there is no right to demand
it, and it was unduly delivered through mistake, the obligation to return it arises.

X
1) Are corporations entitled to recover moral damages?
Ans:

As a general rule, a corporation is not entitled to recover moral damages because it is

incapable of feeling pain and mental anguish. However, it may recover damages in case of
libel or defamation.

2) A marries B while As marriage to C has not been dissolved. C sues A for Bigamy. Thereafter, A
files a case for annulment of marriage against C on the ground of fraud.

Notes of hotjurist

In foro conscientiae

May the criminal action be suspended on the ground of Prejudicial Question? Give 2 reasons.
ANS:

No. (1) Under the new rule, the civil action must have been filed ahead of the criminal
action for prejudicial question to apply.
(2) The issue in the civil case is not determinative of the guilt or innocence of A in the
criminal case. Bigamy is committed by a person who contracts a second marriage while the
first marriage is subsisting and has not been dissolved. Whether the prior marriage is
dissolved or not, bigamy may be committed.

X
1) Is extra-judicial foreclosure before a notary public valid?
Ans:

Yes, it is allowed under Act 3135 (Tagunicar vs. Lorna Espress, February 28, 2006, J.
Gutierrez)

2) When may a mortgagor file a motion to set aside foreclosure sale in the same summary proceeding
for issuance of a writ of possession?
Ans:

Within 30 days from the time possession is turned over to the mortgagee or highest bidder.

3) Under the Recto law, may property be foreclosed other than the chattels acquired by the loan
secured by the chattel mortgage?
Ans:

No, because that would violate the rule against deficiency judgment in case of foreclosure
upon default in the payment of 2 or more installments. As held by the Supreme Court in a
case, the other property included in the chattel mortgage may not be foreclosed.

God Bless the 2008 BAR and its examinees.

Notes of hotjurist

In foro conscientiae