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TABLE OF CONTENTS

FORMAL REQUISITES .............................. 13


1. CEREMONY ........................................... 13
2. AUTHORITY OF THE SOLEMNIZING
OFFICER .................................................... 14
3. LICENSE REQUIRED ............................. 15
4. MARRIAGE CERTIFICATE .................... 16
D. LAW GOVERNING VALIDITY OF
MARRIAGES ABROAD ................................... 16
E. COMMON-LAW MARRIAGES .................... 17
F. VOID AND VOIDABLE MARRIAGES .......... 18
F. 1. VOID MARRIAGES ............................. 19
ARTICLE 40 (NO JUDICIAL DECLARATION
OF NULLITY).............................................. 19
BOTH
SPOUSES
ENTERING
A
SUBSEQUENT
MARRIAGE
AFTER
PRESUMPTIVE DEATH, WHO ACTED IN
BAD FAITH ............................................... 20
ARTICLE 53 (NON-RECORDING): ........... 23
F. 2. VOIDABLE OR ANNULLABLE
MARRIAGE ............................................... 26
G. THE LAW ON SEPARATION OF THE
SPOUSES ........................................................ 31

PERSONS & FAMILY RELATIONS. 1


I. EFFECT AND APPLICATION OF LAWS .....2
A. WHEN LAWS TAKE EFFECT ........................2
B. IGNORANCE OF THE LAW ..........................2
C. RETROACTIVITY OF LAWS ..........................2
D. MANDATORY OR PROHIBITORY LAWS ....2
E. WAIVER OF RIGHTS .................................... 3
F. REPEAL OF LAWS ........................................ 3
G. JUDICIAL DECISIONS .................................. 3
L. BINDING EFFECT ........................................ 4

II. PERSONS AND PERSONALITY ................5


A. CONCEPT OF PERSON AND PERSONALITY
..........................................................................5
B. COMMENCEMENT AND TERMINATION OF
PERSONALITY ..................................................5
C. DEATH ..........................................................6
D. JURIDICAL PERSONS.................................. 7
E. RESTRICTIONS ON CIVIL CAPACITY .......... 7
E. 1. PRESUMPTION OF CAPACITY ........... 7
E. 2. RESTRICTIONS ON CAPACITY TO
ACT .............................................................. 7
I. MINORITY ............................................... 8
II. INSANITY ............................................... 8
III. DEAF-MUTISM ..................................... 9
IV. PRODIGALITY ....................................... 9
INCOMPETENT INCLUDES PRODIGALS
(RULES OF COURT RULE 92, SEC 2) ....... 9
V. CIVIL INTERDICTION ............................. 9
VI. FAMILY RELATIONS............................. 9
VII. ALIENAGE ........................................... 10
VIII. ABSENCE ........................................... 10
F. DOMICILE AND RESIDENCE OF PERSON . 11

V. RIGHTS AND OBLIGATIONS OF


SPOUSES.....................................................38
A. LIVE TOGETHER ....................................... 38
B. FAMILY DOMICILE .................................... 38
C. SUPPORT .................................................. 38
D. MANAGEMENT OF FAMILY LIFE ............. 38
E. EFFECT OF NEGLECT OF DUTY ............... 38
F. EXERCISE OF PROFESSION ..................... 38

VI. PROPERTY RELATIONS OF SPOUSES. 39


A. MARRIAGE SETTLEMENTS ...................... 39
B. DONATIONS BY REASON OF MARRIAGE39

VII. FAMILY RELATIONS ............................. 57

III. FAMILY CODE.......................................... 11

THE FAMILY AS AN INSTITUTION .................57


EFFECTS OF FAMILY RELATIONSHIP ON
LEGAL DISPUTES ...........................................57
THE FAMILY HOME ........................................57
A. WHAT CONSTITUTES THE FAMILY
HOME? ......................................................57
B. WHO MAY CONSTITUTE THE FAMILY
HOME? ..................................................... 58
C. WHEN IS IT DEEMED CONSTITUTED?58
D. BENEFICIARIES ................................... 58
E. WHEN TERMINATED ........................... 59
F. WHEN IT MAY BE SOLD ...................... 59
G. RIGHTS OF CREDITORS ..................... 59

A. EFFECT AND RETROACTIVITY................... 11


B. REPEAL AND AMENDMENT ...................... 11

IV.
MARRIAGE
AND
PERSONAL
RELATIONSHIP BETWEEN SPOUSES ....... 12
A. CONCEPT OF MARRIAGE ......................... 12
B. AGREEMENTS PRIOR TO MARRIAGE ...... 12
C. REQUISITES ............................................... 12
KINDS OF REQUISITES AND EFFECTS OF
NON-COMPLIANCE.................................. 12
EFFECT OF ABSENCE OF REQUISITES ... 13
ESSENTIAL REQUISITES .......................... 13
1. GENDER ................................................ 13
2. AGE ....................................................... 13
3. CONSENT FREELY GIVEN .................... 13

VIII. PATERNITY AND FILIATION .............. 60


A. LEGITIMATE CHILDREN ........................... 60

TABLE OF CONTENTS
B. PROOF OF FILIATION ............................... 62
C. ILLEGITIMATE CHILDREN .........................63
D. LEGITIMATED CHILDREN ........................ 65

WHO ARE DISADVANTAGED CHILDREN:


................................................................... 77
PERSONS
EXERCISING
SPECIAL
PARENTAL AUTHORITY........................... 77

IX. ADOPTION ............................................ 66

XII. EMANCIPATION.................................... 77
XII. SUMMARY JUDICIAL PROCEEDINGS
UNDER FC ................................................... 78

A. WHO CAN ADOPT .................................... 66


B. WHO CAN BE ADOPTED ........................... 67
C. PRE-ADOPTION PROCEDURES .............. 68
D. ADOPTION PROCEDURES ...................... 69
E. WHO MAY NOT ADOPT/ BE ADOPTED ... 69
F. RIGHTS OF AN ADOPTED CHILD ............. 70
G. RESCISSION OF ADOPTION .................... 70
H. RECTIFICATION OF SIMULATED BIRTH . 71
I. RA 8043 THE LAW ON INTER-COUNTRY
ADOPTION ..................................................... 71
I. 1. WHO CAN ADOPT .............................. 72
I. 2. WHO CAN BE ADOPTED ................... 72

A. PROCEDURAL RULES PROVIDED FOR IN


THIS TITLE SHALL APPLY TO [ART. 238]: ... 78
B. SEPARATION IN FACT .............................. 78
C. INCIDENTS INVOLVING PARENTAL
AUTHORITY ................................................... 79

XIII. CARE AND EDUCATION OF CHILDREN


.................................................................... 80
XIV. SURNAMES ......................................... 81
A. SURNAMES OF CHILDREN ....................... 81
B. WIFE AFTER AND DURING MARRIAGE ... 81
C. CONFUSION AND CHANGE OF NAMES ... 81

X. SUPPORT ................................................ 73
A. WHAT IT COMPRISES................................ 73
B. WHO ARE OBLIGED................................... 73
C. SUPPORT DURING MARRIAGE LITIGATION
........................................................................ 75
D. AMOUNT .................................................... 75
E. WHEN DEMANDABLE ............................... 75
F. OPTIONS .................................................... 75
G. ATTACHMENT ........................................... 75

XV. RULES GOVERNING PERSONS WHO


ARE ABSENT ...............................................82
A. PROVISIONAL MEASURES IN CASE OF
ABSENCE [ARTS. 381-383] ........................... 82
B. DECLARATION OF ABSENCE, [ARTS. 384389] ................................................................ 84
C. ADMINISTRATION OF THE PROPERTY OF
THE ABSENTEE, [ARTS. 387-389] ............... 84
D. PRESUMPTION OF DEATH, [ARTS. 390392] ................................................................ 85

XI. PARENTAL AUTHORITY AND CUSTODY


OF CHILDREN ............................................. 75
PARENTAL AUTHORITY INCLUDES [ART.
209]: .......................................................... 75
CASES WHEN PARENTAL AUTHORITY
AND
RESPONSIBILITY
MAY
BE
TRANSFERRED OR RENOUNCED .......... 76
RULES AS TO THE EXERCISE OF
PARENTAL AUTHORITY .......................... 76
CHARACTERISTICS
OF
PARENTAL
AUTHORITY .............................................. 76
PARENTAL PREFERENCE RULE ............. 76
WHO EXERCISES AUTHORITY IN CASES
OF DEATH, ABSENCE, UNSUITABILITY,
REMARRIAGE, OR SEPARATION OF
PARENTS .................................................. 76
TENDER YEARS PRESUMPTION: ............ 77
PERSONS EXERCISING SUBSTITUTE
PARENTAL AUTHORITY IN DEFAULT OF
PARENTS OR JUDICIALLY APPOINTED
GUARDIAN ............................................... 77
SUBSTITUTE PARENTAL AUTHORITY
OVER DISADVANTAGED CHILDREN ...... 77

XVI. FUNERALS .......................................... 85


XVII. ENTRIES IN THE CIVIL REGISTER ..... 86
A.
ARTS. 407-413 .................................... 86
B. RA 9048 AS AMENDED BY RA 10172 ...... 87
C. RULE 108, RULES OF COURT .................. 89

PROPERTY ................................ 91
I. CHARACTERISTICS..................................92
II. CLASSIFICATION ....................................92
A. HIDDEN TREASURE ................................. 92
B. BASED ON MOBILITY [IMMOVABLE OR
MOVABLE] ..................................................... 92
B. 1. REAL OR IMMOVABLE PROPERTY . 92
B.2. PERSONAL OR MOVABLE ............... 94
TESTS TO DETERMINE MOVABLE
CHARACTER ............................................ 95
B. 3. IMPORTANCE AND SIGNIFICANCE
OF CLASSIFICATION UNDER THE NCC . 95
C. BASED ON OWNERSHIP/RIGHTS-HOLDER
....................................................................... 96
C.1. PUBLIC DOMINION ........................... 96

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TABLE OF CONTENTS
CHARACTERISTICS ................................. 96
CLASSIFICATIONS................................... 96
C.2. PRIVATE OWNERSHIP ......................97
KINDS ........................................................97
DETERMINATION
(TWO
DIFFERENT
VIEWS) ..................................................... 98
CONVERSION .......................................... 98
D. BASED ON CONSUMABILITY .................. 98
[NCC 418] ....................................................... 98
D.1. CONSUMABLE .................................. 98
D.2. NON-CONSUMABLE ....................... 98
E.
BASED
ON
SUSCEPTIBILITY
TO
SUBSTITUTION ............................................. 98
E.1. FUNGIBLES ....................................... 98
E.2. NON-FUNGIBLES ............................. 99
F. BASED ON THE CONSTITUTION [ARTICLE
XII, SEC 3]....................................................... 99
G. OTHER CLASSIFICATIONS....................... 99
G.1. BY THEIR PHYSICAL EXISTENCE..... 99
G.2. BY THEIR AUTONOMY
OR
DEPENDENCE ......................................... 99
G.3.
BY
SUSCEPTIBILITY
TO
DETERIORATION..................................... 99
G.4.
BY
REASON
OF
THEIR
SUSCEPTIBILITY TO DIVISION................ 99
G.5. BY REASON OF DESIGNATION ...... 99
G.6. EXISTENCE IN POINT OF TIME ....... 99

POLICE POWER ...................................... 102


PROPERTY
TAKEN
WITH
NO
COMPENSATION
FOR
GENERAL
WELFARE. ............................................... 102
TAXATION ............................................... 102
EMINENT DOMAIN ................................. 102
D.2. SPECIFIC LIMITATIONS: ................. 102
IMPOSED BY LAW, SIC UTERE TUO,
NUISANCE, STATE OF NECESSITY,
EASEMENTS, AND THOSE VOLUNTARILY
IMPOSED BY THE OWNER: SERVITUDES,
MORTGAGES IMPOSED BY CONTRACT.
................................................................. 102
SUMMARY OF ACTIONS ........................ 103

IV. ACCESSION.......................................... 104


A. CLASSIFICATION OF ACCESSION ..........104
A.1. WITH RESPECT TO IMMOVABLES ..104
ACCESSION DISCRETA ..........................104
PRINCIPLES APPLICABLE TO ACCESSION
DISCRETA ...............................................105
PRINCIPLES APPLICABLE TO ACCESSION
CONTINUA ..............................................105
A.2. WITH RESPECT TO MOVABLE
PROPERTY .............................................. 110
TYPES ...................................................... 110
CONJUNCTION / ADJUNCTION............. 110
MIXTURE .................................................. 111
SPECIFICATION ....................................... 111

III. OWNERSHIP.......................................... 99

V. QUIETING OF TITLE ............................... 112

A. DEFINITION AND CONCEPT .................... 99


B. TYPES OF OWNERSHIP ..........................100
C. RIGHT IN GENERAL .................................100
C.1. RIGHTS INCLUDED IN OWNERSHIP
[NCC 428] ................................................100
C.2. BUNDLE OF RIGHTS .......................100
C.3. PROTECTING PROPERTY ...............100
C.3.1 BASIC DISTINCTIONS ....................100
REAL RIGHTS V. PERSONAL RIGHTS ...100
REAL ACTION V. PERSONAL ACTION
(ROC, RULE 4 SEC 1-2) ...........................100
ACTION IN REM V. ACTION IN PERSONAM
V. ACTION QUASI IN REM .......................101
C.3.2. REMEDIES .....................................101
DOCTRINE OF SELF-HELP [NCC 429-430]
..................................................................101
ACTIONS TO RECOVER OWNERSHIP AND
POSSESSION OF PROPERTY .................101
D. LIMITATIONS ON OWNERSHIP .............. 102
D.1. GENERAL LIMITATIONS: ................ 102
TAXATION, EMINENT DOMAIN, POLICE
POWER ................................................... 102

OR INTEREST IN AND REMOVAL OR


PREVENTION OF CLOUD OVER TITLE TO OR
INTEREST IN REAL PROPERTY.................... 112
A. IN GENERAL.............................................. 112
B. PURPOSE .................................................. 112
C. NATURE: QUASI IN REM .......................... 112
D. JUSTIFICATIONS TO BRING AN ACTION TO
QUIET TITLE .................................................. 112
E. THE ACTION TO QUIET TITLE DOES NOT
APPLY: ........................................................... 112
F. REQUIREMENTS ....................................... 112
F.1. REQUISITES OF AN ACTION TO QUIET
TITLE ........................................................ 112
F.2. REQUISITES OF AN ACTION TO
PREVENT A CLOUD: ................................ 113
G. QUIETING OF TITLE V. REMOVAL OF
CLOUD ........................................................... 113
H. PRESCRIPTION / NON-PRESCRIPTION OF
ACTION .......................................................... 113
PRESCRIPTION OF ACTION.................... 113

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TABLE OF CONTENTS
VI. CO-OWNERSHIP ................................... 114

VII. POSSESSION ....................................... 119

A. REQUISITES .............................................. 114


B. WHAT GOVERNS CO-OWNERSHIP ......... 114
C. CHARACTERISTICS OF CO-OWNERSHIP114
D. SOURCES OF CO-OWNERSHIP ............... 115
D.1. LAW ................................................... 115
D.2. CONTRACT....................................... 115
D.3. INTESTATE SUCCESSION ............... 115
D.4. TESTAMENTARY DISPOSITION OR
DONATION INTER VIVOS........................ 116
D.5. BY FORTUITOUS EVENT OR BY
CHANCE ................................................... 116
D.6. BY OCCUPANCY .............................. 116
D.7. BY ASSOCIATIONS AND SOCIETIES
WITH SECRET ARTICLES ........................ 116
E. RIGHTS OF CO-OWNERS ......................... 116
E.1. RIGHT TO SHARE IN THE BENEFITS
AS WELL AS THE CHARGES [NCC 485] . 116
E.2. RIGHT TO USE THE THING OWNED IN
COMMON [NCC 486] .............................. 116
RIGHT TO BRING AN ORDER IN
EJECTMENT [NCC 487] ........................... 116
RIGHT TO COMPEL OTHER CO-OWNERS
TO CONTRIBUTE TO THE EXPENSES OF
PRESERVATION AND TO THE TAXES [NCC
488] .......................................................... 116
RIGHT TO REPAIR [NCC 489] ................. 116
RIGHT TO OPPOSE ALTERATIONS ........ 117
[NCC 491].................................................. 117
RIGHT TO FULL OWNERSHIP OF HIS
PART AND OF THE FRUITS AND
BENEFITS PERTAINING THERETO......... 117
[NCC 493] ................................................. 117
RIGHT TO PARTITION [NCC 494] ........... 117
RIGHT TO REDEMPTION [NCC 1619] ...... 117
F. RULES........................................................ 117
F.1. ON RENUNCIATION OF SHARE
(DIFFERENT FROM RENUNCIATION OF
CO-OWNERSHIP) .................................... 117
F.2. REPAIRS FOR PRESERVATION ....... 117
F.3.
EMBELLISHMENTS
OR
IMPROVEMENTS ..................................... 117
G. TERMINATION OR .................................... 118
EXTINGUISHMENT ....................................... 118
G.1. TOTAL DESTRUCTION OF THING OR
LOSS OF THE PROPERTY CO-OWNED .. 118
G.2. MERGER OF ALL INTERESTS IN ONE
PERSON ................................................... 118
G.3. ACQUISITIVE PRESCRIPTION ......... 118
G.4. PARTITION OR DIVISION ................ 118

A. CONCEPT OF POSSESSION .....................119


B. ESSENTIAL REQUISITES OF POSSESSION
.......................................................................119
C. DEGREES OF POSSESSION .................... 120
D. CASES OF POSSESSION ......................... 120
D.1. POSSESSION FOR ONESELF, OR
POSSESSION EXERCISED IN ONES OWN
NAME AND POSSESSION IN THE NAME
OF ANOTHER [NCC 524] ........................ 120
D.2. POSSESSION IN THE CONCEPT OF
AN OWNER, AND POSSESSION IN THE
CONCEPT OF A HOLDER WITH THE
OWNERSHIP BELONGING TO ANOTHER
[NCC 525]................................................ 120
D.3. POSSESSION IN GOOD FAITH AND
POSSESSION IN BAD FAITH [NCC 526] . 121
E. ACQUISITION OF POSSESSION .............. 122
E.1. WAYS OF ACQUIRING POSSESSION
[NCC 531] ................................................. 122
E.2. BY WHOM MAY POSSESSION BE
ACQUIRED [NCC 532]............................. 122
F. WHAT DO NOT AFFECT POSSESSION [NCC
537] ............................................................... 123
F.1. ACTS MERELY TOLERATED ............ 123
F.2.
ACTS EXECUTED CLANDESTINELY
AND WITHOUT THE KNOWLEDGE OF THE
POSSESSOR [NCC 1108] .............................. 124
F.3.
ACTS OF VIOLENCE AS LONG AS
THE POSSESSOR OBJECTS THERETO (I.E.
FILES A CASE) .............................................. 124
[NCC 536]...................................................... 124
RULES
TO
SOLVE
CONFLICTS
OF
POSSESSION [NCC 538] .............................. 124
G. EFFECTS OF POSSESSION ..................... 124
G.1. RIGHTS OF A POSSESSOR IN GOOD
FAITH ...................................................... 124
G.2. OBLIGATIONS OF A POSSESSOR IN
GOOD FAITH ........................................... 124
G.3. RIGHTS OF A POSSESSOR IN BAD
FAITH ...................................................... 124
G.4. OBLIGATIONS OF A POSSESSOR IN
GOOD FAITH ........................................... 125
G.5. RIGHT TO BE PROTECTED IN HIS
POSSESSION [NCC 539] ........................ 125
ACTIONS TO RECOVER POSSESSION .. 125
RULES ..................................................... 125
G.6. ENTITLEMENT TO FRUITS
POSSESSOR IN GOOD/BAD FAITH [NCC
544, 549] ................................................ 126

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TABLE OF CONTENTS
RIGHT OF THE POSSESSOR IN GOOD
FAITH ...................................................... 126
D. REIMBURSEMENT FOR EXPENSES
POSSESSOR IN GOOD/BAD FAITH ............ 127
[NCC 546-552].............................................. 127
D.1. NECESSARY EXPENSES ................. 127
D.2. USEFUL EXPENSES ........................ 127
D.3. EXPENSES FOR LUXURY ............... 127
E. LOSS OR UNLAWFUL DEPRIVATION OF A
MOVABLE PROPERTY ................................. 129
E.1.
POSSESSION
OF
MOVABLE
ACQUIRED IN GOOD FAITH (IN CONCEPT
OF OWNER) IS EQUIVALENT TO TITLE
[NCC 559] ................................................ 129
E.2. PERIOD TO RECOVER [NCC 1140, 1132,
1133] ......................................................... 129
E.3. FINDER OF LOST MOVABLE [NCC 719720] ......................................................... 129
E.4. DISTINGUISHED FROM VOIDABLE
TITLE [NCC 1506] .................................... 129
F. EFFECTS OF POSSESSION IN THE
CONCEPT OF AN OWNER ........................... 130
PRESUMPTION IN FAVOR OF THE
POSSESSORFOR
ACQUISITIVE
PRESCRIPTION ............................................ 130
G. LOSS/TERMINATION OF POSSESSION
[NCC 555] ...................................................... 131
G.1. ABANDONMENT .............................. 131
G.2. ASSIGNMENT, EITHER GRATUITOUS
OR ONEROUS.......................................... 131
G.3. POSSESSION BY ANOTHER; IF
POSSESION HAS LASTED LONGER THAN
ONE YEAR; REAL RIGHT OF POSSESSION
NOT LOST AFTER 10 YEARS SUBJECT
TO NCC 537.............................................. 131
H. RULES FOR LOSS OF MOVABLES ......... 132
I. KINDS OF ANIMALS .................................. 132

AS TO THE FRUITS ................................. 134


AS TO THE OBJECT ................................ 134
C.5. BY THE TERMS OF THE USUFRUCT
................................................................. 134
D. RIGHTS AND OBLIGATIONS OF
USUFRUCTUARY ......................................... 134
D.1. RIGHTS AS TO THE THING AND ITS
FRUITS .................................................... 134
RIGHT TO ENJOY THE PROPERTY ........ 134
HIDDEN TREASURE ............................... 135
RIGHT TO FRUITS PENDING AT THE
BEGINNING OF USUFRUCT ................... 135
RIGHT TO CIVIL FRUITS ......................... 135
RIGHT TO ENJOY ANY INCREASE
THROUGH
ACCESSIONS
AND
SERVITUDES, INCLUDING PRODUCTS OF
HUNTING AND FISHING. ....................... 135
RIGHT TO LEASE THE THING ................ 135
RULES AS TO LEASE .............................. 136
RIGHT TO IMPROVE THE THING, BUT
IMPROVEMENT INURES TO THE BENEFIT
OF THE NAKED OWNER ........................ 137
D.2. RIGHTS AS TO THE LEGAL RIGHT OF
USUFRUCT ITSELF ................................. 137
RIGHT TO MORTGAGE RIGHT OF
USUFRUCT ............................................. 137
RIGHT TO ALIENATE THE USUFRUCT
EXCEPT
IN
PURELY
PERSONAL
USUFRUCTS
OR
WHEN
TITLE
CONSTITUTING IT PROHIBITS THE SAME
................................................................. 137
D.3. OBLIGATIONS AT THE BEGINNING
OF THE USUFRUCT OR BEFORE
EXERCISING THE USUFRUCT................ 137
TO MAKE AN INVENTORY ..................... 137
TO GIVE A BOND FOR THE FAITHFUL
PERFORMANCE
OF
DUTIES
AS
USUFRUCTUARY.................................... 138
D.4. DURING THE USUFRUCT ............... 138
TO TAKE CARE OF THE THING LIKE A
GOOD FATHER OF A FAMILY ................ 139
TO UNDERTAKE ORDINARY REPAIRS . 139
TO NOTIFY OWNER OF NEED TO
UNDERTAKE EXTRAORDINARY REPAIRS
................................................................. 139
TO PAY FOR ANNUAL CHARGES AND
TAXES ON THE FRUITS ..........................140
TO NOTIFY OWNER OF ANY ACT
DETRIMENTAL TO OWNERSHIP ...........140
(NCC 601) .................................................140

VIII. USUFRUCT ......................................... 132


A. OBJECTS OF USUFRUCT ........................ 132
B. CHARACTERISTICS ................................. 132
B.1. NATURAL CHARACTERISTICS ....... 132
C. CLASSIFICATION ..................................... 133
C.1. BY ORIGIN ........................................ 133
C.2. BY PERSON ENJOYING THE RIGHT OF
USUFRUCT ............................................. 133
C.3. BY OBJECT OF USUFRUCT ............. 133
RIGHTS.................................................... 133
THINGS ................................................... 133
C.4. BY THE EXTENT OF THE USUFRUCT
................................................................. 134

TABLE OF CONTENTS
TO SHOULDER THE COSTS OF
LITIGATION REGARDING THE USUFRUCT
(NCC 602) ................................................ 140
TO
ANSWER
FOR
FAULT
OR
NEGLIGENCE OF THE ALIENEE, LESSEE
OR AGENT OF THE USUFRUCTUARY (NCC
590) ......................................................... 140
D.5. AT THE TIME OF THE TERMINATION
OF THE USUFRUCT ................................ 140
E. SPECIAL CASES OF USUFRUCT ............. 140
E.1. USUFRUCT OVER A PENSION OR A
PERIODICAL INCOME [NCC 570]........... 140
E.2. USUFRUCT OF PROPERTY OWNED IN
COMMON [NCC 582] .............................. 140
E.4. USUFRUCT CONSTITUTED ON A
FLOCK OR HERD OF LIVESTOCK .......... 140
[NCC 591] ................................................. 140
E.5. USUFRUCT OVER FRUIT BEARING
TREES AND SPROUT AND WOODLANDS
[NCC 575-576].......................................... 141
E.6. USUFRUCT ON A RIGHT OF ACTION
[NCC 578] ................................................. 141
E.7. USUFRUCT ON MORTGAGED
PROPERTY [NCC 600]............................. 141
E.8. USUFRUCT OVER AN ENTIRE
PATRIMONY [NCC 598] .......................... 141
E.9. USUFRUCT OVER DETERIORABLE
PROPERTY ............................................... 141
E.10. USUFRUCT OVER CONSUMABLE
PROPERTY [NCC 574] ............................ 142
F. RIGHTS OF THE OWNER ......................... 142
G. EXTINGUISHMENT / TERMINATION [NCC
603] ............................................................... 142
G.1. DEATH OF USUFRUCTUARY .......... 142
G.2. EXPIRATION OF PERIOD OR
FULFILLMENT
OF
RESOLUTORY
CONDITION IMPOSED ON USUFRUCT BY
PERSON CONSTITUTING USUFRUCT .. 142
G.3. MERGER OF RIGHTS OF USUFRUCT
AND NAKED OWNERSHIP IN ONE
PERSON .................................................. 143
G.4. RENUNCIATION OF USUFRUCT.... 143
G.5. EXTINCTION OR LOSS OF PROPERTY
[NCC 608] ............................................... 143
G.6. TERMINATION OF THE RIGHT OF
PERSON CONSTITUTING THE USUFRUCT
................................................................. 144
G.7. PRESCRIPTION ............................... 144
H. CONDITIONS NOT AFFECTING USUFRUCT
...................................................................... 144

H.1. EXPRORPIATION OF THING IN


USUFRUCT [NCC 609] ........................... 144
H.2. BAD USE OF THING IN USUFRUCT
[NCC 610]................................................. 144

IX. EASEMENT........................................... 144


A. CHARACTERISTICS ................................. 144
A.1. ESSENTIAL FEATURES: .................. 144
B. CLASSIFICATION ..................................... 146
B.1. AS TO RECIPIENT OF BENEFITS ..... 146
B.2. AS TO CAUSE OR ORIGIN .............. 146
B.3. AS TO ITS EXERCISE [NCC 615] ...... 146
B.4. AS INDICATION OF ITS EXISTENCE
................................................................. 146
B.5. BY THE OBJECT OR OBLIGATION
IMPOSED [NCC 616] ............................... 146
C. GENERAL RULES ..................................... 146
D. RELEVANCE OF CLASSIFICATIONS ....... 147
D.1. DETERMINES WHAT EASEMENTS
CAN BE ACQUIRED BY PRESCRIPTION 147
D.2. DETERMINES WHAT EASEMENTS
CAN BE ACQUIRED BY TITLE ................ 147
D.3. DETERMINES HOW TO COMPUTE
THE PRESCRIPTIVE PERIOD [NCC 621] 147
D.4. DETERMINES HOW EASEMENT IS
LOST BY PRESCRIPTION [NCC 631 (2)] . 147
E. CREATION ................................................ 147
E.1. BY TITLE ........................................... 147
E.2. BY LAW (LEGAL EASEMENTS) ....... 148
E.3. BY WILL OF THE OWNERS
(VOLUNTARY EASEMENTS) .................. 148
E.4. BY PRESCRIPTION .......................... 148
G. LEGAL EASEMENTS ................................ 148
G.1.
LAW
GOVERNING
LEGAL
EASEMENTS ........................................... 148
F. VOLUNTARY EASEMENTS ...................... 148
H. RIGHTS AND OBLIGATIONS OF OWNERS
OF DOMINANT AND SERVIENT ESTATES.. 148
H.1. RIGHTS OF DOMINANT ESTATE
OWNER ................................................... 148
H.2. OBLIGATIONS OF DOMINANT
ESTATE OWNER ..................................... 149
H.3. RIGHTS OF THE SERVIENT ESTATE
OWNER ................................................... 149
H.4. OBLIGATIONS OF SERVIENT ESTATE
OWNER ...................................................150
I. KINDS OF LEGAL EASEMENTS ................150
I.1. NATURAL DRAINAGE .......................150
I.2. RIPARIAN BANKS.............................150
I.3. DRAINAGE OF BUILDINGS ..............150
I.4. DAM ..................................................150

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TABLE OF CONTENTS
I.5. DRAWING WATER............................. 151
I.6. AQUEDUCT ........................................ 151
I.7. SLUICE GATE ..................................... 151
I.8. RIGHT OF WAY .................................. 151
I.9. PARTY WALL .................................... 153
I.10. EASEMENT OF LIGHT AND VIEW .. 155
I.11. INTERMEDIATE DISTANCES ........... 156
[NCC 677] ................................................ 156
BRANCHES, ROOTS AND FRUITS ........ 157
I.12. LATERAL AND SUBJACENT SUPPORT
................................................................. 157
J. MODES OF ACQUIRING EASEMENT ....... 157
J.1. BY TITLE ............................................ 157
J.2. BY PRESCRIPTION ........................... 157
K. EXTINGUISHMENT OF EASEMENTS ...... 158
K.1. MERGER ........................................... 158
K.2. BY A NON-USER FOR 10 YEARS .... 158
K.3. BY IMPOSSIBILITY OF USE ............. 158
K.4. EXPIRATION OF THE TERM OR
FULFILLMENT
OF
RESOLUTORY
CONDITION............................................. 158
K.5. RENUNCIATION OF THE OWNER OF
THE DOMINANT ESTATE ....................... 158
K.6. OTHER CAUSES NOT MENTION IN
NCC 631 ................................................... 159

OCCUPATION
OF
DOMESTICATED
ANIMALS ................................................. 164
PIGEONS AND FISH ............................... 164
HIDDEN TREASURE ............................... 164
LOST MOVABLES; PROCEDURE AFTER
FINDING LOST MOVABLES.................... 164
B. DONATION ............................................... 165
B.1. OTHER INSTANCES CONSIDERED AS
DONATION.............................................. 165
B.2. NATURE ........................................... 165
B.3. REQUISITES..................................... 165
B.4. WHAT MAY BE DONATED .............. 165
B.5. WHAT MAY NOT BE DONATED...... 165
FUTURE PROPERTY ............................... 165
C. KINDS OF DONATIONS ........................... 166
C.1. AS TO ITS TAKING EFFECT ............. 166
C.2. AS TO CAUSE OR CONSIDERATION
................................................................. 168
C.3.
AS
TO
EFFECTIVITY
OR
EXTINGUISHMENT ................................. 168
D. FORMALITIES REQUIRED ....................... 168
D.1. HOW MADE AND ACCEPTED ......... 168
D.2. PERFECTION ................................... 168
D.3. QUALIFICATIONS OF DONORS AND
DONEES .................................................. 168
E. EFFECTS OF DONATION / LIMITATIONS170
E.1. IN GENERAL ..................................... 170
E.2. SPECIAL PROVISIONS .................... 170
F. VOID DONATIONS [NCC 739-740, 1027] 172
F.1. THOSE MADE BETWEEN PERSONS
WHO WERE GUILTY OF ADULTERY OR
CONCUBINAGE AT THE TIME OF THE
DONATION.............................................. 172
F.2. THOSE MADE BETWEEN PERSONS
FOUND GUILTY OF THE SAME CRIMINAL
OFFENSE, IN CONSIDERATION THEREOF
................................................................. 172
F.3. THOSE MADE TO A PUBLIC OFFICER
OR HIS WIFE, DESCENDANTS AND
ASCENDANTS, BY REASON OF HIS
OFFICE .................................................... 172
F.4. THOSE MADE TO PERSONS
INCAPACITATED TO SUCCEED BY WILL.
[NCC. 1027] .............................................. 172
G. REVOCATION V. REDUCTION................. 172
G.1. GROUNDS FOR REDUCTION.......... 172
C. TRADITION ............................................... 177

X. NUISANCE ............................................. 159


A. NUISANCE V. TRESPASS ........................ 159
B. NUISANCE V. NEGLIGENCE .................... 160
C. CLASSES .................................................. 160
C.1. ACCORDING TO NATURE ............... 160
C.2. ACCORDING TO SCOPE OF
INJURIOUS EFFECTS ............................. 160
D. DOCTRINE OF ATTRACTIVE NUISANCE . 161
E. LIABILITY IN CASE OF NUISANCE ........... 161
E.1 WHO ARE LIABLE .............................. 161
E.2. LIABILITY OF CREATOR OF
NUISANCE ............................................... 161
E.3. LIABILITY OF TRANSFEREES .......... 161
E.4. NATURE OF LIABILITY ..................... 161
E.5. RIGHT TO RECOVER DAMAGES .... 162
NO PRESCRIPTION ................................ 162
F. REGULATION OF NUISANCES ................ 162
F.1. PUBLIC NUISANCE .......................... 162
F.2. PRIVATE NUISANCE ....................... 163

XI. MODES OF ACQUIRING OWNERSHIP 163


A. OCCUPATION .......................................... 164
A.1. REQUISITES ..................................... 164
A.2. KINDS .............................................. 164
A.3. SPECIAL RULES .............................. 164
OCCUPATION OF A SWARM OF BEES .. 164

PRESCRIPTION .......................................... 177

OBLIGATIONS .......................... 181


vii

TABLE OF CONTENTS
I. DEFINITION ............................................ 182
II. NATURE AND EFFECT OF OBLIGATIONS
................................................................... 185

B. LOSS OF THE THING DUE OR


IMPOSSIBILITY
OR
DIFFICULTY
OF
PERFORMANCE ........................................... 215
C. CONDONATION ....................................... 216
D. CONFUSION OR MERGER OF RIGHTS .. 217
E. COMPENSATION ..................................... 217
F. NOVATION............................................... 220

A.OBLIGATION TO GIVE .............................. 185


B. OBLIGATION TO DO OR NOT TO DO ..... 185
C. BREACH ................................................... 186
C.1. COMPLETE FAILURE TO PERFORM
................................................................. 186
C.2. DEFAULT, DELAY, OR MORA ........ 186
C.3.
FRAUD
(DOLO)
IN
THE
PERFORMANCE OF THE OBLIGATION . 188
C.4. NEGLIGENCE (CULPA) IN THE
PERFORMANCE OF THE OBLIGATION . 189
C.5. CONTRAVENTION OF THE TENOR OF
THE OBLIGATION .................................... 191
D.
LEGAL
EXCUSE
FOR
BREACH:
FORTUITOUS EVENT OR ACTS OF THE
CREDITOR ..................................................... 191
E. REMEDIES AVAILABLE IN CASE OF
BREACH........................................................ 192
E.1. SPECIFIC PERFORMANCE .............. 192
E.2. SUBSTITUTED PERFORMANCE ..... 192
E.3. RESCISSION (RESOLUTION IN
RECIPROCAL OBLIGATIONS) ................ 192
E.4. DAMAGES, IN ANY EVENT ............. 193
E.5.
SUBSIDIARY
REMEDIES
OF
CREDITORS ............................................ 193

CONTRACTS ............................ 223


I. GENERAL PROVISIONS........................ 224
A. PRINCIPAL CHARACTERISTICS OF
CONTRACTS (MARCO) ............................... 224
A. 1. MUTUALITY .................................... 224
A.3. RELATIVITY..................................... 226
A.4. CONSENSUAL ................................ 227
A.5. OBLIGATORY FORCE ..................... 227
B. ELEMENTS OF CONTRACTS .................. 227
C. CLASSIFICATION OF CONTRACTS ........ 228
D. STAGES OF A CONTRACT ...................... 229

II. ESSENTIAL REQUISITES ..................... 229


A. CONSENT ................................................ 229
E. OBJECT OF CONTRACTS ........................ 236
F. CAUSE OF CONTRACTS ......................... 236

III. FORM OF CONTRACTS .......................238


A. KINDS OF FORMALITIES REQUIRED BY
LAW ............................................................. 238
A.1. FOR THE VALIDITY OF CONTRACTS
(AD ESENTIA / AD SOLIMNITATEM/
SOLEMN CONTRACTS) ......................... 238
A.2. FOR THE PURPOSE OF PROVING THE
EXISTENCE OF THE CONTRACT........... 239
(AD PROBATIONEM/ STATUTE OF
FRAUDS) ................................................ 239
A.3. FOR THE EFFECTIVITY OF THE
CONTRACT AGAINST THIRD PERSONS
................................................................ 240

III. KINDS OF CIVIL OBLIGATIONS ........... 195


A. PURE OBLIGATIONS ............................... 195
B. CONDITIONAL OBLIGATIONS ................ 195
C. OBLIGATIONS WITH A PERIOD OR TERM
...................................................................... 198
D.
ALTERNATIVE
OR
FACULTATIVE
OBLIGATIONS ............................................. 200
E. DIVISIBLE AND INDIVISIBLE OBLIGATIONS
..................................................................... 202
F. OBLIGATIONS WITH A PENAL CLAUSE 203

IV. REFORMATION OF INSTRUMENTS .. 240


A. CASES WHERE REFORMATION IS PROPER
...................................................................... 241
A.1. MISTAKE.......................................... 242
A.2. FRAUD ............................................ 242
A.3. INEQUITABLE CONDUCT [ART. 1362]
................................................................ 242
A.4. ACCIDENT [ART. 1364] ................... 242
A.5. SEVERE PACTO DE RETRO /
RELATIVE SIMULATION ........................ 242
B. WHO MAY ASK FOR REFORMATION [ART.
1368] ............................................................. 242
C. CASES WHERE REFORMATION IS NOT
PROPER ....................................................... 242

IV. JOINT AND SOLIDARY OBLIGATIONS


.................................................................. 204
A. JOINT OBLIGATIONS .............................. 204
B. SOLIDARY OBLIGATIONS ...................... 206

V. EXTINGUISHMENT OF OBLIGATIONS 209


A. PAYMENT OR PERFORMANCE .............. 210
A.1 APPLICATION OF PAYMENTS ......... 212
A.2. DATION IN PAYMENT ..................... 212
A.3. PAYMENT BY CESSION .................. 213
A.3. TENDER OF PAYMENT AND
CONSIGNATION ..................................... 213

viii

TABLE OF CONTENTS
V. INTERPRETATION OF CONTRACTS ... 243

A.1. ABSOLUTE INCAPACITY ................ 266


A.2. RELATIVE INCAPACITY: MARRIED
PERSONS ............................................... 267
A.3. SPECIAL DISQUALIFICATIONS ..... 267
B. EFFECTS OF INCAPACITY ...................... 269
B.1. ABSOLUTE INCAPACITY ................ 269
B.2. RELATIVE INCAPACITY .................. 269
B.3. SPECIFIC INCAPACITY/ SPECIAL
DISQUALIFICATIONS ............................ 269

A. RULES ON DOUBTS [ART. 1378] ............ 244

VI. DEFECTIVE CONTRACTS ................... 245


A. RESCISSIBLE CONTRACTS ................... 245
B. VOIDABLE CONTRACTS ........................ 249
C. UNENFORCEABLE CONTRACT .............. 251
D. VOID OR INEXISTENT CONTRACTS ...... 253

VII. NATURAL OBLIGATIONS .................. 255


NATURAL OBLIGATIONS ...................... 255

III. SUBJECT MATTER .............................. 269

VIII. ESTOPPEL ..........................................257

A. REQUISITES OF A VALID SUBJECT


MATTER ....................................................... 269
A.1. MUST BE LICIT ................................ 269
A.2. EXISTING, FUTURE, CONTINGENT270
DETERMINATE OR DETERMINABLE .... 271

DEFINITION ............................................257
KINDS OF ESTOPPEL .............................257
LACHES OR STATE DEMANDS ......... 258

IX. TRUSTS ............................................... 258


A. GOVERNING RULES ............................... 259
B. PARTIES [ART. 1440] .............................. 259
C. KINDS OF TRUST .................................... 259
C.1. EXPRESS TRUST............................. 259
C.2. IMPLIED TRUST ............................. 260

IV. OBLIGATIONS OF THE SELLER .......... 272


A. OBLIGATIONS OF THE VENDOR IN
GENERAL..................................................... 272
B. WHEN SELLER IS NOT THE OWNER ..... 272
C. SALE BY PERSON HAVING A VOIDABLE
TITLE ............................................................ 272

SALES ..................................... 262


I. DEFINITION AND ESSENTIAL REQUISITES
.................................................................. 263

V. PRICE..................................................... 272
A. MEANING OF PRICE ............................... 272
B. REQUISITES FOR A VALID PRICE ...........273
C. HOW PRICE IS DETERMINED/ CERTAIN273
D. INADEQUACY OF PRICE ....................273
E. WHEN NO PRICE AGREED ............... 274
F. FALSE PRICE VS SIMULATED PRICE 274
G. EARNEST MONEY VS. OPTION MONEY
................................................................ 274

A.DEFINITION OF SALES ............................ 263


B. ESSENTIAL REQUISITES OF A CONTRACT
OF SALE....................................................... 263
B.1. ESSENTIAL ELEMENTS OF A VALID
CONTRACT OF SALE ............................. 263
B.2. NON-ESSENTIAL ELEMENTS OF A
CONTRACT OF SALE ............................. 263
C. STAGES OF CONTRACT OF SALE .......... 263
PHASES OF A SALE CONTRACT .......... 263
D. OBLIGATIONS CREATED ....................... 264
NATURE OF OBLIGATIONS CREATED PER
DEFINITION IN ART.1458 ...................... 264
E. CHARACTERISTICS OF A CONTRACT OF
SALE ............................................................ 264
E.1. SALE IS TITLE AND NOT MODE ..... 264
F. SALE DISTINGUISHED FROM OTHER
CONTRACTS................................................ 264
DONATION ............................................ 264
F.1. BARTER ........................................... 265
F.2. CONTRACT FOR A PIECE OF WORK
................................................................ 265
F.3. DACION EN PAGO .......................... 265
F.4. CONTRACT OF SALE/CONTRACT TO
SELL ....................................................... 266
G. KINDS OF CONTRACT OF SALE ............ 266

VI. FORMATION OF CONTRACT OF SALE


................................................................... 275
A. PREPARATORY....................................... 275
B. PERFECTION ........................................... 278
C. CONSUMMATION ................................... 278
FORMALITIES OF THE CONTRACT ...... 278

VII. TRANSFER OF OWNERSHIP ............ 280


OBLIGATIONS OF THE VENDOR: ......... 280
A. MANNER OF TRANSFER........................ 280
A.1. GENERAL CONCEPTS .................... 280
B. CONCEPT OF DELIVERY......................... 280
B.1. REQUISITES .................................... 280
B.2. WHAT TO DELIVER ........................ 280
B.3. WHERE TO DELIVER ...................... 280
B.4. WHEN TO DELIVER ......................... 281
C. WHEN DELIVERY DOES NOT
TRANSFER TITLE ................................... 281
D. KINDS OF DELIVERY .............................. 282
D.1.ACTUAL DELIVERY .......................... 282

II. PARTIES TO A CONTRACT OF SALE .. 266


A. KINDS OF INCAPACITY .......................... 266

ix

TABLE OF CONTENTS
D.2. CONSTRUCTIVE DELIVERY ........... 283
E. DOUBLE SALES ...................................... 284
E.1. RULES GOVERNING SALE OF
MOVABLES,
IMMOVABLES
AND
UNREGISTERED LANDS ....................... 284
F. PROPERTY REGISTRATION DECREE .... 285

B.5. IMPLIED WARRANTY AGAINST


REDHIBITORY DEFECT IN THE SALE OF
ANIMALS ................................................ 297
C. EFFECTS OF WARRANTIES ................... 297
D. EFFECTS OF WAIVERS ........................... 297
E. BUYERS OPTIONS IN CASE OF BREACH
OF WARRANTY ........................................... 297
F. WARRANTY IN SALE OF CONSUMER
GOODS ........................................................ 299

VIII. RISK OF LOSS ................................... 286


A. GENERAL RULE ...................................... 286
B. PRIOR TO PERFECTION OF CONTRACT286
C. AT TIME OF PERFECTION ...................... 286
D. AFTER PERFECTION BUT BEFORE
DELIVERY .................................................... 286
D.1.LOSS ................................................ 286
D.2. DETERIORATION ........................... 286
E. AFTER DELIVERY .................................... 287

XIII. BREACH OF CONTRACT .................. 300


A. GENERAL REMEDIES [ART 1191] ............ 300
B. REMEDIES OF THE SELLER ................... 300
B.1. SALE OF MOVABLES ...................... 300
C. RECTO LAW: SALE OF MOVABLES ON
INSTALLMENT ARTS. 1484-1486............. 302
C.1. WHEN APPLICABLE ........................ 302
C.2. ALTERNATIVE AND EXCLUSIVE
REMEDIES.............................................. 303
D. SALE OF IMMOVABLES .......................... 303
D.1. RESCISSION FOR ANTICIPATORY
BREACH ................................................. 303
D.2.
SPECIFIC
PERFORMANCE
+
DAMAGES OR RESCISSION + DAMAGES
................................................................ 303
E. PD 957, SECTIONS 23 AND 24 ............... 304
F. MACEDA LAW (RA 6552): SALE OF
IMMOVABLES ON INSTALLMENT.............. 304
G. REMEDIES OF THE BUYER .................... 305
G.1. SALE OF MOVABLES ...................... 305
G.2. SALE OF IMMOVABLES ................. 305

IX. DOCUMENTS OF TITLE .......................287


A. DEFINITION............................................. 287
B. PURPOSE OF DOCUMENTS OF TITLE .. 287
C. NEGOTIABLE DOCUMENTS OF TITLE ... 287
C.1. WHO MAY NEGOTIATE IT? ............. 287
D. NON-NEGOTIABLE DOCUMENTS OF TITLE
..................................................................... 288
E.
WARRANTIES
OF
SELLER
OF
DOCUMENTS OF TITLE .............................. 288
F. RULES ON LEVY/GARNISHMENT OF
GOODS ........................................................ 288

X. REMEDIES OF AN UNPAID SELLER ... 289


A. DEFINITION OF UNPAID SELLER .......... 289
B. REMEDIES OF UNPAID SELLER ............ 289
JUDICIAL REMEDIES OF AN UNPAID
SELLER .................................................. 289
C. ALTERNATIVE REMEDIES OF THE UNPAID
SELLER UNDER RECTO LAW ..................... 290

XIV. EXTINGUISHMENT OF SALE ........... 306


A. CAUSES ................................................... 306
B. CONVENTIONAL REDEMPTION ............ 306
B.1. DEFINITION ..................................... 306
B.2. PERIOD ........................................... 306
B.3. BY WHOM EXERCISED................... 307
B.4. FROM WHOM TO REDEEM ........... 307
B.5. HOW EXERCISED ........................... 307
B.6. EFFECT OF REDEMPTION ............. 307
B.7. EFFECT OF NON-REDEMPTION.... 307
B.7. RIGHT TO REDEEM VS. OPTION TO
PURCHASE ............................................ 308
C. EQUITABLE MORTGAGE ........................ 308
C.1. PRESUMPTION THAT A CONTRACT IS
AN EQUITABLE MORTGAGE (5P-R) ..... 308
C.2. REQUISITES FOR PRESUMPTION OF
AN EQUITABLE MORTGAGE................. 309
C.3. RATIONALE BEHIND PROVISION ON
EQUITABLE MORTGAGE ....................... 309

XI. PERFORMANCE OF CONTRACT......... 291


A. DELIVERY OF THING SOLD..................... 291
B. PAYMENT OF PRICE ............................... 293

XII. WARRANTIES .................................... 294


A. EXPRESS WARRANTIES ........................ 294
B. IMPLIED WARRANTIES .......................... 295
B.1. IMPLIED WARRANTY OF TITLE ..... 295
B.2. IMPLIED WARRANTY AGAINST
ENCUMBRANCE/NON-APPARENT
SERVITUDES.......................................... 296
B.3. IMPLIED WARRANTY AGAINST
HIDDEN DEFECTS ................................. 296
B.4. IMPLIED WARRANTY AS TO
MERCHANTABLE QUALITY AND FITNESS
OF GOODS ............................................. 296

TABLE OF CONTENTS
XVI. THE CONDOMINIUM ACT (RA 4726) 318

C.4. REMEDIES OF APPARENT VENDOR


................................................................ 309
C.5. PERIOD OF REDEMPTION ............ 309
C.6. EXERCISE OF THE RIGHT TO REDEEM
................................................................. 310
C.7. HOW REDEMPTION IS EXERCISED 310
D. LEGAL REDEMPTION .............................. 310
D.1. DEFINITION ..................................... 310
D.2. MANNER ......................................... 310
D.3. PERIOD TO REDEEM ...................... 310
D.4. INSTANCES OF LEGAL REDEMPTION
.................................................................. 311

A. DEFINITION OF A CONDOMINIUM ......... 318


A.1. OTHER DEFINITIONS ...................... 318
B. TRANSFERS OR CONVEYANCES OF A
UNIT OR AN APARTMENT, OFFICE OR
STORE, OR OTHER SPACE THEREIN
[SECTION 5, RA 4726] ............................. 319
C. RIGHTS OF A CONDOMINIUM UNIT
OWNER (ASIDE FROM RIGHTS ARISING
FROM OWNERSHIP) [SECTION 6] ......... 319
D. PARTITION BY SALE [SECTION 8]..... 319
E. DECLARATION OF RESTRICTIONS BY
OWNER OF PROJECT - PRECONDITION
TO CONVEYANCE [SECTION 9]............. 320
F. ASSESSMENT IN ACCORDANCE WITH
DECLARATION
OF
RESTRICTIONS
[SECTION 20] ......................................... 320
G. HOW LIEN ENFORCED AFTER NONPAYMENT OF ASSESSED FEES [SECTION
20] .......................................................... 320
H. CONTENTS OF A DECLARATION OF
RESTRICTIONS [SECTION 9] ................. 320
I. INVOLUNTARY DISSOLUTION OF THE
CONDOMINIUM CORPORATION [SECTION
12] ........................................................... 320
J.POWER OF ATTORNEY HELD BY
CORPORATION IN CASE OF VOLUNTARY
DISSOLUTION
OF
CONDOMINIUM
CORPORATION [SECTION 15] ............... 320
K. SALE, EXCHANGE, LEASE, OR
DISPOSITION BY CORPORATION OF THE
COMMON AREAS [SECTION 16] ............ 321
L. STOCKHOLDER/MEMBER DEMANDING
PAYMENT FOR SHARES OR INTEREST
AKA APPRAISAL RIGHT [SECTION 17] ... 321
M. REQUIREMENT FOR REGISTRATION
OF CONVEYANCE WITH THE REGISTER
OF DEEDS [SECTION 18]......................... 321
N. REALTY TAX ON CONDOMINIUMS
[SECTION 25] .......................................... 321

XV. THE LAW ON SALE OF SUBDIVISION


AND CONDOMINIUM (PD 957) ................ 314
A. DEFINITIONS ........................................... 314
A.1. DEFINITION OF "SALE" OR "SELL" 314
A.2.
DEFINITION
OF
"BUY"
OR
"PURCHASE" .......................................... 314
B. REQUIREMENTS FOR OWNERS AND
DEVELOPERS ............................................... 314
B.1. REGISTRATION OF PROJECTS
[SECTION 4, PD 957] .............................. 314
B.2. REGISTRATION OF OWNER [SECTION
4, PD 957] ............................................... 314
B.3. LICENSE TO SELL [SECTION 5, PD
957] ......................................................... 315
C. REQUIREMENT FOR DEALERS,
BROKERS, AND SALESMEN (DBS) ....... 316
C.1. REGISTRATION ................................ 316
D. CHARACTERISTICS OF SALE OF A
CONDOMINIUM OR SUBDIVISION UNIT AND
SIMILAR CONTRACTS ................................. 316
D.1. REGISTRATION OF SALE, ETC
[SECTION 17, PD 957] ............................. 316
D.2. MORTGAGES ON UNIT OR LOT BY
OWNER OR DEVELOPER [SECTION 18, PD
957] ......................................................... 317
D.3. ADVERTISEMENTS BY THE OWNER
OR DEVELOPER [SECTION 19, PD 957] 317
D.4. NON-FORFEITURE OF PAYMENTS
(SECTION 23, PD 957) ............................ 317
D.5. FAILURE TO PAY INSTALLMENTS
[SECTION 24, PD 957] ............................ 317
D.6. ISSUANCE OF TITLE [SECTION 25, PD
957] ......................................................... 317
D.7. REALTY TAX [SECTION 26, PD 957]
................................................................. 318
D.7. NO OTHER CHARGES [SECTION 27,
PD 957] ................................................... 318

SUCCESSION ........................... 322


I. GENERAL PROVISIONS......................... 323
A. DEFINITION ............................................. 323
B.
OBJECT
OF
SUCCESSION
AND
TRANSMISSION .......................................... 323
C. SUBJECTS OF SUCCESSION .................. 324

II.

TESTAMENTARY SUCCESSION ......324


A. WILLS ...................................................... 324
A.1. IN GENERAL .................................... 324

xi

TABLE OF CONTENTS
I. KINDS OF WILLS................................. 324
II. CHARACTERISTICS OF WILLS .......... 324
III. RULES OF CONSTRUCTION AND
INTERPRETATION ................................. 325
IV. GOVERNING LAWS, IN GENERAL ... 326
A.2. TESTAMENTARY CAPACITY AND
INTENT ................................................... 326
A.3. FORM .............................................. 326
A.4. CODICILS ......................................... 331
A.5. INCORPORATION BY REFERENCE 331
A.6. REVOCATION .................................. 331
A.7. REPUBLICATION AND REVIVAL ....332
A.8. ALLOWANCE AND DISALLOWANCE
OF WILLS ................................................332
I. PROBATE REQUIREMENT ..................332
II. GROUNDS FOR DENYING PROBATE 333
B. INSTITUTION OF HEIR ............................ 333
C. SUBSTITUTION OF HEIRS ...................... 336
D. TESTAMENTARY DISPOSITIONS WITH A
CONDITION, A TERM, AND A MODE .......... 337
E. LEGITIME ................................................. 339
F. DISINHERITANCE ................................... 343
F.1. DISINHERITANCE OF CHILDREN AND
DESCENDANTS ..................................... 343
F.2. DISINHERITANCE OF PARENTS AND
ASCENDANTS ....................................... 344
F.3. DISINHERITANCE OF A SPOUSE .. 344
G. LEGACIES AND DEVISES ....................... 346

A. AS A TYPE OF CONTRACT ..................... 365


A.1. ELEMENTS (STATUTORY): ............. 365
A.2. ELEMENTS (JURISPRUDENTIAL) . 365
A.3. BEING A CONTRACT, IT HAS COC 365
B. AS A LEGAL RELATIONSHIP .................. 365
C. EFFECTS OF AGENCY ............................. 365
C.1. INTEGRATION (MERGER) OF THE
PERSONALITY OF THE PRINCIPAL AND
THE AGENT ............................................ 365
C.2. EXTENSION (REPRODUCTION) OF
THE PERSONALITY OF THE PRINCIPAL
THROUGH THE AGENT ......................... 365
C.3. CONSEQUENCES ........................... 365

II. POWERS ................................................366


A. RIGHTS OF AGENTS ............................... 366
A.1. COMPENSATION ............................ 366
A.2. LEND MONEY TO / BORROW MONEY
FROM THE AGENCY .............................. 367
A.3. APPOINT A SUBSTITUTE ............... 367
A.4. RETAIN IN PLEDGE THE OBJECTS OF
AGENCY ................................................. 368
B. OBLIGATIONS OF AGENTS .................... 369
B.1. ACT WITHIN SCOPE OF AUTHORITY
................................................................ 369
B.2. ACT IN ACCORDANCE WITH
INSTRUCTIONS ..................................... 370
B.3. CARRY OUT THE AGENCY ............. 370
B.4. ADVANCE FUNDS ........................... 371
B.5. PREFER THE PRINCIPALS INTEREST
OVER HIS OWN ...................................... 371
B.6. RENDER ACCOUNT/DELIVER .......372
B.7. PAY INTEREST .................................372
B.8. LIABLE FOR FRAUD/NEGLIGENCE
.................................................................372
C. LIABILITY OF AGENTS ............................. 373
C.1. WHEN SOLIDARY ............................ 373
C.2. WHEN PERSONAL .......................... 373

III. LEGAL OR INTESTATE SUCCESSION 349


A. GENERAL PROVISIONS ......................... 349
A.1. RELATIONSHIP ............................... 350
A.2. RIGHT OF REPRESENTATION ....... 351
B. ORDER OF INTESTATE SUCCESSION ... 353

IV. PROVISIONS COMMON TO TESTATE


AND INTESTATE SUCCESSION............... 355
A. RIGHT OF ACCRETION ........................... 355
B. CAPACITY TO SUCCEED BY WILL OR
INTESTACY .................................................. 356
C. ACCEPTANCE AND REPUDIATION OF THE
INHERITANCE ............................................. 358
D. COLLATION ............................................ 359
E. PARTITION AND DISTRIBUTION OF
ESTATE ........................................................ 360
E.1. IN GENERAL .................................... 360
E.2. EFFECTS OF PARTITION ................ 361
E.3. RESCISSION AND NULLIFICATION OF
PARTITION ............................................. 362

III. EXPRESS VS IMPLIED AGENCY .......... 374


A. EXPRESS ................................................. 374
B. IMPLIED ................................................... 374
B.1. ACTS OF THE PRINCIPAL ............... 374
B.2. ACTS OF THE AGENT ..................... 374

IV. AGENCY BY ESTOPPEL ....................... 375


A. BASED ON STATUTE .............................. 375
A.1. TWO MODES ................................... 375
A.2. HOW RESCINDED .......................... 375
B. BASED ON JURISPRUDENCE ................ 375
B.1. REQUISITES .................................... 375

AGENCY .................................. 364

V. GENERAL VS. SPECIAL AGENCY ......... 376

I. DEFINITION OF AGENCY ...................... 365


xii

TABLE OF CONTENTS
A. GENERAL AGENCY ..................................376
B. SPECIAL AGENCY ....................................376

D.2. EXCEPTIONS .................................. 384


D.3.
DEATH OF AGENT ................... 384
E. DISSOLUTION / ACCOMPLISHMENT /
EXPIRATION ................................................ 384

VI. AGENCY COUCHED IN GENERAL TERMS


(ACGT)........................................................ 376
VII. AGENCY REQUIRING SPECIAL POWER
OF ATTORNEY........................................... 377

PARTNERSHIP ........................ 389


I. CONTRACT OF PARTNERSHIP ............ 390

A. IN GENERAL ............................................ 377


B. EFFECT OF ABSENCE OF SPECIFIC
AUTHORITY .................................................. 377
B.1. IN GENERAL..................................... 377
B.2. SALE OF LAND OR ANY INTEREST
THEREIN ................................................. 377
B.3.
EFFECT
OF
SPECIFIC
AUTHORIZATION ...................................378

A. DEFINITION ............................................. 390


A.1. ELEMENTS (STATUTORY): ............. 390
A.2. ELEMENTS (JURISPRUDENCE)..... 390
B. ESSENTIAL FEATURES .......................... 390
B.1. LAWFUL PURPOSE......................... 390
B.2. COMMON BENEFIT ......................... 391
B.3. JURIDICAL PERSONALITY .............. 391
C. PARTIES ................................................... 391
D. OBJECT..................................................... 391
D.1.
OBJECT
OF
UNIVERSAL
PARTNERSHIP ........................................ 391
D.2.
OBJECT
OF
PARTICULAR
PARTNERSHIP ....................................... 392
D.3. EFFECT OF UNLAWFUL OBJECT .. 392
E. FORM ....................................................... 392
F. DURATION .............................................. 392
F.1. COMMENCEMENT .......................... 392
F.2. TERM ............................................... 392
F.3. EXTENSION..................................... 392
G.RULES TO DETERMINE EXISTENCE ...... 393
H. KINDS OF PARTNERSHIPS .................... 393
H.1. AS TO THE LEGALITY OF ITS
EXISTENCE: ........................................... 393
H.2. AS TO ITS OBJECT: ........................ 393
H.3. AS TO ITS DURATION: ................... 393
H.4. AS TO THE LIABILITY OF THE
PARTNERS: ............................................ 393
H.5. AS TO ITS PUBLICITY:.................... 393
H.6. AS TO ITS PURPOSE:..................... 393
I. KINDS OF PARTNERS .............................. 394
J. PARTNERSHIP, DISTINGUISHED FROM
OTHER CONTRACTS................................... 395

VIII. AGENCY BY OPERATION OF LAW ....378


IX. RIGHTS AND OBLIGATIONS OF
PRINCIPAL.................................................378
A. OBLIGATIONS ..........................................378
A.1. COMPLY WITH THE OBLIGATIONS
CONTRACTED BY THE AGENT ..............378
A.2. ADVANCE OR REIMBURSE SUMS
NECESSARY............................................379
A.3. INDEMNIFY THE AGENT FOR INJURY
.................................................................379
A.4. COMPENSATE THE AGENT ........... 380
B. LIABILITY OF THE PRINCIPAL................ 380
B.1. IN GENERAL.................................... 380
B.2. BE SOLIDARILY LIABLE ................. 380
B.3. IF THE CONTRACT INVOLVES THINGS
BELONGING TO THE PRINCIPAL ......... 380

X. IRREVOCABLE AGENCY ....................... 381


XI. MODES OF EXTINGUISHMENT.......... 382
A. IN GENERAL ........................................... 382
B. REVOCATION .......................................... 382
B.1. IN GENERAL.................................... 382
B.2. WHEN REVOCATION IS NOT BINDING
ON THIRD PERSONS ............................ 383
B.3. APPOINTMENT OF NEW AGENT .. 383
B.4. DIRECT MANAGEMENT BY THE
PRINCIPAL ............................................. 383
B.5. SPECIAL AUTHORITY REVOKES THE
GENERAL AUTHORITY WHERE A SPECIAL
MATTER IS INVOLVED .......................... 383
B.6. WHEN AGENCY CANNOT BE
REVOKED ............................................... 383
C. WITHDRAWAL BY THE AGENT .............. 384
D. DEATH, CIVIL INTERDICTION, INSANITY
OR INSOLVENCY......................................... 384
D.1. IN GENERAL ................................... 384

II. RIGHTS AND OBLIGATIONS OF THE


PARTNERSHIP .......................................... 397
A. RIGHT TO CONTRIBUTION .................... 397
A.1. CONTRIBUTION OF MONEY OR
PROPERTY ............................................. 397
I. AMOUNT OF CONTRIBUTION .......... 397
II. ADDITIONAL CAPITAL CONTRIBUTION
................................................................ 397
A.2. CONTRIBUTION OF INDUSTRY .... 398
B. RIGHT TO APPLY PAYMENT RECEIVED TO
PARTNERSHIP CREDIT .............................. 398

xiii

TABLE OF CONTENTS
IV. OBLIGATIONS OF PARTNERSHIP /
PARTNERS TO THIRD PERSONS ........... 403

B.1. REQUISITES: ................................... 398


B.2. EXCEPTIONS: ................................. 398
C. RIGHT TO RETURN OF CREDIT RECEIVED
..................................................................... 398
D. RIGHT TO INDEMNITY FOR DAMAGES 398
D.1. SET-OFF OF LIABILITY ................... 398
D.2. SUIT FOR DAMAGES ..................... 399
E. RESPONSIBILITY TO PARTNERS ........... 399

A. OBLIGATION TO OPERATE UNDER A FIRM


NAME ........................................................... 403
B.
LIABILITY
OF
PARTNERS
FOR
PARTNERSHIP CONTRACTS ...................... 403
B.1. NATURE OF INDIVIDUAL LIABILITY
................................................................ 403
I. SUBSIDIARY........................................ 403
II. PRO RATA .......................................... 404
B.2. LIABILITY OF AN INDUSTRIAL
PARTNER ............................................... 404
B.3. STIPULATION AGAINST INDIVIDUAL
LIABILITY ................................................ 404
C.
LIABILITY
OF
PARTNERS
FOR
PARTNERSHIP CONTRACTS ...................... 404
C.1. ACTS APPARENTLY FOR THE
CARRYING ON OF USUAL BUSINESS .. 404
C.2. ACTS NOT APPARENTLY FOR
CARRYING ON OF THE USUAL BUSINESS
................................................................ 404
C.3. ACTS OF STRICT DOMINION ......... 404
C.4. ACTS IN CONTRAVENTION OF A
RESTRICTION ........................................ 405
D. CONVEYANCE OF PARTNERSHIP REAL
PROPERTY .................................................. 405
D.1. TITLE IN PARTNERSHIP NAME ..... 405
D.2. TITLE IN THE NAME OF OTHER
PERSONS ............................................... 405
E. LIABILITY OF THE PARTNERSHIP FOR
ADMISSION BY A PARTNER ...................... 405
F. LIABILITY OF THE PARTNERSHIP FOR
WRONGFUL ACTS OF A PARTNER............ 405
G. LIABILITY OF THE PARTNERSHIP FOR
MISAPPLICATION OF MONEY OR PROPERTY
..................................................................... 405
H. LIABILITY OF THE OTHER PARTNERS
UNDER ARTICLES 1822 AND 1823 ............. 406
I. LIABILITY IN CASE OF PARTNERSHIP BY
ESTOPPEL ................................................... 406
I.1. PARTNER BY ESTOPPEL ................. 406
I.2. LIABILITY OF A PARTNER BY
ESTOPPEL .............................................. 406
I. PERSONAL REPRESENTATION ........ 406
II. PUBLIC REPRESENTATION .............. 406
I.3. EFFECT ON EXISTING PARTNERSHIP
OR OTHER PERSONS NOT ACTUAL
PARTNERS............................................. 406
I.4. NATURE OF LIABILITY .................... 406
J. LIABILITY OF AN INCOMING PARTNER . 407

III. RIGHTS AND OBLIGATIONS OF


PARTNERS AMONG THEMSELVES ........ 399
A. RIGHT TO ASSOCIATE ANOTHER IN
SHARE ......................................................... 399
B. RIGHT TO INSPECT PARTNERSHIP BOOKS
..................................................................... 399
C. RIGHT TO A FORMAL ACCOUNT ........... 399
D. PROPERTY RIGHTS OF PARTNERS ...... 400
D.1. IN GENERAL ................................... 400
D.2.
PROPERTY
AND
CAPITAL
DISTINGUISHED .................................... 400
E. OWNERSHIP OF CERTAIN PROPERTIES
..................................................................... 400
F. RIGHTS IN SPECIFIC PROPERTY ........... 400
G. INTEREST IN THE PARTNERSHIP ......... 400
G.1. ASSIGNMENT OF INTEREST.......... 400
G.2. CHARGING OF INTEREST BY
PERSONAL CREDITORS ........................ 401
H. RIGHT TO PARTICIPATE IN MANAGEMENT
...................................................................... 401
H.1. POWERS OF A MANAGING PARTNER
................................................................. 401
H.2. REVOCATION OF POWER OF
MANAGING PARTNER ........................... 401
H.3.
MANAGEMENT BY TWO OR
MORE PARTNERS .................................. 401
H.4. STIPULATION OF UNANIMITY ...... 402
H.5.
MANAGEMENT WHEN MANNER
NOT AGREED UPON ............................. 402
H.6.
MUTUAL AGENCY ................... 402
I. RIGHT TO PROFITS AND OBLIGATION FOR
LOSSES........................................................ 402
I.1. RULES FOR DISTRIBUTION OF
PROFITS AND LOSSES ......................... 402
I.2. EXCLUSION OF PARTNER FROM
SHARE.................................................... 402
J. OBLIGATION TO RENDER INFORMATION
..................................................................... 403
K. OBLIGATION TO ACCOUNT AND ACT AS
TRUSTEE ..................................................... 403

xiv

TABLE OF CONTENTS
K. NOTICE TO OR KNOWLEDGE OF THE
PARTNERSHIP ............................................ 407

G.5. DOCTRINE OF MARSHALING OF


ASSETS ................................................... 412
G.6. DISTRIBUTION OF PROPERTY OF
INSOLVENT PARTNER ........................... 413
H. RIGHTS OF CREDITORS OF DISSOLVED
PARTNERSHIP ............................................. 413
H.1. AS CREDITORS OF THE NEW
PARTNERSHIP ........................................ 413
H.2. LIABILITY OF A NEW PARTNER ..... 413
H.3. PRIORITY OF CREDITORS OF
DISSOLVED PARTNERSHIP ................... 413
I. RIGHTS OF A RETIRED PARTNER OR A
REPRESENTATIVE OF DECEASED PARTNER
...................................................................... 413
J. RIGHT TO AN ACCOUNT .......................... 414

V. DISSOLUTION ...................................... 407


A. CONCEPTS .............................................. 407
B. CAUSES OF DISSOLUTION .................... 407
B.1. WITHOUT VIOLATION OF THE
AGREEMENT ......................................... 407
B.2. IN CONTRAVENTION OF THE
AGREEMENT ......................................... 408
B.3. BY OPERATION OF LAW................ 408
B.4. BY DECREE OF COURT.................. 408
B.5. OTHER CAUSES ............................. 409
C. EFFECTS OF DISSOLUTION ................... 409
C.1. ON AUTHORITY OF THE PARTNERS
................................................................ 409
C.1.A. WITH RESPECT TO PARTNERS .. 409
C.1.B. WITH RESPECT TO THIRD PERSONS
................................................................ 409
C.2. ON LIABILITY FOR TRANSACTIONS
AFTER DISSOLUTION ........................... 409
C.3. ON LIABILITY FOR CONTRACTS
AFTER DISSOLUTION BY SPECIFIC
CAUSES................................................... 410
C.4.
ON EXISTING LIABILITY OF
PARTNERS ............................................. 410
D. WINDING UP PARTNERS........................ 410
D.1. WHO MAY WIND UP ........................ 410
D.2. MANNER OF WINDING UP ............ 410
E. RIGHTS OF PARTNERS IN CASE OF
DISSOLUTION ............................................... 411
E.1. DISSOLUTION WITHOUT VIOLATION
OF THE AGREEMENT .............................. 411
E.2. DISSOLUTION IN CONTRAVENTION
OF THE AGREEMENT .............................. 411
I. PARTNER WHO DID NOT CAUSE THE
DISSOLUTION ......................................... 411
II. PARTNER WHO CAUSED THE
DISSOLUTION ......................................... 411
F. RIGHTS OF PARTNERS IN CASE OF
RESCISSION .................................................. 411
G. SETTLING OF ACCOUNTS BETWEEN
PARTNERS ................................................... 412
G.1. COMPOSITION OF PARTNERSHIP
ASSETS ................................................... 412
G.2. AMOUNT OF CONTRIBUTION FOR
LIABILITIES ............................................. 412
G.3. ENFORCEMENT OF CONTRIBUTION
................................................................. 412
G.4. ORDER OF APPLICATION OF ASSETS
................................................................. 412

VI. LIMITED PARTNERSHIP...................... 414


A. DEFINITION .............................................. 414
B. CHARACTERISTICS ................................. 414
C. GENERAL AND LIMITED PARTNERS
DISTINGUISHED........................................... 414
D. GENERAL AND LIMITED PARTNERSHIP
DISTINGUISHED........................................... 415
E. FORMATION ............................................. 415
E.1. GENERAL REQUIREMENTS ............ 415
E.2. PURPOSE OF FILING ...................... 416
E.3. FIRM NAME ..................................... 416
E.4. FALSE STATEMENT IN THE
CERTIFICATE .......................................... 416
REQUISITES: ........................................... 416
E.5. GENERAL AND LIMITED PARTNER AT
THE SAME TIME...................................... 416
F. MANAGEMENT ........................................ 416
G. OBLIGATIONS OF A LIMITED PARTNER 417
G.1.
OBLIGATIONS
RELATED
TO
CONTRIBUTION ...................................... 417
G.2.
LIABILITY
TO
PARTNERSHIP
CREDITORS ............................................ 418
G.3. LIABILITY TO SEPARATE CREDITORS
................................................................. 418
H. RIGHTS OF A LIMITED PARTNER ........... 418
H.1. IN GENERAL .................................... 418
H.2. RIGHT TO TRANSACT BUSINESS
WITH THE PARTNERSHIP ...................... 418
H.3. RIGHT TO SHARE IN PROFITS ....... 419
H.4.
RIGHT
TO
RETURN
OF
CONTRIBUTION ...................................... 419
H.5.
PREFERENCE
OF
LIMITED
PARTNERS.............................................. 419
H.6. RIGHT TO ASSIGN INTEREST ........ 419

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TABLE OF CONTENTS
H.7. RIGHT TO ASK FOR DISSOLUTION
................................................................ 420
I. DISSOLUTION .......................................... 420
J. SETTLEMENT OF ACCOUNTS ................ 420
J.1. ORDER OF PAYMENT ..................... 420
J.2. SHARE IN THE PARTNERSHIP ASSETS
................................................................ 420
K. AMENDMENT OR CANCELLATION OF
CERTIFICATE ................................................ 421
K.1. CANCELLATION OF CERTIFICATE .. 421
K.2. AMENDMENT OF CERTIFICATE ..... 421
K.3. REQUIREMENTS FOR AMENDMENT
OR CANCELLATION ............................... 421

B.5. WHEN HOTEL-KEEPER NOT LIABLE


................................................................ 428
B.6.
HOTEL-KEEPERS
RIGHT
TO
RETENTION ........................................... 428
C. JUDICIAL DEPOSIT ................................. 428
C.1. NATURE AND PURPOSE ................ 428
C.2. DEPOSITARY OF SEQUESTERED
PROPERTY ............................................. 428
C.3. APPLICABLE LAW .......................... 429

III. GUARANTY AND SURETYSHIP.......... 429


A. NATURE AND EXTENT OF GUARANTY. 429
B. NATURE AND EXTENT OF SURETYSHIP
..................................................................... 432
C. EFFECT OF GUARANTY .......................... 433
C.1. EFFECTS OF GUARANTY BETWEEN
THE GUARANTOR AND THE CREDITOR
................................................................ 433
C.2. EFFECTS OF GUARANTY BETWEEN
THE DEBTOR AND THE GUARANTOR . 435
C.3. EFFECTS OF GUARANTY AS
BETWEEN CO-GUARANTORS .............. 436
D. EXTINGUISHMENT OF GUARANTY ....... 437
E. LEGAL AND JUDICIAL BONDS ............... 437

CREDIT TRANSACTIONS......... 422


I. LOAN ..................................................... 423
CONTRACTS OF LOAN ............................... 423
CONTRACT OF LOAN VS. CONTRACT TO
LOAN ........................................................... 423
SIMPLE LOAN VS. BARTER ........................ 423
COMMODATUM VS. MUTUUM .................. 423
A. COMMODATUM...................................... 423
A.1. KINDS OF COMMODATUM ............ 424
A.2. PARTIES ......................................... 424
A.3. OBLIGATIONS OF THE BAILEE ..... 424
A.4. OBLIGATIONS OF THE BAILOR .... 424
A.5. LIABILITY FOR DETERIORATION .. 424
A.6. RIGHT OF RETENTION .................. 424
B. MUTUUM ................................................ 425
B.1. OBLIGATIONS OF THE BORROWER
................................................................ 425
B.2. INTEREST AND SUSPENSION OF
USURY LAW ........................................... 425
B.3. KINDS OF INTEREST ...................... 425
B.4. WHEN IS COMPOUND INTEREST
ALLOWED? ............................................ 425
B.5. REQUISITES FOR INTEREST TO BE
CHARGEABLE ........................................ 425
B.6. ELEMENTS OF USURY .................. 426

IV. PLEDGE ................................................ 437


A. CHARACTERISTICS ................................ 438
B. KINDS ...................................................... 438
LEGAL PLEDGE / PLEDGE BY OPERATION
OF LAW [ARTS. 2121-2122] .................... 438
C. ESSENTIAL REQUISITES ........................ 438
PROVISIONS APPLICABLE ONLY TO
PLEDGE .................................................. 439
D. REQUISITES FOR PERFECTION ............ 439
E. OBLIGATIONS OF PLEDGEE .................. 439
F. RIGHTS OF PLEDGOR............................. 439
G. FORECLOSURE ...................................... 440
G.1. REQUIREMENTS IN SALE OF THE
THING PLEDGED BY A CREDITOR, IF
CREDIT IS NOT PAID ON TIME ............. 440
G.2. EFFECTS OF THE SALE OF THE
THING PLEDGED ................................... 440
H. PLEDGE AS DISTINGUISHED FROM
CHATTEL MORTGAGE [ARTS. 2140, 1484] 440
I. PACTUM COMMISSORIUM....................... 440
ELEMENTS .............................................. 441
EFFECT ON PLEDGE .............................. 441
J. EQUITABLE MORTGAGE .......................... 441
ESSENTIAL REQUISITES ........................ 441

II. DEPOSIT ............................................... 426


A. VOLUNTARY DEPOSIT ............................427
A.1. EXTINGUISHMENT ..........................427
A.2. OBLIGATIONS OF DEPOSITOR ......427
B. NECESSARY DEPOSIT .............................427
B.1. KINDS OF NECESSARY DEPOSIT ...427
B.2. DEPOSIT BY TRAVELERS IN HOTELS
AND INNS ...............................................427
B.3. EXTENT OF LIABILITY UNDER
ART.1998 ............................................... 428
B.4. WHEN HOTEL-KEEPER LIABLE .... 428

V. REAL MORTGAGE ................................ 441


A. OBJECTS OF REAL MORTGAGE ............. 441

xvi

TABLE OF CONTENTS
B. CHARACTERISTICS ................................. 441
C. KINDS ....................................................... 441
D. PRINCIPLE OF INDIVISIBILITY OF
PLEDGE/MORTGAGE ................................. 442
E. ESSENTIAL REQUISITES COMMON TO
PLEDGE AND MORTGAGE ......................... 442
F. FORECLOSURE OF MORTGAGE ............ 443
F.1. JUDICIAL FORECLOSURE .............. 443
F.2. EXTRAJUDICIAL FORECLOSURE .. 444
F.4.
NATURE
OF
POWER
OF
FORECLOSURE BY EXTRAJUDICIAL SALE
................................................................ 444
F.5. RIGHT OF MORTGAGEE TO RECOVER
DEFICIENCY ........................................... 445
F.6. EFFECT OF INADEQUACY OF PRICE
IN FORECLOSURE SALE ....................... 445
G. WAIVER OF SECURITY BY CREDITOR .. 445
H. REDEMPTION ......................................... 445
KINDS: .................................................... 445

WHEN DEBT NOT YET DUE ................... 451


RESPONSIBILITY OF TWO OR MORE
PAYEES ................................................... 451
WHEN MONEY OR THING DELIVERED IS
OWNED BY THIRD PERSON .................. 451
LIABILITY OF PAYEE ............................... 451
EXEMPTION FROM THE OBLIGATION TO
RESTORE THE PAYMENT UNDULY MADE
................................................................ 452
PRESUMPTION
OF
PAYMENT
BY
MISTAKE, DEFENSE .............................. 452
C. OTHER QUASI-CONTRACTS .................. 452

IX. CONCURRENCE AND PREFERENCE OF


CREDITS ................................................... 453
A. WHEN RULES ON PREFERENCE ARE
APPLICABLE ................................................ 453
B. CLASSIFICATION OF CREDITS............... 453
B.1. SPECIAL PREFERRED CREDITS ON
SPECIFIC MOVABLE PROPERTY .......... 454
B.2. SPECIAL PREFERRED CREDITS ON
SPECIFIC IMMOVABLE PROPERTY AND
REAL RIGHTS......................................... 454
B.3. ORDINARY PREFERRED CREDITS 455
B.4. COMMON CREDITS ....................... 455
C. ORDER OF PREFERENCE OF CREDITS . 455
D. EXEMPT PROPERTY ............................... 456

VI. ANTICHRESIS...................................... 446


A. CHARACTERISTICS ................................ 446
B. SPECIAL REQUISITES............................. 446
C. AS DISTINGUISHED FROM OTHER
CONTRACTS................................................ 446
D.
OBLIGATIONS
OF
ANTICHRETIC
CREDITOR ................................................... 446
E. REMEDIES OF CREDITOR IN CASE OF
NON-PAYMENT OF DEBT .......................... 447

LAND, TITLES, & DEEDS ......... 457


I. TORRENS SYSTEM ............................... 458

VII. CHATTEL MORTGAGE ....................... 447

ELEMENTS OF A DEED: ........................ 458


TYPES OF ESTATE: ................................ 458
A.
LAWS
IMPLEMENTING
LAND
REGISTRATION ........................................... 459
B. PURPOSES OF LAND REGISTRATION .. 459
C. ADMINISTRATION OF THE TORRENS
SYSTEM ....................................................... 460
CERTIFICATE OF TITLE .......................... 461
D. EFFECT OF REGISTRATION UNDER THE
TORRENS SYSTEM ...................................... 461

A. CHARACTERISTICS ................................ 447


B. OBLIGATIONS SECURED ....................... 447
C. PROPERTIES COVERED ......................... 447
D. VALIDITY OF CHATTEL MORTGAGE ..... 448
E. FORMAL REQUISITES ............................ 448
F. REGISTRATION OF CHATTEL MORTGAGE
..................................................................... 448
F.1. PERIOD ............................................ 448
F.2. VENUE ............................................ 448
F.3. EFFECT............................................ 448
G. FORECLOSURE ...................................... 449
DISPOSITION OF PROCEEDS ............... 449

II. THE REGALIAN DOCTRINE ................. 463


A. EFFECTS .................................................. 464
B. CONCEPT OF NATIVE TITLE, TIME
IMMEMORIAL POSSESSION ...................... 464

VIII. QUASI-CONTRACTS ......................... 449


A.1. OBLIGATIONS OF A GESTOR ........ 450
A.2. OBLIGATIONS OF THE OWNER OF
THE PROPERTY OR BUSINESS ............ 450
A.3. EFFECT OF RATIFICATION ............. 451
A.4.
EXTINGUISHMENT
OF
MANAGEMENT ....................................... 451
B. SOLUTIO INDEBITI (UNDUE PAYMENT) . 451

III. CITIZENSHIP REQUIREMENT ............ 465


A.
B.

INDIVIDUALS .................................... 465


CORPORATIONS .............................. 466

IV. ORIGINAL REGISTRATION ................ 466


A. KINDS OF ORIGINAL REGISTRATION: .. 466
B. WHO MAY APPLY: .................................. 467

xvii

TABLE OF CONTENTS
C. PROCEDURE IN ORDINARY LAND
REGISTRATION ........................................... 468
D. EVIDENCE NECESSARY ..........................473
E. REMEDIES: ...............................................473
F. PETITIONS AND MOTIONS AFTER
ORIGINAL REGISTRATION ......................... 474

D.4. AS TO THE DEFENSE OF AN


EMPLOYER FOR THE NEGLIGENCE OF AN
EMPLOYEE ............................................. 492

II. QUASI-DELICT ..................................... 492


A. NEGLIGENCE .......................................... 492
A.1. DEFAULT STANDARD OF CARE:
GOOD FATHER OF A FAMILY ............... 492
A.2. STANDARD OF CARE NEEDED IN
SPECIFIC CIRCUMSTANCES ................. 493
A.3. PRESUMPTIONS OF NEGLIGENCE
................................................................ 494
I. IN MOTOR VEHICLE MISHAPS .......... 494
II.
POSSESSION
OF
DANGEROUS
WEAPONS OR SUBSTANCES ............... 496
III. COMMON CARRIERS ....................... 496
IV. RES IPSA LOQUITUR ........................ 496
A.4. PERSONS LIABLE .......................... 497
B. CAUSE ..................................................... 502
C. DEFENSES............................................... 506
C.1. DUE DILIGENCE TO PREVENT THE
DAMAGE UNDER ARTICLE 2180 .......... 506
C.2. ACTS OF PUBLIC OFFICERS .......... 506
C.3. AUTHORITY OF LAW...................... 506
C.4. DAMNUM ABSQUE INJURIA .......... 506
C.5. PLAINTIFFS NEGLIGENCE IS THE
PROXIMATE CAUSE .............................. 507
C.6. CONTRIBUTORY NEGLIGENCE OF
THE PLAINTIFF ...................................... 507
C.7. FORTUITOUS EVENT ..................... 507
C.8. PLAINTIFFS ASSUMPTION OF RISK /
VOLENTI NON FIT INJURIA.................... 508
C.9. PRESCRIPTION .............................. 508
C.10. WAIVER ......................................... 508
C.11. EMERGENCY RULE OR SUDDEN
PERIL DOCTRINE .................................. 509

V.
JUDICIAL
CONFIRMATION
OF
IMPERFECT OR INCOMPLETE TITLES.... 475
A. FILING OF THE APPLICATION: .............. 476
B.
PROCEDURE
IN
JUDICIAL
CONFIRMATION: ......................................... 477
C.
EVIDENCE
NECESSARY
TO
SUBSTANTIATE APPLICATION: .................. 477

VI. CADASTRAL REGISTRATION ............. 477


A. DISTINGUISHED FROM ORDINARY
REGISTRATION ............................................ 477

VII. SUBSEQUENT REGISTRATION......... 479


A.
NECESSITY
AND
EFFECTS
OF
REGISTRATION ........................................... 479
B. TWO TYPES OF DEALINGS .................... 480
C. VOLUNTARY DEALINGS ......................... 481
D. INVOLUNTARY DEALINGS .................... 483
REGISTRATION OF EXECUTION AND TAX
DELINQUENCY SALES .......................... 483

VIII. NON-REGISTRABLE PROPERTIES .. 486


IX. DEALINGS WITH UNREGISTERED
LANDS ...................................................... 487
EFFECTS OF TRANSACTIONS COVERING
UNREGISTERED LAND ......................... 487
PRIMARY
ENTRY
BOOK
AND
REGISTRATION BOOK .......................... 487

TORTS .................................... 489


I. PRELIMINARY CONSIDERATIONS ...... 490
A. DEFINITION OF TORT ............................ 490
A.1. ACCORDING TO MANNER OF
COMMISSION ........................................ 490
A.2. ACCORDING TO SCOPE ................ 490
B. DEFINITION OF QUASI-DELICT ............. 490
C. CULPA AQUILIANA DISTINGUISHED FROM
CRIME ........................................................... 491
D. CULPA AQUILIANA DISTINGUISHED FROM
CULPA CONTRACTUAL; PRESENCE OF
CONTRACTUAL RELATIONS ....................... 491
D.1. AS TO SOURCE ................................ 491
D.2. AS TO BURDEN OF PROOF ........... 491
D.3. AS TO APPLICABILITY OF THE
DOCTRINE OF PROXIMATE CAUSE ...... 491

III. INTENTIONAL TORTS......................... 509


A. HUMAN RELATIONS TORTS .................. 509
A.1. ABUSE OF RIGHT ............................ 509
A.2. ACTS CONTRARY TO LAW .............510
A.3. ACTS CONTRARY TO MORALS ....... 511
A.4. UNJUST ENRICHMENT ................... 512
A.5. VIOLATION OF HUMAN DIGNITY ... 513
FAMILY RELATIONS ............................... 515
SOCIAL RELATIONS................................ 516
ECONOMIC RELATIONS ......................... 516
A.6 DERELICTION OF DUTY .................. 517
A.7. UNFAIR COMPETITION ................... 517
B. INDEPENDENT CIVIL ACTIONS .............. 517
B.1. VIOLATION OF CIVIL AND POLITICAL
RIGHTS .................................................... 517

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TABLE OF CONTENTS
B.2. DEFAMATION, FRAUD, PHYSICAL
INJURIES ................................................. 519
B.3. NEGLECT OF DUTY ........................ 520
B.4. CATCH-ALL INDEPENDENT CIVIL
ACTION ................................................... 521

COMPONENTS ............................................ 536


LOSS COVERED; ......................................... 536
EXTENT OR SCOPE OF ACTUAL DAMAGES
..................................................................... 536
IN CONTRACTS AND QUASI-CONTRACTS 536
IN CRIMES AND QUASI-DELICTS .............. 537
EARNING CAPACITY, BUSINESS STANDING
..................................................................... 538
LOSS OR IMPAIRMENT OF EARNING
CAPACITY............................................... 538
INJURY TO BUSINESS STANDING OR
COMMERCIAL CREDIT .......................... 538
FORMULA FOR THE NET EARNING
CAPACITY............................................... 538
DEATH BY CRIME OR QUASI-DELICT .. 538
CIVIL / DEATH INDEMNITY ................... 539
AS TO THE LOSS OF EARNING CAPACITY
................................................................ 539
IN RAPE CASES...................................... 539
ATTORNEYS FEES AND EXPENSES OF
LITIGATION ............................................ 539
INTEREST ................................................ 541

IV. LIABILITY ATTACHED TO SPECIFIC


PERSONS .................................................. 521
A. STRICT LIABILITY .................................... 521
A.1. POSSESSOR OR USER OF ANIMALS
................................................................. 521
A.2.
PROVINCES,
CITIES,
AND
MUNICIPALITIES ................................... 522
A.3. PROPRIETOR OF BUILDING OR
STRUCTURE .......................................... 522
A.4. ENGINEER OR ARCHITECT OF
COLLAPSED BUILDING ......................... 523
A.5. OWNERS OF ENTERPRISES OR
OTHER EMPLOYERS ............................. 523
A.6. HEAD OF A FAMILY FOR THINGS
THROWN OR FALLING ......................... 524
A.7. PRODUCTS LIABILITY .................... 524
I. MANUFACTURERS / PROCESSORS OF
FOODSTUFFS ........................................ 524
II. CONSUMER ACT RA 7394, SECS. 92107 (CH. 1) ............................................... 525
A.8. NUISANCE ...................................... 528
EASEMENT AGAINST NUISANCE ......... 528

III. MORAL DAMAGES.............................. 543


WHEN AWARDED........................................ 543
REQUISITES FOR AWARDING MORAL
DAMAGES .............................................. 543
GENERAL PRINCIPLES OF RECOVERY:543
WHEN RECOVERABLE ............................... 545
IN CRIMINAL OFFENSE RESULTING IN
PHYSICAL INJURIES .............................. 545
IN QUASI-DELICTS CAUSING PHYSICAL
INJURIES ................................................ 545
IN SEDUCTION, ABDUCTION, RAPE AND
OTHER LASCIVIOUS ACTS .................... 546
IN ILLEGAL OR ARBITRARY DETENTION
OR ARREST ........................................... 546
IN CASE OF MALICIOUS PROSECUTION
................................................................ 546
IN ACTS REFERRED TO IN ARTS. 21, 26,
27, 28, 29, 32, 34 &35, NCC .................. 546
VIOLATION OF HUMAN DIGNITY ......... 547
REFUSAL OR NEGLECT OF DUTY ........ 547
VIOLATION OF CIVIL AND POLITICAL
RIGHTS ................................................... 548
IN WILLFUL INJURY TO PROPERTY ..... 549
IN BREACH OF CONTRACT IN BAD FAITH
................................................................ 549
WHO MAY RECOVER MORAL DAMAGES.. 549
RELATIVES OF INJURED PERSONS ..... 550
JURIDICAL PERSONS ............................ 550

DAMAGES ............................... 533


I. DEFINITION ........................................... 534
INJURY VS. DAMAGE VS. DAMAGES ......... 534
WHEN DAMAGES MAY BE RECOVERED ... 534
ELEMENTS FOR RECOVERY OF DAMAGES
..................................................................... 534
CLASSIFICATION ........................................ 534
ACCORDING TO PURPOSE ........................ 534
ACCORDING
TO
MANNER
OF
DETERMINATION ....................................... 534
SPECIAL AND ORDINARY .......................... 534
GENERAL DAMAGES ............................. 534
SPECIAL DAMAGES ............................... 534

II. ACTUAL & COMPENSATORY DAMAGES


.................................................................. 535
REQUISITES ................................................ 535
WHEN IS A PERSON ENTITLED? .......... 535
ALLEGED AND PROVED WITH CERTAINTY
................................................................ 535
DEGREE OF CERTAINTY REQUIRED AS
TO: FACT, CAUSE AND AMOUNT OF
DAMAGES .............................................. 535

xix

TABLE OF CONTENTS
FACTORS CONSIDERED IN DETERMINING
AMOUNT ................................................ 550

COMPROMISE ............................................. 559

IX.MISCELLANEOUS RULES ................... 559

IV. NOMINAL DAMAGES ......................... 550

DAMAGES THAT CANNOT CO-EXIST ........ 559


NOMINAL WITH OTHER DAMAGES ..... 559
ACTUAL AND LIQUIDATED .................. 559
DAMAGES THAT MUST CO-EXIST ............. 559
EXEMPLARY WITH MORAL, TEMPERATE,
LIQUIDATED OR COMPENSATORY ..... 559
DAMAGES THAT MUST STAND ALONE .... 559
NOMINAL DAMAGES .................................. 559

REQUISITES AND CHARACTERISTICS ...... 550


WHEN AWARDED ....................................... 550
NATURE AND DETERMINATION OF AMOUNT
...................................................................... 551

V. TEMPERATE DAMAGES ....................... 551


REQUISITES ................................................ 552
FACTORS IN DETERMINING AMOUNT ..... 552
WHERE THERE ARE RECEIPTS PROVIDED
AMOUNTING TO LESS THAN P25,000 552
WHERE NO RECEIPTS WERE PROVIDED
................................................................ 553

PRIVATE INTERNATIONAL LAW


................................................560
I. INTRODUCTION ..................................... 561
A.SCOPE OF CONFLICTS OF LAWS: NATURE,
DEFINITION AND IMPORTANCE ................. 561
A.2. DIVERSITY OF LAWS, CUSTOMS AND
PRACTICES ............................................. 561
A.2. DEFINITION ..................................... 561
A.3. OBJECT, FUNCTION AND SCOPE .. 561

VI.LIQUIDATED DAMAGES ...................... 553


REQUISITES AND CHARACTERISTICS ...... 553
RULES GOVERNING BREACH OF CONTRACT
..................................................................... 553

VII.
EXEMPLARY
OR
CORRECTIVE
DAMAGES................................................. 554

II. JURISDICTION AND CHOICE OF LAW 562

WHEN RECOVERABLE ............................... 554


IN CRIMINAL OFFENSES; NCC ART. 2230
................................................................ 554
IN CONTRACTS AND QUASI-CONTRACTS;
NCC ART. 2232 ...................................... 555
REQUISITES ........................................... 555
REQUISITES TO RECOVER EXEMPLARY
DAMAGES AND LIQUIDATED DAMAGES
AGREED UPON ...................................... 555
DAMAGES IN CASE OF DEATH .................. 556
RE. CRIMES AND QUASI-DELICTS ............ 556
IN DEATH CAUSED BY BREACH OF
CONDUCT BY A COMMON CRIME ....... 556

A. JURISDICTION ........................................ 562


A.1. BASIS OF EXERCISE OF JUDICIAL
JURISDICTION ....................................... 562
A.2. WAYS OF DEALING WITH A
CONFLICTS PROBLEM .......................... 563
B. CHOICE OF LAW ..................................... 563
B.1. APPROACHES TO CHOICE OF LAW
................................................................ 563
C. THE PROBLEM OF CHARACTERIZATION
..................................................................... 564
C.1 CHARACTERIZATION AND THE
SINGLE-ASPECT METHOD ................... 564

VIII. GRADUATION OF DAMAGES........... 557

C.2 DECEPAGE ...................................... 565


D. THE PROBLEM OF RENVOI ................... 565
D.1. DEFINITION..................................... 565
D.2. VARIOUS WAYS OF DEALING WITH
THE PROBLEM OF RENVOI .................. 565
E. NOTICE AND PROOF OF FOREIGN LAW
..................................................................... 566
E.1. EXTENT OF JUDICIAL NOTICE ....... 566
E.2. PROOF OF FOREIGN LAW ............. 566
E.3. EXCEPTIONS TO THE APPLICATION
OF FOREIGN LAW ................................. 566

RULES.......................................................... 557
IN CRIMES.............................................. 557
IN QUASI-DELICTS ................................ 557
CONTRIBUTORY NEGLIGENCE ................. 557
PLAINTIFFS NEGLIGENCE ................... 557
IN CONTRACTS, QUASI-CONTRACTS AND
QUASI-DELICTS .................................... 557
GROUNDS FOR MITIGATION OF DAMAGES
..................................................................... 558
FOR CONTRACTS: ................................. 558
FOR QUASI-CONTRACTS: .................... 558
FOR QUASI-DELICTS: ........................... 558
RULE WHEN CONTRACTING PARTIES ARE IN
PARI DELICTO ............................................. 558
LIQUIDATED DAMAGES ............................. 559

III. PERSONAL LAW ................................. 566


A. NATIONALITY ......................................... 566
A.1. IMPORTANCE OF A PERSONAL LAW
................................................................ 566

xx

TABLE OF CONTENTS
A.2. DETERMINATION OF NATIONALITY
................................................................ 567
B. DOMICILE ................................................ 567
B.1. DEFINITION ..................................... 567
B.2. GENERAL RULES ON DOMICILE .. 567
B.3. KINDS OF DOMICILE...................... 568
C. PRINCIPLES ON PERSONAL STATUS AND
CAPACITY .................................................... 568
C.1. DEFINITION ..................................... 568
C.2.
LEGISLATIVE
JURISDICTION
DISTINGUISHED
FROM
JUDICIAL
JURISDICTION ....................................... 568
C.3.
BEGINNING
AND
END
OF
PERSONALITY ....................................... 568
C.4. ABSENCE........................................ 568
C.5. NAME .............................................. 569
C.6. AGE OF MAJORITY ......................... 569
C.7. CAPACITY ....................................... 569

D.4. REVOCATION ................................. 573


D.5. PROBATE ....................................... 573
D.6. ADMINISTRATION OF ESTATES ... 573
E. CHOICE OF LAW IN TORTS AND CRIMES
..................................................................... 573
E.1. LEX LOCI DELICTI COMMISSI ......... 573
E.2. MODERN THEORIES ON FOREIGN
TORT LIABILITY ..................................... 574
E.3. FOREIGN TORT CLAIMS ................ 574
E.4. DISTINGUISHING BETWEEN TORTS
AND CRIMES.......................................... 574
E.5. LEX LOCI DELICTI ........................... 574
F.
CHOICE
OF
LAW
AFFECTING
CORPORATIONS AND OTHER JURIDICAL
ENTITIES ...................................................... 575
F.1. CORPORATIONS ............................. 575
F.2. PARTNERSHIPS ............................. 576

V. FOREIGN JUDGMENTS ........................ 577

IV. CHOICE OF LAW PROBLEMS ............. 569

A. RECOGNITION AND ENFORCEMENT OF


FOREIGN JUDGMENTS ................................ 577
A.1.
DISTINCTION
BETWEEN
RECOGNITION AND ENFORCEMENT ... 577
A.2. BASES OF RECOGNITION AND
ENFORCEMENT
OF
FOREIGN
JUDGMENTS ........................................... 577
A.3.
POLICIES
UNDERLYING
RECOGNITION AND ENFORCEMENT ... 577
A.4. REQUISITES FOR RECOGNITION OR
ENFORCEMENT ...................................... 577
A.5. PROCEDURE FOR ENFORCEMENT
................................................................ 578

A. CHOICE-OF-LAW IN FAMILY RELATIONS


..................................................................... 569
A.1. MARRIAGE ...................................... 569
A.2. DIVORCE AND SEPARATION ......... 571
A.3. ANNULMENT AND DECLARATION OF
NULLITY .................................................. 571
A.4. PARENTAL RELATIONS ................. 571
A.5. ADOPTION ...................................... 571
B. CHOICE OF LAW IN PROPERTY .............. 571
B.1. THE CONTROLLING LAW ................ 571
B.2. CAPACITY TO TRANSFER OR
ACQUIRE PROPERTY .............................572
B.3. EXTRINSIC AND INTRINSIC VALIDITY
OF CONVEYANCES ................................572
B.4. EXCEPTION TO LEX SITUS RULE ...572
B.5. SITUS OF CERTAIN PROPERTIES ..572
C. CHOICE OF LAW IN CONTRACTS ...........572
C.1. EXTRINSIC VALIDITY OF CONTRACTS
.................................................................572
C.2. INTRINSIC VALIDITY OF CONTRACTS
.................................................................572
C.3. CAPACITY TO ENTER INTO
CONTRACTS ...........................................573
C.4. CHOICE OF LAW ISSUES IN
CONFLICTS CONTRACTS CASES ..........573
C.5. ADHESION CONTRACTS ................573
D. CHOICE OF LAW IN WILLS, SUCCESSION
AND ADMINISTRATION OF ESTATES ........573
D.1. EXTRINSIC VALIDITY OF WILLS .....573
D.2. INTRINSIC VALIDITY OF WILLS .....573
D.3. INTERPRETATION OF WILLS .........573

xxi

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PERSONS

CIVIL LAW

CIVIL LAW

PERSONS & FAMILY


RELATIONS

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PERSONS

I. Effect and Application


of Laws

CIVIL LAW

Conclusive Presumption: That everyone knows


the law, even if they have no actual knowledge
of the law.
Mistake of Fact & Difficult Questions of Law:
These may excuse a party from the legal
consequences of his conduct; but not
ignorance of law:
In specific instances provided by law,
mistake as to difficult legal questions has
been given the same effect as a mistake of
fact. (Tolentino)
The laws referred to by this article are
those of the Philippines. There is no
conclusive presumption of knowledge of
foreign laws. (Tolentino)

A. WHEN LAWS TAKE EFFECT


Art. 2. Laws shall take effect after fifteen days
following the completion of their publication
either in the Official Gazette, or in a newspaper
of general circulation in the Philippines, unless
it is otherwise provided. (As amended by E.O.
200)
General Rules:
The clause "unless it is otherwise provided"
refers to the date of effectivity and not to the
requirement of publication itself, which cannot
in any event be omitted. [Tanada vs Tuvera
(1986)]

C. RETROACTIVITY OF LAWS
Art. 4. Laws shall have no retroactive effect,
unless the contrary is provided. (3)

Publication is indispensable in every case, but


the legislature may in its discretion provide
that the usual fifteen-day period shall be
shortened or extended. [Tanada vs Tuvera
(1986)]

General Rule: All statutes are to be construed


as having only prospective operation.
Exceptions
(1) When the law itself expressly provides
Exceptions to Exception:
(a) Ex post facto law
(b) Impairment of contract
(2) In case of remedial statutes
(3) In case of curative statutes
(4) In case of laws interpreting others
(5) In case of laws creating new rights [Bona v.
Briones (1918)]
(6) Penal Laws favorable to the accused

When, on the other hand, the administrative


rule goes beyond merely providing for the
means that can facilitate or render least
cumbersome the implementation of the law
but substantially increases the burden of those
governed, it behooves the agency to accord at
least to those directly affected a chance to be
heard, and thereafter to be duly informed,
before that new issuance is given the force and
effect of law. [Commissioner vs. Hypermix
(2012)]

D. MANDATORY OR PROHIBITORY
LAWS

Exception:
Interpretative regulations and those internal in
nature. [Tanada vs Tuvera (1986)]

Art. 5. Acts executed against the provisions of


mandatory or prohibitory laws shall be void,
except when the law itself authorizes their
validity. (4a)

B. IGNORANCE OF THE LAW


Art. 3. Ignorance of the law excuses no one
from compliance therewith. (2)

Art. 17, par. 3 Prohibitive laws concerning


persons, their acts or property, and those

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PERSONS

which have for their object public order, public


policy and good customs shall not be rendered
ineffective by laws or judgments promulgated,
or by determinations or conventions agreed
upon in a foreign country. (11a)

CIVIL LAW
incompatible or inconsistent with those of
an earlier law.

The fundament is that the legislature should


be presumed to have known the existing laws
on the subject and not have enacted conflicting
statutes. Hence, all doubts must be resolved
against any implied repeal, and all efforts
should be exerted in order to harmonize and
give effect to all laws on the subject. [Republic
vs. Marcopper Mining (2000)]

E. WAIVER OF RIGHTS
Art. 6. Rights may be waived, unless the waiver
is contrary to law, public order, public policy,
morals, or good customs, or prejudicial to a
third person with a right recognized by law.
(4a)

G. JUDICIAL DECISIONS
Art. 8. Judicial decisions applying or
interpreting the laws or the Constitution shall
form a part of the legal system of the
Philippines. (n)

Waiver the relinquishment of a known right


with both knowledge of its existence and an
intention to relinquish it. [Portland v. Spillman]
Exceptions:
(1) If the waiver is contrary to law, public
order, public policy, morals or good
customs
(2) If the waiver prejudices a third person
(3) If the alleged rights do not yet exist
(4) If the right is a natural right

Jurisprudence cannot be considered as an


independent source of law; it cannot create
law. (1 Camus 38 as cited in Tolentino)
The interpretation or construction placed by
the courts establishes the contemporaneous
legislative intent of the law. The latter as so
interpreted and construed would thus
constitute a part of that law as of the date the
statute is enacted. It is only when a prior ruling
of this Court finds itself later overruled, and a
different view is adopted, that the new doctrine
may have to be applied prospectively in favor
of parties who have relied on the old doctrine
and have acted in good faith in accordance
therewith. [Pesca v Pesca (2001)]

F. REPEAL OF LAWS
Art. 7. Laws are repealed only by subsequent
ones, and their violation or non-observance
shall not be excused by disuse, or custom or
practice to the contrary.
When the courts declared a law to be
inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and
regulations shall be valid only when they are
not contrary to the laws or the Constitution.
(5a)

H. DUTY TO RENDER JUDGMENT

Two Kinds of Repeal (Tolentino)


(1) Express or Declared contained in a
special provision of a subsequent law
(2) Implied or Tacit takes place when the
provisions of the subsequent law are

Exception:
This article does not apply to criminal
prosecutions because where there is no law
punishing an act, the case must be dismissed.
(Tolentino)

Art. 9. No judge or court shall decline to render


judgment by reason of the silence, obscurity or
insufficiency of the laws. (6)

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I. PRESUMPTION AND
APPLICABILITY OF CUSTOM

CIVIL LAW

Art. 10. In case of doubt in the interpretation or


application of laws, it is presumed that the
lawmaking body intended right and justice to
prevail. (n)

automatically be considered the next


working day
If the period arises from a contractual
relationship, the act will still be due on
that Legal Holiday/Sunday

There
obviously
exists
a
manifest
incompatibility in the manner of computing
legal periods between the Civil Code and the
Revised Administrative Code of 1987. Since the
Administrative Code is the more recent law, it
governs the computation of legal period [CIR
vs Primetown (2007)]

Art. 11. Customs which are contrary to law,


public order or public policy shall not be
countenanced. (n)
Art. 12. A custom must be proved as a fact,
according to the rules of evidence. (n)

K. APPLICABILITY OF PENAL LAWS


J. LEGAL PERIODS

Art. 14. Penal laws and those of public security


and safety shall be obligatory upon all who live
or sojourn in the Philippine territory, subject to
the principles of public international law and to
treaty stipulations. (8a)

Art. 13. When the laws speak of years, months,


days or nights, it shall be understood that
years are of three hundred sixty-five days each;
months, of thirty days; days, of twenty-four
hours; and nights from sunset to sunrise.

Exemptions under International Law (Theory of


Extraterritoriality):
(1) When the offense is committed by a foreign
sovereign while in Philippine territory
(2) When the offense is committed by
diplomatic representatives
(3) When the offense is committed in a public
or armed vessel of a foreign country.

If months are designated by their name, they


shall be computed by the number of days
which they respectively have.
In computing a period, the first day shall be
excluded, and the last day included. (7a)
Revised Administrative Code Section 31. Legal
Periods. - "Year" shall be understood to be
twelve calendar months; "month" of thirty
days, unless it refers to a specific calendar
month in which case it shall be computed
according to the number of days the specific
month contains; "day," to a day of twenty-four
hours; and "night," from sunset to sunrise.

L. BINDING EFFECT
Art. 15. Laws relating to family rights and
duties, or to the status, condition and legal
capacity of persons are binding upon citizens
of the Philippines, even though living abroad.
(9a)

Policy on Last Day being a Legal


Holiday/Sunday
If the period arises by statute or orders
by the government, the last day will

Art. 16. Real property as well as personal


property is subject to the law of the country
where it is stipulated.

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
4

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PERSONS

succession is under consideration, whatever


may be the nature of the property and
regardless of the country wherein said property
may be found. (10a)

Juridical Capacity
Fitness of man to be the
subject of legal relations
Passive
Aptitude for the Holding
and Enjoyment of rights
Inherent in natural
persons
Lost upon death

Art. 17. The forms and solemnities of contracts,


wills, and other public instruments shall be
governed by the laws of the country in which
they
are
executed.
When the acts referred to are executed before
the diplomatic or consular officials of the
Republic of the Philippines in a foreign
country, the solemnities established by
Philippine laws shall be observed in their
execution.

Can exist without


capacity to act
Cannot be limited or
restricted

Lost through death


and other causes
Must exist with
juridical capacity
May be restricted
or limited

Art. 40. Birth determines personality; but the


conceived child shall be considered born for all
purposes favorable to it, provided that it be
born later with the conditions specified in the
following article.
Art. 41. For civil purposes, the fetus is
considered born if it is alive at the time it is
completely delivered from the mothers womb.
However, if the fetus had an intra-uterine life of
less than seven months, it is not deemed born
if it dies within twenty-four hours after its
complete delivery from the maternal womb.

II. Persons and


Personality
PERSON

Capacity to Act
Power to do acts
with legal effect
Active
Aptitude for the
Exercise of rights
Must be acquired

B.
COMMENCEMENT
AND
TERMINATION OF PERSONALITY

Prohibitive laws concerning persons, their acts


or property, and those which have, for their
object, public order, public policy and good
customs shall not be rendered ineffective by
laws or judgments promulgated, or by
determinations or conventions agreed upon in
a foreign country. (11a)

A. CONCEPT OF
PERSONALITY

CIVIL LAW

AND

Birth = complete removal of the fetus from the


mothers womb; before birth, a fetus is merely
part of the mothers internal organs.

Art. 37. Juridical capacity, which is the fitness to


be the subject of legal relations, is inherent in
every natural person and is lost only through
death. Capacity to act, which is the power to do
acts with legal effect, is acquired and may be
lost.
Note: Juridical capacity can exist even without
capacity to act; the existence of the latter
implies that of the former.

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PERSONS

Proof that the fetus was alive upon separation


is Complete respiration = test/sign of
independent life
Intra-Uterine Life
7 months or more
Less than 7 months

CIVIL LAW

Criminal liability ends with death BUT civil


liability may be charged against the estate
[People v. Tirol, (1981)].
Note: Article 43 provides a statutory
presumption when there is doubt on the order
of death between persons who are called to
succeed each other (only).

When Considered Born


Alive upon delivery
Alive
only
after
completion of 24 hours
from delivery

The statutory presumption of Article 43 was


not applied due to the presence of a credible
eyewitness as to who died first [Joaquin v.
Navarro, (1948)].

Personality of Conceived Child


(1) Limited = only for purposes FAVORABLE to
it.
(2) Conditional = it depends upon the child
being born alive later.

Compare Art. 43 with Rule 131, Sec. 3 (jj),


presumption of Survivorship.
Art. 43
Rule 131, Sec. 3 (jj)
Only use the presumptions when there are no
facts to get inferences from
Only
use
for Cannot be used for
succession
succession purposes
purposes
In any circumstance Only during death in
calamities, wreck, battle
or conflagration

Period of Conception = the first 120 days of the


300 days preceding the birth of the child.
A conceived child can acquire rights while still
in the mothers womb. It can inherit by will or
by intestacy.
An aborted fetus had conditional personality
but never acquired legal rights/civil personality
because it was not alive at the time of delivery
from the mothers womb. No damages can be
claimed in behalf of the unborn child. [Geluz vs
CA (1961)]

Presumption of Survivorship in the Rules of


Court (Rule 131, sec. 3, (jj.)
Age
Both under 15
Both above 60
One under 15, the
other above 60
Both over 15 and
under 60; different
sexes
Both over 15 and
under 60; same sex
One under 15 or over
60, the other
between those ages

C. DEATH
Art. 42. Civil personality is extinguished by
death. The effect of death upon the rights and
obligations of the deceased is determined by
law, by contract and by will.
Art. 43. If there is a doubt, as between two or
more persons who are called to succeed each
other, as to which of them died first, whoever
alleges the death of one prior to the other, shall
prove the same; in the absence of proof, it is
presumed that they died at the same time and
there shall be no transmission of rights from
one to the other.

Presumed Survivor
Older
Younger
One under 15
Male

Older
One between 15 and
60

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D. JURIDICAL PERSONS

CIVIL LAW

E. RESTRICTIONS ON CIVIL
CAPACITY

Article 44. The following are juridical persons:


(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities
for public interest or purpose, created by law;
their personality begins as soon as they have
been constituted according to law;
(3) Corporations, partnerships and associations
for private interest or purpose to which the law
grants a juridical personality, separate and
distinct from that of each shareholder, partner
or member. (35a)

E. 1. PRESUMPTION OF CAPACITY
Article 37. Juridical capacity, which is the fitness
to be the subject of legal relations, is inherent
in every natural person and is lost only through
death. Capacity to act, which is the power to do
acts with legal effect, is acquired and may be
lost. (n)

E. 2. RESTRICTIONS ON CAPACITY TO
ACT

Article 45. Juridical persons mentioned in Nos.


1 and 2 of the preceding article are governed by
the laws creating or recognizing them.
Private corporations are regulated by laws of
general application on the subject.
Partnerships and associations for private
interest or purpose are governed by the
provisions
of
this
Code
concerning
partnerships.
(36 and 37a)

Art. 38. Minority, insanity or imbecility, the state


of being a deaf-mute, prodigality and civil
interdiction are mere restrictions on capacity to
act, and do not exempt the incapacitated
person from certain obligations, as when the
latter arise from his acts or from property
relations, such as easements.
Art. 39. The following circumstances, among
others, modify or limit capacity to act: age,
insanity, imbecility, the state of being a deafmute, penalty, prodigality, family relations,
alienage, absence, insolvency and trusteeship.
The consequences of these circumstances are
governed in this Code, other codes, the Rules
of Court, and in special laws.
Capacity to act is not limited on account of
religious belief or political opinion.
A married woman, twenty-one years of age or
over, is qualified for all acts of civil life, except
in cases specified by law.

Article 46. Juridical persons may acquire and


possess property of all kinds, as well as incur
obligations and bring civil or criminal actions,
in conformity with the laws and regulations of
their organization. (38a)
Article 47. Upon the dissolution of corporations,
institutions and other entities for public
interest or purpose mentioned in No. 2 of
article 44, their property and other assets shall
be disposed of in pursuance of law or the
charter creating them. If nothing has been
specified on this point, the property and other
assets shall be applied to similar purposes for
the benefit of the region, province, city or
municipality which during the existence of the
institution derived the principal benefits from
the same. (39a)

General rule: Incapacitated persons are not


exempt from certain obligations arising from
his acts or property relations.

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I. MINORITY

CIVIL LAW

Effects on Marriage
(1) May not yet contract marriage (Art. 5, FC).
(2) Marriages, where one of the parties is
below 18, even with the consent of
parents/guardians, are VOID (Art. 35, FC).

RA 6809 (1989): An act lowering the age of


majority from twenty-one to eighteen years.
Effects on Contracts

Effect on Crimes
(1) General rule: EXEMPTED from criminal
liability
(2) Exception: Acted with discernment, and
the minor is between 15 and 18 years of
age.

(1) They cannot give consent to a contract (Art.


1327 (1))
(2) A contract where one of the parties is a
minor is voidable(Art. 1390(1))
(3) A contract is unenforceable when both of
the parties are minors (incapable of giving
consent) (Art. 1403(3))
(4) Minority cannot be asserted by the other
party in an action for annulment (Art. 1397)
(5) Not obliged to make restitution
exceptinsofar as he has been benefited
(Art. 1399)
(6) Minor has no right to demand the
thing/price voluntarily returned by him
(Art. 1426)
(7) Minor has no right to recover voluntarily
paid sum or delivered thing, if consumed in
good faith (Art. 1427)
(8) Must pay reasonable amount for
necessaries delivered to him (Art. 1489)

II. INSANITY
Insanity includes many forms of mental
disease, either inherited or acquired. A person
may not be insane but only mentally deficient
(idiocy, imbecility, feeble-mindedness).
Effect on Contracts
(1) Incapacity to give consent to a contract
(Art. 1327(2))
(2) Contracts entered into during lucid
intervals are valid (Art. 1328)
(3) Restitution of benefits (Art. 1399)
(4) Voidable if one of the parties is insane (Art.
1390)
(5) Unenforceable if both of the parties are
insane (Art. 1403 (3))

Estoppel works against minors who


misrepresent their ages in a contract and are
compelled to comply with its terms. (active
misrepresentation done by minors). [Mercado
vs Espiritu (1918)]

Effect on Crimes
General rule: EXEMPTED from criminal liability
Exception: Acted during lucid interval
Effect on Marriage
(1) May be annulled if either party was of
unsound mind unless the such party after
coming to reason, freely cohabited with the
other (Art. 45(2), FC)
(2) Action for annulment of marriage must be
filed by the sane spouse who had no
knowledge of the others insanity, or by any
relative/guardian of the insane before the
death of either party; or by the insane
spouse during a lucid interval or after
regaining sanity (Art. 47(2), FC)

When
a
minor
made
no
active
misrepresentation as to his minority and such
minority is known to the other party, the
contract is voidable (Art. 1403) as to the minor.
[Bambalan vs Miranda (1928)]
Minors are obliged to make restitution insofar
as they have been benefited (Art. 1399).
[Braganza vs Villa Abrille (1959]

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In the absence of proof that the defendant had


lost his reason or became demented a few
moments prior to or during the perpetration of
the crime, it is presumed that he was in a
normal condition of mind. It is improper to
conclude that he acted unconsciously, in order
to relieve him from responsibility on the
ground of exceptional mental condition, unless
his insanity and absence of will are proven.
[USA vs Vaguilar (1914)]

CIVIL LAW

(5) Unenforceable if both of the parties are


deaf-mutes and does not know how to
write

IV. PRODIGALITY
INCOMPETENT INCLUDES PRODIGALS
(RULES OF COURT RULE 92, SEC 2)
Note: It is not the circumstance of prodigality,
but the fact of being under guardianship that
restricts capacity to act.

Capacity to act must be supposed to attach to


a person who has not previously been declared
incapable, and such capacity is presumed to
continue so long as the contrary be not proved,
that is, that at the moment of his acting he was
incapable, crazy, insane, or out his mind
[Standard Oil vs Arenas (1911)]

V. CIVIL INTERDICTION
(1) It is an accessory penalty imposed upon
persons who are sentenced to a principal
penalty not lower than reclusion temporal
(Art. 41, RPC).
(2) Offender is deprived of rights of parental
authority, or guardianship, of marital
authority, of the right to manage his
property and of the right to dispose of such
by any act inter vivos (Art. 34, RPC)
(3) For the validity of marriage settlements,
the participation of the guardian shall be
indispensable (Art. 123)

As no man would know what goes on in the


mind of another, the state or condition of a
persons mind can only be measured and
judged by his behavior. Establishing the
insanity of an accused requires opinion
testimony which may be given by a witness
who is intimately acquainted with the person
claimed to be insane, or who has rational basis
to conclude that a person was insane based on
the witness own perception of the person, or
who is qualified as an expert, such as a
psychiatrist. [Crewlink vs Teringtering (2012)].

VI. FAMILY RELATIONS


(1) Justifying circumstance if acted in defense
of person/rights of spouse, ascendants,
descendants, brothers/sisters, and other
relatives up to the 4th civil degree (Art.
11(2), RPC)
(2) Mitigating circumstance if acted in the
immediate vindication of a grave
offense/felony committed against his
spouse, ascendants or relatives of the
same civil degree (Art. 13(5), RPC)
(3) Incestuous and void marriages:
Between ascendants and descendants
of any degree;
Between brothers and sisters, whether
full or half-blood. (Art. 37, FC)
(4) Donations/grants of gratuitous advantage
between spouses during the marriage shall

III. DEAF-MUTISM
(1) Cannot give consent to a contract if he/she
also does not know how to write (Art.
1327(2), CC)
(2) Can make a valid WILL, provided: he must
personally read the will. The contents of
the same have either been read personally
by him or otherwise communicated to him
by 2 persons (Art. 807, CC)
(3) Cannot be a witness to the execution of a
will (Art. 820, CC)
(4) Voidable if one of the parties is deaf-mute
and does not know how to write

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(5)

(6)

(7)

(8)

PERSONS

be VOID, except moderate gifts during


family occasions (Art. 87, FC)
Prescription does not run between spouses,
parent and child, guardian and ward (Art.
1109)
Descendants cannot be compelled to testify
in a criminal case, against his parents and
grandparents
UNLESS: crime was against the
descendant OR by one parent
against the other (Art. 215, FC)
Spouses cannot sell property to each other,
except:
Absolute separation is agreed
upon in the marriage settlements
Judicial separation of property (Art.
1490)
A suit between family members cannot
prosper without any showing that earnest
effort towards a compromise have been
made but have failed (Art. 151, FC)
Exceptions: questions on civil
status of persons, validity of a
marriage or a legal separation,
any ground for legal separation,
future support, jurisdiction of
courts, future legitime (Art. 2035).

CIVIL LAW

unavoidable consequence of conflicting laws of


different states. [Cordora vs COMELEC (2009)]

VIII. ABSENCE
Art. 390. After an absence of seven years, it
being unknown whether or not the absentee
still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for
the purpose of opening his succession till after
an absence of ten years. If he disappeared after
the age of seventy-five years, an absence of
five years shall be sufficient in order that his
succession may be opened. (n)
Art. 391. The following shall be presumed dead
for all purposes, including the division of the
estate among the heirs:
1. A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who
has not been heard of for four years since the
loss of the vessel or aeroplane;
2. A person in the armed forces who has taken
part in war, and has been missing for four
years;
3. A person who has been in danger of death
under other circumstances and his existence
has not been known for four years.

VII. ALIENAGE
Dual citizenship is different from dual
allegiance. The former arises when, as a result
of the concurrent application of the different
laws of two or more states, a person is
simultaneously considered a national by the
said states. Dual allegiance, on the other
hand, refers to the situation in which a person
simultaneously owes, by some positive act,
loyalty to two or more states. While dual
citizenship is involuntary, dual allegiance is the
result of an individuals volition. For candidates
with dual citizenship, it should suffice if, upon
the filing of their certificates of candidacy, they
elect Philippine citizenship to terminate their
status as persons with dual citizenship
considering that their condition is the

Art. 41. A marriage contracted by any person


during subsistence of a previous marriage shall
be null and void, unless before the celebration
of the subsequent marriage, the prior spouse
had been absent for four consecutive years and
the spouse present has a well-founded belief
that the absent spouse was already dead. In
case of disappearance where there is danger of
death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph the

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spouse present must institute a summary


proceeding as provided in this Code for the
declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse.

CIVIL LAW

Requisites of Domicile (Callejo v. Vera)


1. Physical Presence in a fixed place
2. Intent to remain permanently (animus
manendi)
Kinds of Domicile
(1) Domicile of Origin
Domicile of parents of a person at the
time he was born.
(2) Domicile of Choice
Domicile chosen by a person, changing
his domicile of origin.
A 3rd requisite is necessary intention
not to return to ones domicile as his
permanent place.
(3) Domicile by Operation of Law (i.e., Article
69, domicile of minor)
A married woman does not lose her
domicile to her husband. (RomualdezMarcos vs. Comelec (1995))

Art. 42. The subsequent marriage referred to in


the preceding Article shall be automatically
terminated by the recording of the affidavit of
reappearance of the absent spouse, unless
there is a judgment annulling the previous
marriage or declaring it void ab initio.
A sworn statement of the fact and
circumstances of reappearance shall be
recorded in the civil registry of the residence of
the parties to the subsequent marriage at the
instance of any interested person, with due
notice to the spouses of the subsequent
marriage and without prejudice to the fact of
reappearance being judicially determined in
case such fact is disputed.

F. DOMICILE AND RESIDENCE OF


PERSON

III. Family Code


A. EFFECT AND RETROACTIVITY

For Natural Persons:


The place of their habitual residence (Art. 50)

Art. 255. This Code shall have retroactive effect


insofar as it does not prejudice or impair vested
or acquired rights in accordance with the Civil
Code or other laws.

For Juridical Persons:


The place where their legal representation is
established, or where they exercise their
primary functions, unless there is a law or other
provision that fixes the domicile (Art. 51)

The Family Code took effect on August 3, 1988.

B. REPEAL AND AMENDMENT


Art. 254. If any provision of this Code is held
invalid, all the other provisions not affected
thereby shall remain valid.

Domicile vs. Residence


While domicile is permanent (there is intent to
remain), residence is temporary and may be
changed anytime (there is no necessary intent
to remain).

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IV. Marriage And


Personal Relationship
Between Spouses

CIVIL LAW

walk out of it when the matrimony is about to


be solemnized, is quite different. This is
palpably and unjustifiably contrary to good
customs for which defendant must be held
answerable in damages in accordance with
Article 21 aforesaid. [Wassmer vs Velez (1964)]

A. CONCEPT OF MARRIAGE

Article 21 may be applied in a breach of


promise to marry where the woman is a victim
of moral seduction. [Baksh vs CA (1993)]

Art. 1, FC. Marriage is a special contract of


permanent union between a man and a
woman entered into in accordance with law for
the establishment of conjugal and family life. It
is the foundation of the family and an
inviolable social institution whose nature,
consequences, and incidents are governed by
law and not subject to stipulation, except that
marriage settlements may fix the property
relations during the marriage within the limits
provided by this Code.

C. REQUISITES
KINDS OF REQUISITES AND EFFECTS OF
NON-COMPLIANCE
(1) Essential Requisites (Art. 2)
(a) Legal Capacity of the contracting
parties, who must be a male and a
female
(b) Consent (of the parties) freely given in
the presence of a solemnizing officer.
(2) Formal Requisites (Art. 3)
(a) Authority of solemnizing officer
(b) A valid marriage license
Except:
(1) Marriages in articulo mortis or
when one or both parties are at
the point of death,
(2) Marriage in isolated places with
no
available
means
of
transportation,
(3) Marriage among Muslims or other
ethnic cultural communities,
(4) Marriages of those who have lived
together as husband and wife
without any legal impediment for
at least 5 years
(c) Marriage Ceremony:
Appearance of contracting parties
in the presence of a solemnizing
officer
Personal declaration that they take
each other as husband and wife in
the presence of not less than 2
witnesses

1987 Constitution Article XV, Section 2.


Marriage, as an inviolable social institution, is
the foundation of the family and shall be
protected by the State.
Marriage is an institution, in the maintenance
of which in its purity the public is deeply
interested. It is a relation for life and the
parties cannot terminate it at any shorter
period by virtue of any contract they may make
.The reciprocal rights arising from this relation,
so long as it continues, are such as the law
determines from time to time, and none other.
[Goitia vs Campos Rueda (1916)]

B. AGREEMENTS PRIOR TO
MARRIAGE
Extrajudicial dissolution of the conjugal
partnership without judicial approval is void.
[Espinosa vs Omana (2011)]
Mere breach of promise to marry is not an
actionable wrong. But to formally set a
wedding and go through all the abovedescribed preparation and publicity, only to

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EFFECT OF ABSENCE OF REQUISITES


Absence
Effect

VOID

CIVIL LAW

Defect:
Art. 45, FC. A marriage may be annulled for
any of the following causes existing at the time
of the marriage: xxx (3) that the consent of
either party was obtained by fraud, unless such
party afterwards, with full knowledge of the
facts constituting the fraud, freely cohabited
with the other as husband and wife.

Defect or Irregularity
VOIDABLE

ESSENTIAL REQUISITES
1. GENDER
Note: The best source for citing the
requirement of male/female is still statutory,
as provided explicitly in the Family Code.

Fraud here refers to matters which relate to the


marital relation:

Non-disclosure of previous conviction by


final judgment of a crime involving moral
turpitude;

Concealment of pregnancy by another


man;

Concealment of a sexually transmitted


disease;

Concealment of drug addiction,


alcoholism, lesbianism, or homosexuality

Silverio v. Republic, (2007): Changing of sex in


ones birth certificate on the basis of sex
reassignment was denied; otherwise, it would
result in confusion and would allow marriage
between persons of the same sex which is in
defiance of the law, as marriage is a union
between a man and a woman.

2. AGE

FORMAL REQUISITES
1. CEREMONY

Legal Capacity (Art. 5)


Male or female 18 years old and above, not
under any of the impediments mentioned in
Art. 37 (incestuous marriages) & Art. 38
(marriages against public policy), may contract
marriage.

Marriage Ceremony
No prescribed form or religious rite for the
solemnization of marriage is required. (Art. 6)
The couple's written agreement where they
declare themselves as husband and wife,
signed by them before a judge and two
capable witnesses, even though it was
independently made by them, still counts as a
valid ceremony. (Martinez v. Tan, (1909))

3. CONSENT FREELY GIVEN


Consent here refers to the consent of the
contracting parties; not of the parent/guardian
in those cases where such consent is required
(when either party is between 18 to 21 years of
age).

Minimum requirements prescribed by law:


(1) Appearance of contracting parties
personally before the solemnizing officer
(Art. 3)
(2) Personal declaration that they take each
other as husband and wife. (Art. 3)
(3) Presence of at least two witnesses of legal
age. (Art. 3)
(4) The declaration shall be contained in the
Marriage Certificate. (Art. 6)

Absence:
People v. Santiago, (1927): A marriage entered
into by a person whose real intent is to avoid
prosecution for rape is void for total lack of
consent. The accused did not intend to be
married. He merely used such marriage to
escape criminal liability.

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(5) Marriage certificate shall be signed by the


contracting parties and their witnesses and
attested by the solemnizing officer. (Art. 6)

(2) Priest, Rabbi, Imam or Minister of any


Church or Religious Sect. Must be:
(a) Duly authorized by his church or
religious sect
(b) Registered with the civil registrar
general
(c) Acting within the limits of the written
authority granted to him by his church
or religious sect.
(d) At least one of the contracting parties
belongs to the solemnizing officers
church or religious sect. (Art. 7)
(3) Ship Captain or Airplane Chief may
solemnize a marriage in articulo mortis
between passengers or crew members (Art.
7, 31)
(4) A Military commander of a unit may
solemnize marriages in articulo mortis
between persons w/in the zone of military
operation. (Art. 7, 32)
(5) Consul-general, consul or vice-consul may
solemnize marriages between Filipino
citizens abroad. (Art. 7, 10)
(6) Municipal and City Mayors (LGC sec. 444455)

Note: In a marriage in articulo mortis, when


one or both parties are unable to sign the
marriage certificate, it shall be sufficient for
one of the witnesses to write the name of said
party, which shall be attested by the
solemnizing officer. (Art. 6, par. 2)
Places where marriage SHALL be publicly
solemnized:
(1) Chambers of the judge or in open court
(2) Church, chapel, or temple
(3) Office of the consul-general, consul, or
vice-consul (Art. 8)
Exceptions:
Marriages performed in articulo mortis or
in remote places. (Art. 29)
Where both parties request in writing
that marriage be solemnized at a place
designated by them.
Non-compliance with this requirement does
not invalidate the marriage (premise: more
witnesses = more people can notify officer of
impediments to marriage).

Exceptions Art. 35
(1) Marriage is void when solemnized by any
person not legally authorized to perform
marriages unless either or both parties
believed in good faith that the solemnizing
officer had legal authority to do so. (Art. 35
(2))
(2) Absence & Irregularity of Authority of a
solemnizing officer

2. AUTHORITY OF THE SOLEMNIZING


OFFICER
Who may solemnize marriage:
(1) Incumbent member of the Judiciary within
his jurisdiction. (Art. 7)
Absence
1. Authority by
church/sect
2. Registered w/ civil
registrar
3. Acting w/in written
authority
4. Either party belong
to that church/sect

CIVIL LAW

Where a judge solemnizes a marriage outside


his jurisdiction, there is a resultant irregularity
in the formal requisite laid down in Article 3,
which while it may not affect the validity of the
marriage, may subject the officiating official to
administrative liability. [Navarro v. Domagtoy
(1996); Aranes v. Occiano (2002)]

Effect
VOID
VOID
IRREGULARITY
IRREGULARITY

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CIVIL LAW

A marriage which preceded the issuance of the


marriage license is void and the subsequent
issuance of such license cannot render valid
the marriage. Except in cases provided by law,
it is the marriage license that gives the
solemnizing officer the authority to solemnize
a marriage. [Aranes v Occiano (2002)].

II. Foreign National

3. LICENSE REQUIRED

Stateless persons or refugees from other


countries: affidavit stating circumstances
showing capacity to contract marriage, instead
of certificate of legal capacity (Art. 21)

When either or both parties are foreign


nationals: Certificate of legal capacity to
contract marriage, issued by a diplomatic or
consular official, shall be submitted before a
marriage license can be obtained (Art. 21)

GENERAL RULE: License required


Article 9 - Issued by local registrar of city or
municipality where either contracting party
habitually resides

III. Exceptions
(1) Marriage in articulo mortis (Art. 27)
The marriage may be solemnized
without the necessity of a marriage
license.
It remains valid even if ailing party
survives.
(2) Between passengers or crew members in a
ship or airplane (Art. 31)
(3) Persons within a military zone (Art. 32)
(4) Marriage in Remote and inaccessible
places (Art. 28)
(5) Marriages by Muslims and Ethnic cultural
minorities provided they are solemnized in
accordance with their customs, rites or
practices. (Art. 33)
(6) Marriage by parties who have Cohabited
for at least 5 years without any legal
impediment to marry each other. (Art. 34,
Ninal vs. Badayog (2000))

Article 11 - Each contracting party should file


separately.
PD 965, Sec.3, par.2 - No marriage license
shall be issued by the Local Civil Registrar
unless the applicants present a certificate,
issued at no cost to the applicants, by an Office
of Family Planning that they had received
instructions and information on family
planning and responsible parenthood.
Where Valid: License valid in any part of the
Philippines
Period of Validity: It will be valid for 120 days
from date of issue, automatically cancelled at
the expiration of such period.
I. Special Situations
a. Anyone between 18-21 years old who has not
yet been emancipated must present the
written consent that was given by his or her
parent or guardian. (Art. 14)
b. Anyone between 21-25 must ask for advice
from his or her parents or guardians. If the
advice wasnt obtained, the marriage license
will only be released 3 months after the
publication of the application. (Art. 15)

Requisites for the 5-year cohabitation to be


valid for the exemption from acquiring a
marriage license
(1) The man and woman must have been
living together as husband and wife for at
least five years before the marriage;
(2) The parties must have no legal
impediment to marry each other;
(3) The fact of absence of legal impediment
between the parties must be present at the
time of marriage;

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(4) The parties must execute an affidavit


stating that they have lived together for at
least five years [and are without legal
impediment to marry each other]; and
(5) The solemnizing officer must execute a
sworn statement that he had ascertained
the qualifications of the parties and that he
had found no legal impediment to their
marriage.
(Borja-Manzano vs. Judge Sanchez (2001))

CIVIL LAW

(6) That requirement as to parental advice was


complied with, when required
(7) That parties have entered into marriage
settlements, if any (Art. 22)
Note: Not an essential or formal requisite
without which the marriage will be void
(Madridejo v. de Leon (1930))
Best evidence that a marriage does exist.
[Tenebro v. CA (2004)]

4. MARRIAGE CERTIFICATE

D. LAW GOVERNING VALIDITY OF


MARRIAGES ABROAD

Absence and irregularity of marriage license and


contract

General rule in contracts


As to form: Governed by the laws of the country
in which they were executed (NCC Art. 17)
As to substantive requirements: Laws relating
to family rights and duties, or to the status,
condition and legal capacity of persons,
prohibitive laws regarding the person, his or
her property, those which have for their object
public order, public policy and good customs
bind all Filipinos regardless of location. (NCC
Art. 15, 17)

Republic v. CA and Castro (1994): There is a


presumption of regularity of official acts, and
the issuance of the Civil Registrar of a
Certificate of Due Search and Inability to Find
the application for a marriage license
certifies its inexistence, rendering the
marriage VOID.
Moreno v. Bernabe (1995): Before a marriage
can be solemnized, a valid marriage license
must be presented first, otherwise, it is VOID.
People v. Borromeo (1984): Non-existence of
a marriage contract does not invalidate the
marriage as long as all the requisites for its
validity are properly complied with.

Marriages Celebrated Abroad


GENERAL RULE: Marriages solemnized abroad
in accordance with the laws in force in that
country shall be valid in the Philippines. (Art
26, par.1)

Marriage Certificate
Where parties declare that they take each
other as husband and wife; contains the ff:
(1) Full name, sex, age of party
(2) Citizenship, religion, habitual residence
(3) Date and precise time of celebration of
marriage
(4) That marriage license was properly issued
(except in marriages of exceptional
character)
(5) That parental consent was secured, when
required

EXCEPTIONS:
(1) Marriage between persons below 18 years
old (Art. 35(1))
(2) Bigamous or polygamous marriage (Art.
35(4))
(3) Mistake in identity (Art. 35 (5))
(4) Marriages void under Article 53 (Art. 35 (6))
(5) Psychological incapacity (Art. 36)
(6) Incestuous marriages (Art. 37)
(7) Marriage void for reasons of public policy
(Art. 38)

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Essential requisites
Formal requisites
Inherent in the parties, Requirements
carried everywhere
independent of the
parties
Lex Nationalii Laws Lex loci celebrationisrelating to family rights if
valid
where
and duties, or to the celebrated,
then
status, condition, and valid
everywhere;
legal
capacity
of forms of contracting
persons are binding marriage are to be
upon Phil citizens even regulated by the law
though living abroad where
it
is
(Art. 15)
celebrated. (Art. 26)
Foreign marriages void Foreign marriages
under Phil law due to may be void under
lack of an essential Phil law due to
requisite, even if valid absence of a formal
under foreign laws, will requisite
under
not be recognized.
foreign laws.

CIVIL LAW

divorce.
Llorente v. CA (2000): Citizenship at the
time the divorce is obtained determines its
validity. Since H was no longer a Filipino
citizen when he divorced W, the nationality
principle did not apply to him anymore and
the divorce is valid.
Garcia v. Recio (2001): A divorce decree
obtained by the foreign spouse is
recognized under Phil law if it is executed
in accordance with the foreigners national
law. The party must prove divorce as a fact
and that said divorce is obtained in
conformity with the law allowing it, before
the Philippine courts can take judicial
notice.

E. COMMON-LAW MARRIAGES
Proof of Foreign Marriage in order that it may
be upheld:
(1) Provisions of the foreign law
(2) Celebration of the marriage in
accordance with said provisions

Art. 147. When a man and a woman who are


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

Foreign Divorces
Those obtained by Filipino citizens are
void under Philippine law.
If the foreign spouse obtains a valid
divorce decree abroad capacitating
him/her to remarry, the Filipino spouse
shall have capacity to remarry under
Philippine law. (Art. 26, par.2)

In the absence of proof to the contrary,


properties acquired while they lived together
shall be presumed to have been obtained by
their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes
of this Article, a party who did not participate
in the acquisition by the other party of any
property shall be deemed to have contributed
jointly in the acquisition thereof if the former's
efforts consisted in the care and maintenance
of the family and of the household.

Van Dorn v. Romillo (1985): A divorce


obtained by the foreign spouse in
accordance with the said spouses national
law is recognized in the Philippines and
releases Filipino spouse from their
marriage.
Quita v. Dandan (1998): The citizenship of
the spouses at the time of the divorce
determines their capacity to obtain a valid

Neither party can encumber or dispose by acts


inter vivos of his or her share in the property

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acquired during cohabitation and owned in


common, without the consent of the other,
until after the termination of their
cohabitation.

CIVIL LAW

without being lawfully married, nevertheless


there is between them an informal civil
partnership which would entitle the parties to
an equal interest in property acquired by their
joint efforts [Lesaca vs Lesca (1952)]

When only one of the parties to a void marriage


is in good faith, the share of the party in bad
faith in the co-ownership shall be forfeited in
favor of their common children. In case of
default of or waiver by any or all of the
common children or their descendants, each
vacant share shall belong to the respective
surviving descendants. In the absence of
descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall
take place upon termination of the
cohabitation. (144a)

Such form of co-ownership requires that the


man and woman living together must not in
any way be incapacitated to contract
marriage. [Eugenio vs Velez (1990)]
The falsity of the affidavit cannot be
considered as a mere irregularity in the formal
requisites of marriage. The law dispenses with
the marriage license requirement for a man
and a woman who have lived together and
exclusively with each other as husband and
wife for a continuous and unbroken period of
at least five years before the marriage. The aim
of this provision is to avoid exposing the parties
to humiliation, shame and embarrassment
concomitant with the scandalous cohabitation
of persons outside a valid marriage due to the
publication of every applicants name for a
marriage license. [De Castro vs De Castro
(2008)]

Art. 148. In cases of cohabitation not falling


under the preceding Article, only the properties
acquired by both of the parties through their
actual joint contribution of money, property, or
industry shall be owned by them in common in
proportion to their respective contributions. In
the absence of proof to the contrary, their
contributions and corresponding shares are
presumed to be equal. The same rule and
presumption shall apply to joint deposits of
money and evidences of credit.

F. VOID AND VOIDABLE MARRIAGES


Presumption of Marriage
(1) Presumption in favor of a valid marriage
(Art 220, CC)
(2) The presumption that a man and a woman
deporting themselves as husband and wife
have entered into a lawful contract of
marriage is satisfactory if uncontradicted.
(Sec. 3 (aa), Rule 131, ROC)
(3) In marriages of exceptional character, the
existence of the marriage is presumed,
even in the TOTAL ABSENCE of a marriage
license. (Vda. De Jacob v CA (1999))
(4) If a marriage certificate is missing, and all
means HAVE NOT YET BEEN EXHAUSTED
to find it, then the marriage is presumed to
exist (Sevilla v. Cardenas (2006))

If one of the parties is validly married to


another, his or her share in the co-ownership
shall accrue to the absolute community or
conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is
not validly married to another, his or her shall
be forfeited in the manner provided in the last
paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise
apply even if both parties are in both faith.
(144a)
Though there is no technical marital
partnership between person living maritally

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Absence of a marriage certificate is not proof of


absence of marriage. To prove the fact of
marriage, the following would constitute
competent evidence: (1) the testimony of
witnesses to matrimony; (2) documentary
photos or videos of the wedding; (3) the
couples public cohabitation; and (4) birth and
baptismal certificates of children born during
the union. (Trinidad v CA (1998))

CIVIL LAW

(1) Marriage where any party is below eighteen


years of age even with the consent of
parents or guardians
(2) Marriage solemnized by any person not
legally authorized to perform marriages
unless such marriages were contracted
with either or both parties believing in
good faith that the solemnizing officer had
legal authority to do so.
Note: Ones belief in good faith that the
solemnizing officer has the required
authority is a mistake of fact, and not of
law.
(3) Marriage solemnized without a valid
marriage license, except in marriages
under exceptional circumstances
(4) Bigamous or polygamous marriages not
falling under Article 41 (Art. 41: subsequent
marriage by present spouse who obtained
a declaration of presumptive death for
absent spouse prior to the subsequent
marriage)
(5) There is a mistake as to the identity of the
other contracting party
(6) Subsequent marriages that are void under
Article 53 (Non-compliance with Art. 52)

F. 1. VOID MARRIAGES
Type of Void Marriages
(1) Absence of any formal/essential requisites
(2) Bigamous and polygamous marriages
(3) Subsequent marriage, upon reappearance
of spouse
(4) Bad faith of both spouses
(5) Psychologically Incapacitated spouse
(6) Void subsequent marriages
(7) Incestuous Marriages
(8) Non-compliance
with
recording
requirement after declaration of nullity
Art. 39. The action or defense for the
declaration of absolute nullity shall not
prescribe. However, in case of marriage
celebrated before the effectivity of this Code
and falling under Article 36, such action or
defense shall prescribe in ten years after this
Code shall taken effect. (As amended by
Executive Order 227) (n)

To be considered void on the ground of


absence of a marriage license, the law requires
that the absence of such marriage license must
be apparent on the marriage contract, or at the
very least, supported by a certification from the
local civil registrar that no such marriage
license was issued to the parties. [Alcantara vs
Alcantara (2007)]

a. Absence of Requisites
Art. 4(1): The absence of any essential or
formal requisites shall render the marriage
void ab initio, except as stated in Article 35 (a).

An action for nullity of marriage


imprescriptible. [Republic vs Dayot (2008)]

Art. 5: Any male or female of the age of


eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38,
may contract marriage.

is

b. Bigamous and polygamous marriages


Article 40 (No Judicial Declaration Of Nullity)
A person entered into a subsequent marriage
without first getting a judicial declaration of
nullity of the first void marriage

Void from the Beginning (Art. 35)

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CIVIL LAW

(b) The spouse present had a well-founded


belief that absent spouse is dead; and
(c) Judicial declaration of presumptive
death was secured (no prejudice to the
effect of the reappearance of the
absent spouse).
(2) Subsequent marriage due to extraordinary
absence where:
(a) Absent spouse had been missing for 2
consecutive years;
(b) There is danger of death under the
circumstances set forth in Art. 391 CC
attendant to the disappearance;
(c) The spouse present had a well-founded
belief that the missing person is dead;
and
(d) Judicial declaration of presumptive
death was secured (no prejudice to the
effect of the reappearance of the
absent spouse).

Article 41 (Presumptive Death)


Failure of the spouse present to obtain a
judicial declaration of presumptive death
before entering a subsequent marriage
Article 44 (Bad Faith of both spouses)
Both spouses entering a subsequent marriage
after presumptive death, who acted in bad
faith
It is now settled that the fact that the first
marriage is void from the beginning is not a
defense in a bigamy charge. As with a
voidable marriage, there must be a judicial
declaration of the nullity of a marriage before
contracting the second marriage. [Mercado vs
Tan (2000)]
The accused may still be charged with the
crime of bigamy, even if there is a subsequent
declaration of the nullity of the second
marriage, so long as the first marriage was still
subsisting when the second marriage was
celebrated. [Capili vs People (2013)]

Extraordinary circumstances (Art. 391, CC):


(a) ON BOARD VESSEL lost at sea voyage,
airplane,
(b) ARMED FORCES in war, or
(c) DANGER OF DEATH under other
circumstances, existence not known

The mere private act of signing a marriage


contract bears no semblance to a valid
marriage and thus, needs no judicial
declaration of nullity. Such act alone, without
more, cannot be deemed to constitute an
ostensibly valid marriage for which petitioner
might be held liable for bigamy unless he first
secures a judicial declaration of nullity before
he contracts a subsequent marriage. [Morigo
vs Morigo (2004)]

Notes:
Institution of a summary proceeding is
not sufficient. There must also be a
summary judgment. (Balane)
Only the spouse present can file or
institute a summary proceeding for the
declaration of presumptive death of
the absentee. (Bienvenido case)
While an action for declaration of
death or absence under Rule 72,
Section 1(m), expressly falls under the
category of special proceedings, a
petition for declaration of presumptive
death under Article 41 of the Family
Code is a summary proceeding, as
provided for by Article 238 of the same
Code. [Republic vs Granada (2012)]

c. Subsequent Marriage when one spouse is


absent
Requirements for Subsequent Marriage to be
Valid When Prior Spouse is Absent (Art. 41):
(1) Subsequent marriage due to ordinary
absence where:
(a) Absent spouse had been absent for 4
consecutive years;
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The belief of the present spouse must


be the result of proper and honest to
goodness inquiries and efforts to
ascertain the whereabouts of the
absent spouse and whether the absent
spouse is still alive or is already
dead. This
is
drawn
from
circumstances before and after the
disappearance and the nature and
extent of inquiries made. [Republic vs
Granada (2012)]

circumstances;
4 years under
2 years under extraordinary
extraordinary circumstances
circumstances
As
remarriage

As to effect on Subsequent
subsequent
marriage
is
marriage
automatically
terminated by
the recording
of an affidavit
of
reappearance
of the absent
spouse

Note: It is the recording of the affidavit of


reappearance that automatically terminates
the subsequent marriage. Hence, if absentee
spouse reappears without recording affidavit of
reappearance, then there is no legal effect.
Meanwhile, absentee spouse cannot remarry.
(Tolentino)
EXCEPTION TO THE EXCEPTION: If there is
a judgment annulling the previous
marriage or declaring it void ab initio. (Art.
42)

As to ground

Good Faith: PERIOD of absence for


PRESUMPTIVE DEATH is MANDATORY thus
cannot be shortened by good faith and if be
done so will be VOID.

Civil Code

4 years under Absent for at


normal
least 7 years;

21

Upon
reappearance,
judicial
proceeding is
necessary to
declare
marriage null
and void

Well founded Generally


belief that the believed to be
absent spouse dead
is dead

Related Provisions

Difference between Absence in the Civil Code


and Family Code

As to period

to In order to Declaration of
remarry,
presumptive
summary
death is not
proceeding is necessary
necessary

As to who can Can


be The spouses
institute
the instituted by themselves
action
the
spouse
present, any
interested
party, and the
subsequent
spouse

Effect of Reappearance of Absent Spouse


GENERAL RULE: The subsequent marriage
remains valid.
EXCEPTION: It is automatically terminated by
the recording of the affidavit of reappearance
of the absent spouse at the instance of any
interested person, with due notice to the
spouses of the subsequent marriage. (Art. 42)

Family Code

CIVIL LAW

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e. Psychological incapacity
Contracted by any party who, at the time of the
celebration, was psychologically incapacitated
to comply with the essential marital
obligations of marriage, even if such incapacity
becomes manifest only after its solemnization
(Art. 36)

Art. 390, Civil Code. After an absence of 7


years, it being unknown whether or not the
absentee still lives, he shall be presumed
dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead for
the purpose of opening his succession till
after an absence of 10 years. If he
disappeared after the age of 75 years, an
absence of 5 years shall be sufficient in order
that his succession may be opened.

Republic v. Molina, (1997):


(1) The burden of proof to show the nullity of
the marriage belongs to the plaintiff. This is
to be investigated by the OSG for collusion.
(2) The root cause of the psychological
incapacity must be: (a) medically or clinically
identified, (b) alleged in the complaint, (c)
sufficiently proven by the experts, (d) clearly
explained in the decision.
(3) The incapacity must be proven to be existing
at the time of the celebration of the
marriage.
(4) Such incapacity must also be shown to be
medically or clinically permanent or
incurable.
(5) Such illness must be grave enough to bring
about the disability of the party to assume
the essential obligations of marriage.
(6) The essential marital obligations must be
those embraced by Articles 68 up to 71 of
the Family Code as regards the husband
and wife as well as Articles 220, 221, and
225 of the same Code in regard to parents
and their children.
(7) Interpretations given by the National
Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not
controlling/decisive, should be given great
respect by our courts.
(8) The trial court must order the prosecuting
attorney or fiscal and the Solicitor General to
appear as counsel for the state. No decision
shall be handed down unless the Solicitor
General issues a certification.

Art. 391, Civil Code. The following shall be


presumed dead for all purposes, including
the division of the estate among the heirs:
1. A person on board a vessel lost during a
sea voyage, or an aeroplane which is
missing, who has not been heard of for
four years since the loss of the vessel or
aeroplane;
2. A person in the armed forces who has
taken part in war, and has been missing
for four years;
3. A person who has been in danger of death
under other circumstances and his
existence has not been known for four
years.

Notes:
Although 7 years is
presumption of death of
CC, the FC makes an
purpose of remarriage
requirement to 4 years.

CIVIL LAW

required for the


an absentee in the
exception for the
by limiting such

d. Bad Faith of Both Spouses


Art. 44. If both spouses of the subsequent
marriage acted in bad faith, said marriage
shall be void ab initio and all donations by
reason of marriage and testamentary
dispositions made by one in favor of the other
are revoked by operation of law. (n)

Santos v. Bedia-Santos, (1995): Laid down 3


characteristics for determining psychological

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incapacity: gravity, antecedent, and incurability.


Tsoi v. CA, (1997): Refusal of husband to have
sex was interpreted as psychological incapacity.
A man who can but wont is psychologically
incapacitated
Marcos v. Marcos (2000): Psychological
incapacity maybe established by the totality of
the evidence presented. Personal medical
examination could be dispensed with.
Republic v. San Jose (2007): There is no
requirement that the respondent be medically
examined first.
Antonio v. Reyes, (2006): Pathological liar
considered as psychological incapacity, Molina
guidelines met.
Kalaw v. Fernandez (2015): In the task of
ascertaining the presence of psychological
incapacity as a ground for the nullity of
marriage, the courts, which are concededly not
endowed with expertise in the field of
psychology, must of necessity rely on the
opinions of experts in order to inform
themselves on the matter, and thus enable
themselves to arrive at an intelligent and
judicious judgment.
f. Incestuous marriages
Article 37 (Incestuous):
(1) Between ascendants and descendants of
any degree, legitimate or illegitimate
(2) Between brothers and sisters, whether full
or half blood, legitimate or illegitimate

CIVIL LAW

(1) Between collateral blood relatives,


legitimate or illegitimate, up to the fourth
civil degree.
(2) Between step-parents and step-children.

Note: Stepbrothers and stepsisters can


marry because marriages between
them are not among those enumerated
in Article 38.
(3) Between parents-in-law and children-inlaw.
(4) Between adopting parent and adopted
child.
(5) Between the surviving spouse of the
adopting parent and the adopted child.
(6) Between the surviving spouse of the
adopted child and the adopter.
(7) Between an adopted child and a legitimate
child of the adopter.
(8) Between adopted children of the same
adopter.
(9) Between parties where one, with the
intention to marry the other, killed that
other person's spouse, or his or her own
spouse.
Relationships outside of Art. 37 and 38 which
are not impediments to marriage: brother-inlaw with sister-in-law, stepbrother with
stepsister, guardian with ward, adopted with
illegitimate child of the adopter, adopted son
of the husband with adopted daughter of the
wife, parties who have been convicted of
adultery
h. Non-compliance with recording requirement
after declaration of nullity
Article 53 (Non-Recording):
Subsequent marriage of spouses, where the
requirements of recording under Art. 52 have
not have been complied with, shall be null and
void.

g. Against Public Policy

Article 38 (Against Public Policy):

Art. 52. The judgment of annulment or of


absolute nullity of the marriage, the partition

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and distribution of the properties of the


spouses and the delivery of the children's
presumptive legitimes shall be recorded in the
appropriate civil registry and registries of
property; otherwise, the same shall not affect
third persons.

CIVIL LAW

Article 43 and 44 (Effects of Termination of


Bigamous Marriage under Art. 42)
Art. 43:
(1) Children of subsequent marriage
conceived prior to its termination
considered legitimate; custody and
support decided by court in a proper
proceeding.
(2) Property Regime dissolved and
liquidated (party in bad faith shall forfeit
his/her share in favor of the common
children or if there are none, children of the
guilty spouse by a previous marriage, and in
case there are none, to the innocent
spouse).
(3) Donation propter nuptias remains valid,
(but if the donee contracted marriage in
bad faith, donations are revoked by
operation of law)
(4) Insurance benefits innocent spouse may
revoke designation of guilty party as
beneficiary, even if such designation is
stipulated as irrevocable.
(5) Succession Rights Party in bad faith shall
be disqualified to inherit from the innocent
spouse, whether testate or intestate.

Previous marriage declared void ab initio or


annulled
Under the Civil Code (superseded by the Family
Code), there was no need for a judicial
declaration of nullity of a previous marriage for
a subsequent marriage to be valid (People v.
Mendoza (1954))
Atienza v. Brillantes, (1995): Even if the
judges first marriage contracted in 1965 was
void for not having a marriage license, the
requirement for a judicial declaration of
nullity in Art. 40 still applies for his
subsequent marriage contracted in 1991.
Apiag v. Cantero, (1997): Where both
marriages were contracted prior to the
effectivity of the FC, the requirement of Art.
40 does not apply to the second marriage
where a right is already vested and on which
the FC cannot have retroactive effect.

Article 44 (Donations):
If both spouses of the subsequent marriage
acted in bad faith, all donations by reason of
marriage and testamentary dispositions made
by one party in favor of the other are revoked
by operation of law.

Domingo v. CA, (1993): The judicial


declaration of nullity can be invoked for
purposes other than remarriage. Article 40
was interpreted as being a requirement for
purposes of remarriage but not limited for
that purpose. Separation of property is also
a valid purpose for filing for a judicial
declaration of nullity.

Who may file the petition for nullity of void


marriages?
GENERAL RULE: Only the husband or wife may
file the petition. (AM No. 02-11-10 SC, Sec. 2a)

The word solely in Art. 40 referred to


validating subsequent marriages but NOT to
limiting the purposes for which a judicial
declaration of nullity can be invoked.

Specifically, A.M. No. 02-11-10-SC extends only


to marriages covered by the Family Code,
which took effect on August 3, 1988, but, being
a procedural rule that is prospective in
application, is confined only to proceedings

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commenced after March 15, 2003. [Ablaza vs


Republic (2010)]

CIVIL LAW

Art. 48 (2): In the cases referred to in the


preceding paragraph, no judgment shall be
based upon a stipulation of facts or confession
of judgment.

EXCEPTIONS:
(1) Nullity of marriage cases commenced
before the effectivity of A.M. No. 02-11-10-SC
(2) Marriages celebrated during the effectivity
of the Civil Code. [Carlos vs Sandoval (2008)]

Stipulation of Facts: An admission by both


parties after agreeing to the existence of any of
the grounds or facts that would constitute a
void/voidable marriage

However, the absence of a provision in the Civil


Code cannot be construed as a license for any
person to institute a nullity of marriage
case. Such person must appear to be the party
who stands to be benefited or injured by the
judgment in the suit, or the party entitled to
the avails of the suit. [Carlos vs Sandoval
(2008)]

Confession of judgment: The admission by one


party admitting his/her fault to cause the
invalidity of the marriage.
Participation of the OSG
The obvious intent of the AM 02-11-10-SC was
to require the OSG to appear as counsel for the
State in the capacity of a defensor vinculi (i.e.,
defender of the marital bond) to oppose
petitions for, and to appeal judgments in favor
of declarations of nullity of marriage under
Article 36 of the Family Code, thereby ensuring
that only the meritorious cases for the
declaration of nullity of marriages based on
psychological incapacity-those sufficiently
evidenced by gravity, incurability and juridical
antecedence-would succeed. [Mendoza vs
Republic (2012)]

Procedure in attacking a void marriage


GENERAL RULE: Void Marriages may be
attacked collaterally or directly.
EXCEPTION: A person in a void marriage must
first file for a declaration of nullity in order to
subsequently marry
Requisites for valid remarriage:
Art. 52. The judgment of annulment or of
absolute nullity of the marriage the partition
and distribution of the properties of the
spouses and the delivery of the children's
presumptive legitimes shall be recorded in the
appropriate civil registry and registries of
property; otherwise the same shall not affect
third persons. (n)

No Motion to Dismiss
AM 02-11-10-SC Sec.7 prohibits the filing of a
motion to dismiss in actions for annulment of
marriage. [Aurelio vs Aurelio (2011)]
Effect of pendency of action for declaration of
nullity:
(1) The court shall provide for the support of
the spouses,
(2) The custody and support of the common
children, giving paramount consideration
to their moral and material welfare, their
choice of parent with whom they wish to
remain.
(3) The court shall also provide for visitation
rights of other parent. (Art. 49)

(1) The previous marriage should be judicially


declared void or annulled (final judgment)
(Terre v. Terre (1992), Atienza v. Brillantes
(1995));
(2) Must comply with the requirements of Art.
52.
Safeguard against collusion and No confession
of judgment

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CIVIL LAW

(2) The children/guardian/trustee of property


may ask for the enforcement of the
judgment (Art. 51(2))
(3) The delivery of the presumptive legitimes
shall not prejudice the ultimate
successional rights, but the value of the
properties already received shall be
considered as advances on their legitime
(Art. 51(3))

Effect of res judicata


Suffice it to state that parties are bound not
only as regards every matter offered and
received to sustain or defeat their claims or
demand but as to any other admissible matter
which might have been offered for that
purpose and of all other matters that could
have been adjudged in that case. [Mallion vs
Alcantara (2006)]

GENERALLY, children born or conceived within


void marriages are illegitimate.

Effect of final judgment declaring nullity


The effects provided for by paragraphs (2), (3),
(4) and (5) of Article 43 and by Article 44 shall
also apply in the proper cases to marriages
which are declared void ab initio or annulled by
final judgment under Articles 40 and 45 (Art.
50(1)).

EXCEPTIONS:
Children conceived or born before the
judgment under Article 36 has become
final and executory (Art. 54)
Children conceived or born of
subsequent marriages under Article 53
(Art. 54)

Final judgment in such cases shall provide for


the:
(1) Liquidation, partition, and distribution
of the properties of the spouses
(2) Custody and support of the common
children
(3) Delivery of their presumptive legitimes
Unless such
matters had been
adjudicated
in
previous
judicial
proceedings (Art. 50(2))
All creditors of the spouses/property
regime shall be notified of the proceedings
for liquidation (Art. 50(2 and 3))

F. 2. VOIDABLE
MARRIAGE

OR

ANNULLABLE

Art. 14: In case either or both of the contracting


parties, not having been emancipated by a
previous marriage, are between the ages of
eighteen and twenty-one, In addition to the
requirements of the preceding articles:
Exhibit to the local civil registrar the
consent to their marriage of their father,
mother, surviving parent or guardian, or
persons having legal charge of them, in
the order mentioned
Manifested in writing by the interested
party, who personally appears before the
proper local civil registrar, or
In the form of an affidavit made in the
presence of two witnesses and attested
before any official authorized by law to
administer oaths
The personal manifestation shall be
recorded in both applications for
marriage license, and the affidavit, if one

In the partition, the conjugal dwelling and lot


shall be adjudicated to the spouse with whom
majority of the common children remain (Art.
102 and 129) (Art. 50(4)
Presumptive legitimes, computed as of the
date of the final judgment, shall be delivered in
cash, property or sound securities:
(1) Unless the parties, by mutual agreement
judicially approved, had already provided
for such (Art. 51(1))

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is executed instead, shall be attached to


said applications.

CIVIL LAW

Commission believes that no such


ratification can be made by the parent.

Grounds for Annulment


Article 4 states that xxx A defect in any of the
essential requisites shall render the marriage
voidable as provided in Article 45.

Moe v. Dinkins, (1981): In defending the


requirement of parental consent, the Court
held that the State has power to make
adjustments in the constitutional rights of
minors based on the following grounds: 1)
the peculiar vulnerability of children, 2) to
protect minors from immature decision
making and prevent unstable marriages, 3)
on the presumption that parents act in the
best interests of their children in child
rearing.

Article 45. Marriage may be annulled on the


following grounds existing at time of marriage:
(1) One of the parties is 18 or above but below
21 years old, and there is no parental
consent.
(2) Either party was of unsound mind
(insanity).
(3) The consent of either party was obtained
through fraud (different from mistake in
identity)
(4) The consent of either party was obtained
through force, intimidation, or undue
influence.
(5) Either party is physically incapable of
consummating the marriage (impotence;
this is different from sterility, which is the
inability to produce offspring).
(6) Either party has a serious and incurable
sexually-transmissible disease, even if not
concealed.*

b. Insanity
(a) Mental incapacity or insanity is a vice
of consent; insanity (1) of varying
degrees, (2) curable being an illness,
capable of ratification or convalidation,
(3) has lucid intervals, (4) ground only
for annulment in many countries
(b) Can be ratified by cohabitation after
insanity is cured or during a lucid
interval
(c) Mere mental weakness is not a ground
for annulment, but if found grave
enough,
it
may
amount
to
psychological incapacity.
(d) Intoxication, somnambulism where
one had no mental capacity to give
consent is equivalent to insanity
(e) Must EXIST AT THE TIME of the
celebration of the marriage. Insanity
that occurs after the celebration of
marriage does not constitute a cause
for nullity (Katipunan v. Tenorio (1937))
(f) Law presumes SANITY, burden of proof
on party alleging insanity

Action to Annul: Action in rem, concerns status


of parties; res is relation between parties or
marriage tie; jurisdiction depends on
nationality or domicile not the place of
celebration.
Grounds for Annulment explained:
a. Lack of parental consent
(a) 18 x < 21 without parental consent
(b) Ratified by party 18 or above but below
21 upon free cohabitation upon
reaching 21.
(c) TOLENTINO: parents whose consents
were wanting may ratify before 21; this
right can be waived; however, the Code

c. Fraud
(a) Only those enumerated in Art. 46:
Non-disclosure
of
previous
CONVICTION by final judgment of a

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(b)

(c)

(d)

(e)

PERSONS

crime
involving
MORAL
TURPITUDE
Concealment by wife at the time of
marriage, that she was pregnant by
another man
Concealment of STD regardless of
nature existing at time of marriage
Concealment of drug addiction,
habitual alcoholism, homosexuality,
lesbianism existing at time of
marriage
NO other misrepresentation or deceit
of CHARACTER, HEALTH, RANK,
FORTUNE OR CHASTITY shall
constitute FRAUD.
Conviction of Crime: requisites are
Moral turpitude
Conviction
Concealment of Pregnancy
Fraud against very essence of
marriage; importance of procreation
of children; an assault to the
integrity of the union by introducing
ALIEN BLOOD
If husband knew of pregnancy, the
marriage cannot be annulled on the
ground of concealment
May be ratified upon free cohabitation
after knowledge of fraud.

CIVIL LAW

BAR ACTION for annulment; The defect is not


the disease, but the FRAUD which VITIATED
CONSENT.
Buccat v. Mangonon de Buccat, (1941): W gave
birth 3 months after marriage, H filed for
annulment: concealment of non-virginity.
Denied. Court held that it was unbelievable
that husband could not have noticed when
wife had been at least 6 months pregnant
prior to marriage.
Aquino v. Delizo, (1960): The Supreme Court
granted annulment because the wife
concealed the fact that she was 4 months
pregnant during the time of the marriage.
Since Delizo was naturally plump, Aquino
could hardly be expected to know, by mere
looking, whether or not she was pregnant at
the time of the marriage.
Almelor v. RTC, (2008): It is the concealment
of homosexuality, and not homosexuality per
se, that vitiates the consent of the innocent
party. Such concealment presupposes bad
faith and intent to defraud the other party in
giving consent to the marriage.

d. Force, intimidation, undue influence


(a) FORCE must be one as to prevent party
from acting as a free agent; will
destroyed by fear/compulsion
(b) INTIMIDATION must be one as to
compel the party by a reasonable/wellgrounded fear of an imminent and
grave evil upon his person/properties
(c) DEGREE OF INTIMIDATION: age, sex,
condition of person borne in mind
(d) Threat or intimidation as not to act as
FREE AGENT; i.e. threatened by armed
demonstrations (Tiongco v. Matig-a)
(e) Committee added undue influence,
maybe compelled to enter out of
REVERENTIAL FEAR e.g., fear of

Art. 45 STD
Art. 46 STD
Ground for annulment The STD is a type of
fraud which is a
ground for annulment
Does not have to be Must be concealed
concealed
Must be serious and Need not be serious
incurable
nor incurable
The STD itself is the It is the concealment
ground for annulment that gives rise to the
annulment
Effect of Cure to Fraud in Art. 46:
Recovery or rehabilitation from STD, drug
addiction, and habitual alcoholism will NOT

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PERSONS

causing
distress
to
parents,
grandparents, etc.
(f) May be ratified upon cohabitation after
force, intimidation, or undue influence
has ceased or disappeared.

CIVIL LAW

impotency, she is presumed potent; to


order her to undergo physical exam
does not infringe her right against selfincrimination (Jimenez v Canizares)
NOTE: If she continues to refuse the
physical exam, she can be held in
contempt & ordered confined in jail
until she does so
(g) Villanueva vs. CA (2006): Absence of
cohabitation is not a ground for
annulment.
(h) RELATIVE IMPOTENCY: may now be
invoked because there are cases where
one is impotent with respect to his/her
spouse but not with other men or
women.
(i) EXAMPLE: penile erection to other
women possible; unusually large penis
cannot fit with abnormally small
vagina

e. Impotency
(a) Must exist at time of marriage, and be
continuous and incurable. If incapacity
can be remedied or is removable by
operation, NOT ANNULLABLE (Sarao v
Guevarra(1940))
(b) Physical condition: sexual intercourse
with a person of the opposite sex is
impossible, not mere sterility
(c) Only the potent spouse can file the
action for annulment and he/she must
not have been aware of the others
impotency at the time of marriage
(Sempio-Diy)
If he/she was aware, it is
implied that he/she renounced
copulation by consenting to
the marriage. (Tolentino)
(d) When both spouses are impotent,
marriage cannot be annulled because
neither spouse is aggrieved. (SempioDiy)
An impotent plaintiff could not
have expected copulation with
the other spouse. (Tolentino)
(e) POTENCY PRESUMED; party who
alleges impotency has burden of proof
(Jimenez v Canizares (1960))
(f) REFUSAL of wife to be examined
DOES NOT PRESUME impotency
because Filipino women are inherently
shy & bashful; TC must order physical
examination because w/o proof of

f.

29

Sexually-transmissible disease serious and


incurable
(a) Should exist at the time of the
marriage
(b) Should be found serious
(c) Should appear to be incurable
(d) Reason: danger to the health of spouse
& offspring/s
(e) Same as incurable impotency
(f) Not subject to ratification cannot be
ratified
or
convalidated
by
cohabitation:
Affliction of STD is unknown to
the other spouse (Balane)
The other spouse must also be
free from a similar STD. (Balane)

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CIVIL LAW

Who may file, Prescription, Ratification

Ground
(Art. 45)
Lack of
parental
consent
Insanity

Who can file


(Art. 47)
Party 18 or above but
below 21
Parent or guardian who
did not give consent
Sane spouse with no
knowledge of the others
insanity
Legal guardian of insane
party
Insane party

Fraud

Injured party (defrauded


party)

Force,
intimidation,
undue
influence
Impotence

Injured party

STD

Healthy party

Potent spouse

Prescription
(Art. 47)
Within 5 years after
attaining 21.
Before party below 21
reaches 21.
Any time before the death
of either party

During lucid interval or


after regaining sanity, and
before death
Within 5 years after
discovery of fraud
Within 5 years after
disappearance of force,
undue influence, or
intimidation
Within 5 years after
marriage
Within 5 years after
marriage

30

Ratification
(Art. 45)
Free cohabitation after
attaining age of 21.

Free cohabitation of insane


party after insane party
comes to reason

Free cohabitation after


having full knowledge of
fraud
Free cohabitation after the
force or intimidation or
undue influence has
ceased or disappeared
Cannot be ratified but
action prescribes
Cannot be ratified but
action prescribes

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PERSONS AND FAMILY RELATIONS

Marriages Not Subject to Ratification/


Convalidation by cohabitation
(1) One spouse is incurably impotent (Art. 47
prescription: 5 years)
(2) One spouse has an incurable STD (Art. 47
prescription: 5 years)

CIVIL LAW

Courts will only determine (1) whether the


foreign judgment is inconsistent with an
overriding public policy in the Philippines; and
(2) whether any alleging party is able to prove
an extrinsic ground to repel the foreign
judgment, i.e. want of jurisdiction, want of
notice to the party, collusion, fraud, or clear
mistake of law or fact. If there is neither
inconsistency with public policy nor adequate
proof to repel the judgment, Philippine courts
should, by default, recognize the foreign
judgment as part of the comity of nations.
[Fujiki vs Marinay (2013)]

Presence of Prosecutor
Art. 48: To prevent collusion between the
parties, fabrication or suppression of evidence,
the prosecuting attorney or fiscal shall appear
on behalf of the State.
Corpuz v. Ochoterena, (2004): In a legal
separation or annulment case, the prosecuting
attorney must first rule out collusion as a
condition sine qua non for further proceedings.
A certification by the prosecutor that he was
present during the hearing and even crossexamined the plaintiff does not suffice to
comply with the mandatory requirement.

G. THE LAW ON SEPARATION OF THE


SPOUSES
SEPARATION IN FACT
Art. 239. When a husband and wife are
separated in fact, or one has abandoned the
other and one of them seeks judicial
authorization for a transaction where the
consent of the other spouse is required by law
but such consent is withheld or cannot be
obtained, a verified petition may be filed in
court alleging the foregoing facts.

Marriages dissolved by foreign judgment


Aliens may obtain divorces abroad, which may
be recognized in the Philippines, provided they
are valid according to their national law. The
marriage tie when thus severed as to one party,
ceases to bind either. [Van Dorn vs Romillo
(1985)]

The petition shall attach the proposed deed, if


any, embodying the transaction, and, if none,
shall describe in detail the said transaction and
state the reason why the required consent
thereto cannot be secured. In any case, the final
deed duly executed by the parties shall be
submitted to and approved by the court. (n)

A marriage between two Filipinos cannot be


dissolved even by a divorce obtained abroad,
because of Articles 15 and 17 of the Civil Code. In
mixed marriages involving a Filipino and a
foreigner, Article 26 of the Family Code allows
the former to contract a subsequent marriage in
case the divorce is validly obtained abroad by
the alien spouse capacitating him or her to
remarry. A divorce obtained abroad by a
couple, who are both aliens, may be recognized
in the Philippines, provided it is consistent with
their respective national laws. [Garcia vs Recio
(2001)]

AGREEMENT TO SEPARATE
A notary public should not facilitate the
disintegration of a marriage and the family by
encouraging the separation of the spouses
and extrajudicially dissolving
the
conjugal
partnership. [Espinosa vs Omana (2011)]

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ABSOLUTE DIVORCE

CIVIL LAW

(4) Final judgment sentencing the respondent


to imprisonment of more than six years,
even if pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or Homosexuality of the
respondent;
(7) Contracting by the respondent of a
subsequent Bigamous marriage, whether in
the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent Against the life
of the petitioner; or
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one
year.

Article 26, par. 2 Where a marriage between a


Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under
Philippine law. (As amended by Executive Order
227)
If both parties are Muslims, there is a
presumption that the Muslim Code or Muslim
law is complied with. If together with it or in
addition to it, the marriage is likewise
solemnized in accordance with the Civil Code of
the Philippines, in a so-called combined
Muslim-Civil marriage rites whichever comes
first is the validating rite and the second rite is
merely ceremonial one. But, in this case, as long
as both parties are Muslims, this Muslim Code
will apply. [Zamoranos vs People (2011)]

People v. Zapata and Bondoc (1951):


Adultery is not a continuing crime; it is
consummated at every moment of carnal
knowledge. Thus, every sexual act is a
ground for legal separation.
Gandioco v. Pearanda (1989): For sexual
infidelity as a ground for legal separation,
there is no need for a prior conviction for
concubinage, because legal separation
only requires a preponderance of evidence,
as opposed to proof beyond reasonable
doubt.

One of the effects of irrevocable talaq, as well as


other kinds of divorce, refers to severance of
matrimonial bond, entitling one to remarry.
[Zamoranos vs People (2011)]

Note: The grounds for legal separation are


exclusive. (Article 55)
These must be filed within 5 years after
occurrence of cause (Article 57)
(1) Repeated physical violence or grossly
abusive conduct directed against the
petitioner, a common child, or a child of the
petitioner;
(2) Physical violence or moral Pressure to
compel the petitioner to change religious or
political affiliation;
(3) Attempt of respondent to Corrupt or induce
the petitioner, a common child, or a child of
the petitioner, to engage in prostitution, or
connivance in such corruption or
inducement;

Lapuz Sy v. Eufemio (1972): The death of


one party in a legal separation case abates
the action. This is because the death of
either spouse automatically dissolves the
marriage. An action for legal separation is
also purely personal between the spouses.
Dela Cruz. v. Dela Cruz (1968):
Abandonment is not mere physical
estrangement but also financial and moral
desertion. There must be an absolute
cessation of marital relations, duties, and
rights with the intention of perpetual
separation.

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Almelor vs RTC (2008): It is the


concealment of homosexuality, and not
homosexuality per se, that vitiates the
consent of the innocent party. Such
concealment presupposes bad faith and
intent to defraud the other party in giving
consent to the marriage.
Acts of Violence according to RA 9262
(1) Causing physical harm to the woman or her
child;
(2) Threatening to cause the woman or her
child physical harm;
(3) Attempting to cause the woman or her child
physical harm;
(4) Placing the woman or her child in fear of
imminent physical harm;
(5) Attempting to compel or compelling the
woman or her child to engage in conduct
which the woman or her child has the right
to desist from or desist from conduct which
the woman or her child has the right to
engage in, or attempting to restrict or
restricting the woman's or her child's
freedom of movement or conduct by force or
threat of force, physical or other harm or
threat of physical or other harm, or
intimidation directed against the woman or
child. This shall include, but not limited to,
the following acts committed with the
purpose or effect of controlling or restricting
the woman's or her child's movement or
conduct:
(a) Threatening to deprive or actually
depriving the woman or her child of
custody to her/his family;
(b) Depriving or threatening to deprive
the woman or her children of
financial support legally due her or
her family, or deliberately providing
the woman's children insufficient
financial support;

(6)

(7)

(8)

(9)

33

CIVIL LAW

(c) Depriving or threatening to deprive


the woman or her child of a legal
right;
(d) Preventing the woman in engaging
in any legitimate profession,
occupation, business or activity or
controlling the victim's own money
or properties, or solely controlling
the conjugal or common money, or
properties;
Inflicting or threatening to inflict physical
harm on oneself for the purpose of
controlling her actions or decisions;
Causing or attempting to cause the woman
or her child to engage in any sexual activity
which does not constitute rape, by force or
threat of force, physical harm, or through
intimidation directed against the woman or
her child or her/his immediate family;
Engaging in purposeful, knowing, or
reckless conduct, personally or through
another, that alarms or causes substantial
emotional or psychological distress to the
woman or her child. This shall include, but
not be limited to, the following acts:
(a) Stalking or following the woman or
her child in public or private places;
(b) Peering in the window or lingering
outside the residence of the woman
or her child;
(c) Entering or remaining in the
dwelling or on the property of the
woman or her child against her/his
will;
(d) Destroying the property and
personal belongings or inflicting
harm to animals or pets of the
woman or her child; and
(e) Engaging in any form of harassment
or violence;
Causing mental or emotional anguish,
public ridicule or humiliation to the woman
or her child, including, but not limited to,
repeated verbal and emotional abuse, and
denial of financial support or custody of

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PERSONS AND FAMILY RELATIONS

minor children of access to the woman's


child/children.

CIVIL LAW

Araneta vs. Concepcion, (1956): Courts can


still resolve other issues, pending the waiting
period or cooling off period. In resolving
other issues, courts should try not to touch,
as much as possible, on the main issue (i.e.
adultery if that is the ground used). However,
Court must still receive evidence if just to
settle incidental issues of support and
custody.

DEFENSES
Grounds for denying legal separation (Article
56):
(1) Condonation by aggrieved party
(2) Consent by aggrieved party to the
commission of the offense
(3) Connivance between parties in the
commission of the offense
(4) Mutual guilt or Recrimination between
spouses in the commission of any ground
for legal separation
(5) Collusion between parties to obtain decree
of legal separation
(6) Prescription of action for legal separation
(Art. 57: 5 years from occurrence of the
cause of action)
(7) Reconciliation of parties during pendency of
action (Art. 66 par.1)
(8) Death of either party during pendency of
action (Lapuz-Sy vs. Eufemio)

Note: This provision of the Family Code


dictating a mandatory 6-month cooling-off
period does not apply in cases where violence,
as used in RA 9262 (Anti-Violence Against
Women and their Children), is alleged. The case
should be heard as soon as possible by the
court.
CONFESSION OF JUDGMENT
No decree of legal separation shall be based
upon a stipulation of facts or a confession of
judgment (Art. 60, par. 1. FC).
Note: Art. 60 par. 1 applies only if the judgment
was based solely on the stipulation of facts or
solely on the confession of judgment. Thus, if
other grounds were used, Art. 60 par. 1 is not
applicable. (Balane)

WHEN TO FILE/TRY ACTIONS


An action for legal separation shall be filed
within five years from the time of the occurrence
of the cause. (Art. 57)

Ocampo v Florenciano (1960): The prohibition


on confession of judgment does not mean
that the Court will not grant petition if one
party admits to being guilty of the charges of
adultery. The point of this provision is that
the Court should still admit evidence, not
decide just based on an admission of guilt.
Because what is prohibited is handing down
a decree of legal separation based solely on
a confession of judgment.

COOLING-OFF PERIOD AND RECONCILIATION


EFFORTS
Action cannot be tried before six months have
elapsed from the filing of the petition (Art. 58).
Actions cannot be tried unless the court has
attempted to reconcile the spouses, and
determined that despite such efforts,
reconciliation is highly improbable (Art. 59)
Note: This is without prejudice to judicial
determination of custody of children, alimony,
and support pendente lite.

EFFECTS OF FILING PETITION


(1) The spouses are entitled to Live separately,
but the marital bond is not severed. (Art. 61
(1))

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(2) Administration of Community or Conjugal


Property If there is no written agreement
between the parties, the court shall
designate one of them or a third person to
administer the ACP or CPG. (Art. 61, par. 2)

CIVIL LAW

prescribes after 5 years from the decree of


legal separation.
(6) Innocent spouse may also revoke
designation of guilty spouse as beneficiary
in an Insurance policy, even if such
stipulations are irrevocable. (Art. 64. FC, cf.
PD 612, sec. 11)
(7) Obligation for Mutual support ceases, but
the court may order the guilty spouse to
support the innocent spouse. (Art. 198)
(8) The wife shall continue to use the Surname
of the husband even after the decree for
legal separation. (Laperal v. Republic (1992))

EFFECTS OF PENDENCY
The Court shall provide for: (Art. 62, cf. Art. 49.
FC)
Support of spouses
Custody of children
The court shall give custody of children to
one of them, if there is no written
agreement between the spouses.
Visitation rights of the other spouse

RECONCILIATION
Should the spouses reconcile, they should file a
corresponding joint manifestation under oath of
such reconciliation, duly signed by them and
filed with the court in the same proceeding for
legal separation. (Art. 65)

EFFECTS OF LEGAL SEPARATION


(1) The spouses can live separately (Art. 63) but
the marriage bonds are not severed.
(2) The ACP or CPG shall be dissolved and
liquidated, and the share of the guilty
spouse shall be forfeited in favor the
common children, previous children, or
innocent spouse, in that order (Art. 63. cf.
Art. 43, par. 2).
(3) Custody of the minor children shall be
awarded to the innocent spouse (Art. 63, cf.
Art 213)
(4) Guilty spouse shall be disqualified from
Inheriting from innocent spouse by intestate
succession. The provisions in favor of the
guilty party in the will of the innocent
spouse shall also be revoked by operation of
law. (Art. 63)
(5) Donations in favor of the guilty spouse may
be revoked (Art. 64) but this action

Effects of Reconciliation
(1) Proceedings for legal separation shall be
terminated at whatever stage. (Art. 66)
(2) If there is a final decree of legal separation, it
shall be set aside. (Art. 66)
(3) The separation of property and forfeiture of
share of guilty spouse shall subsist, unless the
spouses agree to revive their former property
regime or to institute another property regime.
(Art. 66 cf. Art. 67)
(4) Joint custody of children is restored.
(5) The right to intestate succession by guilty
spouse from innocent spouse is restored.
(6) The right to testamentary succession depends
on the will of the innocent spouse.

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CIVIL LAW

Annex to Void and Voidable Marriages and Legal Separation


Grounds
Void Marriages
(1) One is a minor
(2) No authority to marry
(3) No valid marriage
license
(4) Bigamous and
polygamous
marriages
(5) Mistake of identity
(6) Void subsequent
marriage
(7) Psychological
incapacity
(8) Incestuous Marriages
(9) 9. Marriages against
public policy

Voidable Marriages
(10) Lack of parental
consent
(11) Insanity
(12) Fraud
(13) Force,
Intimidation or
(14) Undue Influence
(15) Impotence
(16) 6. Serious and
Incurable STD

Legal Separation
(17) Repeated Physical Violence
(18) Pressure to compel to change
religious/political affiliations
(19) Corruption / Inducement to engage in
prostitution
(20) Final judgement with sentence of more
than 6 yrs.
(21) Drug Addiction / Habitual Alcoholism
(22) Homosexuality / Lesbianism
(23) Bigamous marriage
(24) Sexual Infidelity
(25) Attempts against the life of petitioner
(26) 10. Abandonment without just cause for
more than 1 year

Effects of Filing / Pending Decree


Void/Voidable Marriages
Legal Separation
Support for the spouses
Custody and support for the children
Visitation rights to the other spouse
Effects of Affidavit of Reappearance, Judicial Declaration of Nullity, Annulment and Legal Separation
Void Marriages
Terminated Marriage
Voidable
Legal Separation
(Art. 41)
Marriages
Status of Marital ties
Severed
Severed
Severed
Not Severed
Status of Marriage
Void ab initio
Subsequent marriage Void
Valid
is terminated (not
invalidated)
Status of Children born and conceived before termination
Illegitimate
Legitimate
Legitimate
Legitimate
EXCEPT: Art. 36 and 35
conceived and born before
judgment (legitimate)
Custody of Children
Court Proceeding
Court Proceeding
Court Proceeding Innocent Spouse
Property Relations
1. Dissolution and Liquidation of properties
a. Guilty/Bad Faith spouse will forfeit his/her share from the Net Profits to the (in order):
i. Common children
ii. Children of the guilty spouse by previous marriage

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CIVIL LAW

iii. The innocent spouse


2. Notification of creditors with the proceedings for liquidation
3. Conjugal dwelling to be adjudicated to the spouse who has custody of majority of common
children
4. Insurance policy may be revoked only by the innocent spouse (Legal Separation: Only within 5
years)
5. Spouse in bad faith/guilty shall be disqualified to inherit from innocent spouse (intestate
succession only in legal separation)
Donation Propter Nuptias
Valid, but if done contracted marriage in bad faith, revoked by operation of May be revoked
law
within 5 years

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V. Rights and
Obligations Of Spouses

CIVIL LAW

In case of disagreement, the court shall decide.


(Art. 69 (1))

C. SUPPORT

A. LIVE TOGETHER

From the conjugal property; If none, income or


the fruits of their separate properties; if none,
from their separate properties (liable in
proportion to their properties).

GENERAL RULE: It is their obligation to do so


(cohabitation). It is also their obligation to
observe mutual love, respect and fidelity and
render mutual help and support. (Art. 68)
EXEMPTION: One spouse living abroad or
there are valid and compelling reasons
(Art. 69 (2)) at the discretion of the
court.
EXEMPTION
TO
EXEMPTION:
Incompatibility with the solidarity of the
family (Art. 69 (2))

In the case of a separation de facto, if it is


proved that the husband and wife were still
living together at the time of his death, it would
be safe to presume that she was dependent on
the husband for support, unless it is shown that
she is capable of providing for herself. [SSS v.
Aguas (2006)]

Ilusorio v. Bildner (2000): A person has a


purely personal right to consortium
(Constitutional right to liberty). Court
cannot order a man to go back to the
conjugal dwelling. (Shows that what is in
Family Code is not the former spousal unity
doctrine (Old England)).

D. MANAGEMENT OF FAMILY LIFE


This is the right and duty of both spouses.

E. EFFECT OF NEGLECT OF DUTY


In case the other spouse neglects his or her
duties or commits acts which tend to bring
danger, dishonor or injury to the family, the
aggrieved party may apply to the court for relief.
(Art. 72)
Injury contemplated is physical, moral,
emotional or psychological, not
financial.

Goitia v. Campos Rueda (1916): If the wife


abandons the family domicile (vs obligation
of cohabitation) with justifiable cause i.e.
being forced to perform lewd sexual acts,
the husbands obligation to support her is
not terminated. The law will not permit the
husband to terminate the obligation to
support his wife by his own wrongful acts in
driving the wife to seek protection in her
parents home.

F. EXERCISE OF PROFESSION
Either spouse may exercise any legitimate
profession, without need for consent of the
other.
o The other spouse may only object on
valid, serious, and moral grounds.
o In case of disagreement, the Court shall
decide whether:
The objection is proper, and
Benefit has accrued to the family
before OR after the objection.

Arroyo v. Vasquez de Arroyo (1921): A court


cannot compel a married woman to go
back to her husband, but the court may
decree that support be terminated.

B. FAMILY DOMICILE
The husband and wife shall fix the family
domicile. (Art. 69)

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If BEFORE the objection, enforce resulting


obligation against the separate property of the
spouse who has not obtained consent. (Art. 73)

CIVIL LAW

court for judicial separation of property


Art. 135 : Sufficient cause for judicial separation
of property
Art. 136 : Voluntary dissolution of ACP or CPG by
the spouses

VI. Property Relations of


Spouses

Requirements of marriage settlements and any


modification thereof [Art. 77]
Made in writing
Signed by the parties
Executed before the marriage celebration
Not to prejudice third persons unless registered
in the local civil registry where the marriage is
recorded and in registries of property
If executed by a person below 21 y.o., valid only
when persons required to give consent to the
marriage (father, mother, or guardian,
respectively) are made parties to the agreement
[Art. 78]
If executed by a person upon whom civil
interdiction has been pronounced or who is
subject to any other disability, valid only when
his guardian appointed by a competent court is
made party to the agreement [Art. 79]

A. MARRIAGE SETTLEMENTS
Requisites for Validity
Art. 75. Future spouses may agree upon, in the
marriage settlement, which property regime
will govern their marriage (ACP, CPG,
complete separation of property, other
regimes). However, in the absence of a
marriage settlement, or when the regime
agreed upon is void, the system of absolute
community of property as established by this
Code shall govern.

B. DONATIONS
MARRIAGE

Marriage settlements are considered accessory


to the marriage, therefore as per Art. 81,
stipulations in consideration of future marriage
and donations will be void if the marriage does
not take place.

BY

REASON

OF

Solis v. Barroso (1928): In donations propter


nuptias, the marriage is really a consideration,
but not in the sense of giving birth to the
obligation. There can be a valid donation even if
the marriage never took place, but the absence
of marriage is a ground for the revocation of the
donation.

Art. 103(3) & 130(3). Should the surviving spouse


contract a subsequent marriage without
compliance with the foregoing requirements
a mandatory regime of complete separation of
property shall govern the property relations of
the subsequent marriage.

Mateo v. Lagua (1969): Donations propter


nuptias are without onerous consideration,
marriage being merely the occasion or motive
for the donation, not its cause. Being
liberalities, they remain subject to reduction for
inofficiousness upon the donors death, if they
should infringe the legitime of a forced heir.
Requisites of donations propter nuptias
Made before the celebration of marriage
Made in consideration of marriage
In favor of one or both of the future spouses

Marriage Settlement Rules


When modifications can be made
General rule: Before marriage is celebrated [Art.
76]
Art. 63(2): Property regime is dissolved and
liquidated
Arts. 66 and 67: Reconciliation in case of legal
separation
Art. 128: When abandoned spouse petitions the

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donee acted in bad faith.


4. Upon legal separation, if the donee is the
guilty spouse.
5. If there is a resolutory condition, and it is not
complied with.
6. When donee has committed an act of
ingratitude: [Art. 765, CC]
a. An offense against person or property of
donor, or his wife or children under
parental authority.
b. An imputation to the donor of any
criminal offense, or any act involving
moral turpitude, even if proven, unless the
crime is committed against the donee, his
wife or children under his authority.
c. Refusing to support the donor, if he/she is
legally required to do so.

Donor must be one of the betrothed or any third


person
Donations excluded
Ordinary wedding gifts given after the
celebration of the marriage
Donations in favor of future spouses made
before marriage but not in consideration thereof
Donations made in favor of persons other than
the spouses even if founded on the intended
marriage
Who may donate
Spouses to each other
Parents of one or both spouses
Third persons to either or both spouses
Sources of rules governing donations propter
nuptias
Family code provisions [Arts. 82-87]
Ordinary donation provisions [Art. 83; Title III of
Book III, NCC]
Provisions on testamentary succession and the
formalities of wills for donations on future
property [Art. 84, par. 2]

Effects of judicial declaration of nullity


Donations by reason of marriage shall remain
valid except that if the donee contracted
marriage in bad faith, such donations made to
said donee are revoked by operation of law.
[Art. 43 (3)]
Revocation by operation of law - Thus, even if
spouse in good faith condones the donee, the
donation propter nuptias is still forfeited.
Effects provided for by Art. 43(2), (3), (4), and (5)
and by Art. 44 shall also apply to marriages that
are declared void ab initio or annulled by final
judgment under Article 40 (Judicial declaration
of nullity) and 45 (Voidable marriages). [Art. 50]

Rules for donations before marriage


General rule: Future spouses who agree upon a
regime other than ACP cannot donate to each
other more than 1/5 of their present property
(excess shall be considered void). [Art. 84]
Donations of property subject to encumbrances
(1)
Are considered valid.
(2)
In case of foreclosure:
(a)
if property value < obligation, donee
shall not be liable for the deficiency
(b)
if property value > obligation, donee
shall be entitled to the excess (Art. 85)

Rules for donations during marriage


General rule: Spouses cannot donate to each
other, directly or indirectly; donations made by
spouses to each other during the marriage are
void. [Art. 87]
These donations refer to donations inter vivos
[Tolentino]
Exception: Moderate gifts on the occasion of
any family rejoicing.
Harding v. Commercial Union, (1918): The
prohibition on donations can only be assailed by
persons who bear such relation to the parties or
the property itself, that their rights are being
interfered with. Here, the insurance company of
the donated car cannot assail the validity of the
donation. In addition, the codal exception of

Grounds for revocation of donation propter


nuptias [Art. 86]
1. If the marriage is not celebrated or judicially
declared void ab initio, except donations made
in marriage settlements.
2. When the marriage takes place without the
consent of the parents or guardians, as required
by law.
3. When the marriage is annulled, and the
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By the Nationality Rule [Art. 15], the rule that


Absolute Community Property (ACP) is the
default mode of property relations absent any
marriage settlement applies to all Filipinos,
regardless of the place of the marriage and
their residence.

moderate gifts depends on the income class


of the spouses and a car could be considered a
moderate gift that does not infringe the
prohibition of donation between spouses.
Nazareno v. Birog, (1947): A spouse cannot
donate to persons which the other spouse may
inherit from as it constitutes an indirect
donation.

Exceptions:
(1) Where both spouses are aliens
(2) As to the extrinsic validity of contracts
affecting property not situated in the
Philippines and executed in the country
where the property is located
(3) As to the extrinsic validity of contracts
entered into in the Philippines but affecting
property situated in a foreign country whose
laws require different formalities for its
extrinsic validity

Rules for donations between common-law


spouses
Matabuena v Cervantes, (1971): The donation
between common-law spouses falls within the
provision prohibiting donations between
spouses during marriage.
Sumbad v. CA, (1999): The donation made by a
man to a woman was held valid because no
proof was shown that they were still living in a
common-law relationship at the time of the
donation.
Distinguished from Ordinary Donations
Donations propter
Ordinary donations
nuptias
Does
not
require Express
acceptance
express acceptance
necessary
May be made by Cannot be made by
minors (Art. 78)
minors
May include future Cannot include future
property
property
If present property is No limit to donation of
donated and property present
property
is
not
absolute provided legitimes are
community, limited to not impaired
1/5 (Art. 84)
Grounds for revocation Grounds for revocation
- in Art. 86
- in donation laws

Art. 81. Everything stipulated in marriage


settlements in consideration of a future
marriage are void if marriage does not take
place. However, stipulations that do not depend
upon the celebration of marriage (e.g.
recognition of paternity of illegitimate child)
remain valid.
Art. 89. Waiver of rights, interests, shares and
effects of the absolute community of property is
allowed, except in the following cases:
(1) When there is judicial separation of
property
(2) When the marriage is dissolved by
death of one of the spouses
(3) When the marriage is annulled
*The creditors of the spouse who made such
waiver may petition the court to rescind the
waiver to the extent of the amount sufficient to
cover the amount of their credits.

Absolute Community of Property and Conjugal


Partnership of Gains
Art. 80. In absence of a contrary stipulation in a
marriage settlement, property relations
between Filipino spouses are governed by
Philippine laws, regardless of the place of
marriage and their residence.

Art. 90. Co-ownership rules shall apply to ACP


in matters not provided by the Family Code.

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Comparison of ACP and CPG

When it
commences

What it consists of

ABSOLUTE COMMUNITY
CONJUGAL PARTNERSHIP OF GAINS
PROPERTY
At the precise moment of the Default property regime for marriages
celebration of the marriage [Art. 88] celebrated before the Family Code took
effect (August 3, 1988)
For marriages after the Family Code, if
agreed to by the parties through a
marriage settlement.
All the property owned by the Proceeds, products, fruits, and income
spouses at the time of the of their separate properties
celebration of the marriage or Everything acquired by them within
acquired thereafter [Art. 91]
marriage through their own efforts
Under the ACP, spouses cannot Everything acquired by them by chance
exclude specific properties from the
regime.
Winnings from gambling shall Specific properties (Art. 117)
accrue to the community property 1. Acquired by onerous title during the
[Art. 95]
marriage at the expense of the common
fund;
2. Acquired through the labor, industry,
work, or profession of either or both
spouses
3. Fruits from common property and net
fruits of the exclusive property of each
spouse
4. Share of either spouse in hidden
treasure, whether as finder or owner of
property where treasure was found
5. Acquired through occupation such as
fishing or hunting
6. Livestock existing at dissolution of
partnership in excess of what is brought
by either spouse to the marriage
7. Acquired by chance, such as winnings
from gambling or betting
Moral damages arising from a contract
paid from the CPG [Zulueta v. Pan Am
(1973)]

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ABSOLUTE COMMUNITY
PROPERTY
What it consists of

CIVIL LAW

CONJUGAL PARTNERSHIP OF GAINS

Loans contracted during the marriage


are conjugal, and so is any property
acquired therefrom [Mendoza v. Reyes
(1983)]
Property purchased by installment, paid
partly with conjugal funds and partly
with exclusive funds, if full ownership
was vested during the marriage; the
CPG shall reimburse the owner-spouse
[Art. 118]
If a winning ticket is bought by conjugal
funds, the prize is conjugal (otherwise,
the prize is exclusive property of the
spouse who owns the ticket)
Improvement on exclusive property: if
original value < new value (where new
value = value of land + value of
improvements + net change in value),
then land becomes conjugal property,
subject to the reimbursement of the
value of the property of the ownerspouse at the dissolution of the CPG
Property belonging to one spouse
converted into another kind totally
different in nature from its original form
during marriage becomes conjugal in
the absence of proof that the expenses
of the conversion were exclusively for
the account of the original ownerspouse, subject to reimbursement of the
value of the original property from the
conjugal partnership
What
remains Properties acquired before the Property brought into the marriage by
exclusive property marriage, for those with legitimate each spouse as his/her own
descendants with a former marriage
(to protect rights of children by a
former marriage)

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What remains
exclusive property

PERSONS AND FAMILY RELATIONS

ABSOLUTE COMMUNITY
PROPERTY
Properties acquired during the
marriage by a gratuitous title, i.e.
donation, inheritance by testate and
intestate succession, including the
fruits of such properties
Except: When expressly provided by
the donor or testator that the
property shall form part of the ACP

Properties for personal use


Except: Jewelry

CIVIL LAW

CONJUGAL PARTNERSHIP OF GAINS


Property acquired by either spouse
during the marriage by gratuitous title

Property acquired by right of


redemption, by barter, or by exchange
with property belonging to either
spouse
Plata v. Yatco: Plata purchased property
when she was single. When married,
she and her husband Bergosa cosigned a mortgage on the property.
Upon foreclosure, Bergosa was sued for
illegal detainer. A writ of execution on
the property was carried out but Plata
refused to leave the premises. SC ruled
that Plata cannot be held in contempt.
Property is not conjugal. Her husband
signing as co-mortgagor does not
convert it to CPG. She could ignore
execution because the decision was for
her husband alone.
Property purchased with exclusive
money of either spouse
Property purchased by installment, paid
partly with conjugal funds and partly
with exclusive funds, if full ownership
was vested before the marriage [Art.
118]
Even if the installment is completed
after the marriage, the property is
exclusive if ownership was vested in one
spouse before the marriage [Lorenzo v.
Nicolas (1952)]

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ABSOLUTE COMMUNITY PROPERTY

Presumption

Charges and
Obligations

CONJUGAL PARTNERSHIP OF
GAINS
All properties acquired during the All property acquired during
marriage form part of the ACP, unless the marriage, whether made,
it be proven that they are excluded. contracted, or registered in the
[Art. 93]
name of one spouse, are
presumed conjugal unless the
contrary is prove. [Art 116]

Arts. 94
1. Support of the following:
a. Spouses;
b. Common children;
c. Legitimate children of previous
marriage;
d. Illegitimate children follow the
provisions on Support; ACP liable in
case of absence or insufficiency of the
exclusive property of the debtorspouse but the payment shall be
considered as advance to the share of
the debtor-spouse.

Arts. 121-123
1. Support of the following:
a. Spouses;
b. Common children;
c. Legitimate children of
previous marriage;
d. Illegitimate children follow
the provisions on Support;
Partnership assets liable in
case responsibilities under Art.
121 have been covered and
there is absence or insufficiency
of the exclusive property of the
debtor-spouse but the payment
2. Expenses to enable either spouse to shall be considered as advance
commence/
complete
a to the share of the debtorprofessional/vocational course or spouse.
activity for self-improvement;
2. Expenses to enable either
3. Value donated or promised by both spouse to commence/complete
spouses in favor of common legitimate a
professional/vocational
children for the exclusive purpose of course or activity for selfcommencing/completing
a improvement;
professional/vocational course or
activity for self-improvement
3. Value donated or promised
by both spouses in favor of
common legitimate children for
the exclusive purpose of
commencing/completing
a
professional/vocational course
or activity for self-improvement

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Charges and
Obligations

PERSONS AND FAMILY RELATIONS


ABSOLUTE COMMUNITY PROPERTY
If community property is insufficient,
the spouses are solidarily liable for
the unpaid balance from their
separate properties except for:
1. Debts contracted by either spouse
before marriage which have not
redounded to the benefit of the
family;
2. Support of illegitimate children;
and
3. Liabilities incurred by either
spouse arising from crime or quasidelict.
Gambling losses of any kind (i.e.
legal or illegal) shall be borne by the
losing spouses separate property
[Art. 95]

CIVIL LAW

CONJUGAL PARTNERSHIP OF GAINS


If conjugal partnership property is
insufficient, the spouses are solidarily
liable for the unpaid balance from
their separate properties except for:
1. Debts contracted by either spouse
before marriage which have not
redounded to the benefit of the
family;
2. Support of illegitimate children;
and
3. Liabilities incurred by either spouse
arising from crime or quasi-delict.
Gambling losses of any kind (i.e. legal
or illegal) shall be borne by the losing
spouses separate property [Art. 123]
DBP v. Adil (1988):
Loan contracts signed by both
spouses are conjugal, and they are
jointly liable for payment, even if only
one spouse signs a subsequent
promissory note.
Ayala Investment v. Ching (1998):
The Supreme Court ruled that the
indirect benefits that might accrue to
a husband in signing as a surety or
guarantee in an agreement not in
favor of the family but in favor of his
employer corporation are not benefits
that can be considered as giving a
direct advantage accruing to the
family. Hence, the creditors cannot go
against the conjugal partnership
property in satisfying the obligation
subject of the surety agreement. A
contrary view would put in peril the
conjugal partnership by allowing it to
be given gratuitously as in cases of
donation of conjugal partnership
property, which is prohibited.

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ABSOLUTE COMMUNITY
PROPERTY
Ownership,
administration,
enjoyment, and
disposition

Charges and
Obligations

CIVIL LAW

CONJUGAL PARTNERSHIP OF GAINS


De Ansaldo v. Sheriff of Manila (1937):
Spouses are not co-owners of CPG
during the marriage and cannot
alienate the supposed interest of
each in the said properties. The interest
of the spouses in the CPG is only
inchoate or a mere expectancy and
does not ripen into title until it appears
after the dissolution and liquidation of
the partnership that there are net
assets.

Either spouse may, through a will,


dispose of his or her interest in the
community property. [Art. 97]
However, the will should refer only
to his or her share in the community
property.
Donation of one spouse without the
consent of the other is not allowed.
[Art. 98]
Exceptions:
1. Moderate donations to
charity due to family
rejoicing or distress
2. Moderate gifts by each
spouse to the other due to
family rejoicing
Moderation depends on the familys
socio-economic status.

Art. 124, par. 2: Disposition or


encumbrance of conjugal property
requires the following:

Consent or approval by both spouses,


or

ACP allows donations in excess of


one-fifth of present property of
future spouses because the
donation would form part of the
community property once the
marriage is celebrated. [Art. 84]
Jader-Manalo v. Camaisa (2002): Mere awareness of a transaction is NOT
consent.

ABSOLUTE COMMUNITY PROPERTY

47

CONJUGAL PARTNERSHIP OF GAINS

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Charges and
Obligations

PERSONS AND FAMILY RELATIONS

CIVIL LAW

Homeowners Savings & Loan Bank v. Dallo (2005):


In the absence of (court) authority or written consent of the other spouse, any
disposition or encumbrance of the conjugal property shall be void.
Cheeseman v. IAC (1991):
If however, one of the spouses is an alien, the Filipino spouse may encumber or
dispose of the property w/o the consent of the former. The property is presumed
to be owned exclusively by the Filipino spouse.

Dissolution of
the regime

Effect of de
facto
separation

Terminates upon [Art. 99]:


1. Death of either spouse follow
rules in Art. 103
2. Legal separation follow rules in
Arts. 63 and 64
3. Annulment or judicial declaration
of nullity follow rules in Arts. 50
and 52
Judicial separation of property
during marriage follow rules in
Arts. 134 to 138
Rules on de facto separation [Art.
100]
De facto separation does not affect
the ACP, except that:
1. Spouse who leaves the conjugal
home without just cause shall not
be entitled to support; however,
he/she is still required to support
the other spouse and the family
2. If consent is necessary for
transaction but is withheld or
otherwise
unobtainable,
authorization may be obtained
from the court
3. Support for family will be taken
from the ACP
4. If ACP is insufficient, spouses
shall be solidarily liable

ABSOLUTE COMMUNITY
PROPERTY

48

Terminates upon [Art. 126; cf. Art. 99]:


1. Death
2. Legal separation
3. Annulment or judicial declaration of
nullity
Judicial separation of property

Rules on de facto separation [Art. 127]


De facto separation does not affect the
CPG, except that:
1. Spouse who leaves the conjugal
home without just cause shall not be
entitled to support; however, he/she
is still required to support the other
spouse and the family
2. If consent is necessary for transaction
but is withheld or otherwise
unobtainable, authorization may be
obtained from the court
3. Support for family will be taken from
the partnership property.
4. If partnership property is insufficient,
spouses shall be solidarily liable

CONJUGAL PARTNERSHIP OF GAINS

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Effect of de facto
separation

Charges and
Obligations

PERSONS AND FAMILY RELATIONS


5. If it is necessary to
administer or encumber
separate property of spouse
who left, spouse present
may ask for judicial
authority to do this
6. If ACP is not enough and
one spouse has no separate
property, spouse who has
property is liable for
support,
according
to
provisions on support.
Abandonment [Art. 101]
Present/aggrieved spouse may
petition the court for:
1. Receivership
2. Judicial
separation
of
property
3. Authority to be the sole
administrator
of
the
absolute
community,
subject to precautionary
conditions that the court
may impose

CIVIL LAW

5. If it is necessary to administer or
encumber separate property of
spouse who left, spouse present
may ask for judicial authority to do
this
6. If partnership property is not
enough and one spouse has no
separate property, spouse who has
property is liable for support,
according to provisions on support.
Abandonment [Art. 128]
Present/aggrieved spouse may petition
the court for:
1. Receivership
2. Judicial separation of property
3. Authority to be the sole administrator
of the partnership property, subject
to precautionary conditions that the
court may impose

A spouse is deemed to have abandoned


the other when he or she has left the
conjugal dwelling without any intention
A spouse is deemed to have of returning.
abandoned the other when he or
she has left the conjugal dwelling Spouse is prima facie considered to
without any intention of returning.
have abandoned the other spouse and
the family if he or she has:
Spouse is prima facie considered to 1. Left for a period of 3 months
have abandoned the other spouse 2. Failed to inform the other spouse of
and the family if he or she has:
his or her whereabouts for a period
1. Left for a period of 3
of 3 months
months
Failed to inform the other spouse of
his or her whereabouts for a period
of 3 months

ABSOLUTE COMMUNITY
PROPERTY
49

CONJUGAL PARTNERSHIP OF GAINS

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Rules on
Abandonment

Partosa-Jo v. CA (1992):
Physical separation of the spouses,
coupled with the husbands refusal to
give support to the wife, sufficed to
constitute abandonment as a ground
for an action for the judicial separation
of their conjugal property.

Liquidation of
assets and
liabilities

Procedure [Art. 102]


Procedure [Art. 129]
1. Prepare an inventory of all
Inventory of assets of ACP
properties
and of spouses, with
2. Amounts advanced by CPG in
market values
payment of personal debts and
Obligations are paid with
obligations shall be credited to
community property, and
the CPG
separate obligations not
3.
Reimburse each spouse for the
charged to ACP paid by
use of his/her exclusive funds in
respective
assets
of
the acquisition of property or
spouses
for the value of his or her
If obligations exceed the assets of
exclusive
property,
the
the ACP, nothing is divided.
ownership
of
which
has
been
Creditors can go after the separate
vested by law in the conjugal
properties of the spouses, which are
partnership
solidarily liable for the deficiency
4.
Debts and obligations of CPG
Delivery
of
whatever
shall be paid out of the
remains in their exclusive
conjugal assets, otherwise both
property
spouses are solidarily liable
Balance, or net remainder is
with their exclusive property
divided equally between
5.
Remains of the exclusive
the spouses, irrespective of
properties shall be delivered to
how much each brought
respective owner-spouses
into the community

ABSOLUTE COMMUNITY

50

CONJUGAL PARTNERSHIP OF GAINS

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Liquidation of
assets and
liabilities

PERSONS AND FAMILY RELATIONS

CIVIL LAW

PROPERTY
If personal obligations of a
spouse exceed his/her
separate property, creditor
can go after the share of
the spouse on the net
remainder of the ACP,
without prejudice to the
provisions of law on
forfeitures and delivery of
presumptive legitimes
After
covering
all
community obligations and
obligations of spouses,
balance
of
separate
properties shall be delivered
to respective spouses or
their heirs, and they will
also divide into two equal
shares whatever is left of
the community assets,
without prejudice to the
provisions of law on
forfeitures and delivery of
presumptive legitimes

6. Indemnify loss/deterioration of
movables belonging to either
spouse, even due to fortuitous
event, used for the benefit of
the family
7. Net remainder of CPG shall
constitute the profits which
shall be divided equally
between husband and wife
except when:
A different proportion

or division was agreed


upon in the marriage
settlements
There has been a
voluntary waiver or
forfeiture of such share
as provided in the FC
8. Presumptive legitimes are
delivered to common children
9. Conjugal dwelling goes to:
Spouse with whom
majority of common
children choose to
remain (below 7 y.o. =
deemed to have chosen
the mother)
Whoever the court chooses in case
of lack of majority
Rules in case of termination of marriage by death of one of the spouses [Art.
104]:
(1)The community property shall be liquidated in the same proceeding for the
settlement of the estate of the deceased spouse.
(2)If no such judicial settlement proceeding is instituted, surviving spouse
shall liquidate the community property either judicially or extra-judicially
within one year from the death of the deceased spouse.
a. If no liquidation is made within the period, any disposition or
encumbrance involving community property of the terminated marriage
shall be void.

ABSOLUTE COMMUNITY
PROPERTY

51

CONJUGAL PARTNERSHIP OF GAINS

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Liquidation of
assets and
liabilities

PERSONS AND FAMILY RELATIONS

CIVIL LAW

b. Non-compliance with liquidation procedures would mean that a


subsequently contracted marriage will follow a regime of complete
separation of property.

Procedure for liquidation of properties of two marriages [Art. 104]:


(1) Determine the capital, fruits, and income of each community upon such
proof as may be considered according to the rules of evidence.
(2) In case of doubt as to which community the existing properties belong,
they shall be divided between two communities in proportion to the capital
and duration of each.

Separation of Property of the Spouses and Administration of Common Property by One Spouse During
the Marriage
Art. 134. In the absence of an express declaration in the marriage settlements
the separation of property between spouses during the marriage shall not take place except by
judicial order. Such judicial separation of property may either be voluntary or for sufficient
cause.
Judicial separation of property may either be (1) voluntary or (2) for sufficient cause.

(a) Sufficient Causes and Grounds for Return to Previous Regime


Sufficient Causes for Judicial Separation of Grounds for Return to Previous Regime

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PERSONS AND FAMILY RELATIONS

Property (Art. 135)


(1) Spouse of petitioner has been sentenced
to a penalty which carries with it the
penalty of civil interdiction
(2) Spouse of petitioner is judicially declared
an absentee
(3) Loss of parental authority of the spouse of
petitioner has been decreed by the court
(4) Spouse of petitioner has abandoned the
latter or failed to comply with his or her
obligations to the family
(5) The spouse granted the power of
administration in the marriage settlements
has abused that power

CIVIL LAW

(Art. 141)
(1) Termination of the civil interdiction
(2) Reappearance of absentee spouse

(5) Restoration of parental authority to the


spouse previously deprived of it
(4) When the spouse who left the conjugal
home without legal separation resumes
common life with the other
(3) When the court, being satisfied that the
spouse granted the power of administration
in will not again abuse that power,
authorizes the resumption of said
administration
(6) At the time of the petition, the spouses (6) Reconciliation and resumption of common
have been separated in fact for at least 1
life of the spouses who had been separated
year and reconciliation is highly
in fact for at least 1 year
improbable.
(7) When after voluntary dissolution of the ACP
or CPG has been judicially decreed upon the
joint petition of the spouses, they agree to
the revival of the former property regime.
No voluntary separation of property may
thereafter be granted.

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CIVIL LAW

SEPARATION OF PROPERTY
Agreed upon in the marriage settlements by the spouses
Mandatory under Arts. 103 & 130 (subsequent marriages contracted by a
When it applies surviving spouse without judicial settlement of previous property regime)
Default property regime when there is reconciliation between spouses after
judicial separation of property
Present or future property or both
Each spouses earnings from his or her own profession, business, or industry
What it
Natural, industrial or civil fruits of spouses separate properties
consists of
May be total or partial
If partial, property not considered separate is presumed to pertain to the ACP
Family expenses: Both spouses are liable in proportion to their income; if
insufficient, based on the current value of their separate properties
Liabilities
Creditors for family expenses: Spouses solidarily liable
Spouses may own, dispose, possess, and administer separate estates without the
consent of the other
Administration of exclusive properties may be transferred between spouses
Ownership,
when:
administration, One spouse becomes the other spouses guardian
enjoyment, and
1. One spouse is judicially declared an absentee
disposition
2. One spouse is given the penalty of civil
interdiction
3. One spouse becomes a fugitive
Conveyance between the spouses is allowed under Art. 1490, NCC.
In Re: voluntary dissolution of CPG of Sps. Bernas (1965):
A voluntary separation of properties is not perfected by mere consent but upon the decree of the court
approving the same. The petition for voluntary separation of property was denied because the children
of the 1st and 2nd marriages were not informed; the separation of property may prejudice the rights and
shares of the children.
Maquilan v. Maquilan (2007):
A compromise agreement with judicial recognition is valid, pending petition for declaration of nullity
of marriage.

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CIVIL LAW

Property Regime of Unions Without Marriage, Arts. 147-148


Art. 147
Man and woman living together as
husband and wife, with capacity to
marry (Art.5, without any legal
impediment)
a. at least 18 years old
b. not Art. 37 (incestuous
void marriage)
Applicability
c. not Art. 38 (void
marriage by reason of
public policy)
d. not bigamous
Other void marriages due to absence
of formal requisite
Salaries
and Owned in equal shares
wages
Properties
Remains exclusive, provided there is
acquired
proof
through
exclusive funds
Properties
Governed by rules on co-ownership
acquired by both
through
work
and industry
Owned in equal shares since it is
presumed to have been acquired
through joint efforts
Properties
acquired while If one party did not participate in
acquisition, presumed to have
living together
contributed through care and
maintenance of family and household

Art. 148
Man and woman living together as
husband and wife, NOT capacitated
to marry
a. Under 18 years old
b. Adulterous relationship
c. Bigamous/polygamous marriage
d. Incestuous marriages under Art.
37
e. Void marriages by reason of public
policy under Art. 38

1. In favor of their common children


2. In case of default of or waiver by
any or all of the common children
or their descendants, each vacant
share shall belong to the respective
surviving descendants
In the absence of such descendants,
such share belongs to the innocent
party

If one party is validly married to


another his/her share in the coowned properties will accrue to the
ACP/CPG of his/her existing valid
marriage

Forfeiture

Separately owned by parties


Remains exclusive

Owned in common in proportion to


respective contribution

No presumption of joint acquisition.


When there is evidence of joint
acquisition but none as to the extent
of actual contribution, there is a
presumption of equal sharing.

If the party who acted in bad faith is


not validly married to another,
his/her share shall be forfeited in the
same manner as that provided in Art
147.
The same rules on forfeiture shall
apply if both parties are in bad faith.

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CIVIL LAW

Yaptinchay v. Torres (1969):


Application of Article 148; there was no proof of actual contribution, while there was a subsisting
marriage apart from the union without marriage, therefore, the N. Forbes house goes to the CPG of
subsisting marriage
Villanueva v. CA (2004):
Transfer of certificate and tax declarations are not sufficient proof of joint contribution.
Valdez v. QC-RTC (1996):
Marriages that have been declared void come under the rules of co-ownership under FC147/148
regardless of the reason.

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CIVIL LAW

VII. Family Relations

Such earnest efforts and the


fact of failure must be
alleged.
The case will be dismissed if it is
shown that no such efforts were
made.
o

THE FAMILY AS AN INSTITUTION


Art. 149. The family being the foundation of
the nation is a basic social institution which
public policy cherishes and protects.
Consequently,
family relations are governed by law and no
custom practice or agreement destructive of
the family shall be recognized or given effect.

Exceptions
o The general rule shall not apply to
cases which may not be the subject of
compromise.
o The following cannot be subject of
compromise: (Art 2035)
(1) Civil status of persons,
(2) Validity of marriage or a legal separation,
(3) Any ground for legal separation,
(4) Future support (as it is presumed to be
needed for the survival of the one
receiving support),
(5) Jurisdiction of courts,
(6) Future legitime

General Rules
The family is an institution that is
governed by law
The internal aspect of the family is sacred
and inaccessible to law because law must
respect the freedom of action of man.
Art. 150. Family relations include those:
(1) Between husband and wife
(2) Between parents and children
(3) Among
other
ascendants
and
descendants
(4) Among brothers and sisters, full or half
blood.

THE FAMILY HOME


A. WHAT CONSTITUTES THE FAMILY
HOME?
General Rules
o The family home is the dwelling house
where family resides and the land on
which it is sustained (Art. 152)
o The family home must be part of the
properties of the absolute community
or the conjugal partnership, or of the
exclusive properties of either spouse
with the others consent. It may also
be constituted by an unmarried head
of a family in his or her own property.
(Art. 156)
o For the purposes of availing of the
benefits of a family home as provided
for in this Chapter, a person may
constitute, or be the beneficiary of,
only one home. (Art. 161)

EFFECTS OF FAMILY RELATIONSHIP


ON LEGAL DISPUTES
Art. 151. No suit between members of the
same family shall prosper unless it should
appear form the verified complaint or petition
that earnest efforts toward a compromise
have been made but that the same have
failed. If it is shown that no such efforts were
in fact made
the case must be dismissed.
General Rules
Suit between members of the same
family shall prosper only if it shall
appear in a verified complaint or
petition that:
o Earnest efforts towards a
compromise have been made;
o Such efforts have failed; and

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B. WHO MAY CONSTITUTE THE FAMILY


HOME?

CIVIL LAW

D. BENEFICIARIES
Art. 154. The beneficiaries of a family home
are:
1. The husband and wife, or an
unmarried person who is the head
of a family; and
2. Their parents, ascendants,
descendants brothers, and sisters
(legitimate/illegitimate), who are
living in the family home and who
depend on the head of the family
for support

General Rules
o The family home may be constituted
jointly by the husband and wife or an
unmarried head of the family (Art.
152)
o A person may constitute and be the
beneficiary of only one family home
(Art. 161)

C. WHEN IS IT DEEMED CONSTITUTED?

General Rule
o Requisites to be a beneficiary:
o The relationship is within those
enumerated
o They live in the family home
o They are dependent for legal
support on the head of the family
o The law explicitly provides that
occupancy of the family home either
by the owner thereof or by any of its
beneficiaries must be actual. That
which is actual is something real, or
actually existing, as opposed to
something merely possible, or to
something which is presumptive or
constructive.
Actual
occupancy,
however, need not be by the owner of
the house specifically. Rather, the
property may be occupied by the
beneficiaries enumerated in Article
154 of the Family Code, which may
include the in-laws where the family
home is constituted jointly by the
husband and wife. But the law
definitely excludes maids and
overseers. They are not the
beneficiaries contemplated by the
Code. [Patricio vs. Dario (2006)]
o Requirements for the sale, alienation,
donation,
assignment,
or
encumbrance of the family home (Art.
158)

General Rules
o The family home is deemed
constituted on a house and lot form
the time it is occupied as a family
residence.
o The family home is exempt from the
following from the time of its
constitution and so long as any of its
beneficiaries actually resides therein
(Art. 153):
(1) Execution
(2) Forced sale
(3) Attachment
Exceptions in the exemption of the family
home from execution (Art. 155)
(1) Nonpayment of taxes.
(2) Debts incurred prior to the constitution of
the family home.
(3) Debts secured by mortgages on the
premises before or after such constitution.
(4) Debts due to laborers, mechanics,
architects, builders, materialmen and
others who have rendered service or
furnished material for the construction of
the building.

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o
o
o

PERSONS
The written consent of the
person constituting it,
That of the spouse of the
person constituting it, and
That of majority of the
beneficiaries of legal age

General Rules
o

E. WHEN TERMINATED
Art. 159. The family home shall continue
despite the death of one or both of the
spouses or of the unmarried head of the
family for a period of ten years or for as long
as there is a minor beneficiary and the heirs
cannot partition the same unless the court
finds compelling reasons therefor. The rule
shall apply regardless of whoever owns the
property or constituted the family home.
General Rule
o

CIVIL LAW

Article 159 imposes the proscription


against the immediate partition of the
family home regardless of its
ownership. This signifies that even if
the family home has passed by
succession to the co-ownership of the
heirs, or has been willed to any one of
them, this fact alone cannot
transform the family home into an
ordinary property, much less dispel
the protection cast upon it by the law.
The rights of the individual co-owner
or owner of the family home cannot
subjugate the rights granted under
Article 159 to the beneficiaries of the
family home. [Arriola vs. Arriola
(January 28, 2008)]

As a rule, the family home is exempt


from execution, forced sale or
attachment. However, Article 155(3) of
the Family Code explicitly allows the
forced sale of a family home for debts
secured by mortgages on the premises
before or after such constitution. In
this case, there is no doubt that
spouses
Fortaleza
voluntarily
executed on January 28, 1998 a deed
of Real Estate Mortgage over the
subject propertyand assuming that
the property is exempt from forced
sale, spouses Fortaleza did not set up
and prove to the Sheriff such
exemption from forced sale before it
was sold at the public auction. The
spouses Fortaleza neither filed an
action nor made a formal offer to
redeem
the
subject
property
accompanied by an actual and
simultaneous tender of payment. It is
also undisputed that they allowed the
one-year period to lapse from the
registration of the certificate of sale
without redeeming the mortgage. For
all intents and purposes, spouses
Fortaleza have waived or abandoned
their right of redemption. [Fortaleza
vs. Lapitan (2012)]

G. RIGHTS OF CREDITORS
Art. 157. The actual value of the family home
shall not exceed at the time of its constitution
the amount of three hundred thousand pesos
in urban areas and two hundred thousand
pesos in rural areas or such amounts as may
hereafter be fixed by law.

F. WHEN IT MAY BE SOLD


Art. 158. The family home may be sold
alienated donated assigned or encumbered
by the owner or owners thereof with the
written consent of the person constituting the
same
the latters spouse and a majority of the
beneficiaries of legal age. In case of conflict
the court shall decide.

General Rules
o In any event, if the value of the
currency changes after the adoption
of this Code, the value most favorable

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o
o

PERSONS

CIVIL LAW

VIII.
Paternity
Filiation

for the constitution of a family home


shall be the basis of evaluation.
Urban areas include chartered cities
and municipalities
All others are deemed to be rural
areas

and

Art. 163. The filiation of children may be by


nature or by adoption. Natural filiation may
be legitimate or illegitimate. (n)

Procedure to avail of right under Art. 160


1. The creditor must file a motion in the
court proceeding where he obtained a
favorable decision for a writ of execution
against the family home.
2. There will be a hearing on the motion
where the creditor must prove that the
actual value of the family home exceeds
the maximum amount fixed by the FC
either at the time of its constitution or as a
result of improvements introduced
thereafter.
3. If the creditor proves that the actual value
exceeds the maximum amount the court
will order its sale in execution.
4. If the family home is sold for more than
the value allowed, the proceeds shall be
applied as follows:
a. First, the obligation enumerated in
Article 157 must be paid
b. Then the judgment in favor of the
creditor will be paid, plus all the costs
of execution
c. The excess, if any, shall be delivered
to the judgment debtor

Kinds of Filiation [Arts. 163, 164, 165]:


(1) Natural
Legitimate
Illegitimate
(2) Legal Fiction (Adoption)

A. LEGITIMATE CHILDREN
Art. 164. Children conceived or born during the
marriage of the parents are legitimate.
Children conceived as a result of artificial
insemination of the wife with the sperm of the
husband or that of a donor or both are
likewise legitimate children of the husband
and his wife, provided, that both of them
authorized or ratified such insemination in a
written instrument executed and signed by
them before the birth of the child. The
instrument shall be recorded in the civil
registry together with the birth certificate of
the child. (55a, 258a)
1.

Natural/Biological

General Rules
o

Liyao v. Liyao (2002): A child conceived or born


during a valid marriage is presumed to belong
to that marriage, regardless of the existence
of extramarital relationships.

The proof that the house is the family


home must be alleged against
creditors; Applied the rule in Art. 160,
FC. [Versola v. Mandolaria (2006)]

2. Artificial Insemination
Requisites to be considered legitimate:
(a) Artificial insemination made on wife
(b) Sperm comes from any of the
following:

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Husband
Third Person Donor
Husband and third person
donor
(c) In case of donor sperm, husband and
wife
must
authorize/ratify
insemination in a written instrument
Executed & signed by
husband and wife before the
birth of the child.
Recorded in the civil registry
together with the birth
certificate of the child.

CIVIL LAW

Macadangdang v. CA (1980): Mere proximate


separation between the spouses is not
sufficient physical separation to constitute as
ground for impugning legitimacy.
Andal v. Macaraig (1951): Serious illness of the
husband which absolutely prevented him
from having sexual intercourse with his wife,
like if the husband was already in comatose or
in a vegetative state, or sick with syphilis in
the tertiary stage so that copulation was not
possible. But tuberculosis, even in its most
crucial stage, does not preclude copulation
between the sick husband and his wife.

Dual consent is required whether the semen


used comes from the husband or a third
person donor [Tolentino]

Jao v. CA (1987): Blood-type matching is an


acceptable means of impugning legitimacy,
covered by Art. 166(2), under "biological or
other scientific reasons." But this is only
conclusive of the fact of non-paternity.

De Castro v. Assidao-De Castro, (2008):


Common children born before the annulment
are legitimate, and therefore entitled to
support from each of the spouses.

Benitez-Badua v. CA (1994): Only the man (and


his heirs in certain situations) can impugn the
legitimacy of the child

Impugning Legitimacy
Grounds for impugning legitimacy of a child
are [Art. 166]:
(1) Physical impossibility for the husband to
have sexual intercourse with his wife
within the first 120 days of the 300 days
which immediately preceded the child's
birth due to:
a. Physical incapacity of the husband to
have sexual intercourse with his wife
b. Husband and wife were living
separately as to make sexual
intercourse impossible
c. Serious illness of the husband
absolutely
preventing
sexual
intercourse
(2) Other biological or scientific reasons,
except Artificial Insemination
(3) And in case of Artificial Insemination, the
written consent of either parent was
vitiated through fraud, violence, mistake,
intimidation, or undue influence

Legitimacy with regard to the mother:


(1) Child considered legitimate although [Art.
167]:
(a) Mother may have declared against its
legitimacy
(b) Mother may have been sentenced as
an adulteress (also applies to wife
who was raped)
(2) If the marriage is terminated and the
mother contracted another marriage
within 300 days after the termination of
the former marriage, the following rules
shall govern in the absence of proof to the
contrary [Art 168]:
(a) If born before 180 days after the
solemnization of the subsequent
marriage child is considered
conceived during the former marriage,
provided it be born within 300 days

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after termination of the former


marriage
(b) If born after 180 days following the
celebration of the subsequent
marriage child is considered
conceived during such marriage, even
if it be born within 300 days after the
termination of the former marriage

CIVIL LAW

If the birth of the child has been concealed or


was unknown to the husband, the above
periods shall be counted:
(1) From the discovery or knowledge of the
birth of the child, or
(2) From the discovery or knowledge of its
registration, whichever is earlier.

Note: The legitimacy or illegitimacy of a child


born after 300 days following the termination
of the marriage burden of proof upon
whoever alleges the status. [Art. 169]

GENERAL RULE: Only the husband can


impugn the legitimacy of a child. If he does
not bring an action within the prescribed
periods, he cannot file such action anymore
thereafter, and this is also true with his heirs.

If nobody asserts the legitimacy or


illegitimacy of the child described in Art. 169,
the child should be considered illegitimate
unless legitimacy is proved. Legitimacy
cannot be presumed here since the birth was
beyond the 300-day period of gestation.
While it goes against the policy of law to lean
in favor of legitimacy, this interpretation is
better than the anomalous situation created
by Art. 169, which is a child without a status.
[Tolentino]

EXCEPTION: That the heirs of the husband


may file the action or continue the same
within the periods prescribed in Art. 170 [Art.
171]:
(a) If the husband died before the expiration
of the period fixed for bringing his action
(b) If he should die after the filing of the
complaint without having desisted
therefrom
(c) If the child was born after the death of the
husband.

Action for Impugning Legitimacy [Arts. 170


and 171]
May be brought within 1, 2, or 3 years from the
knowledge of the birth, or the knowledge of
registration of birth.
(1) Within 1 year if husband or any heirs
reside in the same city or municipality
where the child was born or his birth was
recorded.
(2) Within 2 years if the husband or all
heirs live in the Philippines but do not
reside in the same city or municipality
where the child's birth took place or was
recorded
(3) Within 3 years if the husband or all
heirs live outside the Philippines when the
child's birth took place or was recorded in
the Philippines

Sayson v. CA (1992): Legitimacy can only be


attacked directly.

B. PROOF OF FILIATION
Art. 172. The filiation of legitimate children is
established by any of the following:
(1) The record of birth appearing in the civil
register
or
a
final
judgment;
or
(2) An admission of legitimate filiation in a
public document or a private handwritten
instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the
legitimate filiation shall be proved by:
(1) The open and continuous possession of the
status
of
a
legitimate
child;
or

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(2) Any other means allowed by the Rules of


Court and special laws. (265a, 266a, 267a)

CIVIL LAW

(c) To be entitled to the legitimate and other


Successional rights granted to them by
the Civil Code

Legitimate children may establish their


filiation by any of the following [Art. 172]:
(1) Primary Evidence
Their record of birth appearing in the
civil registry.
An admission of his filiation by his
parent in a public document or a
private handwritten instrument and
signed by said parent
(2) Secondary Evidence
Proof of open and continuous
possession of status as legitimate
child
Any other means stated by the rules
of court or special laws
Note: Only in the absence of primary evidence
can secondary evidence be admitted

C. ILLEGITIMATE CHILDREN
Art. 165. Children conceived and born outside
a valid marriage are illegitimate, unless
otherwise provided in this Code. (n)
Who are illegitimate children
GENERAL RULE: Those conceived and born
outside of a valid marriage. [Art. 165]
EXCEPTIONS:
(1) Children of marriages void under Art. 36
(psychological incapacity); and
(2) Under Art. 53 (subsequent marriages
which did not comply with Art. 52).
(Sempio-Dy)

Action for Claiming Filiation (Legitimate


Children) [Art. 173]:
(a) The child can bring the action during his
or her lifetime
(b) If the child dies during minority or in a
state of insanity, such action shall be
transmitted to his heirs, who shall have a
period of five years within which to
institute the action.
(c) The action commenced by the child shall
survive notwithstanding the death of
either or both of the parties

Art. 175. Illegitimate children may establish


their illegitimate filiation in the same way and
on the same evidence as legitimate children.
The action must be brought within the same
period specified in Article 173, except when
the action is based on the second paragraph
of Article 172, in which case the action may be
brought during the lifetime of the alleged
parent. (289a)
GENERAL RULE: Illegitimate children may
establish their illegitimate filiation in the
same way and on the same evidence (primary
or secondary) as legitimate children.
Action for Claiming Filiation [Art. 175]:
(a) For actions based on primary evidence,
the same periods stated in Art. 173 apply.
(b) For actions based on secondary evidence,
the action may only be brought during the
lifetime of the alleged parent.

Rights of Legitimate Children [Art. 174]:


(a) To bear the Surnames of the father and
the mother, in conformity with the
provisions of the Civil Code on surnames
(b) To receive support from their parents,
their ascendants, and in proper cases,
their brothers and sisters, in conformity
with the provisions of the Code on
Support

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Mendoza v. Melia (1966): Baptismal certificates


are given probative value only for births
before 1930. Birth certificates must be signed
by the parents and sworn for it to be admitted
as evidence.

CIVIL LAW

by the parents and family of the child as


legitimate, constant attendance to the child's
support and education, and giving the child
the reputation of being a child of his parents.
Agustin v. CA (2005): DNA evidence can be
used as proof of paternity.

Baluyut v. Baluyut (1990): Unsigned birth


certificates are not evidence of recognized
filiation.

De Jesus v. Estate of Decedent Juan Gamboa


Dizon (2001): The due recognition of an
illegitimate child in a record of birth, a will, a
statement before a court of record, or in any
authentic writing, is in itself a consummated
act of acknowledgement of the child, and no
further court action is required.

Acebedo v. Arquero (2003): Baptismal


certificates are only conclusive of the
sacrament administered, and cannot be used
as proof of filiation.
Lim v. CA (1975): Marriage certificates cannot
be used as proof of filiation.

Gono-Javier vs. Court of Appeals (1994): Mere


possession of status as an illegitimate child
does not make a recognized illegitimate child
but is only a ground for bringing an action to
compel judicial recognition by the assumed
parent.

Jison v. CA (1998): Rule 130, Sec. 40 is limited


to objects commonly known as family
possessions reflective of a family's reputation
or tradition regarding pedigree like
inscriptions on tombstones, monuments, or
coffin plates.

Estate of Rogelio Ong v. Diaz (2007): DNA


evidence can still be used even after the death
of the parent.

Eceta v. Eceta (2004): Signature of the father


on the birth certificate is considered as an
acknowledgement of paternity and mere
presentation of a duly authenticated copy of
such certificate will successfully establish
filiation.

Gotardo v. Buling (2012): There are four


significant procedural aspects of a traditional
paternity action that parties have to face:
a prima facie case, affirmative defenses,
presumption of legitimacy, and physical
resemblance between the putative father and
the child. A prima facie case exists if a woman
declares supported by corroborative proof
that she had sexual relations with the
putative father; at this point, the burden of
evidence shifts to the putative father. Further,
the two affirmative defenses available to the
putative father are: (1) incapability of sexual
relations with the mother due to either
physical absence or impotency, or (2) that the
mother had sexual relations with other men at
the time of conception.

Heirs of Rodolfo Baas v. Heirs of Bibiano Baas


(1985): "Su padre [Your father]" ending in a
letter is only proof of paternal solicitude and
not of actual paternity. Signature on a report
card under the entry of "Parent/Guardian" is
likewise inconclusive of open admission.
De Jesus v. Syquia (1933): By "open and
continuous possession of the status of a
legitimate child" is meant the enjoyment by
the child of the position and privileges usually
attached to the status of a legitimate child,
like bearing the paternal surname, treatment

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Perla v. Baring and Perla (2012): To prove open


and continuous possession of the status of an
illegitimate child, there must be evidence of
the manifestation of the permanent intention
of the supposed father to consider the child as
his, by continuous and clear manifestations of
parental affection and care, which cannot be
attributed to pure charity.

CIVIL LAW

Grande v. Antonio (2014): The use of the word


may in Art. 176 readily shows that
an acknowledged illegitimate child is under
no compulsion to use the surname of his
illegitimate father. The word may is
permissive
and
operates
to
confer
discretion upon the illegitimate children.

Meanwhile, the lack of participation of the


supposed father in the preparation of a
baptismal certificate renders this document
incompetent to prove paternity. Baptismal
certificates are per se inadmissible in evidence
as proof of filiation and they cannot be
admitted indirectly as circumstantial evidence
to prove the same

(c) Shall be entitled to Support in conformity


with the Family Code
(d) Legitime shall consist of one-half of the
legitime of a legitimate child.

D. LEGITIMATED CHILDREN
Art. 177. Only children conceived and born
outside of wedlock of parents who, at the time
of the conception of the former, were not
disqualified by any impediment to marry each
other may be legitimated. (269a)

Art. 176. Illegitimate children shall use the


surname and shall be under the parental
authority of their mother, and shall be entitled
to support in conformity with this Code. The
legitime of each illegitimate child shall
consist of one-half of the legitime of a
legitimate child. Except for this modification,
all
other
provisions
in
the Civil
Code governing successional rights shall
remain in force.(287a)

GENERAL RULE: "Legitimated" children are


illegitimate children who because of the
subsequent marriage of their parents are, by
legal fiction, considered legitimate.
To be capable of legitimation:
(1) The child must have been conceived and
born outside of wedlock; and
(2) The parents, at the time of the child's
conception, were not disqualified by any
impediment to marry each other, or
disqualified only because either or both of
them were below 18 y.o. (Art. 177 as
amended by RA 9858)

Rights of Illegitimate Children:


(a) Use the Surname and be under the
parental authority of the mother
(b) However, may use the surname of their
father if
Their filiation has been expressly
recognized by the father through the
record of birth appearing in the civil
register; or
There is an admission in a public
document or private handwritten
instrument made by the father.
Provided, the father has the right to
institute an action before the regular
courts to prove non-filiation during his
lifetime [RA 9255]

Procedure and Effects:


(a) Legitimation shall take place by a
subsequent valid marriage between
the parents. The annulment of a
voidable marriage shall not affect the
legitimation. [Art. 178]

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(b) Effects of legitimation shall retroact


to the time of the childs birth [Art.
180]
(c) Legitimation of children who died
before the celebration of the marriage
shall benefit their descendants [Art.
181]
Effect
on
parentchild
relationship

Grounds for impugning legitimation:


(1) The subsequent marriage of the child's
parents is void.
(2) The child allegedly legitimated is not
natural.
(3) The child is not really the child of the
alleged parents. (Sempio-Dy)
Rights:
The same as those of legitimate children [Art.
179]

Same status
and rights with
that
of
a
legitimate
child not only
in relation to
the
legitimizing
parents
but
also to other
relatives

with
exceptions
allowing
only one of
them
to
apply
[RA
8552]
Creates
a
relationship
only
between the
child and the
adopting
parents

ADOPTION is a juridical act, which creates


between two persons a relationship similar to
that which results from legitimate paternity
and filiation.

Impugning legitimation [Art. 182]


(1) May be made only by those who are
prejudiced in their rights
(2) Within five years from the time their cause
of action accrues

It requires a proceeding in rem, and may only


be proven by a judicial decree issued by a
court of competent jurisdiction, not by open
and continuous cohabitation.

IX. Adoption

RA 8552 Domestic Adoption Law (February


25, 1998)

LEGITIMATION

ADOPTION
The
law
creates by
The law merely
Legal effect
fiction
a
makes
legal
relation
what exists by
which
did
nature
not in fact
exist
Persons
Natural
Strangers
affected
Children
(generally)
Procedure
Extrajudicial
Always
by
acts of parents judicial
decree
Who should Both parents
Both
apply
parents,

A. WHO CAN ADOPT


A. Filipino Citizens (Sec. 7a)
(a) Of legal age
(b) With full civil capacity and legal
rights
(c) Of good moral character and has
not been convicted of any crime
involving moral turpitude
(d) Emotionally and psychologically
capable of caring for children
(e) At least sixteen (16) years older
than adoptee, except when
adopter is biological parent of the

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adoptee or is the spouse of the


adoptees parent
(f) In a position to support and care
for his/her children in keeping
with the means of the family
(g) Has undergone pre-adoption
services
B. Aliens (Sec. 7b)
- Same for Filipinos provided further
that:
(1) His/her country has diplomatic
relations with the Philippines
(2) Has been living in the Philippines
for 3 continuous years prior to the
filing
of
application
and
maintains such residence until
the decree is entered (provided
that absences not exceeding 60
days per 1 year for professional,
business, or emergency reasons
are allowed)
(3) Has been certified by his/her
diplomatic or consular office or
any appropriate government
agency that he/she has the legal
capacity to adopt in his/her
country
(4) His/her government allows the
adoptee to enter his/her country
as his/her adoptee
(5) Has submitted all the necessary
clearances and such certifications
as may be required

CIVIL LAW
with his/her spouse a relative
within the 4th degree of
consanguinity or affinity of the
Filipino spouse
C. Guardians
With respect to their wards, after the
termination of the guardianship and
clearance of his/her accountabilities.

Husband and wife shall adopt jointly, EXCEPT:


(1) If one spouse seeks to adopt the
legitimate child of the other
(2) If one of the spouses seeks to adopt
his/her illegitimate child provided
that the other spouse has signified
his/her consent
(3) If spouses are legally separated from
each other
Note: If spouses jointly adopt, parental
authority shall be jointly exercised by them.

B. WHO CAN BE ADOPTED (Sec. 8)


(a) Minor who has been administratively
or judicially declared available for
adoption
(b) Legitimate child of one spouse by
another
(c) Illegitimate child by a qualified
adopter to improve the childs status
to that of legitimacy
(d) A person of legal age if, prior to the
adoption, said person has been
consistently considered and treated
by the adopter(s) as his/her child
since minority
(e) A child whose previous adoption has
been rescinded
(f) A child whose biological or adoptive
parent(s) has died, provided that no
proceedings shall be initiated within 6
months from the time of death of said
parent(s)

**Items 3, 4 and 5 may be waived under


the following circumstances:
(a) Adopter is a former Filipino
Citizen who seeks to adopt a
relative within the 4th degree of
consanguinity or affinity
(b) Adopter seeks to adopt the
legitimate or illegitimate child of
his/her Filipino spouse
(c) Adopter is married to a Filipino
Citizen and seeks to adopt jointly

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Exceptions to the Requirement of a


Certification that the Child is Available for
Adoption (Sec. 4):
Adoption of an illegitimate child by
his/her biological parent;
Adoption of a child by his/her
stepparent;
Adoption by a relative within the 4th
civil degree by consanguinity or
affinity

Counseling on her options other than


adoption
Explaining to her the implications of losing
her parental authority over the child

Continuing services shall be provided after


relinquishment to cope with feelings of loss,
etc. and other services for his/her
reintegration to the community

Persons whose written consent is necessary for


adoption (Sec. 9)
(1) The prospective adoptee if 10 years or
older
(2) The prospective adoptees biological
parents, legal guardian or the
government
instrumentality
or
institution that has custody of the
child
(3) The prospective adopters legitimate
and adopted children who are 10
years or older
(4) The prospective adopters illegitimate
children, if any, who are 10 years or
older and living with them
(5) The spouse, if any, of the person
adopting or to be adopted.

Biological parent(s) who decide to keep the


child shall be provided with adequate
services and assistance to fulfill their
parental responsibilities
Biological parent(s) who decide to put the
child for adoption shall sign the Deed of
Voluntary Commitment (DVC), which shall
be rescissible within 3 months from signing
of the same

2. Involuntary Commitment of abandoned or


neglected child

Note: A decree of adoption shall be effective


as of the date the original petition was filed. It
also applies in case the petitioner dies before
the issuance of the decree of adoption to
protect the interest of the adoptee.

Filing of a petition at Regional DSWD in the


form of an affidavit and with the required
supporting documents

C. PRE-ADOPTION PROCEDURES
1.

CIVIL LAW

Posting of the petition, then


recommendation by the Regional Director
of the DSWD (5 days each)

Voluntary Commitment of biological


mother wanting to put her child up for
adoption

Issuance of certification by DSWD Secretary


declaring the child legally available for
adoption

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3. Required supporting documents for a


petition for the declaration of involuntary
commitment:
(a) Social Case Study Report by DSWD /
LGU / institution charged with childs
custody
(b) Proof of efforts to locate the childs
parents/known relatives
- Written certification that a
local/national radio/TV case was
aired on 3 different occasions
- Publication in 1 newspaper of
general circulation
- Police
report
/
barangay
certification of due diligence
- Returned registered mail to last
known address of parents
(c) Birth certificate, if available
(d) Recent photo and photo upon
abandonment of child

CIVIL LAW

Placement

Supervised Trial Custody

Home Study Report

Recommendation and Consent of DSWD

File Petition for Adoption within 30 days


from Receipt of Consent from DSWD

Adoption Decree

D. ADOPTION PROCEDURES
Inquiry of prospective adopters at DSWD

Note:
DSWD must certify the child as legally
available for adoption as a prerequisite for
adoption proceedings. (RA 9253)
After the decree of adoption, the court may
also issue a travel authority, if needed; DSWD
to provide post adoption services

Attendance of DSWD Adoption Fora and


Seminars (include counseling)

Application for Adoption

The case study report by the DSWD/LGU is


indispensable. Without it, the adoption decree
shall be void. (DSWD v. Judge Belen (1997))

Case Study Report

E. WHO MAY NOT ADOPT/ BE


ADOPTED

Certificate of Availability for Adoption

Art. 184 (as amended by RA 8552)


The following may not adopt:
(1) The guardian, with respect to the
ward, prior to the approval of the final
accounts
rendered
upon
the
termination of the guardianship

Matching

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(2) Any person convicted of a crime of


moral turpitude

CIVIL LAW

(3) When the surviving spouse AND


illegitimate children AND adopters concur,
they shall inherit on a 1/3-/1/3-1/3 basis

F. RIGHTS OF AN ADOPTED CHILD

(4) When only adopters survive, they shall


inherit 100% of the estate

(a) Parental Authority


Except in cases where the biological
parent is the adopters spouse, all legal
ties between biological parent and
adoptee shall be severed, and the same
shall then be vested on the adopters.
[Sec. 16]
(b) Legitimacy
The adoptee shall be considered the
legitimate son/daughter of the adopters
for all intents and purposes, and as such
is entitled to all rights and obligations
provided by law to legitimate children
born to them without discrimination of
any kind. [Sec. 17]
(c) Succession
In legal and intestate succession, the
adopter and the adoptee shall have
reciprocal rights of succession without
distinction from legitimate filiation.
However, if the adoptee and his/her
biological parents had left a will, the law
on testamentary succession shall govern.
[Sec. 18]

(5) When only collateral blood relatives


survive, ordinary rules of legal or intestate
succession shall apply
(d) Name
An adopted child shall bear the surname of
the adopter (CC, Art. 365).
RA 8552 allows the change of first name
to be instituted in the same proceeding as
the adoption: the decree of adoption shall
state the name by which the child is to be
known.
(e) Nationality
Adoption does not confer citizenship: Sec.
3, Art. 4 of the Constitution: Philippine
citizenship may be lost/acquired [only] in
the manner provided by law.
The right to confer citizenship belongs to
the State (political) and cannot be granted
by a citizen through adoption. Adoption
creates a relationship between the adopter
and adoptee, not between the State and
the adoptee.

Art. 190 as amended. Rules on legal or


intestate succession to the estate of the
adoptee:

G. RESCISSION OF ADOPTION

(1) Legitimate and illegitimate children,


descendants and the surviving spouse of the
adoptee shall inherit in accordance with the
ordinary rules of legal/intestate succession

Adoptee may file action for rescission, with the


assistance of DSWD if he/she is a minor or
over 18 but incapacitated, based on the ff
grounds (Sec. 19):
(1) Repeated
physical
and
verbal
maltreatment by adopters despite having
undergone counseling
(2) Attempt on life of adoptee
(3) Sexual assault or violence

(2) When the surviving spouse OR illegitimate


children AND adopters concur, they shall
inherit on a 50-50 basis

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(4) Abandonment or failure to comply with


parental obligations

CIVIL LAW

Note: Rescission contemplates a situation


where the adoption decree remains valid until
its termination

Note: Adoption, being in the best interest of


the child, shall not be subject to rescission by
the adopter. However, the adopter may
disinherit the child based on causes
enumerated in CC, Art. 919:
(1) Conviction of an attempt on the life of the
adopter
(2) Having accused, without grounds, the
adopter of a crime punishable by
imprisonment for more than 6 years
(3) Conviction of adultery/concubinage with
the adopters spouse
(4) Having caused the adopter to make or
change a will by force, intimidation or
undue influence
(5) Refusal without just cause to support the
adopter
(6) Maltreatment of the adopter by
word/deed
(7) Living a dishonorable/disgraceful life
(8) Conviction of a crime which carries with it
the penalty of civil interdiction

H. RECTIFICATION OF SIMULATED
BIRTH
Simulation of birth is the tampering of LCR
records to make it appear that a certain child
was born to a person who is not his/her
biological parent, causing said child to lose
his/her true identity/status.
Sec. 21-b (RA 8552) Any person who shall
cause the fictitious registration of the birth of
a child under the name(s) of a person(s) who
is not his/her biological parent(s) shall be
guilty of simulation of birth, and shall be
punished by prision mayor in its medium
period and a fine not exceeding P50,000.00.
Sec. 22 (RA 8552) A person who has, prior to
the effectivity of RA 8552, simulated the birth
of a child shall not be punished for such act,
PROVIDED:
- The simulation was for the childs best
interest
- Child has been treated consistently as
his own
- Petition filed within 5 years of RA 8552s
effectivity (2003)

Effects of Rescission [Sec. 20]:


(1) Parental authority of the adoptee's
biological parents, if known, OR the legal
custody of the DSWD shall be restored if
the adoptee is still a minor or
incapacitated
(2) Reciprocal rights and obligations of the
adopters and the adoptee shall be
extinguished
(3) Court shall order the Civil Registrar to
cancel the amended certificate of birth of
the adoptee and restore his/her original
birth certificate
(4) Succession rights shall revert to its status
prior to adoption, but only as of the date
of judgment of judicial rescission
(5) Vested rights prior to judicial rescission
shall be respected

Three-in-one Procedure
- Correction of entries in birth certificate
- Deed of Voluntary Commitment or
Declaration of abandonment
- Adoption decree

I. RA 8043 THE LAW ON INTERCOUNTRY ADOPTION


(June 7, 1995)
INTER-COUNTRY ADOPTION refers to the
socio-legal process of adopting a Filipino

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child by a foreigner or a Filipino citizen


permanently residing abroad where the
petition is filed, the supervised trial custody is
undertaken, and the decree of adoption is
issued outside the Philippines

that adoption is allowed under his/her


national laws
(i) Possesses all the qualifications and none
of the disqualifications provided in
applicable Philippine laws.

I. 1. WHO CAN ADOPT

I. 2. WHO CAN BE ADOPTED

Any foreign national or a Filipino citizen


permanently residing abroad who has the
qualifications
and
none
of
the
disqualifications under the Act may file an
application if he/she:
(a) Is at least 27 years of age and at least 16
years older than the child to be adopted,
at the time of application unless the
adopter is the parent by nature of the
child to be adopted or the spouse of such
parent
(b) If married, his/her spouse must jointly file
for the adoption
(c) Has the capacity to act and assume all
rights and responsibilities of parental
authority under his national laws, and has
undergone the appropriate counseling
from an accredited counselor in his/her
country
(d) Has not been convicted of a crime
involving moral turpitude
(e) Is eligible to adopt under his/her national
law
(f) Is in a position to provide the proper care
and support and to give the necessary
moral values and example to all his
children, including the child to be
adopted
(g) Agrees to uphold the basic rights of the
child as embodied under Philippine laws,
the U.N. Convention on the Rights of the
Child, and to abide by the rules and
regulations issued to implement the
provisions of this Act
(h) Comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and

(a) Only a legally-free child may be the subject


of inter-country adoption.
(b) A legally-free child is one who has been
voluntarily or involuntarily committed to
the DSWD of the Philippines, in
accordance with the Child and Youth
Welfare Code.
(c) No child shall be matched to a foreign
adoptive family unless it is satisfactorily
shown that the child cannot be adopted
locally (last resort).
(d) In order that such child may be
considered for placement, the following
documents must be submitted to the
Board:
Child study
Birth
Certificate
/
Foundling
Certificate
Deed of Voluntary Commitment/
Decree of Abandonment/ Death
Certificate of parents
Medical Evaluation / History
Psychological
Evaluation,
as
necessary
Recent photo of the child
Tamargo v. CA (1992): Where the petition for
adoption was granted after the child had
shot and killed a girl, the Supreme Court did
not consider the retroactive effect given to
the decree of adoption so as to impose a
liability upon adopting parents at a time
when adopting parents had no actual or
physically custody over the child.
Retroactive effect may perhaps be given to
the granting of the petition for adoption
where such is essential to permit the accrual
of some benefit or advantage in favor of the

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X. Support

adopted child. In the instant case, however,


to hold that parental authority had been
retroactively lodged in the adopting parents
so as to burden them with liability for a
tortuous act that they could not have
foreseen and which they could not have
prevented
would
be
unfair
and
unconscionable.

A. WHAT IT COMPRISES
Consists of everything indispensable for
sustenance, dwelling, clothing, medical
attendance, education and transportation,
in keeping with the financial capacity of the
family. [Art. 194]
Education includes a persons schooling
or training for some profession, trade or
vocation, the right to which shall subsist
beyond the age of majority. [Art. 194]
Transportation includes expenses in
going to and from school, or to and
from place of work. [Art. 194]

Lazatin v. Campos (1979): Adoption is a


juridical act, proceeding in rem. Because it is
artificial, the statutory requirements in order
to prove it must be strictly carried out.
Petition must be announced in publications
and only those proclaimed by the court are
valid. Adoption is never presumed.

B. WHO ARE OBLIGED

Santos v. Aranzanso (1966): Validity of facts


behind a final adoption decree cannot be
collaterally attacked without impinging on
that courts jurisdiction.

DSWD v. Belen (1997): Participation of the


appropriate government instrumentality in
performing the necessary studies and
precautions
is
important
and
is
indispensable to assure the childs welfare.
Landingin v. Republic (2006): Consent for
adoption must be written and notarized.
Sayson v. CA (1992): Adopted children do not
have a right to represent their adopters in
successional interests. Although an adopted
child is deemed to be a legitimate child and
have the same rights as the latter, these
rights do not include the right of
representation (because the adopted child
has no right to inherit from the
grandparent). The relationship created by
the adoption is between only the adopting
parents and the adopted child. It does not
extend to the blood relatives of either party.

To support each other:


o Spouses;
o Legitimate
ascendants
and
descendants;
o Parents and their children (legitimate
and illegitimate) and the children of
the
latter
(legitimate
and
illegitimate);
o Legitimate brothers and sisters,
whether of full or half-blood; [Art.
195]
o Illegitimate brothers and sisters,
whether of full or half-blood, except
when the need for support of one (of
age) is due to a cause imputable to
his/her fault or negligence. [Art. 196]

Note: Both legitimate and


children are entitled to support.

illegitimate

Properties answerable for support


From the separate property of the obligor. If
no separate property, the ACP/CPG (if
financially capable) shall advance the
support, to be deducted from the obligors
share upon liquidation of such regime. [Art.
197]

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who called for the physicians services for


the childbirth of their daughter-in-law, it is
the womans husband who is bound to pay
the fees due to the physician.

Order of support
o If there are multiple obligors
Spouse
Descendants, nearest in degree
Ascendants, nearest in degree
Brothers and Sisters [Art. 199]

Lacson v. San Jose-Lacson (1968):


Man is still liable for support in arrears
since the mother advanced it from a
stranger (the uncle of the daughters).

The order of liability among ascendants and


descendants would be: (1) legitimate children
and descendants, (2) legitimate parents and
ascendants, (3) illegitimate children and their
descendants. [Tolentino]

Lacson v. Lacson (2006):


Acknowledgment of and commitment to
comply with support obligation through a
note in his own handwriting is proof that a
demand was made.

When two or more are obliged to give


support, the payment shall be divided
between them in proportion to their resources;

Gotardo v. Buling (2012):


The amount of support is variable and, for
this reason, no final judgment on the
amount of support is made as the amount
shall be in proportion to the resources or
means of the giver and the necessities of
the recipient.

Also, in case of urgent need and by special


circumstances, judge may order only one
obligor to furnish support without prejudice to
reimbursement from other obligors of the
share due from them (Art. 200).
o

CIVIL LAW

If there are multiple recipients and only


one obligor, and the latter has no
sufficient means to satisfy all claims:
Observe order in Article 199 as to
whose claim shall be satisfied
first;
But if the concurrent obligees are
the spouse and a child subject to
parental authority, the child shall
be preferred. [Art. 200]

Stranger gives support


When, without the knowledge of the person
obliged to give support, it is given by a
stranger, the stranger has the right to claim
the same from the person obliged, unless it
appears that he gave it without intention of
being reimbursed. [Art. 206]

Person obliged refuses or fails to give


support
When the person obliged to give support
unjustly refuses or fails to give support when
urgently needed, any third person may furnish
support to the needy individual, with right of
reimbursement from the person obliged to
give support. This particularly applies when
the father or mother of a minor child unjustly
refuses to support or fails to give support to
the child when urgently needed. [Art. 207]

The above preference given to a child under


parental authority over the spouse should
prevail only if the person obliged to support
pays it out of his separate property. So if the
support comes from ACP or CPG, the above
rule of preference for the child does not apply.
[Tolentino]
Pelayo v. Lauron (1909):
Even if the parents-in-law were the ones

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Contractual support or that given by will


o The excess in amount beyond that
required for legal support shall be
subject to levy on attachment or
execution. [Art. 208]

Reason: The amount of support


agreed upon in the contract or given
in the will can be more than what the
recipient needs (Sempio-Diy).

except from the date of judicial or extrajudicial demand. [Art. 203]


Support pendente lite may be claimed in
accordance with the Rules of Court. [Art.
203]
Payment shall be made within the first 5
days of each corresponding month. When
the recipient dies, his heirs shall not be
obliged to return what he has received in
advance. [Art. 203]

F. OPTIONS

Furthermore, contractual support


shall be subject to adjustment
whenever modification is necessary
due to changes in circumstances
manifestly beyond the contemplation
of the parties. [Art. 208]

Payment of the amount; or


Receiving and maintaining the recipient in
the home of the provider, unless there is a
legal or moral obstacle for doing so.

G. ATTACHMENT

C. SUPPORT DURING MARRIAGE


LITIGATION

The right to receive support as well as any


money or property obtained as such support
shall not be levied upon on attachment or
execution. (Art. 205)

Pending legal separation or annulment, and


for declaration of nullity, support pendente lite
for spouses and children will come from the
ACP/CPG. After final judgment granting the
petition, mutual support obligation between
spouses ceases. (But in legal separation, court
may order guilty spouse to give support to
innocent spouse.) [Art. 198]

This is to protect that which the law gives to


the recipient against want and misery.
[Tolentino]

XI. Parental Authority


and Custody of Children

Note: De facto separation does not affect the


ACP and the CPG, except that the spouse who
leaves the conjugal home without just cause
shall not be entitled to support. [Art. 100]

Parental authority is the mass of rights and


obligations which parents have in relation to
the person and property of their children until
their emancipation, and even after this under
certain circumstances (Manresa).

D. AMOUNT
The amount of support is in proportion to the
means of the provider and the needs of the
receiver, and can be reduced or increased if
such circumstances change. [Arts. 201, 202]

PARENTAL AUTHORITY INCLUDES [ART.


209]:
(1) The caring for and rearing of children
for civic consciousness and efficiency;
(2) The development of the moral,
mental and physical character and
well-being of said children

E. WHEN DEMANDABLE

CIVIL LAW

The obligation to give support shall be


demandable from the time the person who
has a right to receive the same needs it for
maintenance, but it shall not be paid
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the child, are ordinarily entitled to custody as


against all persons. [Santos v CA (1995)]

Parental authority and responsibility may not


be renounced or transferred except in the
cases authorized by law. [Art. 210]

WHO EXERCISES AUTHORITY IN CASES


OF DEATH, ABSENCE, UNSUITABILITY,
REMARRIAGE, OR SEPARATION OF
PARENTS:

CASES WHEN PARENTAL AUTHORITY


AND
RESPONSIBILITY
MAY
BE
TRANSFERRED OR RENOUNCED:

(1) In case one parent is absent or already


dead, the present or surviving parent
[Art. 212]
Remarriage of the surviving parent
shall not affect his/her parental
authority over the children, unless the
court appoints another person to be
the guardian of the children or their
property [Art. 212]
(2) In case of a void/annulled marriage,
and there is no agreement between
spouses, the parent designated by the
court [Art. 43 par. 1; Art. 49]
(3) Innocent spouse gets custody of
minor children in legal separation
[Art. 63 par. 3]
(4) The court shall take into account all
relevant considerations, especially the
choice of the child over seven years of
age, unless the parent chosen is unfit
[Art. 213 par. 1]
(5) Substitute parental authority [Art.
214]
(a) In case of death, absence or
unsuitability of the parents,
substitute parental authority
shall be exercised by the
surviving grandparent
(b) When several grandparents
survive, the one designated by
the court shall exercise
parental authority, taking into
account all relevant
considerations, especially the
choice of the child over seven
years of age, unless the
grandparent chosen is unfit

Adoption;
Guardianship; or
Commitment of the child in an entity or
institution engaged in child care or in a
childrens home

RULES AS TO THE EXERCISE OF


PARENTAL AUTHORITY:
Jointly exercised by the father and mother
over their common children, but in case of
disagreement, the father's decision shall
prevail, unless there is a judicial order to the
contrary [Art. 211]
Exercised by the mother if the child is
illegitimate [Art.176]
Children under parental authority shall
always observe respect and reverence
towards their parents and are obliged to
obey them [Art. 211]

CHARACTERISTICS
AUTHORITY:

OF

CIVIL LAW

PARENTAL

(1) Natural right and duty of parents [Art.


209, FC]
(2) Cannot be renounced, transferred or
waived, except in cases authorized by
law [Art 210, FC]
(3) Jointly exercised by the father and the
mother [Art. 211, FC]
(4) Purely personal and cannot be
exercised through agents
(5) Temporary

PARENTAL PREFERENCE RULE:


The natural parents, who are of good
character and who can reasonably provide for

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Descendants Privilege of Refusal to Testify


[Art. 215]: No descendant shall be compelled,
in a criminal case, to testify against his
parents and grandparents.

CIVIL LAW

SUBSTITUTE PARENTAL AUTHORITY


OVER DISADVANTAGED CHILDREN (Art.
217)
Entrusted in summary judicial proceedings to:
(1) Heads of childrens homes
(2) Orphanages
(3) Similar institutions duly accredited by the
proper government agency (such as the
DSWD)

Exception: When such testimony is


indispensable in (1) a crime against the
descendant, or (2) a crime by one parent
against the other.

TENDER YEARS PRESUMPTION:


NO child under 7 years of age shall be
separated from the mother, unless the court
finds compelling reasons to order otherwise.
[Art. 213 par 2; Art. 363, NCC; Gamboa v. CA
(2007)]

WHO ARE DISADVANTAGED CHILDREN:


(1)
(2)
(3)
(4)
(5)

Examples of compelling reasons are:


(1) When the mother is insane;
(2) With a communicable disease that might
endanger the life or health of the child;
(3) Is maltreating the child; or
(4) Has another child by another man who
lives with her. [Cervantes v. Fajardo (1989)]

Foundlings
Abandoned
Neglected
Abused
Others similarly situated

PERSONS
EXERCISING
SPECIAL
PARENTAL AUTHORITY [Art. 218 FC]
(1) School, its administrators and teachers; or
(2) The individual, entity or institution
engaged in child care
Note: Exercised over minor child while under
their supervision, instruction or custody.

Note: Alleged lesbianism [Gualberto v.


Gualberto (2005)], prostitution or infidelity to
husband does not necessarily make a mother
unfit as parent. It must be shown that such
lesbianism, prostitution or infidelity adversely
affect the child.

XII. Emancipation
Art. 234. Emancipation takes place by the
attainment of majority. Unless otherwise
provided, majority commences at the age of
eighteen years.

PERSONS EXERCISING SUBSTITUTE


PARENTAL AUTHORITY IN DEFAULT OF
PARENTS OR JUDICIALLY APPOINTED
GUARDIAN (IN THIS ORDER):
The surviving grandparent [Art. 214, FC]
Oldest brother or sister, over 21 years old,
unless unfit or unqualified.
Childs actual custodian, over 21 years old,
unless unfit or unqualified.

Art. 236. Emancipation shall terminate


parental authority over the person and
property of the child who shall then be
qualified and responsible for all acts of civil
life, save the exceptions established by
existing laws in special cases.

Note: The same order applies to the


appointment of judicial guardian over the
property of the child

Contracting marriage shall require parental


consent until the age of twenty-one.

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Persons between ages twenty-one and


twenty-five, shall be obliged to ask their
parents orguardian for advice upon the
intended marriage.
No advice or unfavorable advice: marriage
license shall not be issued till after three
months following the completion of the
publication of the application therefor
Sworn statement by the contracting
parties that advice has been sought,
together with written advice if any or
refusal to give advice: attached to the
application for the marriage license [Art.
15, FC]

CIVIL LAW

A verified petition alleging the following facts


is required when [Art. 239]:
A husband and wife are separated in fact;
or,
One has abandoned the other
Situation: Where one of them seeks judicial
authorization for a transaction where the
consent of the other spouse is required by law
but such consent is withheld or cannot be
obtained
The petition shall:
(1) Attach the proposed deed, if any,
embodying the transaction, if none, shall
describe in detail the said transaction and
state the reason why the required consent
thereto cannot be secured.
(2) The final deed duly executed by the
parties shall be submitted to and
approved by the court.

Nothing in this Code shall be construed to


derogate from the duty or responsibility of
parents and guardians for children and wards
below twenty-one years of age mentioned in
the second and third paragraphs of Article
2180 of the Civil Code.
RA 6809:
By virtue of this law, emancipation can no
longer take place by virtue of the minors
marriage or by the concession of the parents
to a minor in a recorded public instrument.

Separate Claim for Damages: Claims for


damages by either spouse, except costs of the
proceedings, may be litigated only in a
separate action. [Art. 240]
Jurisdiction: Jurisdiction over the petition
shall, upon proof of notice to the other
spouse, be exercised by the proper court
authorized to hear family cases, if one exists,
or in the regional trial court or its equivalent
sitting in the place where either of the
spouses resides. [Art. 241]

XII. Summary Judicial


Proceedings Under FC
A. PROCEDURAL RULES PROVIDED
FOR IN THIS TITLE SHALL APPLY TO
[ART. 238]:

Notification to other spouse:


(1) Upon the filing of the petition, the court
shall notify the other spouse, whose
consent to the transaction is required, of
said petition, ordering said spouse to
show cause why the petition should not
be granted, on or before the date set in
said notice for the initial conference.
(2) The notice shall be accompanied by a
copy of the petition and shall be served at

(1) Separation in fact between husband and


wife
(2) Abandonment by one of the other
(3) Incidents involving parental authority

B. SEPARATION IN FACT

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the last known address of the spouse


concerned. [Art. 242]

CIVIL LAW

Rules applicable for administering or


encumbering separate property of spouse: The
petition for judicial authority to administer or
encumber specific separate property of the
abandoning spouse and to use the fruits or
proceeds thereof for the support of the family
shall also be governed by these rules. [Art.
248]

Procedure:
(1) A preliminary conference shall be
conducted by the judge personally
without the parties being assisted by
counsel.
(2) After the initial conference, if the court
deems it useful, the parties may be
assisted by counsel at the succeeding
conferences and hearings. [Art. 243]
(3) If the petition is not resolved at the initial
conference, said petition shall be
decided in a summary hearing. Basis of
summary hearing (at the sound
discretion of the court):
Affidavits
Documentary evidence
Oral testimonies at the courts sound
discretion. If testimony is needed, the
court shall specify the witnesses to be
heard and the subject-matter of their
testimonies, directing the parties to
present said witnesses. [Art. 246(a)]

C.
INCIDENTS
INVOLVING
PARENTAL AUTHORITY
Procedure
(1) Such petitions shall be verified and filed
in the proper court of the place where the
child resides. [Art. 250]
(2) Upon the filing of the petition, the court
shall notify the parents or, in their
absence or incapacity, the individuals,
entities or institutions exercising
parental authority over the child. [Art.
251]
Note:
Petitions filed under Articles 223, 225 and
235 of this Code involving parental
authority shall be verified. [Art. 249]
The rules in Chapter 2 hereof shall also
govern summary proceedings under this
Chapter insofar as they are applicable [Art.
253]
The foregoing rules in Chapter 2
(Separation in Fact) and (Incidents
Involving Parental Authority) hereof shall
likewise govern summary proceedings filed
Declaration of presumptive death [Art.
41]
Delivery of presumptive legitime [Art.
51]
Fixing of family domicile [Art. 69]
Disagreements regarding one spouses
profession, occupation, business, or
activity [Art. 73]
Disposition or encumbrance of common
property in ACP where one spouse is

When appearance of spouses required:


1. In case of non-appearance of the spouse
whose consent is sought, the court shall
inquire into the reasons for his failure to
appear,
and
shall
require
such
appearance, if possible. [Art. 244]
2. If, despite all efforts, the attendance of the
non-consenting spouse is not secured, the
court may proceed ex parte and render
judgment as the facts and circumstances
may warrant. In any case, the judge shall
endeavor to protect the interests of the
non-appearing spouse. [Art. 245]
Nature of judgment: The judgment of the
court shall be immediately final and
executory. [Art 247]

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incapacitated or unable to participate in


the administration; administration of
absolute community in a disagreement
and the wife takes recourse within five
years [Art. 96]
Disposition or encumbrance of common
property in CPG where one spouse is
incapacitated or unable to participate in
the administration; administration of
partnership property in a disagreement
and the wife takes recourse within five
years, [Art. 124]

CIVIL LAW

Every parent and every person holding


substitute parental authority shall see to it
that the rights of the child are respected and
his duties complied with, and shall
particularly, by precept and example, imbue
the child with highmindedness, love of
country, veneration for the national heroes,
fidelity to democracy as a way of life, and
attachment to the ideal of permanent world
peace. [Art. 358, NCC]
The government promotes the full growth of
the faculties of every child.

When wife and husband are de facto


separated and the CPG is insufficient, the
spouse present shall, upon a petition, be
given judicial authority to administer or
encumber any specific property of the other
spouse and use the fruits and proceeds
thereof to satisfy the latters share. [Art. 127]

The government will establish, whenever


possible:
(1) Schools in every barrio, municipality and
city where optional religious instruction
shall be taught as part of the curriculum
at the option of the parent or guardian;
(2) Puericulture and similar centers; (3)
Councils for the Protection of Children;
and (4) Juvenile courts. [Art. 359, NCC]

XIII. Care and


Education of Children

The Council for the Protection of Children shall


look after the welfare of children in the
municipality.

Every child:
(1) Is entitled to parental care;
(2) Shall receive at least elementary
education;
(3) Shall be given moral and civic training by
the parents or guardian;
(4) Has a right to live in an atmosphere
conducive to his physical, moral and
intellectual development. [Art. 356, NCC]

Functions:
(1) Foster the education of every child in the
municipality
(2) Encourage the cultivation of the duties of
parents
(3) Protect and assist abandoned or
mistreated children, and orphans
(4) Take
steps
to
prevent
juvenile
delinquency
(5) Adopt measures for the health of children
(6) Promote the opening and maintenance of
playgrounds
(7) Coordinate the activities of organizations
devoted to the welfare of children, and
secure their cooperation. [Article 360,
NCC]

Duties of the child:


(1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives,
and persons holding substitute parental
authority;
(3) Exert his utmost for his education and
training;
(4) Cooperate with the family in all matters
that make for the good of the same. [Art.
357, NCC]

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Juvenile courts will be established, as far as


practicable, in every chartered city or large
municipality.[Art. 361, NCC]

(b) Her maiden first name and her


husband's surname or
(c) Her husband's full name, but
prefixing a word indicating that she
is his wife, such as "Mrs."
The wife cannot claim an exclusive right to
use the husbands surname. She cant be
prevented from using it; but neither can
she restrain others from using it.
[Tolentino]
(2) In case of annulment of marriage, and the
wife is the guilty party, she shall resume
her maiden name and surname. If she is
the innocent spouse, she may resume her
maiden name and surname. However, she
may choose to continue employing her
former husband's surname, unless [Art.
371]:
(a) The court decrees otherwise, or
(b) She or the former husband is married
again to another person.
(3) When legal separation has been granted,
the wife shall continue using her name and
surname employed before the legal
separation. [Art. 372]
(4) A widow may use the deceased
husband's surname as though he were still
living, in accordance with Article 370. [Art
373]

Whenever a child is found delinquent by any


court, the father, mother, or guardian may in
a proper case be judicially admonished. [Art.
362, NCC]

XIV. Surnames
A. SURNAMES OF CHILDREN
(1) Legitimate and legitimated children shall
principally use the surname of the father.
[Art. 364]
(2) An adopted child shall bear the surname
of the adopter. [Art. 365]
(3) A natural child acknowledged by both
parents shall principally use the surname
of the father. If recognized by only one of
the parents, a natural child shall employ
the surname of the recognizing parent.
[Art 366]
(4) Natural children by legal fiction shall
principally employ the surname of the
father [Art. 367]
(5) Illegitimate children referred to in Article
287 shall bear the surname of the mother.
[Art 368]
(6) Children conceived before the decree
annulling a voidable marriage shall
principally use the surname of the father.
[Art. 369]

B. WIFE AFTER
MARRIAGE

AND

CIVIL LAW

C. CONFUSION AND CHANGE OF


NAMES
In case of identity of names and surnames,
the younger person shall be obliged to use
such additional name or surname as will
avoid confusion. [Art. 374]
In case of identity of names and surnames
between ascendants and descendants, the
word "Junior" can be used only by a son.
Grandsons and other direct male descendants
shall either [Art. 375]:
(1) Add a middle name or the mother's
surname, or
(2) Add the Roman Numerals II, III, and so on.

DURING

(1) A married woman may use [Art. 370]:


(a) Her maiden first name and surname
and add her husband's surname, or

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CIVIL LAW

Art. 43. If there is a doubt as between two or


more persons who are called to succeed each
other as to which of them died first whoever
alleges the death of one prior to the other
shall prove the same; in the absence of proof
it is presumed that they died at the same time
and there shall be no transmission of rights
from one to the other.

Usurpation of a name and surname may be


the subject of an action for damages and
other relief. [Art. 377]
The unauthorized or unlawful use of another
person's surname gives a right of action to the
latter [Art. 378]

Note: Article 43 provides a statutory


presumption when there is doubt on the order
of death between persons who are called to
succeed each other (only).

The employment of pen names or stage


names is permitted, provided it is done in
good faith and there is no injury to third
persons. Pen names and stage names cannot
be usurped. [Art. 379]

Joaquin v. Navarro (1948):


The statutory presumption of Article 43 was
not applied due to the presence of a credible
eyewitness as to who died first.

Except as provided in the preceding article, no


person shall use different names and
surnames. [Art 380]

Presumption in the Rules of Court (Rule 131,


sec. 3, (jj.) (Presumption of survivorship)

Illegitmate Children shall use the surname


and shall be under the parental authority of
their mother. However, they may use the
surname of their father if their filiation has
been expressly recognized by their father
through:
(a) record of birth in civil register
(b) admission in public document
(c) admission in private handwritten
document

Age
Both under 15
Both above 60
One under 15, the
other above 60
Both over 15 and
under 60; different
sexes
Both over 15 and
under 60; same sex
One under 15 or over
60,
the
other
between those ages

Presumed Survivor
Older
Younger
One under 15
Male

Older
One between 15 and
60

XV. Rules Governing


Persons who are
Absent

Note: Applicable only to two or more persons


who perish in the same calamity, and it is not
shown who died first, and there are no
particular circumstances from which it can be
inferred.

A. PROVISIONAL MEASURES IN
CASE OF ABSENCE [ARTS. 381-383]

Article 41. A marriage contracted by any


person during subsistence of a previous
marriage shall be null and void, unless before
the celebration of the subsequent marriage,

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CIVIL LAW

Only the deserted spouse can file or


institute a summary proceeding for the
declaration of presumptive death of the
absentee. (Bienvenido case)
There must have been diligent efforts on
the part of the deserted spouse to locate
the absent spouse. These diligent efforts
correspond to the requirement of the law
for a well-founded belief.

the prior spouse had been absent for four


consecutive years and the spouse present has
a well founded belief that the absent spouse
was already dead. In case of disappearance
where there is danger of death under the
circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
General rule: Marriage contracted by any
person during the subsistence of a previous
marriage is void.

Exception to the Exception:


Art. 381. When a person disappears from his
domicile, his whereabouts being unknown,
and without leaving an agent to administer
his property, the judge, at the instance of an
interested party, a relative, or a friend, may
appoint a person to represent him in all that
may be necessary.
This same rule shall be observed when under
similar circumstances the power conferred by
the absentee has expired.

Exceptions: The following subsequent


marriage of the present spouse is valid:
(1)
Subsequent marriage due to ordinary
absence where:
(a) The prior spouse had been absent for
4 consecutive years;
(b) The spouse present had a wellfounded belief that absent spouse is
dead; and
(c) Judicial declaration of presumptive
death was secured (no prejudice to
the effect of the reappearance of the
absent spouse).
(2)
Subsequent
marriage
due
to
extraordinary absence where:
(a) The prior spouse had been missing for
2 consecutive years;
(b) There is danger of death attendant to
the disappearance [Art. 391, Civil
Code];
(c) The spouse present had a wellfounded belief that the missing
person is dead; and
(d) Judicial declaration of presumptive
death was secured (no prejudice to
the effect of the reappearance of the
absent spouse).

Art. 382. The appointment referred to in the


preceding article having been made, the
judge shall take the necessary measures to
safeguard the rights and interests of the
absentee and shall specify the powers,
obligations and remuneration of his
representative, regulating them, according to
the circumstances, by the rules concerning
guardians.
Art. 383. In the appointment of a
representative, the spouse present shall be
preferred when there is no legal separation.
If the absentee left no spouse, or if the spouse
present is a minor, any competent person may
be appointed by the court.
Requisites: The judge may appoint a person to
represent absentee when:
(1) Person disappears from his domicile
(2) His whereabouts are unknown
(3) No agent to administer his property
(4) An interested party, a relative, or a
friend files the action

Notes:
Institution of a summary proceeding is not
sufficient. There must also be a summary
judgment. (Balane)

Who may be appointed as representative?

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(1) Spouse present shall be preferred


when there is no legal separation
(2) If no spouse or spouse is
incapacitated, any competent person

CIVIL LAW
(3) Relatives who may succeed by the law
of intestacy;
(4) Those who may have some right over
the property of the absentee,
subordinated to the condition of his
death.

B. DECLARATION OF ABSENCE,
[ARTS. 384-389]

C. ADMINISTRATION OF THE
PROPERTY OF THE ABSENTEE,
[ARTS. 387-389]

Art. 384. Two years having elapsed without


any news about the absentee or since the
receipt of the last news, and five years in case
the absentee has left a person in charge of the
administration of his property, his absence
may be declared.

Art. 387. An administrator of the absentee's


property shall be appointed in accordance
with Article 383.

Art. 385. The following may ask for the


declaration of absence:
1. The spouse present;
2. The heirs instituted in a will, who may
present an authentic copy of the same;
3. The relatives who may succeed by the law
of intestacy;
4. Those who may have over the property of
the absentee some right subordinated to
the condition of his death.

Art. 388. The wife who is appointed as an


administratrix of the husband's property
cannot alienate or encumber the husband's
property, or that of the conjugal partnership,
without judicial authority.
Art. 389. The administration shall cease in any
of the following cases:
1. When the absentee appears personally or
by means of an agent;
2. When the death of the absentee is proved
and his testate or intestate heirs appear;
3. When a third person appears, showing by a
proper document that he has acquired the
absentee's property by purchase or other
title.
In these cases the administrator shall cease in
the performance of his office, and the
property shall be at the disposal of those who
may have a right thereto.

Art. 386. The judicial declaration of absence


shall not take effect until six months after its
publication in a newspaper of general
circulation.
When may absence be declared?
Two years without any news about the
absentee
Five years if the absentee left a person in
charge of administration of his property
Declaration takes effect only after six
months after publication in a newspaper of
general circulation

Who may administer the property?


Spouse present shall be preferred when
there is no legal separation
If no spouse or spouse is incapacitated, any
competent person

Who may ask for a declaration of absence?


(1) Spouse present
(2) Heirs instituted in a will, who may
present an authentic copy of the
same;

When will the administration of property


cease?

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Administrator shall cease in performance of


his office, and property shall be disposed in
favor of those who have a right thereto when
(1) Absentee appears personally or by
means of an agent
(2) Testate or intestate heirs appear, upon
proof of death of absentee
(3) Third person appears, with a proper
document showing he has acquired
absentees property by purchase or
other title

D. PRESUMPTION
[ARTS. 390-392]

OF

CIVIL LAW

If absentee disappeared after age of 75, 5


years shall be sufficient.
Extraordinary Absence
Only 4 years is required for presumption to
arise if:
(1) A person on board a vessel lost during a
sea voyage, or an aeroplane which is
missing, who has not been heard of for
four years since the loss of the vessel or
aeroplane;
(2) A person in the armed forces who has
taken part in war, and has been missing
for four years;
(3) A person who has been in danger of
death under other circumstances and
his existence has not been known for
four years.

DEATH,

Art. 390. After an absence of 7 years, it being


unknown whether or not the absentee still
lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for
the purpose of opening his succession till
after an absence of 10 years. If he disappeared
after the age of 75 years, an absence of 5
years shall be sufficient in order that his
succession may be opened.

Note:
Although 7 years is required for the
presumption of death of an absentee in the
Civil Code, Art. 41 of the Family Code
makes an exception for the purpose of
remarriage by limiting such requirement to
4 years.
Art. 41 also limits the required 4 years in
Art. 391 for absence under exceptional
circumstances to only 2 years.

Art. 391. The following shall be presumed


dead for all purposes, including the division of
the estate among the heirs:
1. A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who
has not been heard of for four years since the
loss of the vessel or aeroplane;
2. A person in the armed forces who has taken
part in war, and has been missing for four
years;
3. A person who has been in danger of death
under other circumstances and his existence
has not been known for four years.

Art. 392. If the absentee appears or without


appearing his existence is proved he shall
recover his property in the condition in which it
may be found and the price of any property
that may have been alienated or the property
acquired therewith; but he cannot claim either
fruits or rents.

XVI. Funerals

General rule: A person shall be presumed


dead for all purposes after absence for a
period of 7 years.

The duty and the right to make arrangements


for the funeral of a relative shall be in
accordance with the order established for
support, under Article 294 [Art. 305]:
(1) Spouse

Exception: Succession
In succession, 10 years is required for
presumption of death.

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(2) Descendants in the nearest degree. In


case of descendants of the same
degree, the oldest shall be preferred.
(3) The ascendants in the nearest degree.
In case of ascendants, the paternal shall
have a better right
(4) The brothers and sisters, the oldest
shall be preferred.
(5) Municipal authorities if there are no
persons who are bound to support or if
such persons are without means

CIVIL LAW

Guidelines in making funeral arrangements


(1) The persons who are preferred in the
right to make funeral arrangements may
waive the right expressly or impliedly in
which case the right and duty
immediately descend to the person next
in the order.
(2) It must be in keeping with the social
position of the deceased.
(3) Law shall prevail over the will of the
persons who have the right to control the
burial of deceased exhumation,
evidential purpose, disposition of corpse
by deceased, mutilation of corpses and
autopsies.
(4) Corpses which are to be buried at public
expenses may also be used for scientific
purposes under certain conditions.
(5) Expressed wishes of the deceased is
given priority provided that it is not
contrary to law and must not violate the
legal and reglementary provisions
concerning funerals and disposition of
the remains (time, manner, place or
ceremony)
(6) In the absence of expressed wishes, his
religious beliefs or affiliation shall
determine the funeral rights.
(7) In case of doubt, the persons in Art. 199
shall decide.
(8) Any person who disrespects the dead or
interferes with the funeral shall be liable
for material and moral damages.

Nature of funeral: Every funeral shall be in


keeping with the social position of the
deceased. [Art. 306]
The funeral shall be:
(1) In accordance with the expressed
wishes of the deceased.
(2) In the absence of such expression, his
religious beliefs or affiliation shall
determine the funeral rites.
(3) In case of doubt, the form of the funeral
shall be decided upon by the person
obliged to make arrangements for the
same, after consulting the other
members of the family [Art. 307]
Note: No human remains shall be retained,
interred, disposed of or exhumed without the
consent of the persons mentioned in articles
294 and 305.
Damages: Any person who shows disrespect
to the dead, or wrongfully interferes with a
funeral shall be liable to the family of the
deceased for damages, material and moral
[Art. 309]

XVII. Entries in the Civil


Register

Funeral Expenses: The construction of a


tombstone or mausoleum shall be deemed a
part of the funeral expenses, and shall be
chargeable to the conjugal partnership
property, if the deceased is one of the spouses
[Art. 310].

A.

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Art. 407. Acts, events and judicial decrees


concerning the civil status of persons shall be
recorded in the civil register.

CIVIL LAW

Art. 413. All other matters pertaining to the


registration of civil status shall be governed
by special laws.

Art. 408. The following shall be entered in the


civil register:
1. Births;
2. marriages;
3. deaths;
4. legal separations;
5. annulments of marriage;
6. judgments declaring marriages void from
the beginning;
7. legitimations;
8. adoptions;
9. acknowledgments of natural children;
10. naturalization;
11. loss, or
12. recovery of citizenship;
13. civil interdiction;
14. judicial determination of filiation;
15. voluntary emancipation of a minor; and
16. changes of name.

B. RA 9048 AS AMENDED BY RA
10172
AN ACT AUTHORIZING THE CITY OR
MUNICIPAL CIVIL REGISTRAR OR THE
CONSUL GENERAL TO CORRECT A
CLERICAL OR TYPOGRAPHICAL ERROR IN
AN ENTRY AND/OR CHANGE OF FIRST
NAME OR NICKNAME IN THE CIVIL
REGISTER WITHOUT NEED OF A JUDICIAL
ORDER, AMENDING FOR THIS PURPOSE
ARTICLES 376 AND 412 OF THE CIVIL CODE
OF THE PHILIPPINES

Art. 409. In cases of legal separation,


adoption, naturalization and other judicial
orders mentioned in the preceding article, it
shall be the duty of the clerk of the court
which issued the decree to ascertain whether
the same has been registered, and if this has
not been done, to send a copy of said decree
to the civil registry of the city or municipality
where the court is functioning.

General rule: No entry in a civil register shall


be changed or corrected without a judicial
order
Exception: Clerical or typographical errors;
Change of: first name or nickname, day and
month in the date of birth, or sex of a person
This exception applies where it is patently
clear that there was a clerical or
typographical error or mistake in the entry,
which can be corrected or changed by the
concerned city or municipal civil registrar or
consul general in accordance with the
provisions of this Act and its implementing
rules and regulations

Art. 410. The books making up the civil


register and all documents relating thereto
shall be considered public documents and
shall be prima facie evidence of the facts
therein contained.
Art. 411. Every civil registrar shall be civilly
responsible for any unauthorized alteration
made in any civil register, to any person
suffering damage thereby. However, the civil
registrar may exempt himself from such
liability if he proves that he has taken every
reasonable precaution to prevent the
unlawful alteration.

Note:
Clerical or typographical error refers to a
mistake committed in the performance of
clerical work in writing, copying,
transcribing or typing an entry in the civil
register that is harmless and innocuous

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(i.e. misspelled name, misspelled place of


birth, mistake in the entry of day and
month in the date of birth or the sex of the
person or the like, which is visible to the
eyes or obvious to the understanding, and
can be corrected or changed only by
reference to other existing record or
records)
Before the amendment by RA 10172, no
correction must involve the change of sex,
nationality, age or status of the petitioner.
After the amendment, change of sex can
now be subjected to correction without
judicial order under the rules of this Act.
Civil Register refers to the various registry
books and related certificates and
documents kept in the archives of the local
civil registry offices, Philippine Consulates
and of the Office of the Civil Registrar
General.

CIVIL LAW

Citizens of the Philippines who are presently


residing or domiciled in foreign countries may
file their petition, in person, with the nearest
Philippine Consulates.
The petitions filed with the city or municipal
civil registrar or the consul general shall be
processed in accordance with this Act and its
implementing rules and regulations.
All petitions for the clerical or typographical
errors and/or change of first names or
nicknames may be availed of only once.
Grounds
Who may file the petition and where?
(1) Any person having direct personal interest
in the correction of a clerical or
typographical error in an entry and/or
change of first name or nickname in the
civil register
(2) Verified petition with the local civil registry
office of the city or municipality
(a) where the record being sought to be
corrected or changed is kept
(b) where the interested party is presently
residing or domiciled, if it will be
impractical to submit in the place where
record is kept (i.e. when party has
migrated to another place in the country)
(c) nearest Philippine Consulates, if the
petitioner is presently residing or
domiciled in foreign countries

Sec. 3. Who May File the Petition and Where.


Any person having direct and personal
interest in the correction of a clerical or
typographical error in an entry and/or change
of first name or nickname in the civil register
may file, in person, a verified petition with the
local civil registry office of the city or
municipality where the record being sought to
be corrected or changed is kept.
In case the petitioner has already migrated to
another place in the country and it would not
be practical for such party, in terms of
transportation expenses, time and effort to
appear in person before the local civil
registrar keeping the documents to be
corrected or changed, the petition may be
filed, in person, with the local civil registrar of
the place where the interested party is
presently residing or domiciled. The two (2)
local civil registrars concerned will then
communicate to facilitate the processing of
the petition.

Note:
All petitions for the clerical or typographical
errors and/or change of first names or
nicknames may be availed of only once.
Sec. 4. Grounds for Change of First Name or
Nickname. The petition for change of first
name or nickname may be allowed in any of
the following cases:
(1) The petitioner finds the first name or
nickname to be ridiculous, tainted with

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dishonor or extremely difficult to write or


pronounce.
(2) The new first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known
by that first name or nickname in the
community: or
(3) The change will avoid confusion.

CIVIL LAW

certificate and other documents issued by


religious authorities; nor shall any entry
involving change of gender corrected except if
the petition is accompanied by a certification
issued by an accredited government physician
attesting to the fact that the petitioner has
not undergone sex change or sex transplant.
The petition for change of first name or
nickname, or for correction of erroneous entry
concerning the day and month in the date of
birth or the sex of a person, as the case may
be, shall be published at least once a week for
two (2) consecutive weeks in a newspaper of
general circulation.

Sec. 5. Form and Contents of the Petition.


The petition for correction of a clerical or
typographical error, or for change of first
name or nickname, as the case may be, shall
be in the form of an affidavit, subscribed and
sworn to before any person authorized by the
law to administer oaths. The affidavit shall set
forth facts necessary to establish the merits of
the petition and shall show affirmatively that
the petitioner is competent to testify to the
matters stated. The petitioner shall state the
particular erroneous entry or entries, which
are sought to be corrected and/or the change
sought to be made.

Furthermore, the petitioner shall submit a


certification from the appropriate law
enforcement agencies that he has no pending
case or no criminal record.
The petition and its supporting papers shall
be filed in three (3) copies to be distributed as
follows: first copy to the concerned city or
municipal civil registrar, or the consul
general; second copy to the Office of the Civil
Registrar General; and third copy to the
petitioner

The petition shall be supported with the


following documents:
(1) A certified true machine copy of the
certificate or of the page of the registry
book containing the entry or entries sought
to be corrected or changed.
(2) At least two (2) public or private
documents showing the correct entry or
entries upon which the correction or
change shall be based; and
(3) Other documents which the petitioner or
the city or municipal civil registrar or the
consul general may consider relevant and
necessary for the approval of the petition.

C. RULE 108, RULES OF COURT


CANCELLATION OR CORRECTION
ENTRIES IN THE CIVIL REGISTRY

OF

Sec. 1. Who may file petition. - Any person


interested in any act, event, order or decree
concerning the civil status of persons which
has been recorded in the civil register, may
file a verified petition for the cancellation or
correction of any entry relating thereto, with
the Court of First Instance of the province
where the corresponding civil registry is
located.

No petition for correction of erroneous entry


concerning the date of birth or the sex of a
person shall be entertained except if the
petition is accompanied by earliest school
record or earliest school documents such as,
but not limited to, medical records, baptismal

Sec. 2. Entries subject to cancellation or


correction. - Upon good and valid grounds,

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CIVIL LAW

the following entries in the civil register may


be cancelled or corrected: (a) births; (b)
marriages; (c) deaths; (d) legal separations;
(e) judgments of annulments of marriage; (f)
judgments declaring marriages void from the
beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j)
naturalization (k) election, loss or recovery of
citizenship (l) civil interdiction; (m) judicial
determination of filiation; (n) voluntary
emancipation of a minor; and (o) changes of
name.

Sec. 7. Order. - After hearing, the court may


either dismiss the petition or issue an order
granting the cancellation or correction prayed
for. In either case, a certified copy of the
judgment shall be served upon the civil
registrar concerned who shall annotate the
same in his record.

Sec. 3. Parties. - When cancellation or


correction of an entry in the civil register is
sought, the civil registrar and all persons who
have or claim any interest which would be
affected thereby shall be made parties to the
proceeding.

Where filed? - Verified petition for


cancellation or correction of entry in the civil
registy may be filed with the Regional Trial
Court of the province where the
corresponding civil registry is located

Sec. 4. Notice and publication. - Upon the


filing of the petition, the court shall, by an
order, fix the time and place for the hearing of
the same, and cause reasonable notice
thereof to be given to the persons named in
the petition. The court shall also cause the
order to be published once a week for three
(3) consecutive weeks in a newspaper of
general circulation in the province.

Entries subject to Cancellation/Correction


Births
Marriages
Deaths
Legal separations
Judgments of annulments of marriage
Judgments declaring marriages void from
the beginning
Legitimations
Adoptions
Acknowledgments of natural children
Naturalization
Election, loss or recovery of citizenship
Civil interdiction
Judicial determination of filiation
Voluntary emancipation of a minor
Changes of name

Who may file petition? - Any person interested


in any act, event, order or decree concerning
the civil status of persons which has been
recorded in the civil register

Sec. 5. Opposition. - The civil registrar and any


person having or claiming any interest under
the entry whose cancellation or correction is
sought may, within fifteen (15) days from
notice of the petition, or from the last date of
publication of such notice, file his opposition
thereto.
Sec. 6. Expediting proceedings. - The court in
which the proceeding is brought may make
orders expediting the proceedings, and may
also grant preliminary injunction for the
preservation of the rights of the parties
pending such proceedings.

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CIVIL LAW

PROPERTY

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I. Property All things which are, or may be,


the object of appropriation. [NCC 414]

CIVIL LAW

(4) Statues, reliefs, paintings or other objects


for use or ornamentation, placed in
buildings or on lands by the owner of the
immovable in such a manner that it
reveals the intention to attach them
permanently to the tenements;
(5) Machinery, receptacles, instruments or
implements intended by the owner of the
tenement for an industry or works which
may be carried on in a building or on a
piece of land, and which tend directly to
meet the needs of the said industry or
works;
(6) Animal houses, pigeon-houses, beehives,
fish ponds or breeding places of similar
nature, in case their owner has placed
them or preserves them with the intention
to have them permanently attached to the
land, and forming a permanent part of it;
the animals in these places are included;
(7) Fertilizer actually used on a piece of land;
(8) Mines, quarries, and slag dumps, while
the matter thereof forms part of the bed,
and waters either running or stagnant;
(9) Docks and structures which, though
floating, are intended by their nature and
object to remain at a fixed place on a river,
lake, or coast;
(10) Contracts for public works, and
servitudes and other real rights over
immovable property.

I. Characteristics
(1) Utility capacity to satisfy human wants
(2) Substantivity and Individuality separate
and autonomous existence
(3) Susceptibility of being appropriated
what cannot be appropriated because of
their distance, depth, or immensity cannot
be considered things (i.e. stars, ocean)

II. Classification
A. HIDDEN TREASURE
Hidden treasure any hidden and unknown
deposit of money jewels aor other precious
objects, the lawful ownership of which does
not appear. [NCC 439]
Owner of the land, building or other property
on which the hidden treasure was found, also
owns it, subject to:
(a) Right of a finder by chance who is not
a trespasser/intruder: of treasure
(b) Right of a usufructuary who finds
treasure: of treasure
(c) Right of State to acquire things of
interest to science or the arts [NCC
438]

CATEGORIES OF IMMOVABLES
(a) By nature
(b) By incorporation
(c) By destination
(d) By analogy

B.
BASED
ON
MOBILITY
[IMMOVABLE OR MOVABLE]

Immovables by Nature: cannot be moved from


place to place; their intrinsic qualities have no
utility except in a fixed place. (pars. 1 & 8)

B. 1. REAL OR IMMOVABLE PROPERTY


NCC 415.
(1) Land, buildings, roads and constructions
of all kinds adhered to the soil;
(2) Trees, plants, and growing fruits, while
they are attached to the land or form an
integral part of an immovable;
(3) Everything attached to an immovable in a
fixed manner, in such a way that it cannot
be separated therefrom without breaking
the material or deterioration of the object;

(1) Par. 5
(a) Building - their adherence to the land
must be permanent and substantial.
(b) Buildings have been considered as
immovables, despite:

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(i) Treatment by the parties e.g. they


constitute a separate mortgage
on the building and the land
[Punzalan v. Lacsamana]
(ii) Separate Ownership i.e. a
building on rented land is still
considered
an
immovable.
[Tolentino]

CIVIL LAW
separation will be substantial e.g.
wells, sewers, aqueducts and railways
(i) Whether attached by the owner
himself or some other person

(3) Par. 7
Actually used (it has been spread over the
land)
Immovables by Destination: are essentially
movables but by the purpose for which they
have been placed in an immovable, partake of
the nature of an immovable [Par. 4, 5, 6 & 9]

(2) Par. 8
(a) Mineral Deposits
(i) Minerals still deposited in the soil;
(ii) When minerals have been
extracted, they become chattel.
(b) Slag Dump: dirt and soil taken from a
mine and piled upon the surface of
the ground. Minerals can be found
inside the dump.
(c) Waters: those still attached to or
running thru the soil or the ground.

(1) Par. 4
(a) Placed by the owner or by the tenant
(as agent);
(i) With intention of attaching them
permanently even if adherence
will not involve breakage or injury.
(b) Where the improvement or ornaments
placed by the lessee are not to pass to
the owner at the expiration of the
lease, they remain movables for
chattel mortgage purposes. [Davao
Sawmill v. Castillo (1935)]

Immovables by Incorporation: are essentially


movables but are attached to an immovable in
such a way as to be an integral part [Par. 2, 3,
& 7]
(1) Par. 2
(a) Trees and plants: only immovables
when they are attached to the land or
form an integral part of an immovable
(i) When they have been cut or
uprooted, they become movables.
(b) By special treatment of Act 1508
(Chattel Mortgage Law), growing
crops may be subject of a Chattel
Mortgage.
(c) For the purpose of attachment:
growing crops are to be attached in
the same manner as realty. (Rule 59,
Sec. 7)

Par. 3 v. Par. 4
Par. 3
Cannot be separated
from
immovable
without breaking or
deterioration

Par. 4
Can be separated
from
immovable
without breaking or
deterioration
Must be placed by
Need not be placed by the owner, or by his
the owner
agent, expressed or
implied
Real property by
Real property by
incorporation
and
incorporation
destination
(2) Par. 5
Immovability depends upon their
being destined for use in the industry or
work in the tenement;

(2) Par. 3
(a) Res vinta in Roman Law
(b) Attachment in a fixed manner:
breakage or injury in case of

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The moment they are separated,


(from the immovable or from the
industry or work in which they are
utilized) they recover their condition
as movables.
If it is still needed for the industry but
separated from the tenement
temporarily, the property continues to
be immovable.
Requisites for Immovability in Par. 5:
Placed by the owner or the tenant (as

CIVIL LAW

(4) Par. 9
A floating house tied to a shore and
used as a residence is considered real
property, considering that the waters on
which it floats are considered
immovables.
But if the floating house makes it a
point to journey from place to place, it
assumes the category of a vessel, and is
considered a movable.
Immovables by Analogy: Contracts for public
works, servitudes, other real rights over
immovable property e.g. usufruct and lease of
real property for a period of 1 year and
registered [Par. 10]

agent);
The machine, receptacle, instrument,
implement must also be ESSENTIAL to the
business in order to be considered realty.
[Mindanao Bus Co. v City Assessor (1962)]
Except: Estoppel
Parties may, by agreement, treat as
personal property that which by nature
would be real, as long as no third
parties would be prejudiced. That
characterization is effective between
the parties. [Makati Leasing v. Wearever
(1983)]
Effect of Attachment
Machinery becomes part of the
immovable.
The installation of machinery and
equipment in a mortgaged sugar central for
the purpose of carrying out the industrial
functions
and
increasing
production,
constitutes a permanent improvement on said
sugar central and subjects said machinery
and equipment to the mortgage constituted
thereon. [Berkenkotter v. Cu Unjieng(1935)]

Note: Enumeration in Art. 415 not absolute.


Parties may by agreement treat as, but
effective only as to them. It is based, partly,
upon the principle of estoppel. [Evangelista
vs. Alto Surety(1958)]
For purposes of taxation, improvements on
land are commonly taxed as realty, even
though for some purposes, they might be
considered as personalty.
It is a familiar phenomenon to see things
classified as real property for purposes of
taxation, which on general principle, might
be considered personal property. [Manila
Electric v. Central Bank (1962)]

B.2. PERSONAL OR MOVABLE

(3) Par. 6
(a) Requisites:
(i) Placed by the owner or the tenant
(as agent);
(ii) With the intention of permanent
attachment;
(iii) Forming a permanent part of the
immovable.

NCC 416 & 417.


(1) Those
movables
susceptible
of
appropriation which are not included in
the preceding article;
(2) Real property which by any special
provision of law is considered as
personalty;
(3) Forces of nature which are brought under
control by science; and
(4) In general, all things which can be

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(4) By forces of nature


e.g. electricity, gas, heat, oxygen

transported from place to place without


impairment of the real property to which
they are fixed.
(5) Obligations and actions which have for
their object movables or demandable
sums; and
(6) Shares of stock of agricultural,
commercial and industrial entities,
although they may have real estate.

TESTS TO DETERMINE
CHARACTER

CIVIL LAW

B. 3. IMPORTANCE AND SIGNIFICANCE


OF CLASSIFICATION UNDER THE NCC
(1) In criminal law
(a) Usurpation of property can take place
only with respect to real property.
[RPC 312]
(b) Robbery and theft can be committed
only against personal property. [RPC
293, 308]

MOVABLE

(1) By exclusion
Everything NOT included in Article 415
Parties cannot by agreement treat as
immovable that which is legally
movable

(2) In the forms of contracts:


(a) Subject matter of specific contracts:
(i) Only real property can be the
subject of real mortgage [NCC
2124] and antichresis. [NCC 2132]
(ii) Only personal property can be the
subject of voluntary deposit [NCC
1966], pledge [NCC 2094] and
chattel mortgage. [Act 1508]
(b) Donations of real property are
required to be in a public instrument
[NCC 749] but a donation of a
movable may be made orally or in
writing. [NCC 748]

(2) By description
(a) Ability to change location whether it
can be carried from place to place;
(b) Without substantial injury to the
immovable to which it is attached.
The steel towers built by MERALCO are not
buildings or constructions since they are
removable and merely attached to a square
metal frame by means of bolts, which when
unscrewed could easily be dismantled and
moved from place to place, without breaking
the material or causing deterioration to the
object they are attached. [Board of
Assessment Appeals v. Meralco]

(3) For acquisitive prescription:


(a) Real property can be acquired by
prescription in 30 years (bad faith)
and 10 years (good faith). (NCC 1137,
1134)
(b) Movables can be acquired by
prescription in 8 years (bad faith) and
4 years (good faith). (NCC 1132)

(3) By special provision of law


(a) Growing crops under the Chattel
Mortgage Law
(b) Machinery installed by a lessee not
acting as agent of the owner [Davao
Sawmill v. Castillo]
(c) Intellectual property considered
personal property; it consists in the
pecuniary benefit which the owner can
get
by the
reproduction
or
manufacture of his work.

(4) Actions for recovery of possession:


(a) Possession of real property recovered
through
accion
reivindicatoria, accion publiciana,
forcible entry and unlawful detainer.
(b) Possession of movable property recovered through replevin.

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C.1. PUBLIC DOMINION

(5) Venue of actions:


(a) Real actions - Actions concerning real
property are commenced in the court
that has jurisdiction over the area
where the real property is situated.
[Rules of Court Rule 4 Sec. 1]
(b) Personal actions - Commenced where
the plaintiff or any of the principal
plaintiffs, or where the defendant or
any of the principal defendants
resides, or if a non-resident
defendant, where he may be found, at
the election of the plaintiff. [Rule 4
Sec. 2]

Property of public dominion is outside the


commerce of man. They cannot be the subject
matter of private contracts, cannot be
acquired by prescription and they are not
subject to attachment and execution nor
burdened with a voluntary easement.
Public
Dominion
Public
Domain
Public Lands

As defined by NCC 420


Used in Art XII, Section 2,
1987 Constitution
Public Land Act

CHARACTERISTICS

(6) The governing law (Private International


Law):
(a) Immovables - governed by the law of
the country where they are located.
(b) Movables - governed by the personal
laws of the owner. (which in some
cases is the law of his nationality and
in other cases, the law of his domicile)

Not owned by the State but pertains to it as


territorial sovereign; to hold in trust for the
interest of the community.
Purpose: For public use, and not for use by
the State as a juridical person.
Cannot be the subject of appropriation
either by the State or by private persons.

CLASSIFICATIONS

(7) In affecting third persons:


(a) In transactions involving real property
must be recorded in the Registry of
Property to affect third persons.
(b) In transactions involving personal
property registration is not required,
except for chattel mortgages. [Chattel
Mortgage Register, NCC 2140]
(c)

Administered by the State [NCC 420


(1) Those intended for public use. (roads,
canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores,
roadsteads, and others of similar
character)
May be used by everybody, even by
strangers or aliens but nobody can
exercise over it the rights of a private
owner.

C. BASED ON OWNERSHIP/RIGHTSHOLDER

(2) Those intended for some public service:


may be used only by authorized persons
but exists for the benefit of all. e.g.
fortresses, unleased mines and civil
buildings.

NCC 419. Property is part of either the public


dominion or private ownership.
Churches and other consecrated objects are
considered outside the commerce of man;
they are considered neither public nor private
property.

(3) Those for the development of the national


wealth. Includes natural resources such as
minerals, coal, oil and forest.

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(4) Patrimonial property:


(a) Owned by the State over which it has
the same rights as private individuals
in relation to their own property.
(b) Subject to the administrative laws and
regulations on the procedure of
exercising such rights. E.g. friar lands,
escheated properties and commercial
buildings.
(c) Purpose:
(i) Enables the State to attain its
economic ends.
(ii) Serves as a means for the States
subsistence and preservation.
(iii) Enables the State to fulfill its
primary mission.
(d) Conversion of Property of Public
Dominion for Public Use to
Patrimonial Property:
(i) Property of public dominion, when
no longer intended for public use
or for public service, shall form
part of the patrimonial property of
the State [NCC 422, Civil Code]
(ii) An express Declaration by the
State (either by the Congress or by
the President, if the power was
provided by law) that the public
dominion property has been
converted
into
patrimonial
property, even though it was
classified
as
alienable
or
disposable. [Heirs of Malabanan v.
Republic (2009)]

Administered by Municipal Corporations [NCC


424]
(1) Property for public use, in the provinces,
cities, and municipalities, consist of the
provincial roads, city streets, municipal
streets, the squares, fountains, public
waters, promenades, and public works for
public service paid for by said provinces,
cities, or municipalities.
(2) Patrimonial property
Corporations:

of

CIVIL LAW
The province or municipality, as a
juridical entity, also possesses private
property to answer for its economic
necessities.
Classification of Properties of provinces,
cities, and municipalities [Salas v.
Jarencio, (1972)]
(i) Properties acquired with their own
funds in their private or corporate
capacity over which the political
subdivision has ownership and
control.
(ii) Properties of public dominion
held in trust for the States
inhabitants are subject to the
control and supervision of the
State.
A municipal corporation must prove that
they acquired the land with their own
corporate funds
Presumption: that land comes from the
State upon the creation of the
municipality. All lands in the possession
of the municipality
Exception: for those acquired with its
private funds, are deemed to be property
of public dominion, held in trust for the
State for the benefit of its inhabitants.
Congress has paramount power to
dispose of lands of public dominion in a
municipality, the latter being a
subdivision only for purposes of local
administration. [Salas v. Jarencio, (1972)]

C.2. PRIVATE OWNERSHIP


Can be exercised by the state in its private
capacity or by private persons.

KINDS
(1) Patrimonial property - Property owned by
the State and its political subdivisions in
their private capacity; all property of the
State not included in NCC 420 (on public
dominion) [NCC 421-424]

Municipal

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(2) Property belonging to private persons,


either individually or collectively [NCC
425]
Property of private ownership, besides
the patrimonial property of the State,
provinces, cities, and municipalities,
consists of all property belonging to
private persons, either individually or
collectively.
Refers to all property belonging to
private persons, natural or juridical,
either individually or collectively (coowned property)

DETERMINATION
VIEWS)

(TWO

CIVIL LAW

Private Land converted to Property of Public


Dominion
through
abandonment
and
reclamation
Through the gradual encroachment or
erosion by the ebb and flow of the tide,
private property may become public IF the
owner appears to have ABANDONED the
land, and permitted it to be totally
destroyed so as to become part of the shore.
The land having disappeared on account of
the gradual erosion, and having remained
submerged until they were reclaimed by the
government, they are public land.
[Government v. Cabangis (1929)]

DIFFERENT

(1) Determined by how the property was used


In Province of Zamboanga v. City of
Zamboanga
(1968),
property
was
considered patrimonial for they were not
for public use.

D. BASED ON CONSUMABILITY
[NCC 418]

(2) Determined by how the property was


acquired
According to Salas v. Jarencio (1972), the
absence of a title deed to any land,
showing that it was acquired with its
private or corporate funds, the
presumption is that such land came from
the State upon the creation of the
municipality.

(1) Movables which cannot be used in a


manner appropriate to their nature
without their being consumed. (e.g. food)
(2) Consumable goods cannot be the subject
matter of a commodatum unless the
purpose of the contract is not the
consumption of the object, as when it is
merely for exhibition.

CONVERSION

All others not falling under consumable e.g.


money in coin.

Only applies to movable property, determined


by nature.

D.1. CONSUMABLE

D.2. NON-CONSUMABLE

Alienable Public Land converted to Private


Property through Prescription
Alienable public land held by a possessor
personally/through
predecessors-ininterest,
openly,
continuously
and
exclusively for 30 years is CONVERTED to
private property by the mere lapse or
completion of the period. The application
for confirmation is mere formality, because
land had already been converted, giving rise
to a registrable title. [Director of Lands v.
IAC(1986)]

E. BASED ON SUSCEPTIBILITY TO
SUBSTITUTION
Only applies to movables, determined by the
intention of the parties.

E.1. FUNGIBLES
Things that, because of their nature or the will
of the parties, are capable of being
substituted by others of the same kind, not
having a distinct individuality.

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E.2. NON-FUNGIBLES

G.4.
BY
REASON
OF
SUSCEPTIBILITY TO DIVISION

(1) Things that cannot be substituted for


another;
(2) If the parties agreed that the same thing
be returned, it is not fungible.

Public Agricultural Land;


Mineral Land;
Timber Land;
National Parks.

G.5. BY REASON OF DESIGNATION

G. OTHER CLASSIFICATIONS

(1) Generic
That which indicates its homogenous
nature, but not the individual such as a
horse, house, dress, without indicating it.
(2) Specific
That which indicates the specie or its
nature and the individual, such as the
white horse of X.

G.1. BY THEIR PHYSICAL EXISTENCE


(1) Corporeal
All property the existence of which can be
determined by the senses. (res qui tangi
possunt)
(2) Incorporeal
(a) Things having abstract existence,
created by man and representing
value.
(b) Includes rights over incorporeal
things, credits, and real rights other
than ownership over corporeal things.

G.2. BY THEIR
DEPENDENCE

AUTONOMY

G.6. EXISTENCE IN POINT OF TIME


(1) Present
Those which exist in actuality, either
physical or legal, such as, the erected
building.
(2) Future
Those which do not exist in actuality, but
whose existence can reasonably be
expected with more or less probability,
such as ungathered fruits.

OR

(1) Principal
Those to which other things are
considered dependent or subordinated,
such as the land on which a house is built.
(2) Accessory
Those which are dependent upon or
subordinated to the principal. They are
destined to complete, enhance or
ornament another property.

G.3.
BY
SUSCEPTIBILITY
DETERIORATION

THEIR

(1) Divisible
Those which can be divided physically or
juridically without injury to their nature
e.g.: piece of land or an inheritance.
(2) Indivisible
Those which cannot be divided without
destroying their nature or rendering
impossible the fulfillment of the juridical
relation of which they are object.

F. BASED ON THE CONSTITUTION


[ARTICLE XII, SEC 3]
(1)
(2)
(3)
(4)

CIVIL LAW

III. Ownership
A. DEFINITION AND CONCEPT
Independent right of exclusive enjoyment
and control of a thing.
Has the purpose of deriving all advantages
required by the reasonable needs of the
owner/holder of right and promotion of
general welfare.
A complete subjection to an owners will.

TO

(1) Deteriorable
Those that deteriorate through use or by
time.
(2) Non-deteriorable.
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C.3. PROTECTING PROPERTY


C.3.1 BASIC DISTINCTIONS

May be exercised in everything not


prohibited by public law or the rights of
another.

REAL RIGHTS V. PERSONAL RIGHTS

B. TYPES OF OWNERSHIP

Real Rights
Rights that confer upon its holder an
autonomous power to derive directly from a
thing
certain
economic
advantages
independently of whoever the possessor of
the thing.

(1) Full Ownership


With complete rights over the property.
(2) Naked Ownership
Absence of jus fruendi and jus utendi.
(3) Sole Ownership
Ownership vested only in one person.
(4) Co-Ownership
Ownership vested in 2 or more persons.

C. RIGHT IN GENERAL
C.1.
RIGHTS
INCLUDED
OWNERSHIP [NCC 428]

CIVIL LAW

Personal Rights
Rights of a person to demand from another as
a definite passive subject, the fulfillment of a
prestation to give, to do or not to do.

IN

Real Rights
Definite active subject
who has a right
against ALL persons
generally
as
an
indefinite
passive
subject.
Object is generally a
corporeal thing.

(1) Right to enjoy and dispose of a thing,


without other limitations than those
established by law.
(2) Right of action against the holder and
possessor of the thing in order to recover
it.

Personal Rights
Definite
active
subject
(creditor)
and
a
definite
passive
subject
(debtor).

Subject matter is
always
an
incorporeal thing.
Generally
Personal
right
extinguished by the survives the subject
loss or destruction of matter.
the thing over which it
is exercised.
It is directed against It is binding or
the whole
world, enforceable
only
giving rise to real against a particular
actions against 3rd person giving rise to
persons.
personal
actions
against such debtor.

C.2. BUNDLE OF RIGHTS


(1) Jus Utendi: right to enjoy and receive what
the property produces.
(2) Jus Fruendi: right to receive the fruits.
(3) Jus Accessiones: right to the accessories.
(4) Jus Abutend: right to consume a thing by
use.
(5) Jus Disponendi: right to alienate,
encumber, transform or even destroy the
thing owned.
(6) Jus Vindicandi: right to recover possession
of property based on a claim of
ownership.
(7) Jus Possidendi: right to possess the
property. (Implied from all the other
rights)

REAL ACTION V. PERSONAL ACTION


(ROC, RULE 4 SEC 1-2)
Real action
Actions affecting title to or possession of real
property or any interest therein.
Personal action
All other actions.
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ACTION IN REM V. ACTION IN


PERSONAM V. ACTION QUASI IN REM

Prior physical possession by the plaintiff is


not required.
The action must be filed within 1 year
AFTER dispossession / unlawful possession
/ demand to vacate.

Action in rem
Action against a property, judgment binding
against the whole world.
Action in personam
Action against a specific person, judgment
binding against that particular person.

Distinction between forcible entry and


unlawful detainer
(1) Forcible Entry: Lawful possessor deprived
through FISTS:
FISTS (Force, Intimidation, Strategy,
Threats, Stealth)
Prescription: 1 year from dispossession
(force, intimidation, threats) or from
knowledge of dispossession (strategy,
stealth).
(2) Unlawful Detainer: Possessor refused to
vacate upon demand by owner.
Legal possession (by permission/
tolerance) becomes unlawful upon
failure to vacate.
Prescription of action: 1 year from last
notice to vacate.

Action quasi in rem


Action against a specific property with respect
to a person.

C.3.2. REMEDIES
DOCTRINE OF SELF-HELP [NCC 429430]

CIVIL LAW

The owner may use such force as may be


reasonably necessary to repel or prevent
an actual or threatened unlawful physical
invasion or usurpation of his property.
Every owner may enclose or fence his
land or tenements by any other means
without
detriment
to
servitudes
constituted thereon.

Movable property
Replevin
For manual delivery of property
Prescription of Right: 4 years (good faith) or
8 years (bad faith)

ACTIONS TO RECOVER OWNERSHIP


AND POSSESSION OF PROPERTY
Immovable Property
Accion Reivindicatoria
Recovery of ownership of real property.
Including but not limited to possession.
Prescription of Action: 30 years.

Requisites for recovery of property [NCC 434]


(1) Property must be identified;
Through a relocation survey and a title
properly identifying boundaries and
location.
(2) Plaintiff must rely on the strength of his
title and not on weakness of defendants
title.
Right must be founded on positive title
and not on lack or insufficiency of
defendants.
Ei incumbit probatio qui dicit, non qui
negat: He who asserts, not he who
denied must prove.

Accion Publiciana
Recovery of a better right to possess (de jure).
Judgment as to who has the better right of
possession.
Also, actions for ejectment not filed within 1
year must be filed as accion publiciana.
Prescription: 10 years.
Accion Interdictal
A summary action for recovery of physical
possession through either an action for
Forcible Entry or Unlawful Detainer.

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CIVIL LAW

(a) Private property or its use as the object of


the expropriation;
(b) The property or its use is taken by the
State or by competent authority;
(c) The purpose of the taking is for public
use;
(d) The taking must be attended with due
process of law; and
(e) There is payment of just compensation.

D. LIMITATIONS ON OWNERSHIP
D.1. GENERAL LIMITATIONS:
TAXATION, EMINENT DOMAIN, POLICE
POWER
POLICE POWER
PROPERTY
TAKEN
WITH
NO
COMPENSATION
FOR
GENERAL
WELFARE.
When any property is condemned or seized
by competent authority in the interest of
health, safety or security, the owner thereof
shall not be entitled to compensation,
unless he can show that such condemnation
or seizure is unjustified. [Art. 436, Civil Code]

Note:
Expropriation may be exercised on both
real and personal property. [Rule 67,
Rules of Court]
Expropriation may be exercised not only
on property but also its use such as the
use of telephone lines [Republic v PLDT
(1969)]

Requisites
To justify the exercise of police power, the
following must appear [US v Toribio(1910)]:
(a) The interests of the public generally,
require
such
interference
(as
distinguished from those of a particular
class); and
(b) The means are reasonably necessary for
the accomplishment of a purpose, and
not unduly oppressive.

D.2. SPECIFIC LIMITATIONS:


IMPOSED BY LAW, SIC UTERE TUO,
NUISANCE, STATE OF NECESSITY,
EASEMENTS,
AND
THOSE
VOLUNTARILY IMPOSED BY THE
OWNER: SERVITUDES, MORTGAGES
IMPOSED BY CONTRACT.
(1) Legal Servitudes
Once requisites are satisfied, the servient
owner may ask the Court to declare the
existence of an easement.
(a) Art. 644 & 678: Aqueduct
(b) Art. 679: Planting of trees
(c) Art. 670: Light and View
(d) Art. 649 & 652: Right of Way
(e) Art. 637: Passage of water from upper
to lower tenements
(f) Art. 676: Drainage of buildings
(g) Art. 684-687: Lateral and subjacent
support

TAXATION
Forced contribution to the operation of
government.

EMINENT DOMAIN
Property taken for public use/purpose, but
subject to due process and payment of just
compensation.
Requisites
To justify the exercise of the right of eminent
domain, the following requisites must all be
present:

(2) Must not injure the rights of a third person


(a) Sic Utere Tuo Ut Alienum Non Laedas
(b) The owner of a thing cannot make use
thereof in such manner as to injure
the rights of a third person. [NCC 431]
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CIVIL LAW

A nuisance is any act, omission,


establishment, business, condition of
property, or anything else which:
(a) Injures or endangers the health or
safety of others;
(b) Annoys or offends the senses;
(c) Shocks, defies or disregards decency
or morality;
(d) Obstructs or interferes with the free
passage of any public highway or
street, or any body of water; or
(e) Hinders or impairs the use of property.
[NCC 694]

(3) Actions in a State of Necessity


The owner of a thing has no right to
prohibit the interference of another with
the same, if the interference is necessary
to avert an imminent danger and the
threatened damage, compared to the
damage arising to the owner from the
interference, is much greater. The owner
may demand from the person benefited,
indemnity for the damage to him. [NCC
432]
(4) Nuisance

SUMMARY OF ACTIONS
Action
Forcible Entry /
Unlawful
Detainer
Accion
Publiciana

Venue

Summon

Prayer

Real
Action

In
personam

Possession

Prior physical 1 year


possession

Real
Action
Real
Action

In
personam
In
personam

Possession

Real right of 10 years


Possession
[NCC 555(4)]
Ownership
GF: 10 years
BF: 30 years
[NCC 1137]

Possession

Accion
Reividicatoria

Reconveyance
Quieting of Title
Replevin

Real
Action
Real
Action
Personal
Action

In
personam
Quasi-in
rem
In
personam

Title

Basis

Ownership

Quieting of Ownership
Title
Possession
Ownership

103

Prescription

Exceptiion: Torrens Title;


Exception to exception:
laches
10 years
(NCC 1456)
Imprescriptible
GF: 4 years
BF: 8 years

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IV. Accession

(1)
(2)
(3)
(4)

Accession the right by virtue of which the


owner of a thing becomes the owner of
everything that is produced thereby, or which
is incorporated or attached thereto, either
naturally or artificially. [NCC 440]

CIVIL LAW

Possession in good faith


Usufruct
Lease
Antichresis

In cases where there is a clear and convincing


evidence to prove that the principal and the
accessory are not owned by one and the same
person or entity, the presumption shall not be
applied and the actual ownership shall be
upheld. In a number of cases, we recognized the
separate ownership of the land from the building
and brushed aside the rule that accessory
follows the principal. [Villasi v. Garcia (2014)]

Accessories things joined to or included


with the principal thing for the latters
embellishment, better use, or completion.

A. CLASSIFICATION OF ACCESSION
(1) Accession Discreta (fruits) the right
pertaining to the owner of a thing over
everything produced thereby (by internal
forces).
(2) Accession Continua the right pertaining
to the owner of a thing over everything
that is incorporated or attached thereto
either naturally or artificially; by external
forces (by external forces).
(a) Over Immovables
(i) Industrial
(ii) Natural
(1) Alluvion
(2) Avulsion
(3) Change of Course of River
(4) Formation of Islands
(b) Over Movables
(i) Conjunction and Adjunction
(ii) Commixtion and Confusion
(iii) Specification

FRUITS
All periodical additions to a principal thing
produced by forces inherent to the thing itself.
KINDS OF FRUITS
(1) Natural spontaneous products of soil and
the young and other products of animals
[NCC 442 (1)].
Under the rule partus sequitur ventrem, to the
owner of female animals would also belong
the young of such animals although this
right is lost when the owner mixes his cattle
with those of another.
(2) Industrial produced by lands of any kind
through cultivation or labor [NCC 442 (2)].
Standing trees are not fruits since they are
considered immovables although they
produce fruits themselves. However, they
may be considered as industrial fruits when
they are cultivated or exploited to carry on an
industry.

A.1. WITH RESPECT TO IMMOVABLES


ACCESSION DISCRETA
Right of ownership to the fruits. [NCC 441]
General Rule: To the owner of the principal
belongs the natural, industrial and civil fruit.

(3) Civil easily prorated for under NCC 544


they are deemed to accrue daily and belong
to the possessor in good faith in that
proportion.

Exceptions:

Notes:

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(a) Natural and Industrial Fruits are real


property while still ungathered.
(b) Only those that are manifest or born
are considered as natural or
industrial fruits.

PRINCIPLES
APPLICABLE
ACCESSION DISCRETA

Presumptions
(a) All works, sowing and planting are
presumed made by the owner.
(b) All works are presumed made at the owners
expense, unless the contrary is proved.
(c) The owner of the principal thing owns the
natural, industrial and civil fruits, except
when the following persons exist:
(i) Possessor in Good Faith
(ii) Usufructuary
(iii) Lessee
(iv) Antichretic creditor

TO

(1) Time of Accrual depending on kind:


Annuals: from the time seedlings
appear on the ground.
Perennials: from the time fruits actually
appear on the plants.
Young of animals: from the time they
are in the womb, although unborn
beginning of maximum ordinary period
of gestation.
Fowls: from the time of incubation.

Meaning of bad faith


(1) On the part of the landowner
Whenever the building, planting or sowing
was done with the knowledge and without
opposition on his part.
(2) On the part of owner of materials
Allows the use of his materials without
protest.

(2) A receiver of fruits has the obligation to


pay the expenses incurred by a third
person in the production, gathering and
preservation. [NCC 443]
Exception: Receiver does not have to
pay if fruits are recovered before
gathering from a possessor in bad faith,
receiver does NOT have to pay
indemnity.
But if recovered after fruits have been
gathered, receiver must pay since the
fruits have been separated from
immovable, hence accession principles
will not apply.

PRINCIPLES
APPLICABLE
ACCESSION CONTINUA

CIVIL LAW

(3) On the part of the builder, planter and sower


Knows that he does not have title to the land,
nor the right to build thereon OR no
permission of the owner of the materials to
pay their value.
Note
Bad faith leads to liability for damages and the
loss of the works or the improvement without
reimbursement.
Bad faith of one party neutralizes the bad faith
of the other.

TO

(4) Accession Continua Natural


Land deposits, etc.

(1) Accession Continua Artificial or Industrial


Building, planting or sowing on land
owned by another (over immovables).

(a) Alluvium
Soil is gradually deposited on banks adjoining
the river. There can be no acquisition of soil
deposited on the shores of the sea [De Buyser v.
Director of Lands (1983)]

General Rule: Whatever is built, planted


or sown on the land of another +
improvements or repairs made thereon,
belong to the owner of the land subject
to the rules on BPS.

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Requisites
(1) Deposit of soil or sediment is gradual
and imperceptible;
(2) As a result of the action of the currents of
the waters of the river and should have
no human intervention;
(3) Land where the accretion takes place is
adjacent to the banks of the rivers; and
(4) Deemed to Exist: When the deposit of the
sediment has reached a level higher than
the highest level of the water during the
year.

CIVIL LAW

(c)
Change Of Course Of River
Requisites:
(1) Change in the natural course of the waters of
the river; and
(2) Such change causes the abandonment of the
river beds. Natural Bed: ground covered by
its waters during the highest floods. [Binalay
v Manalo (1991)]
(3) Such change is sudden or abrupt
Results
(1) Owners whose lands are occupied by the new
course automatically become owners of the
old bed, in proportion to the area they lost
(2) Owners of the lands adjoining the old bed
are given the right to acquire the same by
paying the value of the land.
*Not exceeding the value of the land invaded
by the new bed (the old property of the
owner)
(3) The new bed opened by the river on a private
estate shall become of public dominion.

Effect
The riparian owner automatically owns the
Alluvion BUT it does not automatically
become registered property in his name.
[Grande v CA (1962)]
Rationale
To offset the owners loss from possible
erosion due to the current of the river;
To compensate for the subjection of the
land to encumbrances and legal
easements.

(d)
Formation of Islands
They belong to the State if:
(1) Formed on the seas within the jurisdiction of
the Philippines.
(2) Formed on lakes, or
(3) Formed on navigable or floatable rivers:
(a) Capable of affording a channel or
passage for ships and vessels;
(b) Must be sufficient not only to float
bancas and light boats, but also bigger
watercraft;
(c) Deep enough to allow unobstructed
movements of ships and vessels.
TEST: can be used as a highway of
commerce, trade and travel.

(b)
Avulsion
A portion of land is segregated from one
estate by the forceful current of a river, creek
or torrent and transferred to another.
Requisites
(1) Segregation and transfer of land is
sudden and abrupt;
(2) Caused by the current of the water; and
(3) The portion of land transported must be
known and identifiable.
OR
(4) Can also apply to sudden transfer by
other forces of nature such as land
transferred from a mountain slope
because of an earthquake.

They belong to the owners of the nearest margins


or banks if:
(1) Formed through successive accumulation of
alluvial deposits
(2) On non-navigable and non-floatable rivers
(3) If island is in the middle: divided
longitudinally in half.

Effect
The ownership of the detached property is
retained by the owner subject to removal
within 2 years from the detachment.

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CIVIL LAW

Landowner [LO] in Good Faith

Landowner [LO] in Bad Faith

Rights of Landowner [NCC 448]


Options:
(1) Buy (only after payment of indemnity for
Builder,
necessary, useful and ornamental expenses [NCC
Planter, Sower
546 and 548]);
[BPS]
(2) Sell to BP (unless the value of the land is
in Good Faith
considerably more than that of the building or
trees); or
Remedy: Rent to BP if LO does not want to buy
(3) Rent to S.

Absolute Duties of Landowner


[NCC 447]:
(1) Pay damages; and
(2) Allow removal; or
(3) Buy or pay for value of
improvement.

Rights of Landowner [NCC 449-452]


Same as though both
Options:
landowner and BPS are in
(1) Appropriate the improvements without paying good faith
Builder,
indemnity;
Planter, Sower (2) Demolish/Removal of the work of BPS at the
[BPS]
expense of BPS;
in Bad Faith (3) Sell to BP; or
(4) Rent to the S
Absolute right to Damages from BPS.

Landowner [LO] in Good Faith

Landowner [LO] in Bad Faith

Right of Landowner [NCC 447]


Absolute Duties of Landowner [NCC 447]:
Owner of
To buy the improvements unless OM can (1) Pay damages; and
Material [OM]
remove without damage.
(2) Allow removal in any event; or
in Good Faith
(3) Pay for value.
Absolute Rights of Landowner [NCC 447] Same as though both landowner and
Owner of
(1) To appropriate the materials without material man are in good faith
Material [OM]
payment.
in Bad Faith
(2) Right to damages from OM.

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Landowner
Good faith
Options:
(1) Right to acquire improvements
and pay indemnity to BPS;
subsidiarily liable to OM;
(2) Sell the land to BP except if the
value
of
the
land
is
considerably more; or
(3) Rent to sower.
Good faith
Options:
(1) Right to acquire improvements
and pay indemnity to BPS;
(2) Sell land to BP except if the
value
of
the
land
is
considerably more; or
(3) Rent to sower.
Good faith
(1) Landowner has right to collect
damages from BPS in any case
and the option to either
(a) Acquire improvements w/o
paying for indemnity;
(b) Demolition or restoration;
or
(c) Sell to BP, or to rent to
sower
(2) Pay necessary expenses to
BPS.
Bad faith
Same as when all acted in good
faith under Article 453
Bad faith
(1) Acquire improvement after
paying indemnity and damages
to BPS unless the latter
decides to remove.
(2) Subsidiarily liable to OM for
value of materials.

PROPERTY

BPS

CIVIL LAW

Owner of Material [OM]

Good faith
Good faith
(1) Right of retention until (1) Collect value of material
necessary and useful
primarily from BPS and
expenses are paid;
subsidiarily to landowner if
(2) To pay value of materials
BPS is insolvent; and
to OM.
(2) Limited right of removal (if
the removal will not cause
any injury)
Good faith
Bad faith
(1) Right of retention until (1) Lose the material without
necessary and useful
right to indemnity.
expenses are paid.
(2) Must pay for damages to
(2) Keep
BPS
without
BPS.
indemnity to OM and
collect damages from him.
Bad faith
Bad faith
Recover necessary expenses (1) Recover value from BPS
for preservation of land from
(as if both are in good
landowner unless landowner
faith)
sells land.
(2) If
BPS
acquires
improvement,
remove
materials if feasible w/o
injury
(3) No
action
against
landowner but may be
liable to landowner for
consequential damages
Bad faith
Bad faith
Same as when all acted in Same as when all acted in
good faith under Article 453
good faith under Article 453
Good faith
Good faith
(1) May
remove (1) Remove
materials
if
improvements.
possible w/o injury
(2) Be
indemnified
for (2) Collect value of materials
damages in any event
from BPS; subsidiarily from
(3) Pay OM the value of the
landowner
materials

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Landowner
Good faith
Options:
(3) Right to acquire improvements
and pay indemnity to BPS;
subsidiarily liable to OM;
(4) Sell the land to BP except if the
value
of
the
land
is
considerably more; or
Rent to sower.
Good faith
(1) Landowner has right to collect
damages from BPS in any case
and the option to either
(a) Acquire improvements w/o
paying for indemnity;
(b) Demolition or restoration;
or
(c) Sell to BP, or to rent to
sower
(2) Pay necessary expenses to
BPS.
Bad faith
Acquire improvements and pay
indemnity and damages to BPS
unless the latter decides to remove
materials.

PROPERTY

BPS

CIVIL LAW

Owner of Material [OM]

Bad faith
Good faith
(1) Right of retention until (1) Collect value of materials
necessary expenses are
primarily from BPS and
paid.
subsidiarily
from
(2) Pay value of materials to
landowner.
OM
and
pay
him (2) Collect damages from
damages.
BPS.
(3) Absolute right to remove
materials in any event.
Bad faith
Good faith
(1) Right
to
necessary (1) Collect value of materials
expenses.
primarily from BPS and
(2) Pay value of materials to
subsidiarily
from
OM.
landowner
(3) Pay damages to OM/LO.
(2) Collect damages from BPS
(3) If
BPS
acquires
improvements,
absolute
right of removal in any
event.

Good faith
Bad faith
(1) Receive indemnity for (1) No right to indemnity.
damages.
(2) Loses right to material.
(2) Absolute right of removal
of improvements in any
event.

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A.2. WITH
PROPERTY
TYPES

PROPERTY

RESPECT

TO

MOVABLE

Ownership of new object formed by adjunction


(1) If union was made in good faith
The owner of principal thing acquires the
accessory, with obligation to indemnify
the owner of the accessory for its value in
its uncontroverted state.

(1) Conjunction or Adjunction


Process where 2 movables belonging to
different owners are attached to each other
to form a single object.
(2) Mixture
The union of material where
components lose their identity.

CIVIL LAW

(2) If union was in bad faith, NCC 470 applies:


Owner of accessory in bad faith loses
the thing incorporated and has the
obligation to indemnify the owner of the
principal thing for damages.
If owner of principal is in bad faith,
owner of the accessory has a right to
choose between the owner of principal
paying him its value or that the thing
belonging to him be separated, even
though for this purpose it be necessary
to destroy the principal thing; and in
both cases, there shall be indemnity for
damages

the

(3) Specification
Transforming or giving of a new form to
anothers material through labor.

CONJUNCTION / ADJUNCTION
Requisites
(1) There are 2 movables belonging to 2
different owners;
(2) They are united in such a way that they
form a single object; and
(3) They are so inseparable that their
separation would impair their nature or
result in substantial injury to either
component.

Test to determine the principal thing


In the order of application, the principal is
that:
(1) To which the other has been united as an
ornament or for its use or perfection
(Rule of importance and purpose).
(2) Of greater value.
(3) Of greater volume.
(4) That of greater merits, taking into
consideration all the pertinent legal
provisions, as well as the comparative
merits, utility and volume of their
respective things. [Manresa]

Kinds
(1) Inclusion or engraftment e.g. a diamond
is set on a gold ring
(2) Soldadura or soldering e.g. when lead is
united or fused to an object made of lead
(a) Ferruminacion if both the accessory
and principal objects are of the same
metal; and
(b) Plumbatura, if they are of different
metals
(3) Escritura or writing e.g. when a person
writes on paper belonging to another;
(4) Pintura or painting e.g. when a person
paints on canvas belonging to another;
(5) Tejido or weaving e.g. when threads
belonging to different owners are used in
making textile

When separation allowed


(1) When separation will not cause any injury;
or
(2) When the accessory is much more
precious:
(a) Owner of accessory may demand
separation even though the principal
thing may suffer.

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CIVIL LAW

SPECIFICATION

(b) Owner who caused the union shall


bear the expenses for separation even
if he acted in good faith.
(3) When the owner of the principal is in bad
faith.

Definition
Takes place when the work of a person is
done on the material of another, such
material, in consequence of the work itself,
undergoes a transformation.

MIXTURE
Kinds
(1) Commixtion: mixture of solid things
(2) Confusion: mixture of liquid things

Rules
(1) Person in good faith
General rule
Worker becomes the owner but must
indemnify the owner (who was also in
good faith) for the value of the material.
Exception
If the material is more valuable than the
new thing, the owner of the material may
choose:
(a) To take the new thing but must pay
for the work or labor; or
(b) To demand indemnity for the
material.

Rules
(1) Mixture by will of the owners:
(a) Primarily
governed
by
their
stipulations.
(b) In the absence of stipulation, each
owner acquires a right or interest in the
mixture in proportion to the value of
his material.
(2) Mixture caused by an owner in good faith or
by chance
(a) Share of each owner shall be
proportional to the value of the part
that belonged to him.
(b) If things mixed are exactly the same
kind, quality and quantity, divide the
mixture equally.
(c) If things mixed are of different kind or
quality, a co-ownership arises.
(d) If they can be separated without injury,
the owners may demand separation.
(e) Expenses are borne by the owners pro
rata.
(f) NOTE: Good faith does not necessarily
exclude negligence, which gives rise to
damages.
(3) Mixture caused by an owner in bad faith
(a) Actor forfeits the thing belonging to
him.
(b) Actor also becomes liable for
damages.
(4) Mixture made with knowledge and without
objection of the other owner
Rights to be determined as though both
acted in good faith.

If the owner was in bad faith, maker may


appropriate the new thing without paying
the owner OR require the owner to pay
him the value of the thing or his work,
with right to indemnity
(2) Person in bad faith
General rule
(a) Owner may either appropriate the
new thing to himself without paying
the maker OR
(b) Owner may demand value of material
plus damages
Exception
The first option is not available in case the
value of the work, for artistic or scrientific
reasons, is considerably more than that of
the material
(3) Person made use of material with consent
and without objection of owner
Rights shall be determined as though
both acted in good faith

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V. Quieting of Title

CIVIL LAW

E. THE ACTION TO QUIET TITLE


DOES NOT APPLY:

OR INTEREST IN AND REMOVAL OR


PREVENTION OF CLOUD OVER TITLE
TO OR INTEREST IN REAL PROPERTY

(1) To questions involving interpretation of


documents;
(2) To mere written or oral assertions of
claim, unless made in a legal proceeding
or asserting that an instrument or entry in
plaintiffs favor is not what it purports to
be;
(3) To boundary disputes;
(4) To deeds by strangers to the title unless
purporting to convey the property of the
plaintiff;
(5) To instruments invalid on their face; or
(6) Where the validity of the instrument
involves a pure question of law.

A. IN GENERAL
A remedy or form of proceeding originating in
equity jurisprudence. Equity comes to the aid
of the plaintiff who would suffer if the
instrument (which appear to be valid but is in
reality
void,
ineffective,
voidable
or
unenforceable) was to be enforced.

B. PURPOSE
(1) To declare:
(a) The invalidity of a claim on a title; or
(b) The invalidity of an interest in property.
(2) To free the plaintiff and all those claiming
under him from any hostile claim on the
property.

F. REQUIREMENTS
F.1. REQUISITES OF AN ACTION TO
QUIET TITLE
(1) There is a CLOUD on title to real property
or any interest to real property;
(2) The plaintiff must have legal or equitable
title to, or interest in the real property;
and
(3) Plaintiff must return the benefits received
from the defendant.

C. NATURE: QUASI IN REM


A suit against a particular person or persons
in respect to the res and the judgment will
apply only to the property in dispute.
The action to quiet title is characterized as
proceeding quasi in rem. Technically, it is
neither in rem nor in personam. In an action
quasi in rem, an individual is named as a
defendant. However, unlike suits in rem, a
quasi in rem judgment is conclusive only
between the parties. [Spouses Portic v.
Cristobal]

Cloud on title means a semblance of title,


either legal or equitable, or a claim or a right
in real property, appearing in some legal form
but which is, in fact, invalid or which would be
inequitable to enforce.
A cloud exists if:
(1) There is a claim emerging by reason of:
(a) Any instrument e.g. a contract, or any
deed of conveyance, mortgage,
assignment, waiver, etc. covering the
property concerned;
(b) Any record, claim, encumbrance e.g.
an attachment, lien, inscription,
adverse claim, lis pendens, on a title;
or

D. JUSTIFICATIONS TO BRING AN
ACTION TO QUIET TITLE
(1) To prevent future or further litigation on
the ownership of the property.
(2) To protect the true title and possession.
(3) To protect the real interest of both parties.
(4) To determine and make known the precise
state of the title for the guidance of all.

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(c) Any proceeding e.g. an extrajudicial


partition of property.
(2) The claim should appear valid or effective
and extraneous evidence is needed to prove
their validity or invalidity;
(a) Test: Would the owner of the property
in an action for ejectment brought by
the adverse party be required to offer
evidence to defeat a recovery?
(b) As a general rule, a cloud is not
created by mere verbal or parole
assertion of ownership or an interest in
property.
(3) Such instrument, etc. is, in truth and in fact,
invalid,
ineffective,
voidable,
or
unenforceable, or has been extinguished or
terminated, or has been barred by
extinctive prescription; and
(4) Such instrument, etc. may be prejudicial to
the true owner or possessor.

CIVIL LAW

G. QUIETING OF TITLE V. REMOVAL


OF CLOUD
Quieting of Title

Removal of Cloud

There isnt always


an adverse claim
(eg.
land
registration
cases)

There is always an
adverse claim by virtue
of an instrument, record,
claim, encumbrance or
proceeding.

H.
PRESCRIPTION
/
PRESCRIPTION OF ACTION

NON-

PRESCRIPTION OF ACTION
(1) When the plaintiff is in possession of the
property, the action to quiet title does not
prescribe.
Rationale for Rule
The owner of real property who is in
possession thereof may wait until his
possession is invaded or his title is
attacked before taking steps to vindicate
his right. A person claiming title to real
property, but not in possession thereof,
must act affirmatively and within the time
provided by the statute. Possession is a
continuing right as is the right to defend
such possession. So it has been
determined that an owner of real property
in possession has a continuing right to
invoke a court of equity to remove a cloud
that is a continuing menace to his title.
Such a menace is compared to a
continuing nuisance or trespass which is
treated as successive nuisances or
trespasses, not barred by statute until
continued without interruption for a
length of time sufficient to affect a change
of title as a matter of law." [Pingol v. CA]
(2) When the plaintiff is not in possession of
the property, the action to quiet title may
prescribe.
(a) 10 yrs. ordinary prescription
(b) 30 yrs. extraordinary prescription (in
bad faith)

F.2. REQUISITES OF AN ACTION TO


PREVENT A CLOUD:
(1) Plaintiff has a title to a real property or
interest therein;
(2) Defendant is bent on creating a cloud on
the title or interest therein. The danger
must not be merely speculative or
imaginary but imminent; and
(3) Unless the defendant is restrained or
stopped, the title or interest of the plaintiff
will be prejudiced or adversely affected.
The plaintiff must have legal or equitable title
to, or interest in the real property [NCC 477]
(1) Legal title: the party is the registered owner
of the property.
(2) Equitable title: the person has the
beneficial ownership of the property.
The plaintiff must return the benefits received
from the defendant [NCC 479]

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VI. Co-ownership

(3) The portions belonging to the co-owners


in the co-ownership shall be presumed
equal, unless the contrary is proved.

The form of ownership when the ownership of


an undivided thing or right belongs to different
persons. [NCC 484]

Each co-owner has absolute control over his


ideal share
Every co-owner has absolute ownership
of his undivided interest in the co-owned
property and is free to alienate, assign or
mortgage his interest except as to purely
personal rights. While a co-owner has
the right to freely sell and dispose of his
undivided interest, nevertheless, as a coowner, he cannot alienate the shares of
his other co-owners nemo dat quod non
habet. [Acabal v. Acabal]

A. REQUISITES
(1) Plurality of owners;
(2) Object must be an undivided thing or right;
and
(3) Each co-owners right must be limited only
to his ideal or abstract share of the
physical whole.

B. WHAT GOVERNS CO-OWNERSHIP


(1) Contracts;
(2) Special laws; and
(3) The Civil Code

C. CHARACTERISTICS
OWNERSHIP

OF

CIVIL LAW

Mutual respect among co-owners with regard


to use, enjoyment, and preservation of the
things as a whole
(1) The property or thing held pro-indiviso is
impressed with a fiduciary character: each
co-owner becomes a trustee for the
benefit of his co-owners and he may not
do any act prejudicial to the interest of his
co-owners.
(2) Until a judicial division is made, the
respective part of each holder cannot be
determined. The effects of this would be:
(a) Each co-owner exercises, together
with the others, joint ownership over
the pro indiviso property, in addition
to his use and enjoyment of the same
(b) Each co-owner may enjoy the whole
property and use it.
(3) Redemption exercised by a co-owner
inures to the benefit of his other coowners [Mariano v CA (1993)]

CO-

(1) There are 2 or more co-owners.


(2) There is a single object which is not
materially or physically divided and over
which and his ideal share of the whole.
(3) There is no mutual representation by the
co-owners.
(4) It exists for the common enjoyment of the
co-owners.
(5) It has no distinct legal personality.
(6) It is governed first of all by the contract of
the parties; otherwise, by special legal
provisions, and in default of such
provisions, by the provisions of Title III on
Co-Ownership.
There are ideal shares defined but not
physically identified [NCC 485]
(1) The share of the co-owners, in the benefits
as well as in the charges, shall be
proportional to their respective interests.
(2) Any stipulation in a contract to the contrary
shall be void.

Only limitation
A co-owner cannot use or enjoy the property
in a manner that shall injure the interest of his
other co-owners. [Pardell v. Bartolome]

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D. SOURCES OF CO-OWNERSHIP

the thing owned in common, insofar as his share


is concerned.
Nevertheless, an agreement to keep the thing
undivided for a certain period of time, not
exceeding ten years, shall be valid. This term may
be extended by a new agreement.

D.1. LAW
(1) Cohabitation:
co-ownership
common law spouses

CIVIL LAW

between

The Family Code, in the following


provisions, made the rules on coownership apply:
Art. 147: between a man and a woman
capacitated to marry each other
Art. 148: between a man and a woman
not capacitated to marry each other
Art. 90: if matter is not provided in the FC
Chapter on ACP, then rules on coownership will apply

A donor or testator may prohibit partition for a


period which shall not exceed twenty years.
Neither shall there be any partition when it is
prohibited by law.
No prescription shall run in favor of a co-owner or
co-heir against his co-owners or co-heirs so long
as he expressly or impliedly recognizes the coownership.
By the creation of a Universal Partnership of all
present property
NCC 1778. A partnership of all present
property is that in which the partners
contribute all the property which actually
belongs to them to a common fund, with the
intention of dividing the same among
themselves, as well as all the profits which
they may acquire therewith.

(2) Purchase creating implied trust


If two or more persons agree to purchase
property and by common consent, the
legal title is taken in the name of one of
them for the benefit of all, a trust is created
by force of law in favor of the others in
proportion to the interest of each.
[NCC 1452]

NCC 1779. In a universal partnership of all


present property, the property which
belonged to each of the partners at the time
of the constitution of the partnership,
becomes the common property of all the
partners, as well as all the profits which they
may acquire therewith.
A stipulation for the common enjoyment of
any other profits may also be made; but the
property which the partners may acquire
subsequently by inheritance, legacy, or
donation cannot be included in such
stipulation, except the fruits thereof

(3) Easement of Party Wall: co-ownership of


part-owners of a party wall (NCC 658)
(4) Condominium Law: co-ownership of the
common areas by holders of units
Sec. 6, RA 4726. The Condominium Act.
Unless otherwise expressly provided in the
enabling or master deed or the declaration of
restrictions, the incidents of a condominium
grant are as follows:
(c) Unless otherwise, provided, the common
areas are held in common by the holders
of units, in equal shares, one for each unit.

D.3. INTESTATE SUCCESSION

D.2. CONTRACT
By Agreement of Two or More Persons

Co-ownership between the heirs before


partition of the estate

Article 494, Civil Code. No co-owner shall be


obliged to remain in the co-ownership. Each coowner may demand at any time the partition of

NCC 1078. Where there are two or more heirs,


the whole estate of the decedent is, before its

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partition, owned in common by such heirs,


subject to the payment of debts of the
deceased.
For as long as the estate is left undivided the
heirs will be considered co-owners of the
inheritance.
If one of the heirs dies, his heirs will in turn
be co-owners of the surviving original heirs.

CIVIL LAW

his own name with third persons are governed


by the provisions relating to co-ownership.

E. RIGHTS OF CO-OWNERS
E.1. RIGHT TO SHARE IN THE BENEFITS
AS WELL AS THE CHARGES [NCC 485]
Proportional to their interests;
Stipulation to the contrary is void;
Portion belonging to the co-owners is
presumed equal.

D.4. TESTAMENTARY DISPOSITION OR


DONATION INTER VIVOS
(1) When a donation is made to several persons
jointly, it is understood to be in equal
shares, and there shall be no right of
accretion among them, unless the donor
has otherwise provided. [NCC 753]
(2) A donor or testator may prohibit partition
for a period which shall not exceed 20
years.

E.2. RIGHT TO USE THE THING OWNED


IN COMMON [NCC 486]
Limitations
That he use the thing in accordance with the
purpose for which it is intended.
That he uses it in such a way as to not injure
the interest of the co-ownership or prevent
the other co-owners from using it.

D.5. BY FORTUITOUS EVENT OR BY


CHANCE

RIGHT TO BRING AN
EJECTMENT [NCC 487]

(1) Co-ownership between owners of 2 things


that are mixed by chance or by will of the
owners:

ORDER

IN

RIGHT TO COMPEL OTHER CO-OWNERS


TO CONTRIBUTE TO THE EXPENSES OF
PRESERVATION AND TO THE TAXES
[NCC 488]

[NCC 472] Each owner shall acquire a


right proportional to the part belonging to
him, bearing in mind the value of the
things mixed or confused.

(1) Any one of the other co-owners may


exempt himself by renouncing so much of
his undivided interest as may be
equivalent to his share of the expenses
and taxes.
(2) No waiver if it is prejudicial to the coownership

(2) Hidden Treasure [NCC 438]


When the discovery is made on the property
of another, or of the State or any of its
subdivisions, and by chance, one-half shall
be allowed to the finder.

D.6. BY OCCUPANCY

RIGHT TO REPAIR [NCC 489]

Harvesting and Fishing: Co-ownership by two


or more persons who have seized a res nullius
thing

(1) Repairs for preservation may be made at


the will of one of the co-owners but he
must first notify his co-owners.
(2) Expenses to improve or embellish, decided
upon by a majority.

D.7. BY ASSOCIATIONS AND SOCIETIES


WITH SECRET ARTICLES
Articles are kept secret among the members
and any one of the members may contract in

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RIGHT TO OPPOSE ALTERATIONS


[NCC 491]

CIVIL LAW

(2) If 2 or more co-owners wish to exercise


this right, redemption will be made in
proportion to their share in the thing

(1) Consent of all the others is needed to make


alterations, even if the alteration benefits
all.
(2) If the withholding of the consent is clearly
prejudicial to the common interest, the
courts may afford relief
(3) Reason for the rule: alteration is an act of
ownership, not of mere administration.

Note: Rules on Co-Ownership does not apply


to CPG or ACP.
(1) These are governed by the Family Code.
(2) Even void marriages and cohabitation of
incapacitated persons are governed by FC
50, 147, and 148.

F. RULES

RIGHT TO FULL OWNERSHIP OF HIS


PART AND OF THE FRUITS AND
BENEFITS PERTAINING THERETO
[NCC 493]

F.1. ON RENUNCIATION OF SHARE


(DIFFERENT FROM RENUNCIATION OF
CO-OWNERSHIP)
(1) Other co-owners may choose not to
contribute to the expenses by renouncing
so much of his undivided interest as may
be equivalent to his share of the necessary
expenses and taxes.
(2) Renunciation must be express; thus, failure
to pay is not a renunciation of the right.
(3) Requires the consent of other co-owners
because it is a case of dacion en pago
(cessation of rights) involving expenses
and taxes already paid. (J.B.L. Reyes)
(4) Cannot renounce his share if it will be
prejudicial to another co-owner.

(1) Therefore he may alienate, assign or


mortgage it, and even substitute another
person in its enjoyment except when
personal rights are involved.
(2) The effect of the alienation or the
mortgage, with respect to the co-owners,
shall be limited to the portion which may
be allotted to him in the division upon the
termination of the co-ownership.

RIGHT TO PARTITION [NCC 494]


(1) Each may demand at any time the partition
of the thing, insofar as his share is
concerned.
(2) An agreement to keep the thing undivided
for a certain period NOT exceeding 10
years is valid.
(3) Term may be extended by a new
agreement.
(4) Donor or testator may prohibit partition,
period NOT to exceed 20 years.
(5) No partition may be made if prohibited by
law.
(6) Right does not prescribe.

F.2. REPAIRS FOR PRESERVATION


(1) First, notify other co-owners, as far as
practicable.
(2) Co-owner may advance expenses for
preservation even without prior consent;
he is entitled to reimbursement.

F.3.
EMBELLISHMENTS
IMPROVEMENTS

OR

(1) Notify co-owners of improvements and


embellishments to be made.

RIGHT TO REDEMPTION [NCC 1619]

If no notification is made, the co-owner


who advanced the expenses will only have
the right to be reimbursed if he proves the

(1) May exercise this in case the shares of


other co-owners are sold to a third person

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necessity of such repairs and


reasonableness of the expenses.

the

Registration under the Torrens system is


constructive notice of title but it not sufficient
notice of the act of repudiation. [Adille v CA]

Exception: If proven that had there been a


notification, they could have hired another
who would charge less or that they know of
a store that sells the needed material at a
cheaper price
The reimbursement will be limited to the
amount that should have been spent had
he notified the others, and the difference
shall be borne by him alone.
(2) Decisions
followed.

by

the

majority

must

CIVIL LAW

G.4. PARTITION OR DIVISION


Procedure for Partition
Governing rule: Rule 69 of the Rules of
Court.
How: By agreement of parties or by judicial
decree.
Form: Oral or Written (Statute of Frauds
does not operate here because it is not a
conveyance of property but a mere
segregation or designation of which parts
belong to whom)
The Rules of Court do not preclude
agreements or settlements.

be

G. TERMINATION OR
EXTINGUISHMENT

Action for Partition will determine:


(1) Whether or not the plaintiff is indeed a coowner of the property
(2) How the property will be divided between
the plaintiff and defendant.

G.1. TOTAL DESTRUCTION OF THING OR


LOSS OF THE PROPERTY CO-OWNED
Is there still co-ownership if a building is
destroyed? Yes, over the land and the debris.

G.2. MERGER OF ALL INTERESTS IN ONE


PERSON

Effects
(1) Confers exclusive ownership of the
property adjudicated to a co-heir.
(2) Co-heirs shall be reciprocally bound to
warrant the title to and the quality of each
property adjudicated.
(3) Reciprocal obligation of warranty shall be
proportionate to the respective hereditary
shares of co-heirs.
(4) An action to enforce warranty must be
brought within 10 years from the date the
right accrues.
(5) The co-heirs shall not be liable for the
subsequent insolvency of the debtor of
the estate.

G.3. ACQUISITIVE PRESCRIPTION


By whom
(1) A third person. [NCC 1106]
(2) A co-owner against the other co-owners.
Requisites for acquisitive prescription against
co-owners [Adille v CA (1988)]:
(1) A co-owner repudiates the co-ownership;
(2) The act of repudiation is clearly made
known to other co-owners;
(3) The evidence thereon is clear and
conclusive; and
(4) The co-owner has been in possession thru
open, continuous, exclusive and notorious
possession of the property for the period
required by law.

Unless partition is effected, each heir cannot


claim sole ownership over a definite portion of
the land. Heirs become the undivided owner
of the whole estate. Until said partition, he
cannot alienate a specific part of the estate.

Note: there is a presumption that possession of


a co-owner is NOT adverse

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Until then, they can only sell their successional


rights. [Carvaria v. CA]

The holding of a thing or the enjoyment of a


right. [NCC 523]

Rights against individual co-owners in case of


partition [NCC 497]
(1) The creditors are allowed to take part in
the partition.
Reason for the rule: They own part of the
interest of the co-owners who made the
assignment or alienation.

A. CONCEPT OF POSSESSION
To possess, in a grammatical sense, means
to have, to physically and actually occupy a
thing, with or without right. [Sanchez
Roman]
It is the holding of a thing or a right,
whether by material occupation or by the
fact that the thing or the right is subjected
to the action of our will. [Manresa]
Possession includes the idea of occupation.
It cannot exist without it. (Exceptions: NCC
537)
It is an independent right apart from
ownership.
Ownership
differs
from
possession in that an owner may validly
convey the property itself while a possessor
may not.

Intervention of creditors and assignees


General Rule: Creditors may take part in the
division. They need to establish the existence
of the credit during co-ownership.
Exception: If the partition was already executed
Exception to the exception: If there was fraud,
or a previous formal opposition to the partition.

Right of possession
(jus possessionis)
Independent right

Rules on notice to creditors and assignees:


(1) The law does not expressly require
previous notice to the creditors and
assignees before a partition, but the right
of creditors and assignees to take part in
the division presupposes the duty to notify.
(2) If notice is not given, the partition will not
be binding on them.
(3) Once notice has been given, it is the duty of
creditors and assignees to intervene and
make known their stand.
(a) If they fail, they cannot question the
division made, except in cases of fraud.
(b) If they formulate a formal question,
they can contest such partition

B. ESSENTIAL
POSSESSION

Right to possess
(jus possidendi)
Incident to ownership

REQUISITES

OF

(1) Corpus possessionis: Holding (actual or


constructive) of a thing or exercise of a
right, if right is involved.
(a) General Rule: Possession and
cultivation of a portion of a tract
under claim of ownership of all is a
constructive possession of all, if the
remainder is not in adverse
possession of another. [Ramos v.
Director of Lands (1918)]
(b) Doctrine of constructive possession
applies when the possession is under
title calling for the whole. It does not
apply where possession is without
title.

Partition in case co-owners cannot agree on the


partition of an indivisible thing (NCC 498)

(2) Animus possidendi: Intention to possess


(a) There is no possession if the holder
does not want to exercise the rights of
a possessor.

VII. Possession
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NAME AND POSSESSION IN THE NAME


OF ANOTHER [NCC 524]

(b) Implied from the acts of the possessor.


(c) May be contradicted and rebutted by
evidence to prove that the person
who is in possession does not in fact
exercise power or control and does not
intend to do so.

(1) In ones own name the fact of possession


and the right to such possession is found
in the same person.
(2) In the name of another the one in actual
possession is without any right of his own,
but is merely an instrument of another in
the exercise of the latters possession.
Kinds of possession in the name of another
(1) Necessary arises by operation of law
e.g.
representatives
who
exercise
possession in behalf of a conceived child,
juridical persons, persons not sui juris and
the conjugal partnership

C. DEGREES OF POSSESSION
(1) Mere holding or possession without title
and in violation of the right of the owner
(a) possession of a thief or usurper of land
(b) Here, both the possessor and the
public know that the possession is
wrongful.
(2) Possession with juridical title but not that
of ownership
(a) e.g. possession of a tenant, depository
agent,
bailee
trustee,
lessee,
antichretic creditor.
(b) This possession is peaceably acquired.
(c) This degree of possession will never
ripen into full ownership as long as
there is no repudiation of concept
under which property is held.

(2) Voluntary effected through the mutual


consent of the parties
(a) e.g.
agents
or
administrators
appointed by the owner or possessor.
(b) Third person may also voluntary
exercise possession in the name of
another, but it does not become
effective unless ratified by the person
in whose name it is exercised.

(3) Possession with just title or title sufficient


to transfer ownership, but not from the
true owner
(a) e.g. possession of a vendee from a
vendor who pretends to be the owner.
(b) This degree of possession ripens into
full ownership by lapse of time.

D.2. POSSESSION IN THE CONCEPT OF


AN OWNER, AND POSSESSION IN THE
CONCEPT OF A HOLDER WITH THE
OWNERSHIP BELONGING TO ANOTHER
[NCC 525]
(1) Possession in Concept of Holder
(a) One who possesses as a mere holder,
not in the concept of owner,
acknowledges in another a superior
right which he believes to be
ownership, whether his belief be right
or wrong.
(b) e.g. tenant, usufructuary, borrower in
commodatum.

(4) Possession with a just title from the true


owner
(a) This is possession that springs from
ownership.

D. CASES OF POSSESSION

(2) Possession in Concept of Owner


(a) May be exercised by the owner
himself or one who claims to be so.

D.1. POSSESSION FOR ONESELF, OR


POSSESSION EXERCISED IN ONES OWN

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(b) When a person claims to be the owner


of a thing, whether he believes so or
not, acting as an owner, and
performing acts of ownership, and he is
or may be considered as the owner by
those who witness his exercise of
proprietary rights, then he is in the
possession of an owner. This is the kind
of possession that ripens into
ownership under Article 540, when
such possession is public, peaceful and
uninterrupted. [see Art. 1118].

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(c) The belief of a possessor that he is the


owner of the thing must be based
upon the title or mode of acquisition,
such as a sale, a donation, inheritance
or other means of transmitting
ownership; for without this, there can
be no real, well-grounded belief of
ones ownership.
(d) Error in the application of the law, in
the legal solutions that arise from
such application, in the appreciation
of legal consequence of certain acts,
and in the interpretation of doubtful
provisions or doctrines, may properly
serve as basis for good faith.
(e) A misconception of the law, no matter
how honest cannot have the effect of
making one a possessor in good faith
when he does not hold a title valid in
form or a deed sufficient in terms to
transfer property.

Effects of Possession in Concept of an Owner


(1) Converted into ownership by the lapse of
time necessary for prescription.
(2) Possessor can bring all actions necessary
to protect his possession, availing himself
of any action which an owner can bring,
except accion reivindicatoria which is
substituted by accion publiciana.
(3) He can ask for the inscription of possession
in the registry of property.
(4) Upon recovering possession from one who
has unlawfully deprived him of it, he can
demand fruits and damages.
(5) He can do on the thing possessed
everything that the law authorizes an
owner to do; he can exercise the right of
pre-emption and is entitled to the
indemnity in case of appropriation.

(2) Possessor in bad faith one who knows


his title is defective.
(a) Only personal knowledge of the flaw
in the title or mode of acquisition can
make him a possessor in bad faith for
bad faith is not transmissible from
one person to another.
(b) Mistake upon a doubtful or difficult
question of law as a basis of good
faith.
(c) Mistake or ignorance of the law, by
itself, cannot become the basis of
good faith. What makes the error or
ignorance a basis of good faith is the
presence of an apparent doubt or
difficulty in the law. In other words,
the law is complex, ambiguous, or
vague such that it is open to two or
more interpretations.
(d) When the ignorance of the law is
gross and inexcusable, as when a
person of average intelligence would
know the law, such ignorance cannot

D.3. POSSESSION IN GOOD FAITH AND


POSSESSION IN BAD FAITH [NCC 526]
(1) Possessor in good faith one who is
unaware that there exists a flaw in the title
or mode og acquisition which invalidates
his acquisition.
(a) Good faith consists in the possessors
belief that the person from whom he
received a thing was the owner of the
same and could convey his title.
(b) It implies freedom from knowledge and
circumstances which ought to put a
person on inquiry.

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be the basis of good faith. Otherwise,


the intendment of Article 3 which
states that, Ignorance of the law
excuses no one from compliance
therewith, will be defeated.

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(2) By subjection to the action of ones will


(a) This mode refers more to the right of
possession than to possession as a
fact. The action of our will must be
juridical, in the sense that it must be
according to law.
(b) It includes:
(i) Tradicion
symbolica

by
delivering some object or symbol
placing the thing under the
control of the transferee.
(ii) Tradicion longa manu by the
transferor pointing out to the
transferee the things that are
being transferred.

What Things May be Possessed [NCC 530]


Only things and rights which are susceptible of
being appropriated may be the object of
possession.
What May Not Be Possessed by Private Persons
(1) Res Communes
(2) Property of Public Dominion
(3) Right under discontinuous and/or nonapparent easement

(3) By execution of proper acts under legal


formalities
(a) This mode refers to juridical acts or
the acquisition of possession by
sufficient title evidenced by the
performance of required formalities.
(b) Examples:
(i) Donations;
(ii) Succession;
(iii) Contracts (like a sale with right to
repurchase);
(iv) Judicial possession;
(v) Execution of judgments;
(vi) Execution and registration of
public instruments;
(vii) Inscription
of
possessory
information titles.
(c) The execution of the required
formalities is equivalent to delivery of
the property.

E. ACQUISITION OF POSSESSION
E.1. WAYS OF ACQUIRING POSSESSION
[NCC 531]
(1) By material occupation
(a) Material occupation used in its
ordinary meaning and not in its
technical meaning under NCC 712,
which defines occupation as a mode of
acquiring ownership.
(b) Possession acquired by material
occupation is only possession as a fact,
not the legal right of possession.
(c) Constructive delivery is considered as
an equivalent of material occupation in
two situations where such occupation
is essential to the acquisition of
possession:
(i) Tradicion brevi manu takes place
when one who possess a thing by
title other than ownership,
continues to possess the same
under a new title, that of
ownership.
(ii) Tradicion
constitutum
possessorium takes place when
the owner alienates the thing, but
continues to possess the same
under a different title.

E.2. BY WHOM MAY POSSESSION BE


ACQUIRED [NCC 532]
(1)
(2)
(3)
(4)

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By the same person


By his legal representative
By his agent
By any person without any power
whatsoever but subject to ratification,

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without prejudice to proper case of


negotiorum gestio [Arts. 2144, 2149, 2150]
(5) Qualifiedly, minors and incapacitated
persons

CIVIL LAW

concerned to substitute him, if the


owner is in a position to do so.
(b) This juridical relation does not arise in
either of these instances:
(i) When the property or business is
not neglected or abandoned;
(ii) If in fact the manager has been
tacitly authorized by the owner.

(1) By the same person


Elements of personal acquisition
(a) Must have the capacity to acquire
possession;
(b) Must have the intent to possess; and
(c) The possibility to acquire possession
must be present.

(4) Qualifiedly, minors and incapacitated


persons [NCC 535]
(a) Incapacitated all those who do not
have the capacity to act (insane,
lunatic, deaf-mutes who cannot read
and write, spendthrifts and those
under civil interdiction).
(b) Object of possession things only, not
rights.
(c) Method of acquisition material
occupation; acquisition by means for
which the incapacitated person has
the capacity, such as acquisition by
succession, testate or intestate, or by
donations propter nuptias, pure and
simple donations.

(2) By his legal representative


Requisites of acquisition through another
(a) That the representative or agent has
the intention to acquire the thing or
exercise the right for another, and not
for himself; and
(b) That the person for whom the thing
has been acquired or the right
exercised, has the intention of
possessing such thing or exercising
such right,
Note
(a) Bad
faith
is
personal
and
intransmissible. Only the person who
acted in bad faith must suffer its
effects; his heir should not be saddled
with the consequences.
(b) Good faith can only benefit the person
who has it; and the good faith of the
heir cannot erase the effects of bad
faith of his predecessor.

F. WHAT DO NOT
POSSESSION [NCC 537]

AFFECT

F.1. ACTS MERELY TOLERATED


(1) Those which because of neighborliness or
familiarity, the owner of property allows
another person to do on the property;
(2) Those services or benefits which ones
property can give to another without
material injury or prejudice to the owner,
who permits them out of friendship or
courtesy;
(3) Acts of little disturbances, which a person,
in the interest of neighborliness or friendly
relations permits others to do on his
property, although continued for a long
time, no right will be acquired by
prescription.

(3) By any person without any power


whatsoever but subject to ratification,
without prejudice to proper case of
negotiorum gestio [NCC 2144, 2149, 2150]
(a) 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 until the
termination of the affair and its
incidents, or to require the person

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Note: Permissive use merely tolerated by the


possessor cannot affect possession and cannot
be the basis of acquisitive prescription.
Possession to constitute the foundation of
prescriptive right must be possession under
claim of title; it must be adverse. [Cuaycong v.
Benedicto]

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(2) If there are two or more possessors, the


one longer in possession;
(3) If the dates of possession are the same,
the one who presents a title; or
(4) If all conditions are equal, the thing shall
be placed in judicial deposit pending
determination of possession or ownership
through proper proceedings.

F.2. ACTS
EXECUTED
CLANDESTINELY AND WITHOUT THE
KNOWLEDGE OF THE POSSESSOR
[NCC 1108]

G. EFFECTS OF POSSESSION
G.1. RIGHTS OF A POSSESSOR IN GOOD
FAITH
(1) Right to be protected and respencted in
possession; (NCC 539)
(2) Right to bring action to restore
possession;
(3) Right to the fruits already received;
(NCC. 544)
(4) Right to a share in pending fruits and the
production, gathering, and preservation
of such; (NCC. 545)
(5) Right to necessary expenses; (NCC. 546)
(6) Right to retain the thing until reimbursed;
(NCC. 546)
(7) Right to remove useful improvements
removable without damage to the
principal thing or to refund its value;
(upon election by the owner) (NCC. 547)
(8) Right to recover removable ornaments.
(NCC. 548)

Possession has to be in the concept of an


owner, public, peaceful and uninterrupted.

F.3. ACTS OF VIOLENCE AS LONG


AS THE POSSESSOR OBJECTS
THERETO (I.E. FILES A CASE)
[NCC 536]
(1) Possession cannot be acquired through
force or intimidation.
Includes forcibly taking away the property
from another and also when one occupied
the property in the property in the absence
of another, and repels the latter upon his
return.
(2) Effect on Possession
Acts mentioned do not constitute true
possession. They do not interrupt the
period of prescription nor affect the rights
to the fruits.

G.2. OBLIGATIONS OF A POSSESSOR IN


GOOD FAITH
(1) Pay in proportion to the charges,
expenses of cultivation and the net
proceeds upon cessation of good faith;
(NCC 545)
(2) Costs of litigation; (NCC 550)
(3) Liability to the deterioration/loss of a
thing possessed if acted through
fraudulent intent/negligence. (NCC 552)

RULES TO SOLVE CONFLICTS OF


POSSESSION [NCC 538]
General Rule: Possession cannot be recognized
in two different personalities, except in cases of
co-possession by co-possessors without
conflict of claims of interest.
In case of conflicting possession preference is
given to:
(1) Present possessor or actual possessor;

G.3. RIGHTS OF A POSSESSOR IN BAD


FAITH
(1) Right to be respected in possession;

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(NCC 539)
(2) Right to necessary expenses and the
production, gathering, and preservation of
fruits; (NCC. 545 and 546)
(3) Does not have right to reimbursement of
expenses for luxury but may remove them
as long as the principal thing suffers no
injury, or may sell them to the owner.

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after such unlawful deprivation (Rule


70)
(b) May ask for writ of preliminary
mandatory injunction within 10 days
from filing of complaint in forcible
entry (NCC 539).
(c) The same writ is available in unlawful
detainer actions upon appeal.
(NCC 1674)
(2) Accion Publiciana
(a) This action is based on the superior
right of possession; no issue of
ownership is settled.
(b) Action for the recovery of possession
of real property upon mere allegation
and proof of a better title.
(c) This must be instituted within 10/30
years (or else acquisitive prescription
will deny recovery).

G.4. OBLIGATIONS OF A POSSESSOR IN


GOOD FAITH
(1) Reimburse the value of the fruits received
and which the legitimate possessor could
receive; (NCC 549)
(2) Pay in proportion to the charges, expenses
of cultivation and the net proceeds upon
cessation of good faith; (NCC 545)
(3) Costs of litigation; (NCC 550)
(4) Liability to the deterioration/loss of a thing
possessed in every case, including
fortuitous events. (NCC 552)

(3) Accion Reivindicatoria


(a) This action is for the recovery of
possession based on a claim of
ownership.
(b) It is an action setting up title and the
right to possession.
(c) This action is not barred by a
judgment in an action for forcible
entry and unlawful detainer.

G.5. RIGHT TO BE PROTECTED IN HIS


POSSESSION [NCC 539]
(1) Every possessor has a right to be respected
in his possession; if disturbed, possessor
has a right to be protected in or restored to
said possession.
(2) Every possessor includes all kinds of
possession, from that of an owner to that
of a mere holder, except that which
constitutes a crime.
(3) Reason for the rule: To prevent anyone from
taking the administration of justice into his
own hands. Even the owner cannot forcibly
eject the possessor, but must resort to the
courts.

(4) Action for Replevin


This is a prayer to recover possession of
movable property

RULES
(1) Lawful possessor can employ self-help
(NCC 429)
(2) To consolidate title by prescription, the
possession must be under claim of
ownership, and it must be peaceful,
public and uninterrupted.
(3) It is only the conviction of ownership
externally manifested, which generates
ownership.

ACTIONS TO RECOVER POSSESSION


(1) Forcible Entry and Unlawful Detainer
(Summary proceedings)
(a) Action by a person deprived of the
possession of any land or building by
force, intimidation, strategy, threat, or
stealth (FISTS) at any time within 1 year

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(4) Acts of possessory character done by virtue


of a license or mere tolerance by the real
owner are not sufficient and will not confer
title by prescription or adverse possession.
(5) The following cannot acquire title by
prescription:
(a) Lessees, trustees, pledges, tenants on
shares or planters and all those who
hold in the name or representation of
another;
(b) Mere holders placed in possession of
the property by the owner, such as
agents, employees;
(c) Those holding in a fiduciary character,
like receivers, attorneys, depositaries
and antichretic creditors;
(d) Co-owner, with regard to common
property; Except: When he holds the
same adversely against all of them
with notice to them of the exclusive
claim of ownership.
(i) Possession of real property
presumes possession of the
movables therein (NCC 542);
(ii) Each co-owner is deemed to have
exclusive possession of the part
which may be allotted to him upon
the division, for the entire period
during which the co-possession
lasted.
(6) Interruption in the possession of the whole
or a part of a thing possessed in common
shall be to the prejudice of all the
possessors. (NCC 543)

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(3) Civil fruits are deemed to accrue daily and


belong to the possessor in good faith in
that proportion.
Provision is based on the following reasons of
equity:
The fruits received are generally used for
the consumption and livelihood of the
possessor, and his life and expenses may
have been regulated in view of such fruits.
The owner has been negligent in not
discovering or contesting the possession of
the possessor; it would be unjust after the
possessor has been thus allowed to rely on
the efficacy of the title, to require him to
return the fruits he has received on the basis
of that title.
Between the owner, who has abandoned his
property and left it unproductive, and the
possessor, who has contributed to the social
wealth, by the fruits he has produced, the
law leans toward the latter.

RIGHT OF THE POSSESSOR IN GOOD


FAITH
Only limited to the fruits of the thing. He must
restore the fruits received from the time such
good faith ceased. He has no rights to the
objects which do not constitute fruits.
Legal interruption of possession in good faith
Takes place when an action is filed against
himfrom the time he learns of the
complaint, from the time he is summoned to
the trial.

G.6. ENTITLEMENT TO FRUITS


POSSESSOR IN GOOD/BAD FAITH [NCC
544, 549]

Effect of cessation of good faith (NCC 545)


(a) If at the time the good faith ceases,
there should be any natural or
industrial fruits, the possessor shall
have a right to a part of the expenses
of cultivation, and to a part of the net
harvest, both in proportion to the time
of the possession.

(1) Possessor in good faith is entitled to the


fruits received before the possession is
legally interrupted.
(2) Natural and industrial fruits are considered
received from the time they are gathered or
severed.

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(b) The charges divided on the same basis


by the two possessors.
Charges Those which are
incurred, not on the thing itself but
because of it
(e.g. taxes,
contributions in favor of the
government)
(c) The owner of the thing may give the
possessor in good faith the right to
finish the cultivation and gathering of
the growing fruits, as an indemnity for
his part of the expenses of cultivation
and the net proceeds.
The possessor in good faith who refuses
to accept this concession shall lose the
right to be indemnified in any other
manner.

surrounding an estate, an irrigation


system, planting in an uncultivated land,
a fishpond, an elevator in the building,
electric lighting system
(2) They are reimbursed only to the possessor
in GF as a compensation or reward for
him. A possessor in BF cannot recover
such expenses.
(3) If the useful improvements can be
removed without damage to the principal
thing, the possessor in good faith may
remove them, unless the person who
recovers the possession refunds the
expenses or pays the increase in value
which the thing may have acquired by
reason thereof.

When fruits are insufficient


There should only be reimbursement of
expenses; but each possessor should suffer a
proportionate
reduction
due
to
the
insufficiency of the harvest.

(1) They do not affect the existence or the


substance of the thing itself, but only the
comfort, convenience or enjoyment of the
possessor.
(2) They
are
not
the
subject
of
reimbursement, because the law does not
compensate personal whims or caprices,
e.g. Opening of a garden, placing
fountains and statues in it, adorning the
ceilings with paintings, and the walls with
reliefs.

D.3. EXPENSES FOR LUXURY

D. REIMBURSEMENT FOR EXPENSES


POSSESSOR IN GOOD/BAD FAITH
[NCC 546-552]
D.1. NECESSARY EXPENSES
(1) Imposed by the thing itself for its
preservation and have no relation to the
desire or purpose of the possessor.
(2) They are the cost of living for the thing
and must be reimbursed to the one who
paid them, irrespective of GF or BF.
(a) Only the possessor in GF may retain
the thing until he has been reimbursed
therefor.
(3) The expenses are not considered
improvements; they do not increase the
value of the thing, but merely prevent
them from becoming useless.

Useful Expenses

Expenses for Luxury

Those
which Those which merely
increased the income embellished
the
derived from the thing thing
Result: Increase in the
products,
either
absolutely, or because
Result: Benefit or
of greater facilities for
advantage is only
producing them
for the convenience
of
definite
Includes
expenses
possessors
resulting
in
real
benefit or advantage
to the thing

D.2. USEFUL EXPENSES


(1) Incurred to give greater utility or
productivity to the thing, e.g. Wall

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Useful Expenses

Expenses for Luxury

Possessor in GF

The utility is for the


Result:
Benefit or
possessor
or
advantage is only for
particular persons
the convenience of
alone
and
is
definite possessors
therefore accidental.
Notes
(1) Costs of litigation over the property shall
be borne by every possessor. [NCC 550]
(2) Improvements caused by nature or time
shall always inure to the benefit of the
person who has succeeded in recovering
possession [NCC 551]
Includes all the natural accessions
referred to by articles 457-465, and all
those that do not depend upon the will of
the possessor. (e.g. widening of the
streets, rising of fountains of fresh or
mineral water, increase of foliage of
trees)
Possessor in GF

CIVIL LAW

Possessor in BF

Charges
Must share with the
legitimate possessor, in
Same as with GF
proportion to the time
(545)
of the possession (545)
Necessary Expenses
Right to reimbursement
and retention in the
meantime (546)

Reimbursement
only (546)

Useful Expenses
Right of retention until
reimbursed;
Owners
option to reimburse him
either for expenses or
for increase in value
which the thing may
No
right
to
have acquired (546)
reimbursement
and no right of
Limited right of removal
removal (547)
should not damage
principal and owner
does not exercise option
of paying the expenses
or increase in value
(547)

Possessor in BF

Fruits Received
Entitled to the fruits
while possession is in GF Must
reimburse
and
before
legal the
legitimate
interruption (544)
possessor (549)
Pending Fruits
Entitled to part of the
expenses of cultivation,
and to a part of the net
harvest, in proportion to
the
time
of
the
possession.

Ornamental Expenses
Limited right of removal Limited right of
(548)
removal (549)
Deterioration or Loss

Must
reimburse
the
legitimate
Indemnity may be, at the
possessor (549)
owners option,
1. In money, OR
2. By allowing full
cultivation
and
gathering of the fruits
(545)

No liability unless due to


fraud or negligence Liable in
after becoming in BF case (552)
(552)

every

Costs of Litigation
Bears cost (550)

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CIVIL LAW

UNLAWFUL
A MOVABLE

(4) Movable properties possessed through a


crime can never be acquired through
prescription.

E.1.
POSSESSION
OF
MOVABLE
ACQUIRED IN GOOD FAITH (IN CONCEPT
OF OWNER) IS EQUIVALENT TO TITLE
[NCC 559]

E.3. FINDER OF LOST MOVABLE [NCC


719-720]

E.
LOSS
DEPRIVATION
PROPERTY

OR
OF

(1) Possessor has actual title


defeasible only by true owner.

which

(1) Whoever finds a movable, which is not a


treasure, must return it to its previous
possessor.
(2) If the previous possessor is unknown, the
finder shall immediately deposit it with
the mayor of the city or municipality
where the finding has taken place.
(3) The finding shall be publicly announced
by the mayor for two consecutive weeks in
the way he deems best.
(4) If the movable cannot be kept without
deterioration, or without expenses which
considerably diminish its value, it shall be
sold at public auction eight days after the
publication.
(5) Six months from the publication having
elapsed without the owner having
appeared, the thing found, or its value,
shall be awarded to the finder. The finder
and the owner shall be obliged, as the
case may be, to reimburse the expenses.
(6) If the owner should appear in time, he
shall be obliged to pay, as a reward to the
finder, one-tenth of the sum or of the price
of the thing found.

is

Requisites of Title
(a) Possession in GF;
(b) The owner has voluntarily parted with
the possession of the thing; and
(c) The possession is in the concept of an
owner.
(2) Nevertheless, one who has lost any
movable or has been unlawfully deprived
thereof may recover it from the person in
possession.
When the owner can recover
(a) Has lost the thing; or
(b) Has been unlawfully deprived thereof.
(3) If the current possessor has acquired it in
good faith at a public sale, owner must
reimburse the price paid in order to recover
the property.

E.2. PERIOD TO RECOVER [NCC 1140,


1132, 1133]

E.4. DISTINGUISHED FROM VOIDABLE


TITLE [NCC 1506]

(1) Actions to recover movable properties


prescribe after 8 years from the time the
possession thereof is lost, unless the
possessor has acquired the ownership by
prescription for a lesser period.
(2) Ownership
of
movable
properties
prescribes
through
uninterrupted
possession for 4 years in good faith.
(3) Ownership of personal property also
prescribes
through
uninterrupted
possession for 8 years, without need of any
other condition.

(1) A seller of goods with a voidable title not


avoided at the time of the sale: The buyer
acquires a good title to the goods,
provided he buys them in good faith, for
value, and without notice of the seller's
defect of title.
(2) A movable lost or which the owner has
been unlawfully deprived acquired by a
possessor in good faith at a public sale:
The owner can always recover the

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movable provided he reimburses the price


paid.

CIVIL LAW

authorizes the owner to do until he is


ousted by one who has a better right.
(7) This is whether possession is in good faith
or in bad faith [NCC. 528]

F. EFFECTS OF POSSESSION IN THE


CONCEPT OF AN OWNER

PRESUMPTION IN FAVOR OF THE


POSSESSORFOR
ACQUISITIVE
PRESCRIPTION

Possession may lapse and ripen into full


ownership.
General Rule: Presumption of just title and
cannot be obliged to show or prove it. [NCC
541]
Basis: Possession is presumed ownership,
unless the contrary is proved. This
presumption is prima facie and it prevails
until contrary is proved.
Just title: that which is legally sufficient to
transfer the ownership or the real right to
which it relates.
For the purposes of prescription, there is just
title when the adverse claimant came into
possession of the property through one of
the modes recognized by law for the
acquisition of ownership or other real rights,
but the grantor was not the owner or could
not transmit any right. [NCC 1129]

(1) Of good faith until contrary is proved


(NCC 527)
(a) Presumption is only juris tantum
because possession is the outward
sign of ownership. Unless such proof
of bad faith is presented, the
possessor will be held to be in good
faith.
(b) So long as the possessor is not
actually aware of any defect
invalidating his title, he is deemed a
possessor in good faith.
(2) Of continuity of initial good faith in which
possession was commenced; possession
in good faith does not lose this character
except in case and from the moment
possessor became aware or is not
unaware of improper or wrongful
possession
(NCC 528)
(a) Good faith ceases from the date of the
summons to appear at the trial.
[Cordero v Cabral (1983)]
(b) Good faith ceases when there is:
(i) Extraneous evidence; or
(ii) A suit for recovery of the property
by the true owner.

Exception For the purposes of prescription, just


title must be proved; it is never presumed.
[NCC 1131]
(1) Possessor may bring all actions necessary
to protect his possession except accion
reivindicatoria.
(2) May employ self-help under Art. 429.
(3) Possessor may ask for inscription of such
real right of possession in the registry of
property.
(4) Has right to the fruits and reimbursement
of expenses (assuming he is possessor in
good faith)
(5) Upon recovery of possession which he was
unlawfully deprived of, may demand fruits
and damages.
(6) Generally, he can do on the things
possessed everything that the law

(3) Of enjoyment of possession in the same


character in which possession was
required until contrary is proved [NCC
529]
(4) Of non-interruption of possession in favor
of present possessor who proves

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possession at a previous time until the


contrary is proved [NCC 554]
(a) Possession is interrupted for the
purposes of prescription, naturally or
civilly. [NCC 1120]
(b) Possession is naturally interrupted
when through any cause it should
cease for more than one year [NCC 1121]
(c) Old possession is not revived if a new
possession should be exercised by the
same adverse claimant [NCC 1121]
(d) If the natural interruption is for only
one year or less, the time elapsed shall
be counted in favor of the prescription
[NCC 1122]
(e) Civil interruption is produced by
judicial summons to the possessor.
[NCC 1123]
(f) Judicial summons shall be deemed not
to have been issued and shall not give
rise to interruption [NCC 1124]:
(i) If it should be void for lack of legal
solemnities;
(ii) If the plaintiff should desist from
the complaint or should allow the
proceedings to lapse;
(iii) If the possessor should be absolved
from the complaint
(g) In all these cases, the period of the
interruption shall be counted for the
prescription

CIVIL LAW

(i) Possession of hereditary property


is deemed transmitted to the heir
without interruption and from the
moment of the death of the
decedent
(c) Of just title in favor of possessor in
concept of owner (NCC 541)
(d) Exclusive Possession of Common
Property (NCC. 543)

G.
LOSS/TERMINATION
POSSESSION [NCC 555]

OF

(1) By the abandonment of the thing;


(2) By an assignment made to another either
by onerous or gratuitous title;
(3) By the destruction or total loss of the
thing, or because it goes out of
commerce;
(4) By the possession of another, subject to
the provisions of Art. 537, if the new
possession has lasted longer than 1 year.
But the real right of possession is not lost
till after the lapse of 10 years.

G.1. ABANDONMENT
Includes the giving up of possession, and
not necessarily of ownership by every
possessor.
It is the opposite of occupation. It consists of
the voluntary renunciation of all the rights
which the person may have in a thing, with
intent to lose such a thing. To be effective, it
is necessary that it be made by a possessor
in the concept of an owner.
It must be clearly appear that the spes
recuperandi is gone and the animus
revertendi is finally given up.

(5) Non-interruption of possession of property


unjustly lost but legally recovered
[NCC. 561]
(6) Other presumptions with respect to
specific properties of property rights
(a) Of extension of possession of real
property to all movables contained
therein so long as in is not shown that
they should be excluded (NCC 542)
(b) Non-interruption of possession of
hereditary property (NCC 553)

G.2.
ASSIGNMENT,
GRATUITOUS OR ONEROUS

EITHER

Complete transmission of ownership rights to


another person, gratuitously or onerously.

G.3. POSSESSION BY ANOTHER; IF


POSSESION HAS LASTED LONGER
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THAN ONE YEAR; REAL RIGHT OF


POSSESSION NOT LOST AFTER 10
YEARS SUBJECT TO NCC 537

CIVIL LAW

care of man; they are under the ownership


of man, and do not become res nullius
unless they are abandoned.

(1) Acts merely tolerated, and those executed


clandestinely and without the knowledge
of the possessor of a thing, or by violence,
do not affect possession.
(2) Possession that is lost here refers only to
possession as a fact (de facto), not the
legal right of possession (de jure). It is the
possession that the new possessor
acquires.
(3) Real right of possession is lost only after 10
years.
(4) After 1 year, the actions for forcible entry
and unlawful detainer can no longer be
brought. But accion publiciana may still be
instituted to recover possession de jure.

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

A. OBJECTS OF USUFRUCT
(1) Independent Rights
A servitude which is dependent on the
tenement to which it attaches cannot be
the object of usufruct.
(2) Things
(a) Non-consumable things.
(b) Consumable things, but only as to
their value if appraised, or on an equal
quantity and quality if they were not
appraised.

H. RULES FOR LOSS OF MOVABLES


(1) The possession of movables is not deemed
lost so long as they remain under the
control of the possessor, even though for
the time being he may not know their
whereabouts. (NCC 556)
(2) Control judicial control or right, or that
the thing remains in ones patrimony.
(3) Wild animals are possessed only while they
are under one's control. (NCC 560)
(a) Domesticated or tamed animals if
they retain the habit of returning to the
premises of the possessor.

(3) Unproductive things


e.g. sterile or absolutely unproductive land,
or things for mere pleasure, such as
promenades, statues or paintings, even if
they do not produce any utility.

B. CHARACTERISTICS
(1) It is a real right;
(2) Of temporary duration;
(3) The purpose is to derive all advantages
from the thing due to normal exploitation.

I. KINDS OF ANIMALS
(1) Wild those which live naturally
independent of man.
(2) Domesticated those which, being wild by
nature, have become accustomed to
recognize the authority of man. When they
observe this custom, they are placed in the
same category as domestic and when they
lose it, they are considered as wild.
(3) Domestic or Tame those which are born
and reared ordinarily under the control and

B.1. NATURAL CHARACTERISTICS


(1) Includes only the right to use (jus utendi)
and the right to the fruits (jus fruendi).
(2) Usufructuary must preserve the form or
substance of the thing.
(a) Preservation is a natural requisite, not
essential because the title constituting
it or the law may provide otherwise.

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(b) Reasons for preserving form and


substance
(i) To
prevent
extraordinary
exploitation;
(ii) To prevent abuse, which is
frequent;
(iii) To prevent impairment.
(c) Exception: In an abnormal usufruct,
alteration is allowed.
(3) Usufruct is extinguished by the death of
the usufructuary.
(a) Natural because a contrary intention
may prevail.

CIVIL LAW

(i) If the usufructuary is authorized to


alienate the thing in case of
necessity, it is the usufructuary
who determines the question of
necessity.

C.2. BY PERSON ENJOYING THE RIGHT


OF USUFRUCT
(1) Simple: only one usufructuary enjoys the
property.
(2) Multiple: several usufructuaries enjoy the
property.
(a) Simultaneous: at the same time.
(b) Successive: one after the other.

C. CLASSIFICATION

Limitations On Successive Usufruct


(1) If usufruct is by donation, ALL donees
must be alive. [NCC 756]
(2) Fiduciary or first heir and the second heir
must be alive at the time of the death of
the testator. [NCC 863]
(3) If by testamentary succession, there must
be only 2 successive usufructuaries, and
both must be alive or at least already
conceived at the time of the testators
death. [NCC 869]

C.1. BY ORIGIN
(1) Voluntary: created by the will of private
persons
(a) By act inter vivos such as contracts
and donations:
(i) By alienation of the usufruct;
(ii) By retention of the usufruct;
(iii) Where a usufruct is constituted
inter vivos and for valuable
consideration, the contract is
unenforceable unless in writing.
(b) By act mortis causa such as
testament.

C.3. BY OBJECT OF USUFRUCT


Usufruct may be constituted on the whole or a
part of the fruits of the thing or on a right,
provided it is not strictly personal or
intransmissible. [NCC 564]

(2) Legal: as provided by law.


Usufruct of parents over the property of
unemancipated children. (now limited to
the collective daily needs of the family)
[(FC 26)]

RIGHTS
(1) Must not be strictly personal or
intransmissible.
(2) Usufruct over a real right is by itself a real
right.
(a) Right to receive present or future
support cannot be the object of the
usufruct.

(3) Mixed: created both by law and the acts of


persons.
(a) The rights and duties of the
usufructuary provided by law may be
modified or eliminated by the parties.
(b) The title constituting the usufruct may
validly authorize the usufructuary to
alienate the thing itself held in
usufruct.

THINGS

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(1) Normal: involves non-consummable things


where the form and substance are
preserved.
(2) Abnormal or irregular: when the usufruct
includes things which cannot be used
without being consumed.
(a) The usufructuary has right to make use
of them under the obligation of paying
their appraised value at the
termination of the usufruct, if they
were appraised when delivered.
(b) If they were not appraised, he has the
right to return the same quantity and
quality, or pay their current price at the
time the usufruct ceases. [NCC 574]
(c) In reality, the usufruct is not upon the
consumable things themselves, but
upon the sum representing their value
or upon a quantity of things of the
same kind and quality.
(d) The usufructuary, in effect, becomes
the owner of the things in usufruct,
while the grantor becomes a mere
creditor entitled to the return of the
value or of the things of the same
quantity and quality (as if converted
into a simple loan).

CIVIL LAW

the donor, if the clause does not contain any


declaration to the contrary, the former is
understood to be liable to pay only the debts
which appear to have been previously
contracted. In no case shall the donee be
responsible for the debts exceeding the value
of the property donated, unless a contrary
intention clearly appears.
NCC 759: There being no stipulation
regarding the payment of debts, the donee
shall be responsible therefor only when the
donation has been made in fraud of creditors.
The donation is always presumed to be in
fraud of creditors, when at the time thereof
the donor did not reserve sufficient property
to pay his debts prior to the donation.

C.5. BY THE TERMS OF THE USUFRUCT


(1) Pure: no terms or conditions.
(2) Conditional:
either
suspensive
or
resolutory.
(3) With a term or period
(a) Ex die: from a certain day.
(b) In diem: up to a certain day.
(c) Ex die in diem: from a certain day up
to a certain day.

D. RIGHTS AND OBLIGATIONS OF


USUFRUCTUARY

C.4. BY THE EXTENT OF THE USUFRUCT


AS TO THE FRUITS

D.1. RIGHTS AS TO THE THING AND ITS


FRUITS

(1) Total: all consumed by the usufruct.


(2) Partial: only on certain aspects of the
usufructs fruits.

RIGHT TO ENJOY THE PROPERTY

AS TO THE OBJECT

Right to enjoy the property to the same extent


as the owner, but only with respect to its use
and the receipt of its fruits.
(1) Usufructuary cannot extract products
which do not constitute fruits because he
is bound to preserve the form and
substance of the thing.
(2) Usufructuary rights may be transferred,
assigned or otherwise disposed of by the
usufructuary.

(1) Singular: only on particular property of the


owner.
(2) Universal: pertains to the whole property;
A universal usufructuary must pay the
debts of the naked owner, if stipulated.
Article 758 and 759 on donations apply.
NCC 758: When the donation imposes upon
the donee the obligation to pay the debts of

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CIVIL LAW

(3) Not exempt from execution and can be


sold at public auction.

possessor
and
usufructuary

HIDDEN TREASURE

Fruits already matured at the time of the


termination of the usufruct, which ordinarily
would have already been gathered by the
usufructuary, may remain ungathered for no
fault imputable to him, but because of malice
or an act imputable to the naked owner or a
3rd person, or even due to force majeure or
fortuitous event.

As to hidden treasure, usufructuary is


considered a stranger without a right to a
share, unless he is also the finder of the
treasure
(1) With respect to hidden treasure which may
be found on the land or tenement, he shall
be considered a stranger.
(2) Hidden treasure belongs to the owner of
the land, building, or other property on
which it is found.
(3) Nevertheless, when the discovery is made
on the property of another, or of the State
or any of its subdivisions, and by chance,
one-half thereof shall be allowed to the
finder.

RIGHT TO CIVIL FRUITS


(1) Civil fruits deemed to accrue daily, and
belong to the usufructuary in proportion
to the time the usufruct may last.
(2) Whenever a usufruct is constituted on the
right to receive a rent or periodical
pension, whether in money or in fruits, or
in the interest on bonds or securities
payable to bearer, each payment due
shall be considered as the proceeds or
fruits of such right.
(3) Whenever it consists in the enjoyment of
benefits accruing from a participation in
any industrial or commercial enterprise,
the date of the distribution of which is not
fixed, such benefits shall have the same
character.
(a) In either case, they shall be
distributed as civil fruits.

RIGHT TO FRUITS PENDING AT THE


BEGINNING OF USUFRUCT
Fruits pending at the
beginning of the usufruct
Belong
to
usufructuary

the

Fruits pending at the


termination of the
usufruct

the Belong to the naked


owner

Without
need
to The owner shall
reimburse the expenses reimburse to the
to the owners
usufructuary
ordinary cultivation
expenses from the
proceeds of the
fruits (not to exceed
the value of the
fruits)

*Note: If the usufruct is constituted only on


the land and not the building built thereon
then the right to the fruits by the usufructuary
would not extend to the building. The
building is considered as a separate and
distinct prinicipal which produces its own
fruits. [Gabuya v Cui (1971)]

Without prejudice to the Rights of innocent


right of 3rd persons e.g. if 3rd parties should
the fruits had been not be prejudiced.
planted by a possessor in
good faith, the pending
crop
expenses
and
charges
shall
be
prorated between said

RIGHT TO ENJOY ANY INCREASE


THROUGH
ACCESSIONS
AND
SERVITUDES, INCLUDING PRODUCTS
OF HUNTING AND FISHING.
RIGHT TO LEASE THE THING

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General rule: The usufructuary may lease the


thing to another but this shall terminate upon
the expiration of the usufruct, saving leases of
rural lands, which shall be considered as
subsisting during the agricultural year.

CIVIL LAW

(a) As corollary to the right of the


usufructuary to all the rent, to choose
the tenant, and to fix the amount of
the rent, she necessarily has the right
to choose herself as the tenant
thereof; and, as long as the
obligations she had assumed towards
the owner are fulfilled. [Fabie v.
Gutierrez David (1945)]
(6) A lease executed by the owner before the
creation of the usufruct is not
extinguished by such usufruct.

Exceptions
(1) Legal usufructs cannot be leased.
(2) Caucion juratoria (lease would show that
the usufructuary does not need the
property badly)
Effect of the transfer of right:
(1) The transfer or lease of the usufruct does
NOT terminate the relation of the
usufructuary with the owner.
(2) Death of the transferee does not terminate
the usufruct but it terminates upon the
death of the usufructuary who made the
transfer.

Limitations on the Right to Lease the Property


(1) Usufructuary cannot alienate a thing in
usufruct:
(a) Cannot alienate or dispose of the
objects included in the usufruct;
(b) Cannot renounce a servitude;
(c) Cannot mortgage or pledge a thing.
(d) EXCEPT:
(i) When the right of usufruct is
converted into the right of
ownership;
(ii) When the things are consumable;
(NCC 574);
(iii) When the things by their nature
are intended for sale, such as the
merchandise in a commercial
establishment; and
(iv) When the things, whatever their
nature, are delivered under
appraisal as equivalent to their
sale.
(2) Future crops may be sold but such sale
would be void if not ratified by the owner.
(a) The buyers remedy is to recover from
the usufructuary.
(3) Only voluntary usufruct can be alienated.
(4) The usufructuary-lessor is liable for the
act of the substitute.
(a) A usufructuary who alienates or
leases his right of usufruct shall
answer for any damage which the
things in usufruct may suffer through

RULES AS TO LEASE
(3) The property in usufruct may be leased
even without the consent of the owner.
(4) The lease should be for the same period as
the usufruct.
(a) EXCEPT: leases of rural lands
continues for the remainder of the
agricultural year.
(b) A lease executed by the usufructuary
before the termination of the usufruct
and subsisting after the termination of
the usufruct must be respected, but
the rents for the remaining period will
belong to the owner.
(c) If the usufructuary has leased the lands
or tenements given in usufruct, and the
usufruct should expire before the
termination of the lease, he or his heirs
and successors shall receive only the
proportionate share of the rent that
must be paid by the lessee.
[NCC, 568]
(5) It is the usufructuary and not the naked
owner who has the right to choose the
tenant.

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CIVIL LAW

D.2. RIGHTS AS TO THE LEGAL RIGHT


OF USUFRUCT ITSELF

the fault or negligence of the person


who substitutes him. [NCC, 590]

RIGHT TO IMPROVE THE THING, BUT


IMPROVEMENT
INURES
TO
THE
BENEFIT OF THE NAKED OWNER

RIGHT TO
USUFRUCT

MORTGAGE

RIGHT

OF

(1) The usufructuary may alienate his right of


usufruct, even by a gratuitous title; but all
the contracts he may enter into as such
usufructuary shall terminate upon the
expiration of the usufruct. [NCC. 572]
(2) Does not include parental usufruct
because of personal and family
considerations.

(1) Usufructuary
is
not
entitled
to
reimbursement.
(2) Whenever the usufructuary can remove the
improvements without injury to the
property in usufruct, he has the right to do
so, and the owner cannot prevent him from
doing so even upon payment of their value.
(3) This right does not involve an obligation
if the usufructuary does not wish to
exercise it, he cannot be compelled by the
owner to remove the improvements.
(4) This right to remove improvements can be
enforced only against the owner, not
against a purchaser in good faith to whom
a clean title has been issued.
(5) Usufructuary may set off the improvements
against any damage to the property.
(a) The improvements should have
increased the value of the property,
and that the damages are imputable to
the usufructuary.
(b) Increase in value and the amount of
damages are set off against each
other.
(c) If the damages exceed the increase in
value, the difference should be paid by
the usufructuary as indemnity.
(d) If the increase in value exceeds the
damages, and the improvements are of
such nature that they can be removed
without injury to the thing in usufruct,
the settlement of the difference must
be agreed upon by the parties.
(e) If the improvements cannot be
removed without injury, the excess in
value accrues to the owner.
(6) Registration of improvements to protect
usufructuary against 3rd persons

RIGHT TO ALIENATE THE USUFRUCT


EXCEPT
IN
PURELY
PERSONAL
USUFRUCTS
OR
WHEN
TITLE
CONSTITUTING IT PROHIBITS THE
SAME
Parental usufruct is inalienable.

D.3. OBLIGATIONS AT THE BEGINNING


OF THE USUFRUCT OR BEFORE
EXERCISING THE USUFRUCT
(1) To make, after notice to the owner or his
legitimate representative, an inventory of
all the property, which shall contain an
appraisal of the movables and a
description of the condition of the
immovables; and
(2) To give security, binding himself to fulfill
the obligations imposed upon him in
accordance with this Chapter.
Note: These requirements are NOT conditions
precedent to the commencement of the right
of the usufruct but merely to the entry upon
the possession and enjoyment of the property.

TO MAKE AN INVENTORY
(1) Requisites
(a) Immovables must be described; and
(b) Movables must be appraised because
they are easily lost or deteriorated.

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(2) Concurrence of the owner in the making of


the inventory.
(3) Expenses for the making of the inventory
are borne by the usufructuary.
(4) The inventory may be in a private
document, except when immovables are
involved. (a public instrument is prescribed
to affect 3rd persons)
(5) Failure to make an inventory does not
affect the rights of the usufructuary to
enjoy the property and its fruits.
(a) A prima facie presumption arises that
the property was received by the
usufructuary in good condition.
(b) Even if he is already in possession, he
may still be required to make an
inventory.
(6) Exception to the requirement of inventory
(a) When no one will be injured, the
usufructuary may be excused from this
obligation.

CIVIL LAW

(iii) Approval of the court; and


(iv) Sworn promise.
(b) A usufructuary under this can neither
alienate his right nor lease the property,
for that would mean that he does not
need the dwelling or the implements
and furniture.
(4) Effect of filing a bond
(a) Retroactivity: upon giving the security,
the usufructuary will be entitled to all
the benefits accruing since the time
when he should have begun to receive
them.
(5) Effect of failure to give bond: [NCC 586]
(a) The owner may demand that the
immovable properties be placed
under administration;
(i) That the movable properties be
sold;
(ii) That
the
public
bonds,
instruments of credit payable to
order or to bearer be converted
into registered certificates or
deposited in a bank or public
institution; and
(iii) That the capital or sums in cash
and the proceeds of the sale of
the movable property be invested
in safe securities.
(b) The owner may, until the usufructuary
gives security, retain in his possession
the property in usufruct as
administrator,
subject
to
the
obligation to deliver to the
usufructuary the net proceeds, after
deducting the sums, which may be
agreed upon or judicially allowed him
for such administration.

TO GIVE A BOND FOR THE FAITHFUL


PERFORMANCE
OF
DUTIES
AS
USUFRUCTUARY
(1) Any kind of sufficient security is allowed,
e.g. cash, personal bond, mortgage.
(2) No bond is required in the following:
(a) No prejudice would result; [Art. 585]
(b) Usufruct is reserved by a donor; [Art.
584]
(i) Gratitude on the donees part
demands that the donor be
excused from filing the bond.
(c) Title constituting usufruct excused
usufructuary.
(3) A usufructuary may take possession under
a caucion juratoria (bond by oath) [Art. 587]
(a) It is only by way of exception that a
caucion juratoria is allowed, and only
under the special circumstances:
(i) Proper court petition;
(ii) Necessity for delivery of furniture,
implements or house included in
the usufruct;

D.4. DURING THE USUFRUCT


(1) To take care of the thing like a good father
of a family;
(2) To undertake ordinary repairs;
(3) To notify owner of need to undertake
extraordinary repairs;

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(4) To pay for annual charges and taxes on the


fruits;
(5) To notify owner of any act detrimental to
ownership;
(6) To shoulder the costs of litigation
regarding the usufruct; and
(7) To answer for fault or negligence of
alienee, lessee or agent of usufructuary.

CIVIL LAW

(3) If the defects are caused by the ordinary


use of the thing, the usufructuary may
exempt himself from making the repairs
by returning to the owner the fruits
received during the time that the defects
took place.
Except: When the ordinary repairs are due
to defects caused by the fault of the
usufructuary

TO TAKE CARE OF THE THING LIKE A


GOOD FATHER OF A FAMILY
(1) When damages are caused to the property
by the fault or negligence of the
usufructuary, the naked owner need not
wait for the termination of the usufruct
before bringing the action to recover
proper indemnity.
(2) The bad use of a thing, which causes
considerable injury, entitles the owner to
demand the delivery and administration of
the thing.
(3) The exercise of this remedy does NOT
extinguish the usufruct.

(4) If the usufructuary fails to make the


repairs even after demand, the owner may
make them at the expense of the
usufructuary

TO NOTIFY OWNER OF NEED TO


UNDERTAKE
EXTRAORDINARY
REPAIRS
(1) Extraordinary repairs
(a) Those
caused
by
exceptional
circumstances, whether or not they are
necessary for the preservation of the
thing; or
(b) Those caused by the natural use of the
thing, but are not necessary for its
preservation.

TO UNDERTAKE ORDINARY REPAIRS


The usufructuary is obliged to make the
ordinary repairs needed by the thing given in
usufruct. [NCC 592]
(1) Ordinary repairs:
(a) Such as are required by the wear and
tear due to the natural use of the thing
and are indispensable for its
preservation;
(b) Deteriorations or defects arise from the
natural use of the thing;
(c) Repairs are necessary for the
preservation of the thing.

(2) General Rule: Naked owner must make the


extraordinary repairs.
The usufructuary is obliged to pay legal
interest on the amount while usufruct
lasts.
(3) If the extraordinary repairs are
indispensable, and the naked owner fails
to undertake them, the usufructuary may
make such repairs.
(4) Requisites:
(a) There must be due notification to the
naked owner of the urgency if it is
not urgent, there is no obligation to
give notice;

(2) The usufructuary is bound to pay only for


the repairs made during the existence of
the usufruct.
(a) If the defects existed already at the
time the usufruct began, the obligation
to defray the ordinary repairs falls
upon the owner.

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(i) The naked owner failed to make


them; and
(ii) The repair is needed for
preservation.
(b) The usufructuary that has made the
extraordinary repairs necessary for
preservation is entitled to recover from
the owner the increase in value, which
the tenement acquired by reason of
such works.
(c) Usufructuary may retain until he is
paid.

To deliver the thing in usufruct to the owner in


the condition in which he has received it, after
undertaking ordinary repairs.
Exception: Abnormal usufruct A thing of the
same kind, quantity and quality is returned; if
with appraised value, must return value
appraised.

E. SPECIAL CASES OF USUFRUCT


E.1. USUFRUCT OVER A PENSION OR A
PERIODICAL INCOME [NCC 570]
(1) Each payment due shall be considered as
the proceeds or fruits of such right.
(2) The usufruct shall be distributed as civil
fruits.

TO PAY FOR ANNUAL CHARGES AND


TAXES ON THE FRUITS
It is well settled that a real tax, being a burden
upon the capital, should be paid by the owner
of the land and not by a usufructuary. There is
no merit in the contention of distinguishing
public lands into alienable and indisposable. All
properties owned by the government, without
any distinction, are exempt from taxation.
[Board of Assessment Appeals of Zamboanga
del Sur v. Samar Mining Company, Inc.(1971)]

TO NOTIFY OWNER OF ANY


DETRIMENTAL TO OWNERSHIP
(NCC 601)

CIVIL LAW

E.2. USUFRUCT OF PROPERTY OWNED


IN COMMON [NCC 582]
(1) The usufructuary takes the place of the
owner as to:
(a) Management;
(b) Fruits; and
(c) Interest.
(2) Effect of partition:
(a) The right of the usufructuary is not
affected by the division of the property
in usufruct among the co-owners.
(b) After partition, the usufruct is
transferred to the part allotted to the
co-owner.

ACT

TO SHOULDER THE COSTS OF


LITIGATION
REGARDING
THE
USUFRUCT (NCC 602)

E.4. USUFRUCT CONSTITUTED ON A


FLOCK OR HERD OF LIVESTOCK
[NCC 591]

TO
ANSWER
FOR
FAULT
OR
NEGLIGENCE OF THE ALIENEE, LESSEE
OR AGENT OF THE USUFRUCTUARY
(NCC 590)

(1) On sterile stock: same rules on


consumable property govern. (i.e.
replacement upon termination)
(2) On fruitful stock:
(a) Must replace ordinary losses of the
stock with the young if:
(i) Some animals die from natural
causes; or
(ii) Some animals are lost due to
rapacity of beasts of prey.

The usufructuary is made liable for the acts of


the substitute. While the substitute answers to
the usufructuary, the usufructuary answers to
the naked owner.

D.5. AT THE TIME OF THE TERMINATION


OF THE USUFRUCT

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(b) No obligation to replace if:


(i) There is a total loss of animals
because of some unexpected or
unnatural loss (like contagious
disease or any other uncommon
event, provided the usufructuary
has no fault); or
If all perish, the usufructuary
should deliver the remains to
the owner.
(ii) There is a partial loss.
If a part of the stock perishes,
the usufruct subsists on the
remainder.

E.8. USUFRUCT OVER AN ENTIRE


PATRIMONY [NCC 598]
Applies when:
(1) The usufruct is a universal one
(2) And the naked owner Has debts or is
obliged to make periodical payments
(whether or not there be known capital)
General rule: The usufructuary is not liable for
the owners debts.
Exceptions:
(1) When it is so stipulated; in which case the
usufructuary shall be liable for the debt
specified;
(2) If there is no specification, he is liable only
for debts incurred by the owner before the
usufruct was constituted; or
(3) When the usufruct is constituted in fraud
of creditors.

E.5. USUFRUCT OVER FRUIT BEARING


TREES AND SPROUT AND WOODLANDS
[NCC 575-576]
The usufructuary can:
(1) Use dead trunks and those cut off or
uprooted by accident;
(2) Make usual cuttings that owner used to do;
and
(3) Cut the trees that are not useful.

In no case shall the usufructuary be


responsible for debts exceeding the benefits
under the usufruct. (except when the contrary
intention appears)

E.6. USUFRUCT ON A RIGHT OF ACTION


[NCC 578]

E.9. USUFRUCT OVER DETERIORABLE


PROPERTY

(1) The action may be instituted in the


usufructuarys name. As the owner of the
usufruct, he is properly deemed a proper
party-in-interest.
(2) If the purpose is the recovery of the
property or right, he is still required under
Art. 578 to obtain the naked owners
authority.
(3) If the purpose is to object to or prevent
disturbances over the property, no special
authority from the naked owner is needed.

E.7. USUFRUCT ON
PROPERTY [NCC 600]

CIVIL LAW

(1) The usufructuary shall have the right to


make use thereof in accordance with the
purpose for which they are intended.
(2) It is sufficient if the usufructuary returns
the things in the condition in which they
may have been found at the time of the
expiration of the usufruct despite ordinary
defects caused by use and deterioration
produced by age and time.
Except: when such defects were caused
through the usufructuarys fraud and
negligence.
(3) If the usufructuary does not return the
things upon the expiration of the usufruct,
he should pay an indemnity equivalent to
the value of the things at the time of such
expiration.

MORTGAGED

(1) When the usufruct is universal and some


objects are mortgaged, apply Art. 598.
(2) If the usufructuary mortgaged the usufruct
himself, he is liable to pay his own debt.

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E.10. USUFRUCT OVER CONSUMABLE


PROPERTY [NCC 574]

G.1. DEATH OF USUFRUCTUARY


Exceptions
(1) In multiple usufructs: it ends at the death
of the last survivor (NCC 611)
(a) If simultaneously constituted: all the
usufructuaries must be alive (or at
least conceived) at the time of
constitution.
(b) If successively constituted:
(i) If by virtue of donation all the
donees-usufructuaries must be
living at the time of the donation;
(ii) If by will there should only be 2
successive usufructuaries and
both must have been alive at the
time of testators death.

(1) The usufructuary shall have the right to


make use of them under the obligation of
paying their appraised value at the
termination of the usufruct, if they were
appraised when delivered.
(2) If not appraised, he shall have the right to
return at the same quantity and quality, or
pay their current price at the time the
usufruct ceases.

F. RIGHTS OF THE OWNER


(1) At the beginning of the usufruct
See obligations of usufructuary at the
beginning of the usufruct)
(2) During the usufruct
(a) Retains title to the thing or property.
(b) He may alienate the property: he may
not alter the form or substance of the
thing; nor do anything prejudicial to
the usufructuary.
(c) He may construct buildings, make
improvements and plantings, provided:
(i) The value of the usufruct is not
impaired; and
(ii) The rights of the usufructuary are
not prejudiced.

G.
EXTINGUISHMENT
TERMINATION [NCC 603]

CIVIL LAW

(2) If the period is fixed by reference to the life


of another or there is a resolutory condition.
Death does not affect the usufruct and the
right is transmitted to the heirs of the
usufructuary until the expiration of the
term or the fulfillment of the condition.
(3) When a contrary intention clearly
appears:
(a) If the usufructuary dies before the
happening of a resolutory condition,
the usufruct is extinguished.
(b) Usufruct is personal and it CANNOT
be extended beyond the lifetime of
the usufructuary. [Sanchez Roman
and SC]

(1) By the death of the usufructuary, unless a


contrary intention clearly appears;
(2) By the expiration of the period for which it
was constituted, or by the fulfillment of any
resolutory condition provided in the title
creating the usufruct;
(3) By merger of the usufruct and ownership in
the same person;
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the
person constituting the usufruct; or
(7) By prescription.

G.2. EXPIRATION OF PERIOD OR


FULFILLMENT
OF
RESOLUTORY
CONDITION IMPOSED ON USUFRUCT
BY PERSON CONSTITUTING USUFRUCT
(1) In favor of juridical persons [NCC. 605]
(a) Usufruct cannot be constituted in
favor of a town, corporation, or
association for more than fifty years.
(b) If before the expiration of such period
the town is abandoned, or the

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corporation or association is dissolved,


the usufruct shall be extinguished.
(2) Time that may elapse before a 3rd person
attains a certain age. [NCC. 606]
(a) Usufruct subsists for the number of
years specified, even if the 3rd person
should die before the period expired
unless the usufruct has been expressly
granted only in consideration of the
existence of the person.

Situation

Illustration: H was the usufructuary of land


owned by X. x dies, leaving in his will, the
naked ownership of the land to H. the usufruct
is extinguished because now H is both the
naked owner and the usufructuary.

Art. 608
If destroyed property is insured before
termination of the usufruct

G.4. RENUNCIATION OF USUFRUCT


(1) Waiver: A voluntary surrender of the rights
of the usufructuary, made by him with the
intent to surrender them.

(2) Limitations:
(a) Must be express: tacit renunciation is
not sufficient;
(b) Does not need the consent of naked
owner; and
(c) If made in fraud of creditors, they may
rescind the waiver through an action
under Article 1381 (accion pauliana).

Situation

LOSS

When
insurance
premium paid by
owner
and
usufructuary (par. 1)

If
owner
rebuilds,
usufruct subsists on
new building.
If owner does not
rebuild, interest upon
insurance
proceeds
paid to usufructuary.

When the insurance


taken by the naked
owner only because
usufructuary refuses
to contribute to the
premium (par. 2)

Owner
entitled
to
insurance money (no
interest
paid
to
usufructuary).
If he does not rebuild,
usufruct continues over
remaining land and/or
owner may pay interest
on value of both
materials and land
(607).
If
owner
rebuilds,
usufruct
does
not
continue
on
new
building, but owner
must pay interest on
value of land and old
materials.

OF

Effect

Art. 607
If destroyed property is not insured
If the building forms
part
of
an
immovable under
usufruct

Effect

If usufruct is on the Usufruct continues over


building only
the land and materials
(plus interests), if owner
does not rebuild.
If
owner
rebuilds,
usufructuary
must
allow owner to occupy
the land and to make
use of materials; but
the owner must pay
interest on the value of
both the land and the
materials.

G.3. MERGER OF RIGHTS OF USUFRUCT


AND NAKED OWNERSHIP IN ONE
PERSON

G.5. EXTINCTION OR
PROPERTY [NCC 608]

CIVIL LAW

Usufruct continues over


the land and materials
(plus interests), if owner
does not rebuild.

When

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Situation

Effect

taken
by
usufructuary
only
depends on value of
usufructuarys
insurable interest

to the usufructuary.
No
obligation
to
rebuild.
Usufruct continues on
the land.
Owner has no share in
insurance proceeds.

CIVIL LAW

(3) If usufructuary alone was given the


indemnity, he must give it to the naked
owner and compel the latter to return
either the interest or to replace the
property. He may even deduct the interest
himself, if the naked owner fails to object.

H.2. BAD USE OF THING IN USUFRUCT


[NCC 610]
Bad use does not extinguish the usufruct but:
(1) Entitles the owner to demand delivery and
administration of the thing.
(2) The bad use must cause considerable
injury not to the thing, but to the owner.

G.6. TERMINATION OF THE RIGHT OF


PERSON CONSTITUTING THE USUFRUCT
Example: usufructs constituted by a vendee a
retro terminate upon redemption.

G.7. PRESCRIPTION

IX. Easement

(1) Adverse possession against the owner or


the usufructuary.
(2) It is not the non-use which extinguishes the
usufruct by prescription, but the use by a
3rd person.
(3) There can be no prescription as long as the
usufructuary receives the rents from the
lease of the property, or he enjoys the price
of the sale of his right.

(1) An encumbrance imposed upon an


immovable for the benefit of another
immovable belonging to a different
owner. [NCC. 613]
(2) A real right which burdens a thing with a
prestation of determinate servitudes for
the exclusive enjoyment of one who is
NOT an owner of a tenement.
(3) A real right by virtue of which the owner
has to ABSTAIN from doing or ALLOW
somebody else to do something to his
property for the benefit of another.
Dominant Estate the immovable in favor of
which the easement is established.

H. CONDITIONS NOT AFFECTING


USUFRUCT
H.1. EXPRORPIATION OF THING IN
USUFRUCT [NCC 609]

Servient Estate the immovable which is


subject to the easement .

3 SITUATIONS
(1) If naked owner alone was given the
indemnity, he has the option:
(a) To replace with equivalent thing; or
(b) To pay to the usufructuary legal
interest on the indemnity. This requires
a security to be given by the naked
owner for the payment of the interest.
(2) If both the naked owner and the
usufructuary were separately given
indemnity, each owns the indemnity given
to him, the usufruct being totally
extinguished.

A. CHARACTERISTICS
A.1. ESSENTIAL FEATURES:
(1) It is a real right it gives an action in rem
or real action against any possessor of the
servient estate
(a) Owner of the dominant estate can file
a real action for enforcement of right
to an easement

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(b) Action in rem: an action against the


thing itself, instead of against the
person.

CIVIL LAW

patendo), but not in the right to demand


that the owner of the servient do
something (servitus in faciendo) except if
such act is an accessory obligation to a
praedial servitude (obligation propter rem)
Servient owner merely allows something
to be done to his estate.

(2) It is a right enjoyed over another property


(jus in re aliena) it cannot exist in ones
property (nulli res sua servit)
When the dominant and the servient
estates have the same owner, the
easement is extinguished. Separate
ownership is a prerequisite to an
easement.

Exceptions: Praedial servitudes


(a) Right to place beams in an adjoining
wall to support a structure.
(b) Right to use anothers wall to support
a building.

(3) It is a right constituted over an immovable


by nature (land and buildings), not over
movable properties. [NCC 613]
Immovable: used in its common and not in
the legal sense, meaning only property
immovable BY NATURE can have
easements.

(7) It is inherent or inseparable from estate to


which they actively or passively belong
(NCC 617)
(a) Easements are merely accessory to
the tenements, and a quality
thereof. They cannot exist without
tenements.
(b) Easements exist even if they are not
expressly stated or annotated as an
encumbrance on the titles.
(8) It is intransmissible it cannot be
alienated separately from the tenement
affected or benefited
Any alienation of the property covered
carries with it the servitudes affecting said
property. But this affects only the portion
of the tenement with the easement,
meaning the portions unaffected can be
alienated without the servitude.

(4) It limits the servient owners right of


ownership for the benefit of the dominant
estate.
(a) Right of limited use but no right to
possess the servient estate.
(b) There exists a limitation on ownership:
the dominant owner is allowed to enjoy
or use part of the servient estate, or
imposes on the owner a restriction as
to his enjoyment of his own property.
(i) Being an abnormal limitation of
ownership, it cannot be presumed.
(5) It creates a relation between tenements
There is no transfer of ownership, but a
relationship is created, depending on the
type of easement.

(9) It is indivisible (NCC 618)


(a) If the servient estate is divided
between two or more persons, the
easement is not modified, and each of
them must bear it on the part that
corresponds to him.
(b) If the dominant estate is divided
between two or more persons, each of
them may use the easement in its
entirety, without changing the place

(6) Generally, it may consist in the owner of the


dominant estate demanding that the owner
of the servient estate refrain from doing
something (servitus in non faciendo) or that
the latter permit that something be done
over the servient property (servitus in

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of its use, or making it


burdensome in any other way.

PROPERTY

more

CIVIL LAW

apparent easements can be created by


prescription.

B.4. AS INDICATION OF ITS EXISTENCE

(10) It has permanence once it attaches,


whether used or not, it continues and may
be used anytime
Perpetual: exists as long as property exists,
unless it is extinguished.

(1) Apparent: Made known and continually


kept in view by external signs that reveal
the use and enjoyment of the same.
(2) Non-apparent: No external indication of
their existence.

B. CLASSIFICATION

Note: Also important


prescription.

B.1. AS TO RECIPIENT OF BENEFITS


(1) Real or Praedial: exists for the benefit of a
particular tenement.
(2) Personal: exists for the benefit of persons
without a dominant tenement e.g. usus
habitatio (right to reside in a house) and
operae servorum (right to the labor of
slaves) in Roman law.

for

purposes

of

B.5. BY THE OBJECT OR OBLIGATION


IMPOSED [NCC 616]
(1) Positive: Imposes upon the owner of the
servient estate the obligation of allowing
something to be done, or doing it himself.
(2) Negative: Prohibits the owner of the
servient estate from doing something that
he could lawfully do if the easement did
not exist.
e.g. Negative Easement of Light and View:
An opening is made on the wall of the
dominant estate, and the easement
consists of imposing upon the servient
estate the obligation to not build anything
that would obstruct the light.

B.2. AS TO CAUSE OR ORIGIN


(1) Legal: created by law, whether for public
use or for the interest of private persons.
Once requisites are satisfied, the owner
of the dominant estate may ask the
Court to declare that an easement is
created.
Example: Natural drainage of waters,
Abutment of land, Aqueduct, etc.
(2) Voluntary: Created by the will of the
owners of the estate through contract.

Note: Prescription starts to run from service of


notarial prohibition.

Note: There is no such thing as a JUDICIAL


EASEMENT. The Courts cannot create
easements, they can only declare the existence
of one, if it exists by virtue of the law or will of
the parties.

C. GENERAL RULES
(1) Nulli res sua servi: No one can have a
servitude over ones own property.
(2) Servitus in faciendo consistere nequit: A
servitude cannot consist in doing.
(a) Although some easements seem to
impose a positive prestation upon the
owner of the servient estate, in reality,
the primary obligation is still negative.
(b) Illustration: Under Article 680: the
owner of a tree whose branches
extend over to a neighboring property
is required to cut off the extended

B.3. AS TO ITS EXERCISE [NCC 615]


(1) Continuous: Use is or may be incessant,
without the intervention of any man
(2) Discontinuous: Used at intervals, and
dependent upon the acts of man.
Note: This classification is important in
determining prescription: only continuous and

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branches, but the real essence of the


easement is the obligation NOT TO
ALLOW the branches of the tree to
extend beyond the land.
(3) Servitus servitutes esse non potes: There can
be no servitude over another servitude.
(4) A servitude must be exercised civiliter in a
way least burdensome to the owner of the
land.
(5) A servitude must have a perpetual cause

CIVIL LAW

easement, commenced to exercise it upon


the servient estate.
(2) In negative easements, from the day on
which the owner of the dominant estate
forbade, by an instrument acknowledged
before a notary public, the owner of the
servient estate from executing an act
which would be lawful without the
easement.

D.4. DETERMINES HOW EASEMENT IS


LOST BY PRESCRIPTION [NCC 631 (2)]

D. RELEVANCE OF CLASSIFICATIONS
D.1. DETERMINES WHAT EASEMENTS
CAN BE ACQUIRED BY PRESCRIPTION

By nonuser for 10 years:


(1) With respect to discontinuous easements,
this period shall be computed from the
day on which they ceased to be used.
(2) With respect to continuous easements,
from the day on which an act contrary to
the same took place.

Continuous and apparent easements may be


acquired by prescription of 10 years [NCC. 620]

D.2. DETERMINES WHAT EASEMENTS


CAN BE ACQUIRED BY TITLE
(1) Continuous nonapparent easements, and
discontinuous ones, whether apparent or
not, may be acquired only by virtue of a
title. [NCC. 622]
(2) The existence of an apparent sign of
easement
between
two
estates,
established or maintained by the owner of
both, shall be considered, as a title in order
that the easement may continue actively
and passively.

E. CREATION
E.1. BY TITLE
(1) Continuous and apparent easements may
be acquired by virtue of a title. [NCC 620]
(2) Continuous nonapparent easements, and
discontinuous ones, whether apparent or
not, are acquired only by virtue of a title.
[NCC 622]
(3) The absence of a document or proof
showing the origin of an easement which
cannot be acquired by prescription may
be cured by a deed of recognition by the
owner of the servient estate or by a final
judgment. [NCC 623]
(4) The existence of an apparent sign of
easement
between
two
estates,
established or maintained by the owner of
both, shall be considered as a title in
order that the easement may continue
actively and passively.

Unless: At the time the ownership of the


two estates is divided, the contrary should
be provided in the title of conveyance of
either of them, or the sign aforesaid should
be removed before the execution of the
deed. This provision shall also apply in
case of the division of a thing owned in
common by two or more persons.
[NCC. 624]

Unless: at the time the ownership of the


two estates is divided, the contrary should
be provided in the title of conveyance of
either of them, or the sign aforesaid
should be removed before the execution
of the deed. This provision shall also

D.3. DETERMINES HOW TO COMPUTE


THE PRESCRIPTIVE PERIOD [NCC 621]
(1) In positive easements, from the day on
which the owner of the dominant estate, or
the person who may have made use of the

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apply in case of the division of a thing


owned in common by two or more persons.
[NCC 624]

(b) By the provisions of Chapter 2, title


VII, Book II.

F. VOLUNTARY EASEMENTS

E.2. BY LAW (LEGAL EASEMENTS)

(1) Every owner of a tenement or piece of


land may establish thereon the
easements which he may deem suitable,
and in the manner and form which he may
deem best. [NCC 688]
(2) The owner of a thing, the usufruct of
which belongs to another, may impose,
without the consent of the usufructuary,
any servitudes which will not injure the
right of usufruct. [NCC 689]
(3) Whenever the naked ownership belongs
to one person and the beneficial
ownership to another, no perpetual
voluntary easement may be established
thereon without the consent of both
owners. [NCC 690]
(4) Consent of all co-owners is required to
impose an easement on an undivided
tenement. [NCC 691]

(1) Easements imposed by law have for their


object either public use or the interest of
private persons. [NCC 634]
(2) These easements may be modified by
agreement of the interested parties,
whenever the law does not prohibit it or no
injury is suffered by a third person.
[NCC 636]

E.3. BY WILL OF THE


(VOLUNTARY EASEMENTS)

OWNERS

Every owner of a tenement or a piece of land


may establish the easements that he may
deem suitable and best. [NCC 688]
Note: If an owner constitutes an easement over
his own property and makes such easement
available to the general public, said owner may
not arbitrarily discriminate against certain
persons by not letting them use the easement.
[Negros Sugar Company v Hidalgo (1936)]

H. RIGHTS AND OBLIGATIONS OF


OWNERS OF DOMINANT AND
SERVIENT ESTATES

E.4. BY PRESCRIPTION
Continuous and apparent easements may be
acquired by prescription of 10 years. [NCC 620]

H.1. RIGHTS OF DOMINANT ESTATE


OWNER

G. LEGAL EASEMENTS
G.1.
LAW
EASEMENTS

GOVERNING

CIVIL LAW

(1) To use the easement and exercise all


rights necessary for it [NCC 625, 626]
(a) The owner of the dominant estate is
granted the right to use the principal
easement,
and
all
accessory
servitudes.
(b) Example: Easement of drawing water
carries with it the easement of right of
way to the place where water is
drawn.
(c) Limitation: Only for the original
immovable and the original purpose.

LEGAL

(1) For public easements


(a) Special laws and regulations relating
thereto. (ex: PD 1067 and PD 705)
(b) By the provisions of Chapter 2, Title VII,
Book II, NCC.
(2) For private legal easements
(a) By agreement of the interested parties
whenever the law does not prohibit it
and no injury is suffered by a 3rd
person.

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(2) In a right of way, to ask for change in width


of easement sufficient for needs [NCC 651]

(a) The contribution is in proportion to


the benefits which each may derive
from the work.
(b) Anyone who does not wish to
contribute may exempt himself by
renouncing the easement for the
benefit of the others.
(c) If the owner of the servient estate
should make use of the easement in
any manner whatsoever, he shall also
be obliged to contribute to the
expenses in the proportion stated,
saving an agreement to the contrary.

(3) To renounce totally the easement, if he


desires to be exempt from contributing to
the expenses.
The needs of the dominant property ultimately
determine the width of the passage. And these
needs may vary from time to time.
[Encarnacion v. Court of Appeals]

H.2. OBLIGATIONS
ESTATE OWNER

OF

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DOMINANT

(1) To use the easement for the benefit of


immovable and in the manner originally
established [NCC 626]
If established for a particular purpose, the
easement cannot be used for a different
one. However, if established in a general
way, without specific purpose, the
easement can be used for all the needs of
the dominant estate.

(5) To do at his expense all necessary works


for the use and preservation of the
easement [NCC 627]
The necessity of the works determines
extent of such works.

H.3. RIGHTS OF THE SERVIENT ESTATE


OWNER
(1) To retain ownership and use of his
property
(a) The owner of the servient estate
retains the ownership of the portion
on which the easement is established,
and may use the same in such a
manner as not to affect the exercise of
the easement. [NCC 630]
(b) The servient owner must respect the
use of the servitude, but retains
ownership and use of the same, in a
manner not affecting the easement.

(2) To notify the owner of the servient estate


before making repairs and to make repairs
in a manner least inconvenient to the
servient estate [NCC 627(2)]
(3) Not to alter the easement or render it more
burdensome
(a) The owner of the dominant estate may
make repairs at his expense, but he
cannot alter the easement or make it
more burdensome. [NCC 627]
(b) Making
the
easement
more
burdensome means widening the
easement. [Valderrama v. North Negros
Sugar Co. (1925)]

(2) To change the place and manner of the


use of the easement [NCC 629]
General rule: The owner of the servient
estate cannot impair the use of the
servitude.
Exceptions:
(a) By reason of either:
(i) The place/manner originally
assigned, the use of such

(4) To contribute to expenses of works


necessary for use and preservation of
servitude, if there are several dominant
estates, unless he renounces his interest
[NCC 628]

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easement has become VERY


INCONVENIENT to the owner; or
(ii) The easement should prevent him
from making any important works,
repairs or improvements thereon;
(b) The change must be done at his
expense;
(c) He offers another place or manner
equally convenient; and
(d) he change is done in such a way that
no injury is caused to the dominant
owner or to those who may have a right
to use the easement.

(13) Lateral and subjacent support


[NCC 684-687]

I.1. NATURAL DRAINAGE


(1) Lower estates are obliged to receive the
waters which naturally and without the
intervention of man descend from the
higher estates (as well as the stones or
earth which they carry with them).
(2) The owner of the lower estate cannot do
any works that will impede this easement.
(3) The owner of the higher estate cannot do
any works that will increase the burden.

I.2. RIPARIAN BANKS

(3) To use the easement


May use the easement but must also
contribute proportionately to the expenses.

H.4. OBLIGATIONS
ESTATE OWNER

OF

CIVIL LAW

(1) The banks of rivers and streams are


subject throughout their entire length and
within a zone of 3 meters along their
margins, to the easement of public use in
the general interest of navigation,
floatage, fishing, and salvage.
(2) Estates adjoining the banks of navigable
or floatable rivers are subject to the
easement of towpath for the exclusive
service of river navigation and floatage.
(3) If it be necessary to occupy lands of
private ownership, the proper indemnity
shall first be paid.

SERVIENT

(1) Not to impair the use of the easement [NCC


629 (1)]
(2) To contribute proportionately to expenses if
he uses the easement [NCC 628(2)]
Unless there is an agreement to the
contrary

I.3. DRAINAGE OF BUILDINGS

(3) To pay for the expenses incurred for the


change of location or form of the easement

(1) The owner of a building is obliged to


construct its roof or covering in such
manner that the rain water shall fall on
his own land or on a street or public place,
and NOT on the land of his neighbor, even
though the adjacent land may belong to
two or more persons, one of whom is the
owner of the roof.
(2) Even if it should fall on his own land, the
owner shall be obliged to collect the
water in such a way as not to cause
damage to the adjacent land or tenement.

I. KINDS OF LEGAL EASEMENTS


(1) Natural drainage [NCC 637]
(2) Riparian banks [NCC 638]
(3) Drainage of buildings [NCC 674]
(4) Dam [NCC 639]
(5) Drawing water [NCC 640-641]
(6) Aqueduct [NCC 642-646]
(7) Sluice gate [NCC 647]
(8) Right of way [NCC 649-657]
(9) Party wall [NCC 658-666]
(10) Light and view [NCC 667-681]
(11) Intermediate distances [NCC 677-681]
(12) Nuisance [NCC 682-683]

I.4. DAM

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Whenever it should be necessary to build a


dam, and the person who is to construct it is
not the owner of the banks, or lands which
must support it, he may establish the
easement of abutment of a dam, after
payment of the proper indemnity.

CIVIL LAW

courtyards, annexes, or outhouses, or on


orchards or gardens already existing.
(4) This easement does not prevent the
owner of the servient estate from closing
or fencing it, or from building over the
aqueduct in such manner as not to cause
the latter any damage, or render
necessary
repairs
and
cleanings
impossible.
(5) This easement is considered as
continuous and apparent, even though the
flow of the water may not be continuous,
or its use depends upon the needs of the
dominant estate, or upon a schedule of
alternate days or hours.

I.5. DRAWING WATER


(1) Compulsory easements for drawing water
or for watering animals can be imposed
only for reasons of public use in favor of a
town or village, after payment of the proper
indemnity.
(2) Easements for drawing water and for
watering animals carry with them the
obligation of the owners of the servient
estates to allow passage to persons and
animals to the place where such
easements are to be used, and the
indemnity shall include this service.
(3) The width of the easement must not
exceed 10 meters.

I.7. SLUICE GATE


(1) The construction of a stop lock or sluice
gate in the bed of the stream from which
the water is to be taken, for the purpose of
improving an estate.
(2) Such person may demand that the owners
of the banks permit its construction, after
payment of damages, including those
caused by the new easement to such
owners and to the other irrigators.

I.6. AQUEDUCT
(1) Any person who may wish to use upon his
own estate any water of which he can
dispose shall have the right to make it flow
through the intervening estates, with the
obligation to indemnify their owners, as
well as the owners of the lower estates
upon which the waters may filter or
descend.
(2) Person desiring to make use of this right is
obliged to:
(a) To prove that he can dispose of the
water and that it is sufficient for the
use for which it is intended;
(b) To show that the proposed right of way
is the most convenient and the least
onerous to third persons; and
(c) To indemnify the owner of the servient
estate in the manner determined by
the laws and regulations
(3) Easement of aqueduct for private interest
cannot be imposed on buildings,

I.8. RIGHT OF WAY


Who may demand
(1) The owner of the dominant estate; or
(2) Any person with the real right to cultivate
or use the dominant estate e.g. a
usufructuary.
Note: a lessee cannot demand such
easement, because the lessor is the one
bound to maintain him in the enjoyment of
the property.
Requisites
(1) The dominant estate is surrounded by
other immovables owned by other
persons;
(2) There must absolutely be no access to a
public road or highway;

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(a) Even if there is access, it is difficult or


dangerous to use, or grossly
insufficient;
(b) Mere inconvenience in the use of an
outlet does not render the easement a
necessity;
(c) An adequate outlet is one that is
sufficient for the purpose and needs of
the dominant owner, and can be
established at a reasonable expense;
(d) Does not necessarily have to be by land
an outlet through a navigable river if
suitable to the needs of the tenement
is sufficient;
(3) The isolation of the immovable is NOT due
to the dominant owners own acts e.g. if he
constructs building to others obstructing
the old way; and
(4) There is payment of indemnity;
(a) If right of way is permanent and
continuous for the needs of the
dominant estate = value of the land +
amount of damage caused to the
servient estate;
(b) If right of way is limited to necessary
passage for cultivation of the estate
and for gathering crops, without
permanent way = damage caused by
encumbrance.
Rules for establishing Right of Way
(1) Must be established at the point least
prejudicial to the servient estate.
[NCC 650]
(2) Insofar as consistent with the first rule,
where the distance from the dominant
estate to a public highway is shortest.
(a) The criterion of least prejudice to the
servient estate must prevail over the
criterion of shortest distance although
this is a matter of judicial
appreciation. While shortest distance
may ordinarily imply least prejudice, it
is not always so as when there are
permanent structures obstructing the
shortest distance; while on the other

CIVIL LAW

hand, the longest distance may be free


of obstructions and the easiest or
most
convenient
to
pass
through. [Quimen v. CA (1996)]
(b) The fact that LGV had other means of
egress to the public highway cannot
extinguish the said easement, being
voluntary and not compulsory. The
free ingress and egress along
Mangyan Road created by the
voluntary agreement between the
parties is thus legally demandable
with the corresponding duty on the
servient estate not to obstruct the
same. [La Vista Association v. CA]
(3) The width of the easement of right of way
shall be that which is sufficient for the
needs of the dominant estate, and may
accordingly be changed from time to
time. [NCC 651]
Obligations In Permanent And Temporary
Easements Of Right Of Way
Temporary
Permanent right of way
right of way
Indemnity
Consists of the damages and
the value of the land.

Consists of
the damages
only.

Necessary repairs
Dominant owner to spend on Servient
such.
owner
spend
such.

to
on

Share in taxes
The dominant owner shall
reimburse a proportionate
share of taxes to the
proprietor of the servient
estate.

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owner
spend
such.

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Rules on indemnity for estates enclosed


through a sale, exchange, partition or donation.
Sale, exchange or
partition

building, to carry materials through


the estate of another, or to raise
therein scaffolding or other objects
necessary for the work, the owner of
such estate shall be obliged to permit
the act, after receiving payment of the
proper indemnity for the damage
caused him. [NCC 656]
(3) Right of way for the passage of livestock
known as animal path, animal trail,
watering places, resting places, animal
folds. [NCC 657]
(a) Easements of the right of way for the
passage of livestock known as animal
path, animal trail or any other, and
those for watering places, resting
places and animal folds, shall be
governed by the ordinances and
regulations relating thereto, and, in
the absence thereof, by the usages
and customs of the place.
(b) Without prejudice to rights legally
acquired, the animal path shall not
exceed in any case the width of 75
meters, and the animal trail that of 37
meters and 50 centimeters.
(c) Whenever it is necessary to establish a
compulsory easement of the right of
way or for a watering place for
animals, the provisions of this Section
and those of Articles 640 and 641
shall be observed. In this case the
width shall not exceed 10 meters

Donation

Buyer, grantee or donee


as dominant owners
The buyer or grantee
The donee shall pay
shall grant the right of the donor indemnity.
way without indemnity.
Seller, grantor or donor
as dominant owners
The seller or grantor
shall pay indemnity.

CIVIL LAW

The donee shall


grant the right of
way without
indemnity.

Extinguishment of Right of Way


(1) The owner has joined the dominant estate
to another abutting the public road.
(2) A new road is opened giving access to the
isolated estate.
Notes on extinguishment
(1) Extinguishment is NOT automatic. The
owner of the servient estate must ask for
such extinguishment.
(2) Indemnity paid to the servient owner must
be returned:
(a) If easement is permanent: value of the
land must be returned
(b) If easement is temporary: nothing is to
be returned

I.9. PARTY WALL

Special Rights of Way


(1) Right of way to carry materials for the
construction,
repair,
improvement,
alteration or beautification of a building
through the estate of another.
(2) Right of way to raise on anothers land
scaffolding or other objects necessary for
the work.
(a) If it be indispensable for the
construction, repair, improvement,
alteration or beautification of a

Refers to all those mass of rights and


obligations emanating from the existence and
common enjoyment of wall, fence, enclosures
or hedges, by the owners of adjacent
buildings and estates separated by such
objects.
Nature
(1) A common wall which separates two
estates, built by common agreement at

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the dividing line such that it occupies a


portion of both estates on equal parts.
(2) A party wall is a special form of coownership (a kind of compulsory coownership).
(a) Each owner owns part of the wall but it
cannot be separated from the other
portions belonging to the others. A
party wall has a special characteristic
that makes it more of an easement as
it is called by law.
(b) An owner may use a party wall to the
extent of the portion on his property.
Co-Ownership

Party Wall

Before division of
shares, a co-owner
cannot point to any
definite portion of the
property as belonging
to him.

Shares of the coowners cannot be


physically segregated
but they can be
physically identified.

None of the co-owners There is


may
use
the limitation
community property
for
his
exclusive
benefit because he
would be invading the
rights of the others.

no

CIVIL LAW

(3) In fences, walls and live hedges dividing


rural lands.
Note: A title or an exterior sign, or any other
proof showing that the entire wall in
controversy belongs exclusively to one of the
adjoining property-owners may rebut these
presumptions.
When Existence Of An Exterior Sign Is
Presumed [NCC 660]
(1) Whenever in the dividing wall of buildings
there is a window or opening.
(2) Whenever one side is straight and plumb
on all its facement, and on the other, it
has similar conditions on the upper part,
but the lower part slants or projects
outward.
(3) Whenever the entire wall is built within
the boundaries of one of the estates.
(4) Whenever the dividing wall bears the
burden of the binding beams, floors and
roof frame of one of the buildings, but not
those of the others.
(5) Whenever the dividing wall between
courtyards, gardens, and tenements is
constructed in such a way that the coping
sheds the water upon only one of the
estates.
(6) Whenever the dividing wall, being built of
masonry, has stepping stones, which at
certain intervals project from the surface
on one side only, but not on the other.
(7) Whenever lands enclosed by fences or live
hedges adjoin others that are not
enclosed.

such

In a co-ownership, Any owner may free


partial renunciation is himself
from
allowed.
contributing to the
cost of repairs and
construction of a party
wall by renouncing all
his rights thereto.

Note: The deposit of earth or debris on one


side alone is an exterior sign that the owner of
that side is the owner of the ditch or drain.
The presumption is an addition to those
enumerated in NCC 660.

When Existence Of Easement Of Party Wall Is


Presumed
(1) In dividing walls of adjoining buildings up
to the point of common elevation.
(2) In dividing walls of gardens or yards
situated in cities, or towns, or in rural
communities.

Right Of Owners Of A Party Wall


(1) Generally, part-owners may use the wall
in proportion to their respective interests,
provided that:
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(a) The right to use by the other party is


not interfered with;
(b) The consent by the other owner is
needed if a party wants to open a
window; and
(c) The condition of the building is
determined by experts.
(2) To increase the height of the wall.
He does this at his expense, including the
thickening of the wall on his land.
He shall indemnify the other party for
any damages.
(3) To acquire a half-interest in any increase in
height or thickness of the wall, paying a
proportionate share in the cost of the work
and the value of the land covered.
Note that the value of the land must be
appraised at the time of acquisition.
(4) To renounce his part ownership of a party
wall if he desires to demolish his building
supported by the wall.
He shall bear all the expenses of repairs
and work necessary to prevent any
damage which the demolition may cause
to the party wall.

CIVIL LAW

(e) Bear the increased expenses for


preservation

I.10. EASEMENT OF LIGHT AND VIEW


Definition
(1) Easement of light (jus luminum) is the
right to admit light from the neighboring
estate by virtue of the opening of a
window or the making of certain
openings.
(2) Easement of view (jus prospectus) is the
right to make openings or windows, to
enjoy the view through the estate of
another and the power to prevent all
constructions or works which would
obstruct such view or make the same
difficult.
(a) Necessarily includes the easement of
light.
(b) It is possible to have light only without
a view.
Nature
(1) Positive: Opening a window through a
party wall
(a) When a part owner of a party wall
opens a window therein, such act
implies the exercise of the right of
ownership by the use of the entire
thickness of the wall.
(b) The easement is created only after the
lapse of the prescriptive period.
(2) Negative: Formal prohibition upon the
owner of the adjoining land or tenement.
Formal means that the prohibition has
been notarized [Cortes v Yu-Tibo (1903)]
(a) When a person opens a window on his
own building, he is exercising his right
of ownership on his property, which
does not establish an easement.
(b) Coexistent is the right of the owner of
the adjacent property to build on his
own land, even if such structures
cover the window.
(c) If the adjacent owner does not build
structures to obstruct the window,

Obligations Of Owners Of A Party Wall


(1) To contribute proportionately to the repair
and maintenance of the party wall unless
he renounces his part-ownership.
(a) This includes the renunciation of the
share in the wall + the land
(b) He cannot renounce his part if his
building is being supported by the
party wall
(2) If he raises the height of the wall, he must:
(a) Bear the cost of maintenance of the
additions;
(b) Bear the cost of construction, if the
wall cannot support the additional
height;
(c) Give additional land, if necessary to
thicken the wall;
(d) Pay for damages, if necessary, even if
temporary; and

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such is considered mere tolerance and


NOT a waiver of the right to build.
(d) An easement is created only when the
owner opens up a window and
subsequently prohibits or restrains the
adjacent owner from doing anything
that may tend to cut off or interrupt the
light and the prescriptive period has
lapsed.

CIVIL LAW

(iii) The dividing line between the two


properties in cases of oblique
views.
Effect If Distances Are Not Complied With
(1) Windows are considered unlawful
openings and may be ordered by the
Court to be closed.
(2) Even if the adjoining owner does not
object to the construction of such
structures at first, he cannot be held to be
in estoppel, unless the 10-year period of
acquisitive prescription has passed.

Rules And Restrictions On Openings And


Structures
Openings for light
(1) When the wall is 2 meters or more away
from anothers tenement:
(a) An owner may build any kind of
opening without restriction.
(2) When the wall is contiguous (less than 2
meters) to anothers tenement:
(a) Openings are made at the height of the
ceiling joists (horizontal beams) or
immediately under the ceiling;
(b) Size: 30 cm square;
(c) With iron grating imbedded in the wall;
(d) With a wire screen.

Note:
(1) In buildings separated by a public way or
alley, not less than 3 meters wide, the
distances required (2 m, 60 cm) do not
apply.
(2) If an easement is acquired to have direct
views, balconies or belvederes, the owner
of the servient estate must not build at
less than 3 meters from the boundary line
of the two tenements.
(a) The distances may be stipulated by
the parties, but should not be less
than what is prescribed by the law (2
meters and 60 cm).

Openings for view


(1) The following structures cannot be built
without following the prescribed distances:
(a) Window, apertures, balconies and
other projections with a direct view
upon or towards an adjoining land
must have a distance of 2 meters
between the wall and the contiguous
property.
(b) For structures with a side or oblique
view (at an angle from the boundary
line), there should be a distance of 60
centimeters.
(c) Measured from:
(i) The outer line of the wall if the
openings do not project.
(ii) The outer line of the openings if
they project.

Notes on the Acquisition of the Easement


(1) Period of acquisitive prescription will only
start to run from the time the owner
asserting the servitude has forbidden the
owner of the adjoining tenement from
doing something he could lawfully do.
(2) THUS, although the action to compel the
closure might have prescribed, the owner
of the adjoining estate may still build on
his own land a structure that might
obstruct the view.

I.11. INTERMEDIATE DISTANCES


[NCC 677]

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NCC 677, in effect, establishes an easement in


favor of the State. The general prohibition is
dictated by the demands of national security.

(1) The proprietor is prohibited from making


dangerous excavations upon his land as
to deprive any adjacent land or building of
sufficient lateral or subjacent support.
(2) Easement of lateral and subjacent
support is deemed essential to the
stability of buildings.
(3) Support is lateral when a vertical plane
divides the supported and supporting
lands.
(4) Support is subjacent when the supported
land is above the supporting land.

The following must comply with the


regulations or customs of the place:
(1) Construction of aqueduct, well, sewer, etc.
(NCC 678)
Constructions, which by reason of their
nature or products are dangerous or
noxious.
(2) Planting of trees (NCC 679)
(a) No trees shall be planted near a
tenement or piece of land belonging to
another except at the distance
authorized by the ordinances or
customs of the place.
(b) In the absence of regulations:
(i) At least 2 meters from the dividing
line of the estates if tall trees are
planted.
(ii) At least 50 centimeters if shrubs or
small trees are planted.
(c) In case of violation, a landowner shall
have the right to demand the
uprooting of the plant even if it has
grown spontaneously.

J.
MODES
EASEMENT

ACQUIRING

A juridical act which gives rise to the servitude


(e.g. law, donations, contracts or wills)
(1) If the easement has been acquired but no
proof of existence of easement available,
and the easement is one that cannot be
acquired by prescription, the defect may
be cured by:
(a) Deed of recognition by owner of
servient estate: By an affidavit or a
formal deed acknowledging the
servitude; or
(b) By final judgment: Owner of the
dominant estate must file a case in
Court to have the easement declared
by proving its existence through other
evidence.

(1) If the branches of any tree should extend


over a neighboring estate, tenement,
garden or yard, the owner of the latter
shall have the right to demand that they be
cut-off.
(2) If it be the roots of a neighboring tree,
which should penetrate into the land of
another, the latter may cut them off
himself within his property.
(3) Fruits naturally falling upon adjacent land
belong to the owner of said land.

AND

OF

J.1. BY TITLE

BRANCHES, ROOTS AND FRUITS

I.12.
LATERAL
SUPPORT

CIVIL LAW

(2) The existence of an apparent sign is


considered as title.
Illustration: The presence of 4 windows
was considered an apparent sign that
created a negative easement of light and
view (altius non tollendi) i.e. not to build a
structure that will cover the windows.
[Amor v. Florentino (1943)].

SUBJACENT

J.2. BY PRESCRIPTION
Requisites

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(1) The easement must be continuous and


apparent;
(2) The easement must have existed for 10
years; and
(3) There is NO NEED for good faith or just
title.

(1) Owner of dominant estate does not


exercise right over easement.
(2) This is inaction, and not outright
renunciation.
(3) This is due to the voluntary abstention by
the dominant owner, and not due to a
fortuitous event.
(4) Computation of the period:
(a) Discontinuous easements: counted
from the day they ceased to be used.
(b) Continuous easements: counted from
the day an act adverse to the exercise
of the easement took place.
(i) E.g. in an easement of light and
view, the erection of works
obstructing the servitude would
commence
the
period
of
prescription.
(5) The use by a co-owner of the dominant
estate bars prescription with respect to
the others.
(6) Non-user cannot extinguish servitudes
not yet exercised. [Francisco v Paez
(1930)]

Note
Mere passage which was permitted and is
under an implied license cannot be a basis of
prescription [Archbishop of Manila v Roxas
(1912)]

K.
EXTINGUISHMENT
EASEMENTS

CIVIL LAW

OF

(1) By merger in the same person of the


ownership of the dominant and servient
estates;
(2) By non-user for ten years;
(3) When either or both of the estates fall into
such condition that the easement cannot
be used;
(4) By the expiration of the term or the
fulfillment of the condition, if the easement
is temporary or conditional;
(5) By the renunciation of the owner of the
dominant estate; or
(6) By the redemption agreed upon between
the owners of the dominant and servient
estates.

K.3. BY IMPOSSIBILITY OF USE


(1) Impossibility referred to must render the
entire easement unusable for all time.
(2) Impossibility of using the easement due to
the condition of the tenements (e.g.
flooding) only suspends the servitude until
it can be used again.
(3) Except: If the suspension exceeds 10 years,
the easement is deemed extinguished by
non-user.

K.1. MERGER
Must be absolute, perfect and definite, and not
merely temporary.
(1) Absolute: Ownership of the property must
be absolute, thus not applicable to lease,
usufruct, etc.
(2) Perfect: Merger must not be subject to a
condition.
(3) If the merger is temporary, there is at most
a suspension of the easement, but no
extinguishment.

K.4. EXPIRATION OF THE TERM OR


FULFILLMENT
OF
RESOLUTORY
CONDITION
Applicable only to voluntary easements.

K.5. RENUNCIATION OF THE OWNER


OF THE DOMINANT ESTATE

K.2. BY A NON-USER FOR 10 YEARS

Must be specific, clear, express (distinguished


from non-user).

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(a) Owner of the dominant estate has


joined to another abutting on a public
road.
(b) A new road is opened giving access to
the isolated estate.
(c) Requisite: the public highway must
substantially meet the needs of the
dominant estate in order that the
easement may be extinguished
(d) Owner of the servient estate may
demand that the easement be
extinguished.
(e) Owner of the servient estate must
return indemnity he received (value of
the land)

K.6. OTHER CAUSES NOT MENTION IN


NCC 631
(1) Annulment and rescission of the title
constituting the voluntary easement;
(2) Termination of the right of grantor of the
voluntary easement;
(3) Abandonment of the servient estate;
(a) Owner of the servient estate gives up
ownership of the easement (e.g. the
strip of land where the right of way is
constituted) in favor of the dominant
estate.
(b) The easement is extinguished because
ownership is transferred to the
dominant owner, who now owns both
properties.
(4) Eminent domain; or
(a) The governments power to expropriate
property for public use, subject to the
payment of just compensation.
(5) Special cause for extinction of legal rights
of way; if right of way no longer necessary.
(a) NCC 655
(i) If the right of way granted to a
surrounded estate ceases to be
necessary because its owner has
joined it to another abutting on a
public road, the owner of the
servient estate may demand that
the easement be extinguished,
returning what he may have
received by way of indemnity. The
interest on the indemnity shall be
deemed to be in payment of rent
for the use of the easement.
(ii) The same rule shall be applied in
case a new road is opened giving
access to the isolated estate.
(iii) In both cases, the public highway
must substantially meet the needs
of the dominant estate in order
that the easement may be
extinguished.
(6) Right of way ceases to be necessary:

X. Nuisance
A nuisance is any act, omission,
establishment, business, condition of
property, or anything else which:
(1) Injures or endangers the health or safety
of others;
(2) Annoys or offends the senses;
(3) Shocks, defies or disregards decency or
morality;
(4) Obstructs or interferes with the free
passage of any public highway or street,
or any body of water; or
(5) Hinders or impairs the use of property.
Note: To constitute a nuisance there must be
an arbitrary or abusive use of property or
disregard of commonly accepted standards
set by society.
A municipal body has the power to declare
and abate nuisances. BUT it has no power to
find as fact that a particular thing is a
nuisance. The determination of whether or
not a nuisance exists is a judicial function,
because to declare something a nuisance is to
deprive its use. [Iloilo Cold Storage v Mun.
Council of Iloilo (1913)]

A. NUISANCE V. TRESPASS
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Nuisance

Trespass

Use of ones own property in


such a manner as to cause
injury to the property or right
or interest of another, and
generally results from the
commission of an act beyond
the limits of the property
affected.

Direct
infringement of
anothers right
of property.

Injury is consequential.

Injury
immediate.

An act, occupation or structure which is a


nuisance at all times and under any
circumstances, regardless of location or
surroundings.
(2) Nuisance per accidens or in fact
(a) One that becomes a nuisance by
reason
of
circumstances
and
surroundings.
(b) It is not a nuisance by its nature but it
may become so by reason of the
locality, surrounding, or the manner in
which it is conducted, managed, etc.
Note:
Dams or fishponds on noavigable waters are
not nuisance per se. (Monteverde v Generoso
[1928])

is

B. NUISANCE V. NEGLIGENCE
Nuisance

Negligence

Whether
it
was
unreasonable for the
defendant to act as he
did in view of the
threatened danger or
harm
to
one
in
plaintiffs position.

Whether
the
defendants use of
his property was
unreasonable as to
plaintiff,
without
regard
to
foreseeability
of
injury.

Per se

Per accidens

The
wrong
is Proof of the act and
established by proof of its consequences
the mere act. It are necessary.
becomes a nuisance as
a matter of law.

Liability
for
the Liability is based on
resulting
injury
to a want of proper
others regardless of the care
degree of care or skill
exercised to avoid such
injury.
Principles
ordinarily
apply where the cause
of
action
is
for
continuing harm caused
by
continuing
or
recurrent acts which
cause discomfort or
annoyance to plaintiff in
the use of his property.

CIVIL LAW

C.2. ACCORDING TO
INJURIOUS EFFECTS

SCOPE

OF

Test: not the number of persons annoyed but


the possibility of annoyance to the public by
the invasion of its rights the fact that it is in
a public place and annoying to all who come
within its sphere.

Principles ordinarily
apply where the
cause of action is for
harm resulting from
one
act
which
created
an
unreasonable risk of
injury.

(1) Public
The doing of or the failure to do
something that injuriously affects the
safety, health or morals of the public.
It causes hurt, inconvenience or injury to
the public, generally, or to such part of
the public as necessarily comes in
contact with it.

C. CLASSES
C.1. ACCORDING TO NATURE
(1) Nuisance per se or at law

(2) Private

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He who creates a nuisance is liable for the


resulting damages and his liability continues
as long as the nuisance continues.
(1) There must be a breach of some duty on
the part of the person sought to be held
liable for damages resulting from a
nuisance before an action will lie against
him.
(2) No one is to be held liable for a nuisance
which he cannot himself physically abate
without legal action against another for
that purpose.
(3) Where
several
persons,
acting
independently, cause damage by acts
which constitute a nuisance, each is liable
for the damage which he has caused or for
his proportionate share of the entire
damage.

One which violates only private rights


and produces damages to but one or a
few specific persons.
(3) Mixed

D. DOCTRINE
NUISANCE

OF

CIVIL LAW

ATTRACTIVE

One who maintains on his premises dangerous


instrumentalities or appliances of a character
likely to attract children in play, and who fails to
exercise ordinary care to prevent children from
playing therewith or resorting thereto, is liable
to a child of tender years who is injured
thereby, even if the child is technically a
trespasser in the premises. [Jarco Marketing
Corp. v. CA (1999)]
Basis of liability The attractiveness is an
invitation to children. Safeguards to prevent
danger must therefore be set up.

E.3. LIABILITY OF TRANSFEREES


The grantee of land upon which there exists a
nuisance created by his predecessors in title is
NOT responsible therefore merely because he
becomes the owner of the premises, or merely
because he permits it to remain.

Note: A swimming pool or water tank is not an


attractive nuisance, for while it is attractive, it
cannot be a nuisance, being merely an
imitation of the work of nature. [Hidalgo
Enterprises v. Balandan (1952)]

He shall be liable if he knowingly continues


the nuisance. Generally, he is not liable for
continuing it in its original form, unless he has
been notified of its existence and requested to
remove it, or has actual knowledge that it is a
nuisance and injurious to the rights of others.

E. LIABILITY IN CASE OF NUISANCE


E.1 WHO ARE LIABLE
Every successive owner or possessor of
property who fails or refuses to abate a
nuisance in that property started by a former
owner or possessor is liable therefor in the
same manner as the one who created it.
(NCC. 696)

If the transferee cannot physically abate the


nuisance without legal action against another
person, then he shall not be liable for such
nuisance.

E.4. NATURE OF LIABILITY

E.2. LIABILITY
NUISANCE

OF

CREATOR

All persons who participate in the creation or


maintenance of a nuisance are jointly and
severally liable for the injury done.

OF

If 2 or more persons who create or maintain


the nuisance act entirely independent of one

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another, and without any community of


interest, concert of action, or common design,
each is liable only so far as his acts contribute to
the injury.

CIVIL LAW

Action for Abatement


(1) The district health officer shall take care
that one or all of the remedies against a
public nuisance are availed of.
(2) If a civil action is brought by reason of the
maintenance of a public nuisance, such
action shall be commenced by the city or
municipal mayor.
(3) The district health officer shall determine
whether or not abatement, without
judicial proceedings, is the best remedy
against a public nuisance.
(4) A private person may file an action on
account of a public nuisance if it is
especially injurious to him.

For solidary liability, there must be some joint


or concurrent act or community of action or
duty, or the several wrongful acts done at
several times must have concurred in their
effects as one single act to produce the injury
complained of.

E.5. RIGHT TO RECOVER DAMAGES


The abatement of a nuisance does not
preclude the right of any person injured to
recover damages for its past existence. [NCC
697]

General rule: An individual has no right of


action against a public nuisance. The
abatement proceedings must be instituted in
the name of the State or its representatives.

Abatement and damages are cumulative


remedies.

Exception: An individual who has suffered


some special damage different from that
sustained by the general public may maintain
a suit in equity for an injunction to abate it, or
an action for damages which he has
sustained.

NO PRESCRIPTION
The action to abate a public or private
nuisance is NOT extinguished by prescription.
[NCC. 1143(2)]

F. REGULATION OF NUISANCES
F.1. PUBLIC NUISANCE

The action becomes a tort if an individual has


suffered particular harm, in which case the
nuisance is treated as a private nuisance with
respect to such person.

Remedies
The remedies against a public nuisance are:
(1) A prosecution under the Penal Code or any
local ordinance;
(2) A civil action; or
(3) Extrajudicial abatement.
(a) It must be reasonably and efficiently
exercised
(b) Means employed must not be unduly
oppressive on individuals, and
(c) No more injury must be done to the
property or rights of individuals than is
necessary
to
accomplish
the
abatement.
(d) No right to compensation if property
taken or destroyed is a nuisance.

Requisites of the right of a private individual to


abate a public nuisance
(1) That demand be first made upon the
owner or possessor of the property to
abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the
district health officer and executed with
the assistance of the local police; and
(4) That the value of the destruction does not
exceed P3000.
Rules

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(1) The right must be exercised only in cases of


urgent or extreme necessity. The thing
alleged to be a nuisance must be existing
at the time that it was alleged to be a
nuisance.
(2) A summary abatement must be resorted to
within a reasonable time after knowledge
of the nuisance is acquired or should have
been acquired by the person entitled to
abate.
(3) The person who has the right to abate
must give reasonable notice of his
intention to do so, and allow thereafter a
reasonable time to enable the other to
abate the nuisance himself.
(4) The means employed must be reasonable
and for any unnecessary damage or force,
the actor will be liable. The right to abate is
not greater than the necessity of the case
and is limited to the removal of only so
much of the objectionable thing as actually
causes the nuisance.
(5) The property must not be destroyed unless
it is absolutely necessary to do so.

CIVIL LAW

(2) To enjoin the sale or destruction of the


property;
(3) An action for the proceeds of its sale and
damages if it has been sold; or
(4) To enjoin private parties from proceeding
to abate a supposed nuisance.

XI. Modes of Acquiring


Ownership
(1)
(2)
(3)
(4)
(5)
(6)
(7)

Occupation
By operation of Law
Donation
Tradition
Intellectual Property
Prescription
Succession

Mode is a specific cause which produces


dominion and other real rights as a result of
the co-existence of special status of things,
capacity and intention of persons and
fulfillment of the requisites of law.
Title is every juridical right which gives a
means to the acquisition of real rights but in
itself is insufficient to produce them.

F.2. PRIVATE NUISANCE


Remedies
The remedies against a private nuisance are:
(1) A civil action; or
(2) Extrajudicial abatement.
(a) The procedure for extrajudicial
abatement of a public nuisance by a
private person will also be followed.
(b) The person extrajudicially abating a
nuisance liable for damages if:
(i) If he causes unnecessary injury; or
(ii) If an alleged nuisance is later
declared by the courts to be not a
real nuisance.

It is not by contract but by delivery that the


ownership of property is transferred (Non
nudis pactis, dominia rerum transferentur).
Contracts only constitute titles or rights to
transfer or acquisition of ownership, while
delivery is the mode of accomplishing the
same.
Mode

Title

Directly
and Serves merely to give
immediately
the occasion for its
produces a real right. acquisition
or
existence.

Remedies of the property owner


A person whose property is seized or destroyed
as a nuisance may resort to the courts to
determine whether or not it was in fact a
nuisance.
(1) An action for replevin;

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Means

Proximate cause

Remote cause

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CIVIL LAW

The owner of a swarm of bees shall have a


right to pursue them to anothers land,
indemnifying the possessor of the latter for
the damage.

Title

Essence of the right, Means whereby that


which is to be created essence
is
or transmitted.
transmitted.

If the owner has not pursued the swarm, or


ceases to do so within 2 consecutive days, the
possessor of the land may occupy or retain
the same.

A. OCCUPATION
Note: Ownership of land cannot be acquired by
occupation.

A.1. REQUISITES

The 20 days to be counted from their


occupation by another person. This period
having expired, they shall pertain to him who
has caught and kept them.

(1) The property must be a corporeal personal


property susceptible of appropriation;
(2) The property is either res nullius (no owner)
or res derelict (abandoned property);
(3) There is seizure or apprehension with the
intent to appropriate; and
(4) There is an observance of requisites or
conditions prescribed by law.

OCCUPATION
ANIMALS

OF

DOMESTICATED

Wild animals are possessed only while they


are under one's control; domesticated or
tamed animals are considered domestic or
tame if they retain the habit of returning to
the premises of the possessor.

A.2. KINDS
Of Animals
(1) Wild or feral animals seizure
(hunting/fishing) in open season by means
NOT prohibited.
(2) Tamed/domesticated animals General
Rule: belong to the tamer, but upon
recovering freedom, are susceptible to
occupation UNLESS claimed within 20
days from seizure by another.
(3) Tame/domestic animals not acquired by
occupation EXCEPT when ABANDONED.

PIGEONS AND FISH


Pigeons and fish which from their respective
breeding places pass to another pertaining to
a different owner shall belong to the latter,
provided they have not been enticed by some
artifice or fraud.

HIDDEN TREASURE
He who by chance discovers hidden treasure
in anothers property: shall be allowed to
the finder.

Of Other Personal Property


(1) Abandoned may be acquired
(2) Lost
(3) Hidden treasure finder gets by
occupation; landowner gets by
accession; EXCEPT in CPG system, share
goes to the partnership.

If the finder is a trespasser, he shall not be


entitled to any share of the treasure.
If the things found be of interest to science or
the arts, the State may acquire them at their
just price, which shall be divided in conformity
with the rule stated.

A.3. SPECIAL RULES


OCCUPATION OF A SWARM OF BEES

LOST MOVABLES; PROCEDURE AFTER


FINDING LOST MOVABLES

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CIVIL LAW

Whoever finds a movable, which is not


treasure, must return it to its previous
possessor.
If unknown, the finder shall immediately
deposit it with the mayor of the city or
municipality where the finding has taken place.

(1) Bilateral contract creating unilateral


obligations on the donors part.
(2) Requires CONSENT of BOTH donor and
donee though it produces obligations only
on the side of the DONOR, unless it is an
onerous donation.

The finding shall be publicly announced by the


mayor for two consecutive weeks in the way he
deems best.

B.3. REQUISITES
(1)
(2)
(3)
(4)
(5)

If the movable cannot be kept without


deterioration, or without expenses which
considerably diminish its value, it shall be sold
at a public auction eight days after the
publication.

Consent and capacity of the parties;


Animus Donandi (intent to donate);
Delivery of thing donated;
Form as prescribed by law; and
Impoverishment of donors patrimony and
enrichment on part of donee.

B.4. WHAT MAY BE DONATED


All present property or part thereof of the
donor
(1) Provided he reserves, in full ownership or
usufruct, sufficient means for support of
himself and all relatives entitled to be
supported by donor at the time of
acceptance.
(2) Provided that no person may give or
receive by way of donation, more than he
may give or receive by will (NCC 752);
also, reserves property sufficient to pay
donors debts contracted before donation,
otherwise, donation is in fraud of creditors
(NCC 759, 1387).
(3) If donation exceeds the disposable or free
portion of his estate, the donation is
inofficious.
(4) EXCEPTIONS:
(a) Donations provided for in marriage
settlements between future spouses
must be not more than 1/5 of present
property.
(b) Donation propter nuptias by an
ascendant consisting of jewelry,
furniture or clothing not to exceed
1/10 of disposable portion.

Six months from the publication having


elapsed without the owner having appeared,
the thing found, or its value, shall be awarded
to the finder. The finder and the owner shall be
obliged, as the case may be, to reimburse the
expenses.
If the owner should appear in time, he shall be
obliged to pay, as a reward to the finder, onetenth of the sum or of the price of the thing
found.

B. DONATION
Donation is an act of liberality whereby a
person disposes gratuitously of a thing or right
in favor of another, who accepts it.

B.1. OTHER INSTANCES CONSIDERED AS


DONATION
(1) When a person gives to another a thing or
right on account of the latter's merits or of
the services rendered by him to the donor,
provided they do not constitute a
demandable debt.
(2) When the gift imposes upon the donee a
burden that is less than the value of the
thing given.

B.5. WHAT MAY NOT BE DONATED


FUTURE PROPERTY

B.2. NATURE
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(1) Donations cannot comprehend future


property.
(2) Future property is understood as
anything which the donor does not
currently own although the donor may or
may not own it later. (Osorio v Osorio [1921])
(3) Inheritance is NOT considered as future
property. (Osorio v Osorio [1921])

As to minors
Cant be made by
minors

May be made by
minors (FC 78)

As to future property
Cannot include future
property

C. KINDS OF DONATIONS
C.1. AS TO ITS TAKING EFFECT

May include future


property (same rule
as wills)

Limit as to donation of present property

(1) Donation Inter Vivos [NCC 729]


Donation which shall take effect during the
lifetime of the donor, though the property
shall not be delivered till after the donor's
death.

No limit to donation of
present property
provided legitimes are
not impaired.

If present property is
donated and
property regime is
ACP, limited to 1/5.

Grounds for revocation

Irrevocable EXCEPT for the ff grounds:


(a) Subsequent birth of the donors
children;
(b) Donors failure to comply with imposed
conditions;
(c) Donees ingratitude; or
(d) Reduction of donation by reason of
inofficiousness.

Law on donations

See below (FC 86)

Causes for revocation of donation propter


nuptias:
(1) If the marriage is not celebrated or
judicially declared void ab initio, except
donations made in the marriage
settlements;
(2) When the marriage takes place without
the consent of the parents or guardian, as
required by law;
(3) When the marriage is annulled, and the
donee acted in bad faith;
(4) Upon legal separation, the one being the
guilty spouse;
(5) If it is with a resolutory condition and the
condition is complied with; or
(6) When the donee has committed an act of
ingratitude as specified by the provisions
of the Civil Code on donations in general.

(2) Donation by Reason of Marriage/ Donation


Propter Nuptias [FC 86]
Requisites
(a) Must be made BEFORE the celebration
of marriage;
(b) Made in CONSIDERATION of the
marriage; and
(c) Made in FAVOR of ONE or BOTH of the
future spouses.

Ordinary Donations v. Donations Propter


Nuptias
Ordinary
Propter Nuptias

Donation between spouses


General Rule: Every donation or grant of
gratuitous advantage, direct or indirect,
between the spouses during the marriage
shall be VOID. The prohibition applies to

Express acceptance
Necessary

CIVIL LAW

Not required

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persons living together as husband and wife


without a valid marriage.

CIVIL LAW

Inter vivos

Mortis causa
premature
and
ineffective because there
can be no contract
regarding
future
inheritance.

Exception: Moderate gifts which the spouses


may give each other on the occasion of any
family rejoicing.

As to transfer of ownership for right of


disposition

(3) Donation Mortis Causa [NCC 728]


(a) It only becomes effective upon the
death of the donor.
(b) The donors death ahead of the donee
is a suspensive condition for the
existence of the donation.

Ownership
is
immediately
transferred.
Delivery
of
possession
is
allowed
after
death.

Characteristics:
(a) The transferor retains ownership and
control of the property while alive;
(b) The transfer is revocable at will before
his death; and
(c) The transfer will be VOID if the
transferor
should
survive
the
transferee.

As to revocation
Irrevocable may Revocable upon
be revoked only for exclusive will of
the
reasons donor.
provided in CC
760, 764, 765.

Inter Vivos v. Mortis Causa


Inter vivos
Mortis causa

the
the

As to reduction or suppression
When
it
is When it is excessive or
excessive
or inofficious, it is reduced
inofficious, being first, or even suppressed.
preferred, it is
reduced only after
the
donations
mortis causa had
been reduced or
exhausted.

As to formalities
Executed
and
accepted
with
formalities
prescribed by CC.

Upon acceptance by the


donee, but the effect of
such retroacts to the
time of death of the
donor.

Must be in the form of a


will,
with
all
the
formalities for the validity
of wills.

As to effectivity
Effective during the
Effective after the death
lifetime of the
of the donor.
donor.

Notes
The NATURE of the act, whether its one of
disposition
or
of
execution,
is
CONTROLLING to determine whether the
donation is mortis causa or inter vivos.
What is important is the TIME of TRANSFER
of ownership even if transfer of property
donated may be subject to a condition or a
term.

As to acceptance
Acceptance must be
made after the death of
Acceptance must
the donor, the donation
be made during
being effective only after
the lifetime of the
the death of donor.
donor.
Acceptance during the
donors
lifetime
is

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(1) Must be made in a public instrument


specifying the donated property and the
burdens assumed by the donee.
(2) The acceptance must be either:
(a) In the same instrument; or
(b) In another public instrument notified
to the donor in authentic form and
noted in both deeds.
(3) Exceptions:
(a) Donations propter nuptias need no
express acceptance.
(b) Onerous donations form governed
by the rules of contracts.

Whether the donation is inter vivos or mortis


causa depends on whether the donor
intended to transfer ownership over the
properties upon the execution of the deed.
[Gestopa v. CA (2002)]

C.2. AS TO CAUSE OR CONSIDERATION


(1) Simple - made out of pure liberality or
because of the merits of the donee.
(2) Remuneratory - made for services already
rendered to the donor.
(3) Onerous - imposes a BURDEN inferior in
value to property donated.
(a) Improper - burden EQUAL in value to
property donated
(b) Sub-modo or modal - imposes a
prestation upon donee as to how
property donated will be applied.
(c) Mixed donations e.g. sale for price
lower than value of property.

C.3.
AS
TO
EXTINGUISHMENT

EFFECTIVITY

CIVIL LAW

D.2. PERFECTION
Acceptance
(1) Donation is perfected upon the donors
learning of the acceptance.
(2) Acceptance may be made during the
lifetime of both donor and donee.
(3) A document merely correcting the deed of
donation does not constitute a new deed
of donation so there is no need for a new
acceptance (Osorio v Osorio [1921])

OR

(1) Pure donation is without conditions or


periods
(2) Conditional donation is subject to
suspensive or resolutory conditions.
(3) With a term

Who May Accept


Donee: must accept personally or through an
authorized person with special power for the
purpose. [NCC 745]

D. FORMALITIES REQUIRED

Note:
A joint donation (donation to two or more
persons) could not be accepted by a done,
independently of the other donee/s. (Genato v
Lorenzo [1968])

D.1. HOW MADE AND ACCEPTED


Movable properties [NCC 748]
(1) The donation of a movable may be made
orally or in writing.
(2) Oral donation: requires the simultaneous
delivery of the thing or of the document
representing the right donated.
(3) If the value of the movable donated
exceeds P5,000, the donation and the
acceptance should be in writing, otherwise,
the donation is void.

Time Of Acceptance
Acceptance must be done during the lifetime
of the donor and the donee.

D.3. QUALIFICATIONS OF DONORS AND


DONEES

Immovable properties [NCC 749]

Who May Give Donations

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CIVIL LAW

All persons who may contract and dispose of


their property may make a donation. [NCC 735]
(b)
Note:
(1) Donors capacity shall be determined as of
the time of the making of the donation.
[NCC 737]
(2) Capacity to donate is required for
donations inter vivos and NOT in donations
mortis causa.
(3) Donors capacity is determined as of the
time of the donation. Subsequent
incapacity is immaterial.

(c)

(d)

Who May Receive Donations


(1) All who are not specially disqualified by
law. (NCC 738)
(2) Minors and others who cannot enter into a
contract: acceptance may be made
through
their
parents
or
legal
representatives. [NCC 741]
(3) Donations made to conceived and unborn
children: those who would legally
represent them if they were already born
may accept the donations. [NCC 737]

(e)

(f)

Who May Not Give or Receive Donations


(1) By reason of public policy (NCC 739)
(a) Those made between persons guilty of
adultery or concubinage at the time of
the donation;
(b) Those made between persons guilty of
the same criminal offense if the
donation is made in consideration
thereof; or
(c) Those made to a public officer, his
spouse,
descendants,
and/or
ascendants by reason of the office.

(g)

(h)

lead a corrupt or immoral life, or


attempted against their virtue;
Any person who has been convicted of
an attempt against the life of the
testator, his or her spouse,
descendants, or ascendants;
Any person who has accused the
testator of a crime for which the law
prescribes imprisonment for six years
or more, if the accusation has been
found groundless;
Any heir of full age who, having
knowledge of the violent death of the
testator, should fail to report it to an
officer of the law within a month,
unless the authorities have already
taken action; this prohibition shall not
apply to cases wherein, according to
law, there is no obligation to make an
accusation;
Any person convicted of adultery or
concubinage with the spouse of the
testator;
Any person who by fraud, violence,
intimidation, or undue influence
should cause the testator to make a
will or to change one already made;
Any person who by the same means
prevents another from making a will,
or from revoking one already made, or
who supplants, conceals, or alters the
latters will;
Any person who falsifies or forges a
supposed will of the decedent.

NCC 1027:
(a) The priest who heard the confession
of the testator during his last illness,
or the minister of the gospel who
extended spiritual aid to him during
the same period;
(b) The relatives of such priest or minister
of the gospel within the fourth degree,
the
church,
order,
chapter,
community,
organization,
or

(2) By reason of the donees unworthiness [NCC


1032 and 1027 except (d)]

NCC 1032:
(a) Parents who have abandoned their
children or induced their daughters to

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institution to which such priest or


minister may belong;
(c) A
guardian
with
respect
to
testamentary dispositions given by a
ward in his favor before the final
accounts of the guardianship have
been approved, even if the testator
should die after the approval thereof;
nevertheless, any provision made by
the ward in favor of the guardian when
the latter is his ascendant, descendant,
brother, sister, or spouse, shall be
valid;
(d) Any physician, surgeon, nurse, health
officer or druggist who took care of the
testator during his last illness; or
(e) Individuals,
associations
and
corporations not permitted by law to
inherit.

(b) When the donation to husband and


wife is joint with the right of accretion
UNLESS
the
donor
provides
otherwise.
(7) Donations by a person to his non-heirs
are collationable. (Liguez v CA)
(8) Donations made to ones heirs must
expressly prohibit collation to be
exempted from collation. (De Roma v CA
[1987])

E.2. SPECIAL PROVISIONS


(1) Reservation by donor of power to dispose
(in whole or in part) or to encumber
property donated [NCC 755]
The donor may reserve the right to
dispose of some things donated, or of
some amount, which shall be a charge
thereon.
But if he should die without having made
use of this right, the property or amount
reserved shall belong to the donee.

(3) By reason of prejudice to creditors or heirs


(voidable)

E. EFFECTS
LIMITATIONS

OF

DONATION

CIVIL LAW

(2) Donation of naked ownership to one donee


and usufruct to another [NCC 756]
The naked ownership and the usufruct
may be donated separately, provided
that all the donees are living at the time
of the donation.

E.1. IN GENERAL
(1) The donee may demand actual delivery of
thing donated;
(2) The donee is SUBROGATED to the rights of
the donor in the property donated;
(3) The donor is NOT obliged to warrant the
things donated EXCEPT in onerous
donations where the donor is liable for
eviction up to the extent of the burden;
[NCC 754]
(4) The donor is liable for EVICTION or
HIDDEN DEFECTS in case of bad faith on
his part; [NCC 754]
(5) In donation propter nuptias, the donor
must RELEASE the property donated from
mortgages and other encumbrances
UNLESS the contrary has been stipulated;
(6) Donations to several donees jointly: NO
right of accretion EXCEPT:
(a) When the donor provides otherwise; or

(3) Conventional reversion in favor of donor or


other person [NCC 757]
If made in favor of the donor: Reversion
may be for any case and circumstance.
If made in favor of other persons: Such
persons must be living at the time of
the donation.
If the rule is violated, the stipulation on
reversion is void but the donation is still
valid.
(4) Payment of donors debt [NCC 758]
If expressly stipulated: the donee must
pay only the debts contracted before the
donation unless specified otherwise. But

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in no case shall the donee be responsible


for debts exceeding the value of the
property donated unless clearly intended.
If theres no stipulation the donee will be
answerable only for the donors debt only
in case the donation is in fraud of
creditors.

CIVIL LAW

illegitimate children, even though


they be posthumous;
(b) If the child of the donor, whom the
latter believed to be dead when he
made the donation, should turn out to
be living; or
(c) If the donor subsequently adopt a
minor child.

(5) Illegal or impossible conditions [NCC 1183]


Impossible conditions: those contrary to
good customs or public policy and those
prohibited by law shall annul the
obligation, which depends upon them.
If the obligation is divisible, that part
thereof which is not affected by the
impossible or unlawful condition shall be
valid.
The condition not to do an impossible
thing shall be considered as not having
been agreed upon.

The donation shall be revoked or reduced


insofar as it exceeds the portion that may be
freely disposed of by will, taking into account
the whole estate of the donor at the time of
the birth, appearance or adoption of a child.
(8) Inofficious Donations
(a) The donation shall be reduced with
regard to the excess.
(b) But this reduction shall not prevent
the donations from taking effect
during the life of the donor, nor shall
it bar the donee from appropriating
the fruits.
(c) 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 or inofficious donations.
(d) If, there being two or more donations,
the disposable portion is not sufficient
to cover all of them, those of the more
recent date shall be suppressed or
reduced with regard to the excess.

(6) Double donations


Rule: Priority in time, priority in right.
If movable: one who first took possession
in good faith.
If immovable: one who recorded in registry
of property in good faith
o If there is no inscription, the one who
first took possession in good faith.
o If there is no possession, one who can
present the oldest title.
(7) Excessive/Inofficious Donations
A type of donation in which a person gives or
receives more than what he may give or receive
by will. [NCC 752]

(9) Scope of amount [NCC 750-752]


(a) The donations may comprehend all
the present property of the donor, or
part thereof.

Donation inter vivos, made by a person having


no children or descendants, legitimate or
legitimated by subsequent marriage, or
illegitimate, may be revoked or reduced by the
happening of any of these events:
(a) If the donor, after the donation, should
have legitimate or legitimated or

Provided he reserves, in full ownership


or in usufruct, sufficient means for the
support of himself, and of all relatives
who, at the time of the acceptance of
the donation, are by law entitled to be
supported by the donor

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(b) Donations cannot comprehend future


property.

CIVIL LAW

Revocation

Reduction

Total withdrawal of
Amount is only insofar
amount, whether
as the legitime is
the legitime is
prejudiced
impaired or not

Future property is understood anything


which the donor cannot dispose of at
the time of the donation.
(10) In fraud of creditors [NCC 759]
(a) Donation is always presumed to be in
fraud of creditors, when at the time
thereof the donor did not reserve
sufficient property to pay his debts
prior to the donation.
(b) The donee shall be responsible
therefor only when the donation has
been made in fraud of creditors.

Benefits the donor

Benefits the donors


heirs (except when
made on the ground of
the appearance of a
child)

G.1. GROUNDS FOR REDUCTION


(1) Inofficiousness
A donation where a person gives or
receives more than what he may give or
receive by will is inofficious. [NCC 752]
(2) Subsequent birth, reappearance of child or
adoption of minor by donor

F. VOID DONATIONS [NCC 739-740,


1027]
F.1. THOSE MADE BETWEEN PERSONS
WHO WERE GUILTY OF ADULTERY OR
CONCUBINAGE AT THE TIME OF THE
DONATION

Effects of subsequent birth, reappearance or


adoption:
(a) A donation is VALID if it does not
exceed the free part computed as of
the birth, adoption or reappearance of
the child.
(b) The donee must return the property or
its value at the time of the donation.
(c) The fruits must be returned from the
filing of the action.
(d) Mortgages by the donee are valid but
may be discharged subject to
reimbursement from the donee.

NOTE: The spouse of the donor or donee may


bring the action for declaration of nullity and
the guilt of the donor and donee may be
proved by preponderance of evidence in the
same action.

F.2. THOSE MADE BETWEEN PERSONS


FOUND GUILTY OF THE SAME CRIMINAL
OFFENSE, IN CONSIDERATION THEREOF
F.3. THOSE MADE TO A PUBLIC OFFICER
OR HIS WIFE, DESCENDANTS AND
ASCENDANTS, BY REASON OF HIS
OFFICE

Extent of revocation: only to the extent of the


presumptive legitime of the child.
(a) Insufficient means of support
(b) In fraud of creditors
(c) Prescription 4 years from either:
(i) Birth of first legitimate child;
(ii) Legitimation,
adoption,
recognition of first child;
(iii) Judicial declaration of filiation; or

F.4. THOSE MADE TO PERSONS


INCAPACITATED TO SUCCEED BY WILL.
[NCC. 1027]

G. REVOCATION V. REDUCTION

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(iv) Knowledge of information on the


existence of a child believed to be
dead.

Effect as to fruits [NCC 768]


When the donation is revoked for any of the
causes stated in NCC 760, or by reason of
ingratitude, or when it is reduced because it is
inofficious, donee shall not return the fruits
except from the filing of the complaint.

REVOCATION
(1) Failure to comply with any of the
conditions imposed by the donor upon the
donee
(2) For additional legitime for subsequent
birth, reappearance or adoption
(3) Ingratitude
The following cases are forms of
ingratitude:
(1) If the donee should commit some offense
against the person, the honor or the property
of the donor, or of his wife or children under his
parental authority;
(2) If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude,
even though he should prove it, unless the
crime or the act has been committed against
the donee himself, his wife or children under
his authority; or
(3) If he unduly refuses him support when
the donee is legally or morally bound
to give support to the donor.

If the revocation is based upon


noncompliance with any of the conditions
imposed in the donation, the donee shall
return not only the property but also the
fruits thereof which he may have received
after having failed to fulfill the condition.

Applies to all donations EXCEPT:


(1)
Mortis causa
(2)
Propter nuptias
(3)
Onerous donations
Notes:
(1) Founded on moral duty: one who received
a donation must be grateful to his
benefactor.
(2) Conviction is NOT necessary.
(3) Time to file action for revocation within
1yr from knowledge of the offense.
Who may file
Donor must bring action
transmissible to his heirs.

himself;

CIVIL LAW

not

Effect of revocation on alienations and


encumbrances [NCC 766]
(1) Alienations and mortgages effected
before the notation of the complaint for
revocation in the Registry of Property shall
subsist.
(2) Later ones shall be void.

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CIVIL LAW

What may be donated


All present property of the donor or part thereof

Limitation:
(1) He reserves in full ownership or in usufruct,
sufficient means for his support and for all
relatives who are at the time of the acceptance
of the donation are, by law, entitled to be
supported
Effect of non-reservation: reduction of the
donation
(2) He reserves sufficient property at the time of
the donation for the full settlement of his debts
Effect of non-reservation: considered to be a
donation in fraud of creditors, and donee may
be liable for damages

What may not be donated


(1) Future property; those which the donor cannot
dispose of at the time of the donation [NCC 751]
(2) More than what he may give or receive by will
[NCC 752]
If exceeds: inofficious
Donations made to several persons jointly
No accretion one donee does not get the share Exception: those given to husband and wife,
of the other donees who did not accept (Article except when the donor otherwise provides
753)
Donor
Who are allowed: All persons who may contract (of Who are not allowed:
legal age) and dispose of their property [NCC 735] (1) Guardians and trustees with respect to the
property entrusted to them [NCC 736]
Donors capacity is determined at the time of the (2) Made between person who are guilty of
making of donation [NCC 737]
adultery or concubinage [NCC 739]
Made between persons found guilty of the same
criminal offense, in consideration thereof [NCC
739]
Donee
Who are allowed to accept donations: Those who Who are not allowed:
are not specifically disqualified by law (Article 738) (1) Made between person who are guilty of
adultery or concubinage [NCC 739]
Those who are allowed, with qualifications:
(2) Made between persons found guilty of the
(1) Minors and others who are incapacitated (see
same criminal offense, in consideration thereof
Article 38), provided that their acceptance is
[NCC 739]
done through their parents or legal (3) Made to a public officer or his wife, descendant
representatives [NCC 741]
and ascendants, by reason of his office [NCC

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CIVIL LAW

(2) Conceived and unborn children, provided that


739]
the donation is accepted by those who would (4) Those who cannot succeed by will [NCC 740]
legally represent them if they were already
born
Those made to incapacitated persons, although
simulated under the guise of another contract
[NCC 743]
Acceptance of the donation
Who may accept [NCC 745]
When to accept: during the lifetime of the donor or
(1) Donee personally
donee [NCC 746]
(2) Authorized person with a special power for the
purpose or with a general sufficient power
What the donee acquires with the thing
He shall be subrogated to all the rights and
actions that would pertain to the donor in case of
eviction [NCC 754]
Obligation of the donor
No obligation to warrant [NCC 754]

Exception: when the donation is onerous


Obligation of the donee

If the donation so states, the donee may be Exception: when contrary intention appears
obliged to pay the debts previously contracted by
the donor and in no case shall he be responsible
for the debts exceeding the value of the thing
donated [NCC 758]
What may be reserved by the donor
Right to dispose of some of the things donated, or If the donor dies without exercising this right
of some amount which shall be a charge thereon
Reversion
The property donated may be restored or returned Limitation to (2): the third person would be living
to
at the time of the donation
(1) Donor or his estate; or
(2) Another person
Revocation/Reduction
Time of Action

Transmissibility

Effect

Liability (Fruits)

Birth, appearance, adoption


Within 4 years from Transmitted to children Property is returned
Fruits returned from the
birth, legitimation and and descendants upon If the property has been filing of the complaint
adoption
the death of donor
sold, its value at the
time of donation shall
be returned.
If the property was
mortgaged, the donor
may
redeem
the
mortgage, with right to

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Time of Action

Transmissibility

CIVIL LAW

Effect

Liability (Fruits)

recover the amount from


the donee
Non-compliance with condition
Within 4 years from non- May be transmitted to
compliance
donors heirs and may
be exercised against
donees heirs

Property
returned, Fruits received after
alienations
and having failed to fulfill
mortgages void subject condition returned
to rights of third persons
in good faith

Ingratitude
Within 1 year after Generally
not
knowledge of the fact transmitted to heirs of
and it was possible for donor/ donee
him to bring the action

Property returned, but Fruits received from the


alienations
and filing of the complaint
mortgages
effected returned
before the notation of
the
complaint
for
revocation in the registry
of property subsist

Failure to reserve sufficient means for support


At any time, by the
donor
or
relatives Not transmissible
entitled to support

Reduced to the extent Donee entitled


necessary to provide
support

Inofficiousness for being in excess of what the donor can give by will
Within 5 years from the Transmitted to donors Donation takes effect on Donee entitled
death of the donor
heirs
the lifetime of donor.
Reduction only upon his
death with regard to the
excess
Fraud against creditors
Rescission within 4 Transmitted to creditors Returned for the benefit Fruits
returned/
if
years
from
the heirs or successors-in- of the creditor who impossible, indemnify
perfection of donation/ interest
brought the action
creditor for damages
knowledge
of
the
donation

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alienates a thing but remains in


possession in another concept as lesee
or depositary.
(3) Quasi tradition: delivery of incorporeal
things or rights by the use by the grantee
of his rights with the grantors consent.
(4) Tradicion by operation of law: delivery
which is not included in the foregoing
modes of delivery and where the delivery is
effected solely by virtue of an express
provision of law.

C. TRADITION
It is a derivative mode of acquiring ownership
and other real rights by virtue of which, there
being intention and capacity on the part of the
grantor and grantee and the pre-existence of
said rights in the estate of the grantor, they are
transmitted to the grantee through a just title.
REQUISITES
(1) Pre-existence in the estate of the grantor
of the right to be transmitted;
(2) Just cause or title for the transmission;
(3) Intention on the part of the grantor to
grant and on the part of the grantees to
acquire;
(4) Capacity to transmit and to acquire; and
(5) An act that gives it outward form,
physically, symbolically, or legally.

Prescription
DEFINITION
By prescription, one acquires ownership and
other real rights through the lapse of time in
the manner and under the conditions laid
down by law.

PURPOSE
(1) Ownership is transferred, among other
means, by tradition.
(2) The delivery of a thing constitutes a
necessary and indispensable requisite for
the purpose of acquiring the ownership of
the same by virtue of a contract.
KINDS
(1) Real Tradition: physical delivery
(2) Constructive Tradition: when the delivery of
the thing is not real or material but
consists merely in certain facts indicative of
the same
(a) Symbolical Tradition: done through the
delivery of signs or things which
represent that which is being
transmitted. (e.g. keys or title itself)
(b) Tradition by public instrument: consists
in the substitution of real delivery of
possession by a public writing with the
delivery of a document which
evidences the transaction.
(c) Tradicio longa manu: made by the
grantor pointing out to the grantee the
thing to be delivered.
(d) Tradicio brevi manu: takes place when
the grantee is already in possession of
the thing. (e.g. when the lessee buys
the thing leased to him)
(e) Tradicion constitutum possessorium:
similar to brevi manu but in the
opposite sense when the owner

CIVIL LAW

In the same way, rights and conditions are lost


by prescription.
It is a means of acquiring ownership and other
real rights or losing rights or actions to enforce
such rights through the lapse of time.
RATIONALE
It is purely statutory in origin. It is founded on
grounds of public policy which requires for the
peace of society, that juridical relations
susceptible of doubt and which may give rise to
disputes, be fixed and established after the
lapse of a determinate time so that ownership
and other rights may be certain for those who
have claim in them.
KINDS OF PRESCRIPTION
(1)
Acquisitive prescription
(2)
Extinctive prescription
ACQUISITIVE PRESCRIPTION
(1) The acquisition of ownership and other real
rights through possession of a thing in the
manner and condition provided by law.
(2) May be ordinary or extraordinary:
(a) Ordinary: requires possession of things in good
faith and with just title for the time fixed by
law.

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PROPERTY

(b) Extraordinary: acquisition of ownership and


other real rights without need of title or of
good faith or any other condition.

ownership and other of rights, whether real


real rights
or personal
Vests the property and Vests the property and
raise a new title in the raise a new title in the
occupant
occupant

Prescription where possession in good faith


converted into possession in bad faith:
Ordinary
(1)
Movable properties - 4 years
(2)
Immovable properties - 10 years
Extraordinary:
(1)
Movable properties - 8 years
(2)
Immovable properties - 30 years
As a mode of acquisition, prescription requires
existence of following:
(1) Capacity of the claimant to acquire by
prescription;
(2) A thing capable of acquisition by
prescription;
(3) Adverse possession of the thing under
certain conditions; and
(4) Lapse of time provided by law.

Merely results in the


loss of a real or
personal right, or bars
the cause of action to
enforce said right

Can be proven under


the general issue
without
its
being
affirmatively pleaded

Should
be
affirmatively pleaded
and proved to bar the
action or claim of the
adverse party

BY OFFENDER
The offender can never acquire, through
prescription, movable properties possessed
through a crime.
REGISTERED LANDS
PD 1529 (AMENDING AND CODIFYING THE
LAWS RELATIVE TO REGISTRATION OF
PROPERTY AND FOR OTHER PURPOSES)
No title to registered land in derogation of the
title of the registered owner shall be acquired
by prescription or adverse possession.

Note:
For extraordinary prescription, only first 4 are
required
Possession has to be in the concept of an
owner, public, peaceful, and uninterrupted.

RIGHTS
NOT
EXTINGUISHED
BY
PRESCRIPTION [NCC 1143]
(1) To demand a right of way, regulated by
NCC 649;
(2) To bring an action to abate a public or
private nuisance.

EXTINCTIVE PRESCRIPTION
The loss or extinguishment of property rights
or actions through the possession by another
of a thing for the period provided by law or
through failure to bring the necessary action to
enforce ones right within the period fixed by
law.

ACTION TO QUIET TITLE IF PLAINTIFF IS IN


POSSESSION
(1) When plaintiff is in possession of the
property: the action to quiet title does not
prescribe.
(2) The reason is that the owner of the property
or right may wait until his possession is
disturbed or his title is assailed before
taking steps to vindicate his right.

Acquisitive Prescription Extinctive Prescription

Applicable

Results
in
the
acquisition
of
ownership or other
real rights in a person
as well as the loss of
said ownership or real
rights in another

NO PRESCRIPTION APPLICABLE

The following are only required in ordinary


prescriptions:
(1)
Good faith of the possessor; and
(2)
Proof of just title

Requires
positive
action of the possessor
(a claimant) who is not
the
Owner

CIVIL LAW

Requires inaction of
the owner out of
possession or neglect
of one with a right to
bring his action

to Applicable to all kinds

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PROPERTY

VOID CONTRACTS
(1) The action or defense for the declaration of
the inexistence of a contract does not
prescribe. [NCC 1410]
(2) The title is susceptible to direct as well as
to collateral attack. [Ferrer v. Bautista,
1994]

(1) The action rescribes in 8 years from the


time the possession thereof is lost. [NCC
1140]
(2) However, the action shall not prosper if it is
brought after 4 years when the possessor
has already acquired title by ordinary
acquisitive prescription. [NCC 1132]
(3) If the possessor acquired the movable in
good faith at a public sale, the owner
cannot obtain its return without
reimbursing the price paid.

ACTION TO DEMAND PARTITION


No prescription shall run in favor of a co-owner
or co-heir against his co-owners or co-heirs so
long as he expressly or impliedly recognizes
the co-ownership. [NCC 494]

TO RECOVER IMMOVABLES
(1) Real actions prescribe after 30 years [NCC
1141]
(2) UNLESS the possessor has acquired
ownership of the immovable by ordinary
acquisitive prescription through possession
of 10 years. [NCC 1134]
(3) Action for reconveyance
(a) Based on fraud: Prescribes 4 years from
the discovery of fraud.
(b) Based on implied or constructive trust:
10 years from the alleged fraudulent
registration or date of issuance of
certificate of title over the property.

PROPERTY OF PUBLIC DOMINION


Prescription, both acquisitive and extinctive,
does not run against the State in the exercise
of its sovereign function to protect its interest
EXCEPT with respect to its patrimonial
property which may be the object of
prescription. (NCC 1113)
PRESCRIPTION
LACHES

DISTINGUISHED

Prescription

FROM

Laches

Concerned with the Concerned with the


fact of delay
effect of delay

OTHER ACTIONS
(1) Action to foreclose mortgage: prescribes
after 10 years from the time the obligation
secured by the mortgage becomes due and
demandable
(2) Actions that Prescribe in 10 Years [NCC
1144]
(a) Upon a written contract
(b) Upon an obligation created by law
(c) Upon a judgment

A question or a matter Principally a question


of time
of
inequity
of
permitting a claim to
be
enforced,
this
inequity being founded
on some subsequent
change
in
the
condition
or
the
relation of the parties
Statutory

NOT statutory

Applies at law

Applies at equity

The computation of the period of


prescription of any cause or right of action,
which is the same as saying prescription of
the action, should start from the date the
cause of action accrues or from the day the
right of the plaintiff is violated. [Nabus v.
CA, 1991]

Cannot be availed of Being a defense of


unless it is especially equity, need not be
pleaded
as
an specifically pleaded
affirmative allegation
Based on a fixed time

CIVIL LAW

NOT based on a fixed


time

PRESCRIPTION OR LIMITATION OF ACTIONS

(3) Actions that Prescribe in 6 Years [NCC 1145]


(a) Upon an oral contract
(b) Upon a quasi-contract

TO RECOVER MOVABLE PROPERTIES

(4) Actions that Prescribe in 4 Years [NCC 1145]

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PROPERTY

(a) Upon an injury to the rights of the


plaintiff
(b) Upon a quasi-delict
BUT when the action arises from any act of
any public officer involving the exercise of
powers arising from Martial Law including
the arrest, detention and/or trial of the
plaintiff, the same must be brought within
1 year.

CIVIL LAW
starts anew the prescriptive period [The
Overseas Bank of Manila v. Geraldez, (1979)]
Not all acts of acknowledgement of a debt
interrupt prescription. To produce such
effect, the acknowledgment must be
written, so that the payment, if not
coupled with the communication signed by
the payor would interrupt the running of
the period of prescription [PNB v. Osete
(1968)]

(5) Actions that Prescribe in One Year or Less


[NCC 1147]
(a) For forcible entry or unlawful detainer
(b) For defamation
(6) Other Actions that Prescribe in 1 Year under
the Civil Code
(a) To recover possession de facto [NCC
554 (4)]
(b) To revoke a donation on the ground of
ingratitude [NCC 769]
(c) To rescind or recover damages if
immovable is sold with non-apparent
burden or servitude [NCC 1560 (3,4)]
(d) To enforce warranty of solvency in
assignment credits [NCC 629]
(7) Where Periods of Other Actions Not Fixed in
the Civil Code and in Other Laws
All other actions whose periods are not
fixed in the Civil Code or in other laws must
be brought within 5 years from the time
the right of action accrues. [NCC 1149]
(8) Interruption [NCC 1155]
The prescription of actions is interrupted
when:
(a) They are filed before the court
(b) When there is a written extrajudicial
demand by the creditors
(c) When
there
is
any
written
acknowledgment of the debt by the
debtor
Civil actions are deemed commenced from
the date of the filing and docketing of the
complaint with the Clerk of Court. [Cabrera
v. Riano (1963)]
A written extrajudicial demand wipes out
the period that has already elapsed and

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OBLIGATIONS

CIVIL LAW

CIVIL LAW

OBLIGATIONS

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OBLIGATIONS

I. DEFINITION

CIVIL LAW

Classification of Obligations
AS TO SANCTION
(1) CIVIL OBLIGATION (or perfect obligation)
give a right of action to compel their
performance; the sanction is judicial
process
(2) NATURAL OBLIGATION midway
between civil and purely moral
obligations; there is a juridical tie, but
performance is left to the will of the
debtor; after voluntary fulfillment by the
obligor, the sanction is the law
(3) MORAL OBLIGATION (or imperfect
obligation) the sanction is conscience or
morality

Art. 1156. An obligation is a juridical necessity


to give, to do or not to do.
Elements of an Obligation
(1) ACTIVE SUBJECT (Obligee/Creditor): The
person who has the right or power to
demand the prestation.
(2) PASSIVE SUBJECT (Obligor/Debtor): The
person bound to perform the prestation.
(3) PRESTATION (Object): The conduct
required to be observed by the
debtor/obligor (to give, to do, or not to
do).
(4) VINCULUM JURIS (Juridical or Legal Tie;
Efficient Cause): That which binds or
connects the parties to the obligation. (De
Leon)

Natural Obligations
Art. 1423. Obligations are civil or natural.
Civil obligations give a right of action to
compel
their
performance.
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. Some natural obligations are
set forth in the following articles.

Different Kinds of Prestations


(1) TO GIVE: real obligation; to deliver either
(a) a specific or determinate thing, or (b) a
generic or indeterminate thing.
(2) TO DO: positive personal obligation;
includes all kinds of work or service.
(3) NOT TO DO: negative personal obligation;
to abstain from doing an act; includes the
obligation not to give.

Natural obligations are midway between civil


obligations and purely moral obligations. It is
distinguished from moral in that it produces
some juridical effects (ex. Right to retention),
but is distinguished from moral in that it does
not give rise to an action to compel its
performance [Tolentino].

Requisites of a Prestation:
(1) Must be possible, physically and
juridically;
(2) Must be determinate, or at least,
determinable;
(3) Must have a possible equivalent in
money.

Payment is voluntary when the debtor knows


that the obligation is a natural one.

Art. 1156 provides the definition of civil


obligations only; it does not cover natural
obligations.

Fulfillment does not refer only to the delivery


of things, but also to the performance of an
act, the giving of security, and the execution of
a document.

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OBLIGATIONS

Rules:
(1) The promise to perform a natural
obligation is as effective as performance
itself, and converts the natural obligation
to a civil obligation.
(2) Partial payment of a natural obligation
does not make it civil; the part paid
cannot be recovered, but payment of the
balance cannot be enforced. The
exception would be if the natural
obligation is susceptible of ratification.
(3) Guaranties for the performance of a
natural obligation are valid.
(4) Payment of a natural obligation is not
subject to reduction by reason of
inofficiousness, appearance of children or
ingratitude.

CIVIL LAW

Requisites under Art 1424


(1) There is a civil obligation
(2) The right to sue upon it has already
lapsed by extinctive prescription
(3) Obligor performs contract voluntarily
Consequence: Obligor cannot recover what he
has delivered or value of the service he
rendered.
Art. 1425. When without the knowledge or
against the will of the debtor, a third person
pays a debt which the obligor is not legally
bound to pay because the action thereon
has prescribed, but the debtor later
voluntarily reimburses the third person, the
obligor cannot recover what he has paid.
Requisites under Art 1425
(1) There is a debt
(2) Action upon the debt has prescribed
(3) A third person, without the knowledge or
against the will of the debtor, pays the
debt
(4) Debtor voluntarily reimburses the third
person

The contractor builds additional works, but is


paid the additional cost of such works. Payor
characterizes the payment as a "mistake," and
not a "voluntary" fulfillment under Art. 1423 of
the Civil Code. Hence, it urges the application
of the principle of solution indebiti. However, it
is not enough to prove that the payments
made by payor to contractor were "not due"
because there was no prior authorization or
agreement with respect to additional works.
There is a further requirement that the
payment by the debtor was made either
through mistake or under a cloud of doubt. In
short, for the provisions on solution indebiti to
apply, there has to be evidence establishing
the frame of mind of the payor at the time the
payment was made [Uniwide v Titan-Ikeda,
2006].

Consequence: Obligor cannot recover what he


has paid.
Art. 1426. When a minor between eighteen
and twenty-one years of age who has
entered into a contract without the consent
of the parent or guardian, after the
annulment of the contract voluntarily
returns the whole thing or price received,
notwithstanding the fact that he has not
been benefited thereby, there is no right to
demand the thing or price thus returned.

Examples of Natural Obligations


Art. 1424. When a right to sue upon a civil
obligation
has
lapsed
by
extinctive prescription, the obligor who
voluntarily performs the contract cannot
recover what he has delivered or the value of
the service he has rendered.

Art. 1427. When a minor between eighteen


and twenty-one years of age, who has
entered into a contract without the consent
of the parent or guardian, voluntarily pays a
sum of money or delivers a fungible thing in
fulfillment of the obligation, there shall be
no right to recover the same from the
obligee who has spent or consumed it in
good faith.

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OBLIGATIONS

Art 1426 and 1427 Distinguished


1426
1427
Presupposes a prior No prior annulment
annulment
is involved
Refers to any object
Refers to money or
fungible things
Consumption
in Requires
good faith is not consumption in good
required
faith

law, but one of the intestate heirs, after the


settlement of the debts of the deceased,
pays a legacy in compliance with a clause in
the defective will, the payment is effective
and irrevocable.
Requisites under Art 1430
(1) There is a will providing for a legacy
(2) The will is declared void because it was
not executed in accordance with the
formalities required by law
(3) Heir pays legacy

Art. 1428. When, after an action to enforce a


civil obligation has failed the defendant
voluntarily performs the obligation, he
cannot demand the return of what he has
delivered or the payment of the value of the
service he has rendered.
Requisites under Art 1428
(1) There is a civil obligation
(2) An action to enforce such has failed
(3) Defendant voluntarily performs
obligation

CIVIL LAW

Consequence:
irrevocable.

Payment

is

effective

and

As to Subject Matter
(1) REAL obligation to give
(2) PERSONAL obligation to do or not to do
the
As to the Affirmativeness or Negativeness of the
Obligation
(1) POSITIVE/AFFIRMATIVE obligation to
give or to do
(2) NEGATIVE: obligation not to give or not
to do

Consequence: Defendant cannot demand


return of what he has delivered or the payment
of the value of the service
Art. 1429. When a testate or intestate heir
voluntarily pays a debt of the decedent
exceeding the value of the property which he
received by will or by the law of intestacy
from the estate of the deceased, the
payment is valid and cannot be rescinded by
the payer.

As to Persons Obliged
(1) UNILATERAL only one of the parties is
bound
(2) BILATERAL both parties are bound
a. Reciprocal performance by one is
dependent on the performance by the
other
b. Non-reciprocal performance by one
is independent of the other [Paras]

Requisites under Art 1429


(1) Decedent incurred in debt during his
lifetime
(2) Heir voluntarily pays debt
(3) Value of debt exceeds value of heirs
inheritance

Sources of Obligations
Art. 1157. Obligations arise from:
(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts.

Consequence: Payment is valid and heir cannot


rescind it.
Art. 1430. When a will is declared void
because it has not been executed in
accordance with the formalities required by

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OBLIGATIONS

A single act or omission may give rise to


different causes of action.
A concurrence of scope in regard to negligent
acts does not destroy the distinction between
the civil liability arising from a crime and the
responsibility for cuasi-delitos or culpa extracontractual. The same negligent act causing
damages may produce civil liability arising
from a crime... or create an action for cuasidelito or culpa extra-contractual. [Barredo vs.
Garcia, 1942]

4. To deliver its 1170)


accessions
and 3. To fruits from the
accessories (1166)
time the obligation to
(a)
accessions
deliver arises (1164)
everything which is 4.
Not
to
be
produced by a thing, compelled to receive a
or
which
is different
one,
incorporated
or although of the same
attached
thereto, value as, or more
excluding fruits
valuable than that
(b) accessories which is due (1244)
things destined for
the embellishment,
use or preservation of
another thing of more
importance
5. To pay damages in
case of breach (1170)
To Give a Generic Thing
1. To take care of the 1. To ask that the
thing (1163)
obligation
be
2. To deliver a thing of complied with (1165)
the quality intended 2. To ask that the
by the parties taking obligation
be
into consideration the complied with by a
purpose
of
the third person at the
obligation and other expense of the debtor
circumstances (1246)
3.
To
recover
- Creditor cannot damages in case of
demand a thing of breach (1165)
superior
quality; 4.
Not
to
be
neither can the debtor compelled to receive a
deliver a thing of different
one,
inferior quality.
although of the same
4. To pay damages in value as, or more
case of breach (1170)
valuable than that
which is due (1244)

II. NATURE AND


EFFECT OF
OBLIGATIONS
A.OBLIGATION TO GIVE
Limited
Generic Thing
Particularly
Object
is When
the
designated or designated
generic
physically
only by its objects
are
segregated
class/ genus/ confined to a
from
all species.
particular
others of the
class.
same
class
(Art. 1460);
Identified by
individuality.
Cannot
be Can
be
substituted
substituted
against the by any of the
obligees will. same
class
and
same
kind.
Specific Thing

CIVIL LAW

Generic Thing

B. OBLIGATION TO DO OR NOT TO
DO
Rights and Duties of Parties
Duties of the Debtor
Rights of the Creditor
To Do
1. To do it (1167)
1. To have the
2. To shoulder the obligation executed at
cost of execution the cost of the debtor
should he fail to do it (1167)
(1167)
2.
To
recover
3. To undo what has damages in case of
been poorly done breach (1170)
(1167)

Duties of the Debtor


Rights of the Creditor
To Give a Specific Thing
1. To preserve or take 1. To compel delivery
care of the thing due (1165)
(1163)
2.
To
recover
2. To deliver the thing damages in case of
itself (1165)
breach, exclusive or in
3. To deliver the fruits addition to specific
of the thing (1164)
performance
(1165;
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OBLIGATIONS

4. To pay damages in Note: The debtor


case of breach (1170)
cannot be compelled
to
perform
his
obligation.
The
ultimate sanction of
civil obligations is
indemnification
of
damages.
Not To Do
1. Not to do what 1. To ask to undo what
should not be done
should not be done, at
2. To shoulder cost of the debtors expense.
undoing what should (1168)
not have been done 2.
To
recover
(1168)
damages, where it
3. To pay damages in would be physically or
case of breach (1170)
legally impossible to
undo what should not
have been done,
because of :
a. the very nature of
the act itself;
b. rights acquired by
third persons who
acted in good faith;
c. when the effects of
the acts prohibited
are
definite
in
character and will not
cease even if the thing
prohibited be undone.

CIVIL LAW

Art. 1234. If the obligation has been


substantially performed in good faith, the
obligor may recover as though there had been
a strict and complete fulfillment, less damages
suffered by the obligee.
In order that there may be substantial
performance of an obligation, there must have
been an attempt in good faith to perform,
without any willful or intentional departure
therefrom. The deviation from the obligation
must be slight, and the omission or defect
must be technical and unimportant, and must
not pervade the whole or be so material that
the object which the parties intended to
accomplish in a particular manner is not
attained. The non-performance of a material
part of a contract will prevent the performance
from amounting to a substantial compliance
The compulsion of payment is predicated on
the substantial benefit derived by the obligee
from the partial performance. Although
compelled to pay, the obligee is nonetheless
entitled to an allowance for the sum required
to remedy omissions or defects and to
complete the work agreed upon. [International
Hotel Corp v Joaquin, 2013]

C. BREACH
The question of whether a breach of contract is
substantial depends upon the attending
circumstances and not merely on the
percentage of the amount not paid. [Cannu v
Galang, 2005]

Art. 1170. Those who in the performance of


their obligations are guilty of fraud,
negligence, or delay, and those who in any
manner contravene the tenor thereof, are
liable for damages.

C.1. COMPLETE FAILURE TO PERFORM


Substantial Breach
1. Total breach
2. Amounts to nonperformance, basis
for
rescission
(resolution)
under
Art.
1191
and
payment of damages

C.2. DEFAULT, DELAY, OR MORA

Slight or Casual
Breach
1. Partial breach
2. There is partial/
substantial
performance in good
faith
3. Gives rise to
liability for damages
only (1234)

Failure to perform an obligation on time which


constitutes breach of the obligation. [De Leon]
Rules on Default, Delay, or Mora
Unilateral Obligations Reciprocal Obligations
General Rule:
Neither party incurs in
No demand, no delay if the other does
delay.
not comply or is not
ready to comply in a
The mere expiration proper manner with
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UP LAW BOC
of the period fixed by
the parties is not
enough in order that
the debtor may incur
in delay.
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. (1169 par.
1)

OBLIGATIONS

CIVIL LAW

Mora solvendi Delay on the part of the debtor


to fulfil his obligation either to give (ex re) or to
do (ex persona).

what is incumbent
upon him. From the
moment one of the
parties fulfills his
obligation, delay by
the other begins. (1169
par. 3)

Requisites:
1. Obligation must be liquidated, due and
demandable
2. Non-performance by the debtor within the
period agreed upon
3. Demand, judicial or extra-judicial, by the
creditor, unless demand is not necessary
under the circumstances enumerated in
Art 1169 par (2).

No delay if neither
performs.

Exceptions: Demand
is not necessary in
order that delay may
exist
under
the
circumstances listed
in Art 1169 par 2, (1)(3).

There is no mora solvendi in:


a) Negative obligations because delay is
impossible [De Leon]
b) Natural obligations [Tolentino]
Effects:
1. The debtor is liable for damages. [Art.
1170]
2. For determinate objects, the debtor shall
bear the risk of loss, even if the loss is due
to fortuitous events.

Demand may be judicial or extrajudicial.


When demand is not necessary in order that
delay may exist (Art. 1169 par 2)
(1) When the obligation or the law expressly
so declare;
Note: It is insufficient that the law or
obligation fixes a date for performance. It
must further state expressly that after the
period lapses, default will commence; OR
(2) 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; OR
(3) When demand would be useless, as when
the obligor has rendered it beyond his
power to perform.

Moraaccipiendi Delay on the part of the


creditor to accept the performance of the
obligation
Requisites:
(1) Debtor offers performance.
(2) Offer must be in compliance with the
prestation as it should be performed.
(3) Creditor refuses performance without just
cause.
Effects:
(1) The responsibility of the debtor is reduced
to fraud and gross negligence.
(2) The debtor is exempted from risk of loss
of the thing, which is borne by the
creditor.

Kinds of Delay; Requisites and Effects


(1) Mora Solvendi
(2) Mora Accipiendi
(3) Compensatio Morae

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(3) The expenses incurred by the debtor for


the preservation of the thing after the
mora shall be chargeable to the creditor.
(4) If the obligation bears interest, the debtor
does not have to pay from the time of
delay.
(5) The creditor is liable for damages.
(6) The debtor may relieve himself of the
obligation by consigning the thing.

Second infractor not


liable for damages at
all; only the first
infractor is liable, but
with
his
liability
mitigated

CIVIL LAW
Does not appear to
consider
which
infractor
first
committed the breach

Articles 1192 and 2215 are not irreconcilably


conflicting. The plaintiff referred to in Article
2215(1) should be deemed to be the second
infractor, while the one whose liability for
damages may be mitigated is the first
infractor. Furthermore, the directions to
equitably temper the liability of the first
infractor in Articles 1192 and 2215 are both
subject to the discretion of the court, despite
the word "shall" in Article 1192, in the sense
that it is for the courts to decide what is
equitable under the circumstances. (Ong v
Bognalbal, 2006)

Compensatiomorae Delay of both parties in


reciprocal obligations.
Effects:
1. Delay of the obligor cancels delay of
obligee (and vice versa) hence it is as if
there is no default.
2. The liability of the first infractor shall be
equitably tempered by the courts. If it
cannot be determined which of the parties
first violated the contract, the same shall
be deemed extinguished, and each shall
bear his own damages. [Art. 1192]

C.3.
FRAUD
(DOLO)
IN
THE
PERFORMANCE OF THE OBLIGATION
Art. 1171. Responsibility arising from fraud is
demandable in all obligations. Any waiver of
an action for future fraud is void.

Cessation of the Effects of Mora:


(1) Express or implied renunciation by the
creditor;
(2) Prescription.

Fraud (dolo) is the deliberate or intentional


evasion of the normal fulfilment of an
obligation. [De Leon]

Equitable Tempering under Art. 1192 vs. Under


Art. 2215 [Ong v Bognalbal, 2006]
Art 1192
Art 2215
In case both parties In contracts, quasihave committed a contracts, and quasibreach
of
the delicts, the court may
obligation,
the equitably mitigate the
liability of the first damages
under
infractorshall
be circumstances other
equitably tempered than the case referred
by the courts. xxx
to in the preceding
article, as in the ff.
instances:
(1) That the plaintiff
himself
has
contravened
the
terms of the contract
xxx

A waiver of future fraud is void but past fraud


may be subject of a valid waiver by the
aggrieved party. [De Leon]
Distinguished from Casual Fraud
Causal Fraud
Fraud in the
(dolo causante and
Performance
dolo incidente)
[Art. 1170]
[Arts. 1338, 1344]
Definition
The deliberate and Every
kind
of
intentional evasion of deception for the
the normal fulfilment purpose of leading
of
obligations. another party into
[International
error and execute a
Corporate Bank v particular act.
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(2) It must have induced the other party to
enter into the contract;
(3) It must have been serious; and
(4) It must have resulted in damage or
injury to the party seeking annulment.
[Tolentino]

Gueco, 2001]
When Present
During
the During the time of
performance of a pre- birth or perfection of
existing obligation
the obligation
Purpose
To evade normal To secure consent of
fulfilment
of another to enter the
obligation
contract(dolo
causante)
To influence a party
regarding an incident
to the contract (dolo
incidente)
Result
Breach
of
the Vitiation of consent
obligation
Remedy
Obligee may recover Innocent party may
damages (1344)
annul the contract(if
dolo causante)
Damages (both dolo
causante or incidente)
Obligation Involved
Valid obligation
Voidable obligation(if
dolo causante)
Valid obligation (if
dolo incidente)

C.4. NEGLIGENCE (CULPA) IN THE


PERFORMANCE OF THE OBLIGATION
Art. 1172. Responsibility arising from
negligence in the performance of every kind
of obligation is also demandable, but such
liability may be regulated by the courts,
according to the circumstances.
The fault or negligence of the obligor consists
in the omission of that diligence which is
required by the nature of the obligation and
corresponds with the circumstances of the
persons, of the time and of the place. [Art.
1173]
Diligence Required [De Leon]
(1) By stipulation of the parties
(2) By law, in the absence of stipulation
(3) Diligence of a good father of a family, if
both the contract and law are silent. (1173
par 2)
(4) Future negligence may be waived except
in cases where the nature of the
obligation or the public requires another
standard of care (i.e. common carriers)
Note: Only future simple negligence
may be waived. Future gross
negligence may not be waived since
such negligence amounts to fraud.

Dolo Causante that which determines or is


the essential cause of the contract
Dolo Incidenterefers only to some particular
or accident of the obligation
In order that fraud may vitiate consent, it must
be the dolo causante and not merely the dolo
incidente, inducement to the making of the
contract. The false representation was used by
plaintiff to get from defendant a bigger share
of net profits. This is just incidental to the
matter in agreement... because despite
plaintiffs deceit, respondent would have still
entered into the contract. [Woodhouse vs.
Halili, 1953]

Exceptions:
Common Carriers
Art. 1733. Common carriers, from the nature
of their business and for reasons of public
policy, are bound to observe extraordinary
diligence in the vigilance over the goods and
for the safety of the passengers transported
by them, according to all the circumstances

Requisites for Fraud to Vitiate a Contract:


(1) It must have been employed by one
contracting party upon the other;
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Test of Negligence
Did the defendant in doing the alleged
negligent act use the reasonable care and
caution, which an ordinary and prudent person
would have used in the same situation? If not,
then he is guilty of negligence. [Mandarin Villa
Inc. vs. CA, 1996]

of each case.
Such extraordinary diligence in the vigilance
over the goods is further expressed in
articles 1734, 1735, and 1745, Nos. 5, 6, and
7, while the extraordinary diligence for the
safety of the passengers is further set forth
in articles 1755 and 1756.
Hotel and Inn-keepers
Art. 1998. The deposit of effects made by
travellers in hotels or inns shall also be
regarded as necessary. The keepers of hotels
or inns shall be responsible for them as
depositaries, provided that notice was given
to them, or to their employees, of the effects
brought by the guests and that, on the part
of the latter, they take the precautions which
said hotel-keepers or their substitutes
advised relative to the care and vigilance of
their effects.

Kinds of Civil Negligence


Culpa Contractual
Negligence is merely
incidental
in
the
performance
of
an
obligation.
There is always a preexisting
contractual
relation.
The source of obligation
of defendant to pay
damages is the breach
or non-fulfillment of the
contract.
Proof of the existence of
the contract and of its
breach
or
nonfulfillment is sufficient
prima facie to warrant
recovery.
Proof of diligence in the
selection
and
supervision
of
the
employees
is
NOT
available as defense.

Art. 1999. The hotel-keeper is liable for the


vehicles, animals and articles which have
been introduced or placed in the annexes of
the hotel.
Art. 2000. The responsibility referred to in
the two preceding articles shall include the
loss of, or injury to the personal property of
the guests caused by the servants or
employees of the keepers of hotels or inns as
well as strangers; but not that which may
proceed from any force majeure. The fact
that travellers are constrained to rely on the
vigilance of the keeper of the hotels or
inns shall be considered in determining the
degree of care required of him.

Culpa Aquiliana
Negligence
substantive
independent.

is
and

There may or may not


be
a
pre-existing
contractual obligation.
The source of obligation
is
the
defendants
negligence itself.
The negligence of the
defendant must be
proved.

Proof of diligence in the


selection
and
supervision
of
the
employee is a defense.

Extent of Damages to be Awarded


[Art. 2201]
Good Faith
Bad Faith
Obligor is liable for Obligor shall be
those that are the responsible for all
natural
and damages which may
probable
be
reasonably
consequences of the attributed to the
breach
of
the non-performance of
obligation,
and the obligation.
which the parties
have foreseen or Any
waiver
or
could
have renunciation made
reasonably foreseen in the anticipation of
at the time the such liability is null
obligation
was and void.
constituted.

Art. 2001. The act of a thief or robber, who


has entered the hotel is not deemed force
majeure, unless it is done with the use of
arms or through an irresistible force.
Art. 2002. The hotel-keeper is not liable for
compensation if the loss is due to the acts of
the guest, his family, servants or visitors, or
if the loss arises from the character of the
things brought into the hotel.

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(1) expressly specified by law [Arts. 552 (2);


1942, 2147, 2148, 2159]
(2) liability specified by stipulation
(3) the nature of the obligations requires
assumption of risk [Art. 1174]
(4) debtor is guilty of concurrent or
contributory negligence
(5) debtor has promised to deliver the same
thing to two or more persons who do not
have the same interest [Art. 1165 par. 3]
(6) the thing is lost due to the obligors fraud,
negligence, delay or contravention of the
tenor of the obligation [Art. 1170]
(7) the obligation to deliver a specific thing
arises from a crime [Art. 1268]
(8) the object is a generic thing, i.e. the genus
never perishes
Note: Genus nunquam perit only pertains
to physical perishing. The genus may still
perish legally. [Labitag notes]

C.5. CONTRAVENTION OF THE TENOR


OF THE OBLIGATION
This refers to a violation of the terms and
conditions stipulated in the obligation, which
must not be due to a fortuitous event or force
majeure. [De Leon]
In any manner contravenes the tenor means
any illicit act, which impairs the strict and
faithful fulfillment of the obligation, or every
kind of defective performance. [Tolentino]

D. LEGAL EXCUSE FOR BREACH:


FORTUITOUS EVENT OR ACTS OF
THE CREDITOR
Art. 1174. Except in cases expressly specified
by the law, or when it is otherwise declared
by stipulation, or when the nature of the
obligation requires the assumption of risk,
no person shall be responsible for those
events which could not be foreseen, or
which, though foreseen, were inevitable.

Requisites of Exemption Based on Force


Majeure
(1) The event must be independent of the
debtors will (fraud or negligence).
(2) The event must be unforeseeable or
inevitable.
(3) The event renders it impossible for
debtor to fulfill his obligation in a normal
manner.
(4) The debtor must be free from any
negligence or participation in the
aggravation of the injury to the creditor
[Tolentino, 1987; De Leon, 2003]
(5) It must be the sole cause, not merely a
proximate cause.

Fortuitous Event - a happening independent of


the will of the debtor and which makes the
normal fulfillment of the obligation
impossible. [De Leon]
(1) Act of God: An accident, due directly or
exclusively to natural causes without
human intervention, which by no amount
of foresight, pains or care, reasonably to
have been expected, could have been
prevented.
(2) Act of Man: Force majeure is a superior or
irresistible force, which is essentially an act
of man; includes unavoidable accidents,
even if there has been an intervention of
human element, provided that no fault or
negligence can be imputed to the debtor.

Act of Creditor: The debtor is also released


from liability when the non-performance of the
obligation is due to the act of the creditor
himself. [Tolentino]

Liability in case of Fortuitous Event


No person shall be responsible for fortuitous
events, UNLESS:

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E. REMEDIES AVAILABLE IN CASE OF


BREACH

declaration of rescission, such declaration will


produce legal effect.

E.1. SPECIFIC PERFORMANCE

The party who deems the contract violated


may consider it resolved or rescinded, and act
accordingly, without previous court action, but
it proceeds at its own risk. For it is only the
final judgment of the corresponding court that
will conclusively and finally settle whether the
action taken was or was not correct in law. But
the law definitely does not require that the
contracting party who believes itself injured
must first file suit and wait for a judgment
before taking extrajudicial steps to protect its
interest. [UP v Delos Angeles, 1970]

The creditor has a right to compel the debtor


to perform the prestation.

E.2. SUBSTITUTED PERFORMANCE


A third person may perform anothers
obligation to deliver a generic thing or an
obligation to do, unless it is a purely personal
act, at the expense of the debtor.

E.3. RESCISSION (RESOLUTION


RECIPROCAL OBLIGATIONS)

IN

Art. 1191. The power to rescind obligations is


implied in reciprocal ones, in case one of the
obligors should not comply with what is
incumbent upon him.

Under Art 1191, the right to rescind an


obligation is predicated on the violation of the
reciprocity between parties, brought about by a
breach of faith by one of them. Rescission,
however, is allowed only where the breach is
substantial and fundamental to the fulfillment
of the obligation. [Del Castillo Vda de Mistica v
Naguiat, 2003; Cannu v Galang, 2005]

The injured party may choose between the


fulfillment and the rescission of the
obligation, with the payment of damages in
either case. He may also seek rescission,
even after he has chosen fulfilment, if the
latter should become impossible.

Distinguished from Rescission under Art. 1380


Rescission / Resolution
[Art. 1191]
Based
on
nonperformance or nonfulfillment of obligation.
Action is instituted only by
the injured party.

The court shall decree the rescission


claimed, unless there be just cause
authorizing the fixing of a period.
This is understood to be without prejudice to
the rights of third persons who have
acquired the thing, in accordance with
articles 1385 and 1388 and the Mortgage
Law.

Applies only to reciprocal


obligations where one
party is guilty of nonfulfillment

Rescission the unmaking of a contract, or its


undoing from the beginning, and not merely its
termination [Pryce Corp v Pagcor, 2005]

In some cases, court may


grant
a
term
for
performance.

Rescission may take place extrajudicially, by


declaration of the injured party. But if the
debtor impugns the declaration of rescission, it
shall be subject to judicial determination. If the
debtor does not oppose the extrajudicial

Non-performance by the
other party is important.

192

Rescission [Art. 1380]


Based on lesion or
fraud upon creditors.
Action is instituted by
either party or by a
third person.
Applies
to
either
unilateral or reciprocal
obligations even when
the contract has been
fully fulfilled
Court cannot grant a
period or term within
which
one
must
comply.
Non-performance
by
the other party is
immaterial.

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OBLIGATIONS

Distinguished from Termination [Pryce Corp v


PAGCOR, 2005]
Rescission
Termination
May be effected:
May be effected by
(a) by both parties by mutual agreement or
mutual agreement, or by
one
party
(b) unilaterally by one exercising one of its
of them declaring a remedies
as
a
rescission without the consequence of the
consent of the other if default of the other
a legally sufficient
ground exists or if a
decree of rescission is
applied for before the
courts
Requires
mutual The parties are not
restitution to restore restored
to
their
the parties to their original
situation;
original situation
prior to termination,
parties are obliged to
comply with their
contractual
obligations

The creditors, after having pursued the


property in possession of the debtor to satisfy
their claims, may exercise all the rights and
bring all the actions of the latter for the same
purpose, save those which are inherent in his
person. [Art.1177]
In order to satisfy their claims against the
debtor, creditors have the ff. successive rights:
(1) To levy by attachment and execution
upon all the property of the debtor,
except those exempt from execution;
(2) To exercise all the rights and actions of
the debtor, except such are inherently
personal to him; and
(3) To ask for the rescission of the
contracts made by the debtor in fraud
of their rights.
Requisites
(1) The person to whom the right of action
pertains must be indebted to the
creditor
(2) The debt is due and demandable
(3) The creditor must be prejudiced by the
failure of the debtor to collect his debts
due him from third persons, either
through malice or negligence
(4) The debtors assets are insufficient (
debtor is insolvent)
(5) The right of action is not purely
personal to the debtor
Previous approval of the court is not
necessary to exercise the accion
subrogatoria.

Effect of Rescission under Art 1191:


Extinguishes the obligatory relation as if it had
never been created, the extinction having a
retroactive effect. Both parties must surrender
what they have respectively received and
return each other as far as practicable to their
original situation. [Tolentino]

E.4. DAMAGES, IN ANY EVENT


Art. 1170. Those who in the performance of
their obligations are guilty of fraud,
negligence, or delay, and those who in any
manner contravene the tenor thereof, are
liable for damages.

E.5.
SUBSIDIARY
CREDITORS

REMEDIES

CIVIL LAW

(b) Accion Pauliana


Rescission, which involves the right of the
creditor to attack or impugn by means of
rescissory action any act of the debtor which is
in fraud and to the prejudice of his rights as
creditor.

OF

(a) Accion Subrogatoria


Right of the creditor to exercise all of the rights
and bring all the actions which his debtor may
have against third persons.

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Creditors may also impugn the acts which the


debtor may have done to defraud them. [Art.
1177]

No
period
prescription

Requisites [Cheng v CA, 2001]


(1) There is a credit in favour of the
plaintiff prior to the alienation by the
debtor
(2) The debtor has performed a
subsequent
contract
conveying
patrimonial benefit to third person/s.
(3) The debtors acts are fraudulent to the
prejudice of the creditor.
(4) The creditor has no other legal remedy
to satisfy his claim
(5) The third person who received the
property is an accomplice to the fraud.

Accion Pauliana

Not necessary that


creditors claim is prior
to the acquisition of the
right by the debtorI.

Credit must exist before


the
fraudulent
act
[Tolentino]

No need for fraudulent


intent

for

rescinded is onerous
Prescribes in 4 years
from the discovery of the
fraud

(c) Other Specific Remedies


Accion Directa
Subsidiary liability of sublessee to the lessor
for rent due from the lessee
Art. 1652. The sublessee is subsidiarily liable
to the lessor for any rent due from the
lessee. However, the sublessee shall not be
responsible beyond the amount of rent due
from him, in accordance with the terms of
the sublease, at the time of the extra-judicial
demand by the lessor.
Payments of rent in advance by the
sublessee shall be deemed not to have been
made, so far as the lessor's claim is
concerned, unless said payments were
effected in virtue of the custom of the place.

An accion pauliana thus presupposes the


following: 1) A judgment; 2) the issuance by the
trial court of a writ of execution for the
satisfaction of the judgment, and 3) the failure
of the sheriff to enforce and satisfy the
judgment of the court. It requires that the
creditor has exhausted the property of the
debtor. The date of the decision of the trial
court is immaterial. What is important is that
the credit of the plaintiff antedates that of the
fraudulent alienation by the debtor of his
property. After all, the decision of the trial
court against the debtor will retroact to the
time when the debtor became indebted to the
creditor. [Cheng v CA, 2001]
Accion Subrogatoria

CIVIL LAW

Vendor has right of action against possessor


whose right is derived from the vendee
Art. 1608. The vendor may bring his action
against every possessor whose right is
derived from the vendee, even if in the
second contract no mention should have
been made of the right to repurchase,
without prejudice to the provisions of the
Mortgage Law and the Land Registration
Law with respect to third persons.
Laborer/materialsman has right of action
against owner of piece of work up to the
amount owed by the latter to the contractor
Art. 1729. Those who put their labor upon or
furnish materials for a piece of work
undertaken by the contractor have an action
against the owner up to the amount owing
from the latter to the contractor at the time
the claim is made. However, the following
shall not prejudice the laborers, employees
and furnishers of materials:
(1) Payments made by the owner to the
contractor before they are due;
(2) Renunciation by the contractor of

Note:
Commentators
have conflicting views
on WoN new debts
contracted by the debtor
fall under the scope of
accion pauliana.
Fraudulent intent is
required if the contract

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any amount due him from the


owner.

CIVIL LAW

Its effectivity or extinguishment does not


depend upon the fulfillment or non-fulfillment
of a condition or upon the expiration of a term
or period. A pure obligation is IMMEDIATELY
DEMANDABLE.

This article is subject to the provisions of


special laws. (1597a) Article 1730. If it is
agreed that the work shall be accomplished
to the satisfaction of the proprietor, it is
understood that in case of disagreement the
question shall be subject to expert
judgment.

B. CONDITIONAL OBLIGATIONS

If the work is subject to the approval of a


third person, his decision shall be final,
except in case of fraud or manifest error.

Art. 1181. In conditional obligations, the


acquisition of rights, as well as the
extinguishment or loss of those already
acquired, shall depend upon the happening
of the event which constitutes the condition.

Principal has right of action against substitute


of agent in cases when the agent is liable for
acts of appointed substitute

A condition is a future and uncertain event.


This includes acquisition of proof/knowledge
of a past event unknown to the parties.

Art. 1893. In the cases mentioned in Nos. 1


and 2 of the preceding article, the principal
may furthermore bring an action against the
substitute with respect to the obligations
which the latter has contracted under the
substitution.

Kinds of conditions
1) As to effect on the obligation
a. Suspensive
b. Resolutory
2) As to cause/ origin
a. Potestative
b. Casual
c. Mixed

Petitioner cannot invoke the credit of a


different creditor to justify the rescission of the
subject deed of donation, because the only
creditor who may benefit from the rescission is
the creditor who brought the action; those who
are strangers to the action cannot benefit from
its effects. (Siguan vs. Lim, 1999)

III. KINDS OF
OBLIGATIONS

(1) As to effect
(a) Suspensive Obligation shall only be
effective upon the fulfillment of the
condition [1181]. The obligee acquires a
mere hope or expectancy, protected by
law, upon the constitution of the
obligation.

CIVIL

A. PURE OBLIGATIONS
Art. 1179. Every obligation whose performance
does not depend upon a future or uncertain
event, or upon a past event unknown to the
parties, is demandable at once.
II.

Before Fulfillment

After Fulfillment

The demandability and


acquisition/ effectivity of
the rights arisingIII.from
the
obligation
is
suspended.

The obligation arises or


becomes effective.
The obligor can be
compelled to comply
with what is incumbent
upon him.

The creditor may bring


the appropriate actions
for the preservation of
his right. Anything paid
by mistake may be

Every obligation which contains a resolutory


condition shall also be demandable, without
prejudice to the effects of the happening of the
event.

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recovered [Art 1188].


However, this excludes
fruits and interests.

CIVIL LAW

Effects of the Happening of Suspensive


Conditions

Doctrine of Constructive Fulfillment of


Suspensive Conditions
Art. 1186. The condition shall be deemed
fulfilled when the obligor voluntarily
prevents its fulfillment.
Suspensive condition deemed fulfilled when:
(1) Obligor intends to prevent obligee
from complying with the condition
(2) Obligor actually prevents obligee from
complying with the condition
Doctrine does not apply to:
(1) Resolutory conditions
(2) External contingency that is lawfully
within the control of the obligor [Taylor
v Uy Tieng, 1922]
(3) Obligor, in preventing the fulfilment of
the condition, acts pursuant to a right

To Give

To Do/Not To Do

If reciprocal, the fruits


and interests shall be
deemed to have been
mutually compensated
a matter of justice and
convenience
[Art. 1187, par. 1]
If unilateral, the debtor
shall appropriate the
fruits and interests
received, unless from
the
nature
and
circumstance it should
be inferred that the
intention of the persons
constituting the same
was different. [Art. 1187
par 1]

In obligations to do or
not to do, the court shall
determine
the
retroactive effect of the
condition that has been
complied with
[Art. 1187, par. 2]
The power of the court
includes
the
determination
of
whether or not there will
be any retroactive effect.
This rule shall likewise
apply in obligations with
a resolutory condition
[Art. 1190 par. 3]

(b) Resolutory The obligation is


demandable at once, without prejudice
to the effects of the happening of the
event (1179 par 2). The rights are
immediately vested to the creditor but
always subject to the threat or danger
of extinction by the happening of the
resolutory condition [Tolentino].

Principle of Retroactivity in Suspensive


Conditions
Art. 1187, par 1. The effects of a conditional
obligation to give, once the condition has
been fulfilled, shall retroact to the day of the
constitution of the obligation. Nevertheless,
when the obligation imposes reciprocal
prestations upon the parties, the fruits and
interests during the pendency of the
condition shall be deemed to have been
mutually compensated. If the obligation is
unilateral, the debtor shall appropriate the
fruits and interests received, unless from the
nature and circumstances of the obligation
it should be inferred that the intention of the
person constituting the same was different.
Rationale: Obligation is constituted when its
essential elements concur. The condition
imposed is only an accidental element.
This applies to consensual contracts only. This
does not apply to real contracts which can only
be perfected by delivery.

196

Before Fulfillment

After Fulfillment

Preservation
of
creditors rights [Art.
1188, par. 1] also applies
to obligations with a
resolutory condition.

Whatever may have


been paid or delivered
by one or both of the
parties
upon
the
constitution
of
the
obligation shall have to
be returned upon the
fulfillment
of
the
condition (Art. 1190 par
1). There is no return to
the
status
quo.
However, when the
condition is not fulfilled,
rights are consolidated
and
they
become
absolute in character.

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OBLIGATIONS

(2) As to Cause/Origin
a. Potestative The fulfilment of the
condition depends on the sole act or
decision of a party.
b. Casual The fulfilment of the condition
depends upon chance or upon the will
of a third person. (1182)
c. Mixed The fulfilment of the condition
depends partly upon the will of a party
to the contract and partly upon chance
and/or will of a third person.
Exclusively
upon
the
Creditors
Will
Exclusively
upon
the
Debtors Will
in case of a
Suspensive
Condition
(Art. 1182)

Exclusively
upon
the
Debtors Will
in case of a
Resolutory
Condition
(Art.
1179,
par. 2)

CIVIL LAW

and the price thereof remitted to the islands.


There were still other conditions that had to
concur to effect the sale, mainly that of the
presence of a buyer, ready, able and willing to
purchase the property under the conditions set
by the intestate. [Hermosa vs. Longara, 1953]
Loss, Deterioration, or Improvement of a
Specific Thing Before Fulfillment of Suspensive
Condition (Art. 1189) or of Resolutory Condition
in Obligations to Do or Not to Do [Art. 1190 par
3]

Condition and obligation are


valid.

Art. 1189. When the conditions have been


imposed with the intention of suspending
the efficacy of an obligation to give, the
following rules shall be observed in case of
the improvement, loss or deterioration of the
thing during the pendency of the condition:
(1) If the thing is lost without the fault of
the debtor, the obligation shall be
extinguished;
(2) If the thing is lost through the fault of
the debtor, he shall be obliged to pay
damages; it is understood that the
thing is lost when it perishes, or goes
out of commerce, or disappears in such
a way that its existence is unknown or it
cannot be recovered;
(3) When the thing deteriorates without the
fault of the debtor, the impairment is to
be borne by the creditor;

Condition and obligation are


void because to allow such
condition would be equivalent
to sanctioning obligations
which are illusory. It also
constitutes
a
direct
contravention of the principle
of mutuality of contracts.
There is nothing to demand
until the debtor wishes to.
Condition and obligation are
valid because in such situation,
the position of the debtor is
exactly the same as the
position of the creditor when
the condition is suspensive. It
does not render the obligation
illusory.

(4) If it deteriorates through the fault of the


debtor, the creditor may choose
between the rescission of the obligation
and its fulfillment, with indemnity for
damages in either case;
(5) If the thing is improved by its nature, or
by time, the improvement shall inure to
the benefit of the creditor;
(6) If it is improved at the expense of the
debtor, he shall have no other right
than that granted to the usufructuary.

Defendant executed an endorsement saying


that shell pay her debt if the house in which
she lives is sold. Such condition depended
upon her exclusive will; thus, it is void.
[Osmea vs. Rama, 1909]
The condition that payment should be made by
Hermosa as soon as he receives funds from the
sale of his property in Spain is a mixed
condition. The condition implies that the
obligor already decided to sell the house and
all that was needed to make the obligation
demandable is that the sale be consummated

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OBLIGATIONS

Positive and Negative Conditions


Positive [Art. 1184]
Negative [Art. 1185[
The condition that The condition that
some event happen at some event will not
a determinate time happen
at
a
shall extinguish the determinate
time
obligation
shall
render
the
(a) as soon as the obligation
effective
from the moment
time expires or
(b) if it has become (a) the time indicated
has elapsed, or
indubitable that
the event will not (b) if it has become
evident that the
take place.
event
cannot
occur.

Art. 1190, par 3. As for the obligations to do


and not to do, the provisions of the second
paragraph of article 1187 shall be observed
as regards the effect of the extinguishment
of the obligation.
Without Debtors
Fault/Act
IV.

VI.

VIII.

With Debtors Fault/Act

Loss
is Obligation is converted
into one of indemnity for
damages.
Deterioration
Impairment to be VII.
borne Creditor may choose
by the creditor.
between bringing an
action for rescission of
the
obligation
OR
bringing an action for
specific
performance,
with damages in either
case.
Improvement
Improvement atIX. the Improvement by the
debtors expense, the things nature or by time
debtor shall ONLY have shall inure to the benefit
usufructuary rights.
of the creditor.
Obligation
extinguished.

CIVIL LAW

V.

Where no date of fulfilment is stipulated,


condition must be fulfilled within a reasonable
time or time probably contemplated according
to the nature of the obligation [Art. 1185, par 2].

C. OBLIGATIONS WITH A PERIOD OR


TERM
Art. 1193. Obligations for whose fulfillment a
day certain has been fixed, shall be
demandable only when that day comes.

Upon the happening of the resolutory


condition, the rules of Article 1189 shall be
applied to the party who is bound to return (i.e.
the creditor in the original obligation).

Obligations with a resolutory period take


effect at once, but terminate upon arrival of
the day certain.

Impossible Conditions
Art. 1183. Impossible conditions, those
contrary to good customs or public policy
and those prohibited by law shall annul the
obligation which depends upon them. If the
obligation is divisible, that part thereof
which is not affected by the impossible
or unlawful condition shall be valid.

A day certain is understood to be that which


must necessarily come, although it may not
be known when.
If the uncertainty consists in whether the day
will come or not, the obligation is
conditional, and it shall be regulated by the
rules of the preceding Section.

The condition not to do an impossible thing


shall be considered as not having been
agreed upon.

Art. 1180. When the debtor binds himself to


pay when his means permit him to do so, the
obligation shall be deemed to be one with a
period, subject to the provisions of Article
1197.

In testaments (Art. 873) and donations (Art.


727), an unlawful or impossible condition does
not annul the transaction. The condition is
merely deemed not written.

Period or Term: Interval of time, which either


suspends
demandability
or
produces
extinguishment.
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OBLIGATIONS

The period must be: future, certain, and


possible.[Tolentino]

This is in contrast to payment by mistake of the


obligor before the occurrence of the suspensive
condition, where fruits and interests may no
longer be recovered.

A fortuitous event does not interrupt the


running of the period. It only relieves the
contracting parties from the fulfillment of their
respective obligations during the period.

Loss, Deterioration, or Improvement of the


Thing Before Period Expires
Art. 1194. In case of loss, deterioration or
improvement of the thing before the arrival
of the day certain, the rules in Article 1189
shall be observed.

Term/Period and Condition Distinguished

X.

XIII.

XV.

CIVIL LAW

Term/Period

Condition

Interval of time which


XI. is
future and certain
Must necessarily XII.
come,
although it may not be
known when
No effect on existence
XIV. of
the obligation, only its
demandability
or
performance
No retroactive XVI.
effect
unless there is an
agreement to the contrary

Fact or event which is


future and uncertain
May or may not happen

When it is left exclusively


XVIII.
to the will of the debtor,
the existence of the
obligation is not affected

When
it
is
leftXIX.
exclusively to the will of
the debtor, the very
existence
of
the
obligation is affected

Benefit of the Period


Art. 1196. Whenever in an obligation a period
is designated, it is presumed to have been
established for the benefit of both the
creditor and the debtor, unless from the
tenor of the same or other circumstances it
should appear that the period has been
established in favor of one or of the other.

Gives
rise
to
an
obligation
or
extinguishes one already
existing
Has retroactive effect

Period for the benefit of either creditor or


debtor
Creditor

XVII.

Kinds of Period [Art 1193]


(1) Ex die period with a suspensive effect.
Obligation becomes demandable after
the lapse of the period.
(2) In diem period with a resolutory effect.
Obligation becomes demandable at
once but is extinguished after the lapse
of the period.

Creditor may demand


XX.
the
fulfillment
or
performance of the
obligation at any time
but the obligor cannot
compel him to accept
payment before the
expiration of the period.

Debtor
Debtor may oppose any
premature demand on
the part of the obligee for
the performance of the
obligation, or if he so
desires, he may renounce
the benefit of the period
by
performing
his
obligation in advance.

If the period is for the benefit of the debtor


alone, he shall lose every right to make use of
it
(1) When after the obligation has been
contracted, he becomes insolvent,
unless he gives a guaranty or security
for the debt;
(2) When he does not furnish to the
creditor the guaranties or securities
which he has promised;
(3) When by his own acts he has impaired
said guaranties or securities after their
establishment, and when through a

Effect of Advance Payment or Delivery


Art. 1195. Anything paid or delivered before
the arrival of the period, the obligor being
unaware of the period or believing that the
obligation
has
become
due
and
demandable, may be recovered, with the
fruits and interests.

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(4)

(5)
(6)
(7)

OBLIGATIONS

fortuitous event they disappear, unless


he immediately gives new ones equally
satisfactory;
When the debtor violates any
undertaking, in consideration of which
the creditor agreed to the period;
When the debtor attempts to abscond
[Art. 1198]
When required by law or stipulation;
If parties stipulated an acceleration
clause [Tolentino]

CIVIL LAW
(c) If the debtor binds himself when his
means permit him to do so.

Art. 1197 does not apply to contract of services


and to pure obligations.
The court, however, to prevent unreasonable
interpretations
of
the
immediate
demandability of pure obligations, may fix a
reasonable time in which the debtor may pay
[Tolentino]

The obligation immediately becomes due and


demandable even if the period has not yet
expired. The obligation becomes a pure one.
[Tolentino]

The only action that can be maintained by the


creditor under Art. 1197 is the action to ask the
courts to fix the term within which the debtor
must comply with his obligation. The
fulfillment of the obligation itself cannot be
demanded until after the court has fixed the
period for compliance therewith, and such
period has arrived.

When Courts May Fix Period


Art. 1197. If the obligation does not fix a
period, but from its nature and the
circumstances it can be inferred that a
period was intended, the courts may fix the
duration thereof.

Art. 1197 applies to a situation in which the


parties intended a period. [Where] no period
was intended by the parties Their mere
failure to fix the duration of their agreement
does not necessarily justify or authorize the
courts to do so. Based on the reasons [herein],
the agreement subsisted as long as the
parents and the children mutually benefited
from the arrangement. Effectively, there is a
resolutory condition in such agreement. When
a change in the condition occurs, the
agreement may be deemed terminated.
[pMacasaet v Macasaet, 2004]

The courts shall also fix the duration of the


period when it depends upon the will of the
debtor.
In every case, the courts shall determine
such period as may under the circumstances
have been probably contemplated by the
parties. Once fixed by the courts, the period
cannot be changed by them.
General Rule: The court is not authorized to fix
a period for the parties [De Leon]
Exceptions: If the Court determines that one of
the 3 circumstances are present, it must decide
the period probably contemplated by the
parties [Araneta v. Phil. Sugar Estates, 1967]
(a) obligation does not fix a period, but
from its nature and circumstances, it
can be inferred that a period wasXXI.
XXIII.
intended
(b) the period is void, such as when it
depends upon the will of the debtor

200

D. ALTERNATIVE OR FACULTATIVE
OBLIGATIONS
Alternative
and
Distinguished

Facultative

Conditions

Alternative Obligations

Facultative Obligations

Several objects are due.


XXII.
May be complied with
XXIV.
by
delivery of one of the
objects
or
by
performance of one of

Only one object is due.


May be complied with by
the delivery of another
object
or
by
the
performance of another

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the prestations which are
alternatively due.
XXV.

Choice may pertain


XXVII.
to
debtor, creditor, or third
person.

XXVI.
XXVIII. Loss/impossibility XXXI.
of all
object/prestation due to
fortuitous event shall
extinguish the obligation.
XXIX.
XXX.
The loss/impossibility of
one of the things does
not
extinguish
the
obligation.
XXXII. Culpable loss of any
XXXIII.
of
the objects alternatively
due before the choice is
made may give rise to
liability on the part of the
debtor.

OBLIGATIONS

CIVIL LAW

categorically and unequivocally makes his or


her choice known. The choice of the debtor
must also be communicated to the creditor
who must receive notice of it since: The object
of this notice is to give the creditor . . .
opportunity to express his consent, or to
impugn the election made by the debtor, and
only after said notice shall the election take
legal effect when consented by the creditor, or
if impugned by the latter, when declared
proper by a competent court. [Arco Pulp and
Paper Co., Inc. v Lim, 2014]

prestation
in
substitution of that
which is due.
Choice pertains only to
the debtor.
Loss/impossibility of the
object/prestation due to
fortuitous
event
is
sufficient to extinguish
the obligation.

Culpable loss of the


object which the debtor
may
deliver
in
substitution before the
substitution is effected
does not give rise to any
liability on the part of
the debtor.

The effect of the notice is to limit the obligation


to the object or prestation selected. Notice of
selection or choice may be in any form
provided it is sufficient to make the other party
know that the selection has been made. It can
be:
(1) oral
(2) in writing
(3) tacit
(4) any other equivocal means

Alternative obligations: Several prestations are


due but the performance of one is sufficient.
[De Leon]

Choice of the debtor when communicated to


the creditor does not require the latters
concurrence.

Right of Choice [Art. 1200]


Belongs to the debtor, UNLESS
(1) it is expressly granted to the creditor
(2) it is expressly granted to a third person

In a joint obligation w/ various debtors and


creditors, the consent of all is necessary to
make the selection effective. If the obligation is
solidary, and there is no stipulation to the
contrary, the choice by one will be binding
personally upon him but not as to the others
[Tolentino].

Limitations to the right of choice


(1) impossible prestations
(2) unlawful prestations
(3) those which could not have been the
object of the obligation
When choice shall produce effect
Choice shall produce no effect except from the
time it has been communicated. [Art. 1201]

If through the creditor's acts the debtor cannot


make a choice according to the terms of the
obligation, the latter may rescind the contract
with damages. [Art 1203]

In an alternative obligation, there is more than


one object, and the fulfillment of one is
sufficient, determined by the choice of the
debtor who generally has the right of election."
The right of election is extinguished when the
party who may exercise that option

If the debtor does not select at the time when


performance should be effected, the choice
can be made for him by the creditor by

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OBLIGATIONS

applying Art. 1167 in obligations to do


[Tolentino].

the price/value of the


thing lost with right to
damages.

Instances when obligation is converted into a


simple obligation
(1) The person with the right of choice has
communicated his choice [Arts. 1201,
1205 par 1]
(2) Only one prestation is practicable [Art.
1202]

CIVIL LAW
the price/value of the
thing lost with right to
damages.

Facultative obligations: Only one prestation is


agreed upon, but the obligor may render
another in substitution. [Art. 1206]

Loss of Substitute in Facultative Obligations


[Art. 1206]

Loss of Specific Things or Impossibility of


Performance of Alternative
Art. 1204: Debtors Choice

Before Substitution is
Made
If due to bad faith or
fraud of obligor: obligor is
liable.

Fortuitous Event

After Substitution is
Made
The
loss
or
deterioration of the
substitute on account
of the obligors delay,
negligence, or fraud,
renders the obligor
liable because once
the substitution is
made, the obligation is
converted into a simple
one
with
the
substituted thing as
the object of the
obligation.

Debtors Fault
All Lost
Debtor is released from Creditor shall have a
the obligation.
right to indemnity forXXXIV.
damages based on theXXXV.
value of the last thingXXXVI.
which disappeared or
service which become
If due to the negligence
impossible.
of the obligor: obligor is
Some
not liable.
Debtor to deliver that Debtor to deliver that
XXXVII.
which he shall choose which the creditor shall
from
among
the choose from among the
remainder.
remainder
without
damages.
One Remains
Debtor to deliver that Debtor to deliver that
E. DIVISIBLE AND
which remains.
which remains.

OBLIGATIONS

Art. 1205: Creditors Choice


Fortuitous Event

INDIVISIBLE

Divisible Obligations
Ones which are susceptible to partial
performance, that is, the debtor can legally
perform the obligation by parts and the
creditor cannot demand a single performance
of the entire obligation [Tolentino]

Debtors Fault

All Lost
Debtor is released from Creditor may claim the
the obligation.
price/value of any of
them with indemnity for
damages.
Some
Debtor to deliver that Creditor may claim any
which he shall choose of those subsisting
from
among
the without a right to
remainder.
damages
OR
price/value of the thing
lost with right to
damages.
One Remains
Creditor may claim the Creditor may claim the
remaining thing without remaining thing without
a right to damages OR a right to damages OR

Indivisible Obligations
Ones which cannot be validly performed in
parts [Tolentino]
Rules
(1) Divisibility/indivisibility refers to the
performance of the prestation and not to
the thing which is the object thereof. The

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(2)

(3)

(4)

(5)

(6)

OBLIGATIONS

thing may be divisible, yet the obligation


may be indivisible.
When the obligation has for its object
the execution of a certain number of
days of work, the accomplishment of
work by metrical units, or analogous
things which by their nature are
susceptible of partial performance, it
shall be divisible [Art.1225, par. 2].
Even though the object or service may be
physically divisible, an obligation is
indivisible if so provided by law or
intended by the parties.
In obligations not to do, divisibility or
indivisibility shall be determined by the
character of the prestation in each
particular case.
When there is plurality of debtors and
creditors,
the
effect
of
divisibility/indivisibility of the obligation
depend upon whether the obligation is
joint or solidary.
A joint indivisible obligation gives rise to
indemnity for damages from the time
any one of the debtors does not comply
with his undertaking [Art. 1224].

CIVIL LAW
c) By death of creditor or the debtor
(division among heirs of the deceased)

F. OBLIGATIONS WITH A PENAL


CLAUSE
Penal Clause: An accessory undertaking to
assume greater liability in case of breach. It is
attached to an obligation in order to ensure
performance. The enforcement of the penalty
can be demanded by the creditor only when
the non-performance is due to the fault or
fraud of the debtor.
If the principal obligation is void, the penal
clause shall also be void. However, the nullity
of the penal clause does not carry with it the
nullity of the principal obligation [Art.1230].
Purposes of Penalty
(1) Funcioncoercitiva de garantia - to insure
the performance of the obligation.
(2) Funcionliquidatoria - to liquidate the
amount of damages to be awarded to
the injured party in case of breach of the
principal obligation (compensatory).
(3) Funcionrestrictamente penal - to punish
the obligor in case of breach of the
principal obligation (punitive).

Effect
Creditor cannot be compelled to receive
partially the prestation in which the obligation
consists; neither may the debtor be required to
make the partial payment [Art. 1248], UNLESS:
(1) The obligation expressly stipulates the
contrary.
(2) The different prestations constituting
the objects of the obligation are
subject to different terms and
conditions.
(3) The obligation is in part liquidated and
in part unliquidated.

Characteristics of Penalty
(1) The penalty shall substitute the indemnity
for damages and payment of interest in
case of non-compliance [Art. 1226],
UNLESS:
a. There is a stipulation to the
contrary
b. The obligor refuses to pay the
penalty
c. The obligor is guilty of fraud
(2) Debtor cannot exempt himself from the
performance of the principal obligation by
paying the stipulated penalty unless this
right has been expressly reserved for him
[Art. 1227].

Cessation of Indivisibility
a) By conversion of the obligation into an
obligation to pay damages
b) By novation of the obligation

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OBLIGATIONS

(3) Creditor cannot demand the fulfillment of


the principal obligation and demanding
the satisfaction of the penalty at the same
time unless the right has been clearly
granted to him [Art. 1227]. Tacit or implied
grant is admissible.
a. If the creditor has chosen fulfillment
of the principal obligation and the
performance
thereof
becomes
impossible without his fault, he may
still demand the satisfaction of the
penalty.
b. If there was fault on the part of the
debtor, creditor may demand not only
the satisfaction of the penalty but also
the payment of damages.
c. If the creditor chooses to demand the
satisfaction of the penalty, he cannot
afterwards demand the fulfillment of
the obligation.

CIVIL LAW

When Penalty may be Reduced [Art. 1229]:


(1) If the principal obligation has been
partly complied with.
(2) If the principal obligation has been
irregularly complied with.
(3) If the penalty is iniquitous or
unconscionable even if there has been
no performance.
The question of whether a penalty is
reasonable or iniquitous can be partly
subjective and partly objective. Its resolution
would depend on such factor as, but not
necessarily confined to, the type, extent and
purpose of the penalty, the nature of the
obligation, the mode of breach and its
consequences, the supervening realities, the
standing and relationship of the parties, and
the like, the application of which, by and large,
is addressed to the sound discretion of the
court. [Ligutan v CA, 2002; Florentino v
Supervalue, 2007]

Proof of Actual Damage


Art. 1228: That proof of actual damages is not
necessary is applicable only to the general rule
stated in Art. 1226, but not to the exceptions.
The penalty is exactly identical with what is
known as liquidated damages in Art. 2226.

IV. JOINT AND


SOLIDARY
OBLIGATIONS

In cases where there has been partial or


irregular compliance, as in this case, there will
be no substantial difference between a penalty
and liquidated damages insofar as legal
results are concerned... There is no justification
for the Civil Code to make an apparent
distinction between a penalty and liquidated
damages because the settled rule is that there
is no difference between penalty and
liquidated damages insofar as legal results are
concerned and either may be recovered
without the necessity of proving actual
damages and both may be reduced when
proper. [Filinvest v CA, 2005]

A. JOINT OBLIGATIONS
The whole obligation, whether capable of
division into equal parts or not, is to be paid or
performed by several debtors and/or
demanded by several creditors.
Presumption of Joint Obligation
An obligation is presumed joint if there is a
concurrence of several creditors, or of several
debtors, or of several creditors and debtors in
one and the same obligation [Art. 1207]
Exceptions:
(1) When the obligation expressly states
that there is solidarity

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OBLIGATIONS

(2) When the law requires solidarity, i.e.


quasi-delicts
(3) When the nature of the obligation
requires solidarity
(4) When a charge or condition imposed
upon heirs or legatees, and the
testament expressly makes the charge or
condition in solidum
(5) When the solidary responsibility is
imputed by a final judgment upon
several defendants

CIVIL LAW

creditors nor interrupt the prescription


as to other debtors.
(3) Vices of each obligation arising from the
personal defect of a particular debtor or
creditor do not affect the obligation or
right of the others.
(4) Insolvency of a debtor does not increase
the responsibility of his co-debtors, nor
does it authorize a creditor to demand
anything from his co-debtors.
(5) Defense of res judicata is not extended
from one debtor to another.

Presumption of Divisibility in Joint Obligations


(Joint Divisible Obligations)
Credit or debt shall be presumed to be divided
into as many equal shares as there are
creditors or debtors, the credits or debts being
considered distinct from one another.
[Art.1208]

Joint Indivisible Obligations


Art. 1209. If the division is impossible, the
right of the creditors may be prejudiced only
by their collective acts, and the debt can be
enforced only by proceeding against all the
debtors. If one of the latter should be
insolvent, the others shall not be liable for
his share.

Joint divisible obligation - One where a


concurrence of several creditors, or of several
debtors, or of several creditors and debtors, by
virtue of which, each of the creditors has a right
to demand, and each of the debtors is bound
to render compliance with his proportionate
part of the prestation which constitute the
object
of the
obligation
(obligacion
mancomunada).

When Indivisible [Art. 1225]


(1) Obligations to give definite things
(2) Obligations not susceptible of partial
performance
(3) Indivisibility is provided by law or
intended by the parties, even though
object or service may be physically
divisible
(4) In obligations not to do, when character
of prestation requires indivisibility

Joint creditor cannot act in representation of


the others, neither can a joint debtor be
compelled to answer for the liability of others.

Plurality of CreditorsIf one or some of the


creditors demands the prestation, the debtor
may legally refuse to deliver to them. He can
insist that all the creditors together receive the
thing, and if any of them refuses to join the
others, the debtor may deposit the thing in
court by way of consignation [Tolentino]

Principal Effects of Joint Liability


(1) Demand by one creditor upon the
debtor, produces the effects of default
only with respect to the creditor who
demanded and the debtor on whom the
demand was made, but not with respect
to others.
(2) Interruption of prescription by the
judicial demand of one creditor upon a
debtor does not benefit the other

Plurality of DebtorsIf there are two or more


debtors, the fulfillment of or compliance with
the obligation requires the concurrence of all

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the debtors, although each for his own share


and for the enforcement of the obligation.

Solidarity may exist although the creditors and


the debtors may not be bound in the same
manner and by the same periods and
conditions. [Art. 1211]

Failure of one debtor to perform in a joint


indivisible obligation gives rise to indemnity for
damages
Art. 1224. A joint indivisible obligation gives
rise to indemnity for damages from the time
anyone of the debtors does not comply with
his undertaking. The debtors who may have
been ready to fulfill their promises shall not
contribute to the indemnity beyond the
corresponding portion of the price of the
thing or of the value of the service in which
the obligation consists.
Joint Divisible
Obligations
In case of breach of
obligation by one of the
debtors, damages due
must be borne by him
alone.

CIVIL LAW

In a joint obligation, each obligor answers


only for a part of the whole liability; in a
solidary or joint and several obligation, the
relationship between the active and the
passive subjects is so close that each of them
must comply with or demand the fulfillment of
the whole obligation. The fact that the liability
sought against the CCC is for specific
performance and tort, while that sought
against the individual respondents is based
solely on tort does not negate the solidary
nature of their liability for tortuous acts alleged
in the counterclaims. [Lafarge Cement v
Continental Cement Corp, 2004]

Joint Indivisible
Obligations
In case of breach where
one of the joint debtors
fails to comply with his
undertaking,
the
obligation can no longer
be
fulfilled
or
performed. Thus, the
action
must
be
converted into one for
indemnity for damages.

Distinguished from Indivisibility


Art. 1210. The indivisibility of an obligation
does not necessarily give rise to solidarity.
Nor does solidarity of itself imply
indivisibility.
Solidarity
Refers to the legal
tie (vinculum juris),
and consequently to
the
subjects
or
parties
of
the
obligation
More
than
one
creditor or more
than
debtor
(plurality of subjects)
Each creditor may
demand the entire
prestation and each
debtor is bound to
pay
the
entire
prestation
Effect of breach:
Solidarity remains

Joint Indivisible Obligations and Prescription


The act of a joint creditor which would
ordinarily interrupt the period of prescription
would not have an effect on prescription
because the indivisible character of the
obligation requires collective action of the
creditors.

B. SOLIDARY OBLIGATIONS
An obligation where there is concurrence of
several creditors, or of several debtors, or of
several creditors and several debtors, by virtue
of which, each of the creditors has the right to
demand, and each of the debtors is bound to
render, entire compliance with the prestation
which constitutes the object of the obligation
(obligacion solidaria).

206

Indivisibility
Refers
to
the
prestation that is not
capable of partial
performance
Exists even if there is
only one creditor
and/or one debtor
Each creditor cannot
demand more than
his share and each
debtor is not bound
to pay more than his
share
Effect of breach:
Obligation
is
converted
to
indemnity
for
damages

UP LAW BOC
All debtors are liable
for
breach
committed by a codebtor
All
debtors
are
proportionately
liable for insolvency
of one debtor

OBLIGATIONS

CIVIL LAW

Active Solidary Obligation


Art. 1214. The debtor may pay any one of the
solidary creditors; but if any demand,
judicial or extrajudicial, has been made by
one of them, payment should be made to
him.

Only the debtors


guilty of breach of
obligation is liable
for damages
Other debtors are
not liable if one
debtor is insolvent

A relationship of mutual agency is created


among co-creditors. But once one creditor
makes a demand for payment, the tacit
representation by the other creditors is
considered revoked.

Kinds of Solidary Obligations


As to Source
(1) Legal imposed by law
(2) Conventional agreed upon by parties
(3) Real imposed by the nature of the
obligation

The creditor who may have executed any


novation, compensation, confusion, or
remission of the debt, as well as he who
collects the debt, shall be liable to the others
for the share in the obligation corresponding to
them. [Art. 1215, par 2]

As to Parties Bound
(1) Active (solidarity among creditors)
Each creditor has the authority to claim
and enforce the rights of all, with the
resulting obligation of paying everyone
of what belongs to him.
(2) Passive (solidarity among debtors)
Each debtor can be made to answer for
the others, with the right on the part of
the debtor-payor to recover from the
others their respective shares.
(3) Mixed (solidarity among creditors and
debtors) Solidarity is not destroyed by
the fact that the obligation of each
debtor is subject to different conditions
or periods. The creditor can commence
an action against anyone of the debtors
for the compliance with the entire
obligation minus the portion or share
which corresponds to the debtor affected
by the condition or period.

A solidary creditor cannot assign his rights


without the consent of the others [Art. 1213].
Such an assignment produces no effect
whatsoever [Tolentino].
Passive Solidary Obligation
Art. 1216. The creditor may proceed against
any one of the solidary debtors or some or
all of them simultaneously. The demand
made against one of them shall not be an
obstacle to those which may subsequently
be directed against the others, so long as
the debt has not been fully collected.
Art. 1217. Payment made by one of the
solidary debtors extinguishes the obligation.
If two or more solidary debtors offer to pay,
the creditor may choose which offer to
accept.
He who made the payment may claim from
his co-debtors only the share which
corresponds to each, with the interest for the
payment already made. If the payment is
made before the debt is due, no interest for
the intervening period may be demanded.

As to Uniformity
(1) Uniform Parties are bound by the same
stipulation
(2) Non-uniform Parties are bound by
different conditions or terms

When one of the solidary debtors cannot,

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because of his insolvency, reimburse his


share to the debtor paying the obligation,
such share shall be borne by all his codebtors, in proportion to the debt of each.

A creditors right to
proceed against the
surety
exists
independently of his
right to proceed against
the principal

Art. 1222. A solidary debtor may, in actions


filed by the creditor, avail himself of all
defenses which are derived from the nature
of the obligation and of those which are
personal to him, or pertain to his own share.
With respect to those which personally
belong to the others, he may avail himself
thereof only as regards that part of the debt
for which the latter are responsible.

The solidary debtor who


made the payment shall
have the right to claim
from his co-debtors the
share
which
corresponds to them
with interest, UNLESS
barred by prescription or
illegality [Art. 1218].

Art 2047 specifically calls for the application of


the provisions on solidary obligations to
suretyship contracts. In particular, Art 1217
recognizes the right of reimbursement from a
co-debtor (the principal co-debtor, in case of
suretyship) in favor of the one who paid (i.e.,
the surety). In contrast, Art 1218 is definitive on
when reimbursement is unavailing, such that
only those payments made after the obligation
has prescribed or became illegal shall not
entitle a solidary debtor to reimbursement.
[Diamond Builders v Country Bankers, 2007]

A relationship of mutual guaranty is created


among co-debtors.
The interruption of prescription as to one
debtor affects all the others; but the
renunciation by one debtor of prescription
already had does not prejudice the others.

Defenses inherent in an obligation include


non-existence of the obligation because of
absolute simulation or illicit object, nullity due
to defect in capacity or consent of all debtors,
unenforceability,
non-performance
of
suspension condition or non-arrival of period,
extinguishment of the obligation, res judicata,
and prescription.

Defenses Available to a Solidary Debtor [Art.


1222]
(1) Those derived from the nature of the
obligation
(2) Those personal to him
(3) Those pertaining to his own share
(4) Those personally belonging to other codebtors but only as regards that part of
the debt for which the latter are
responsible.
Demand Upon a Solidary
Debtor
The demand made
against one of them
shall not be an obstacle
to those which may
subsequently
be
directed against the
others so long as the
debt has not been fully
collected [Art. 1216].
The
creditor
may
proceed against any one
of the solidary debtors
or all simultaneously
[Art. 1216].

CIVIL LAW

Personal defenses such as minority, insanity,


fraud, violence, or intimidation will serve as a
complete exemption of the defendant debtor
from liability to the creditor.

Payment by a Debtor
Full payment made by
one of the solidary
debtors extinguishes the
obligation [Art. 1217].

Debtors obligated themselves solidarily, so


creditor can bring its action against any of
them. Remission of any part of the debt, made
by the creditor in favor of one of the solidary
debtors, inures to the benefit of the rest of
them. [Inchausti vs. Yulo, 1914]

If two or more solidary


debtors offer to pay, the
creditor may choose
which offer to accept
[Art. 1217].

Loss of the thing or impossibility of


performance of the passive/mixed solidary
obligation [Art. 1221]

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Without
The
obligation
shall
be
fault of the
extinguished.
debtors
All debtors shall be responsible
With fault to the creditor, for the price and
of any of the payment of damages and
interest, without prejudice to
the
debtors
their action against the guilty or
negligent debtor.
Through a All debtors shall be responsible
fortuitous
to the creditor, for the price and
event after the payment of damages and
one
interest, without prejudice to
incurred in their action against the guilty or
delay
negligent debtor.

CIVIL LAW

Art. 1220. The remission of the whole


obligation, obtained by one of the solidary
debtors,
does
not
entitle
him
to
reimbursement from his co-debtors.
Each one of the solidary creditors may do
whatever may be useful or beneficial to the
others, but not anything which may be
prejudicial to the latter.
Where the creditor in a solidary obligation has,
by a subsequent instrument, covenanted with
some of the solidary debtors different periods
of payment and different conditions, the
solidarity stipulated in the original contract is
not destroyed [Inchausti v Yulo, 1914]

Effects of Prejudicial and Beneficial Acts


Art. 1212. Each one of the solidary creditors may
do whatever may be useful to the others, but
not anything which may be prejudicial to the
latter.

As far as the debtors are concerned, a


prejudicial act performed by a solidary creditor
is binding.
As between the solidary creditors, the creditor
who performed such act shall incur the
obligation of indemnifying the others for
damages.

If the judgment in an action brought by a


solidary creditor against a solidary debtor is
adverse to the former, such judgment may be
set-up against the other co-creditors In
subsequent actions, except if it is founded on a
cause personal to the plaintiff in the first action
[Tolentino].

V. EXTINGUISHMENT
OF OBLIGATIONS

Art. 1215. Novation, compensation, confusion or


remission of the debt, made by any of the
solidary creditors or with any of the solidary
debtors, shall extinguish the obligation,
without prejudice to the provisions of article
1219.

Art. 1231. Obligations are extinguished:


(1) By payment or performance;
(2) By the loss of the thing due;
(3) By the condonation or remission of the
debt;
(4) By the confusion or merger of the rights
of creditor and debtor;
(5) By compensation;
(6) By novation.
Other causes of extinguishment of obligations,
such as annulment, rescission, fulfillment of a
resolutory condition, and prescription, are
governed elsewhere in this Code.

The creditor who may have executed any of


these acts, as well as he who collects the debt,
shall be liable to the others for the share in the
obligation corresponding to them.
Art. 1219. The remission made by the creditor of
the share which affects one of the solidary
debtors does not release the latter from his
responsibility towards the co-debtors, in case
the debt had been totally paid by anyone of
them before the remission was effected.

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By whom
Payor must have free disposal of the thing due
and capacity to alienate it. [Art. 1239]

A. PAYMENT OR PERFORMANCE
Payment
(1) The delivery of money OR
(2) The performance of an obligation
[Art.1232]
Object of Payment
Principle of Integrity of Payment
Art. 1233. A debt shall not be understood to
have been paid unless the thing or service in
which the obligation consists has been
completely delivered or rendered, as the
case may be.

(1) The debtor or his duly authorized agent


(2) The debtors heir or successor in interest
(3) Any person interested in the fulfillment of
the obligation (such as co-debtor,
guarantor) whether the debtor consents to
it or not, and even without debtors
knowledge [Art 1302]. This includes
payment by a joint debtor [Monte de
Piedad v Fernando Rodrigo, 1936] but not a
solidary co-debtor.
(4) A third person not interested in the
obligation; but the creditor is not bound to
accept payment by him, unless there is a
stipulation to the contrary [Art 1236].

Article 1244. The debtor of a thing cannot


compel the creditor to receive a different
one, although the latter may be of the same
value as, or more valuable than that which is
due.
In obligations to do or not to do, an act or
forbearance cannot be substituted by
another act or forbearance against the
obligee's will. (1166a)

Payment by a third person


Art. 1236. The creditor is not bound to accept
payment or performance by a third person
who has no interest in the fulfillment of the
obligation, unless there is a stipulation to
the contrary.

Exceptions to Art. 1244:


(1) If the obligation is facultative
(2) If the creditor agrees (dation in
payment)

Whoever pays for another may demand from


the debtor what he has paid, except that if
he paid without the knowledge or against
the will of the debtor, he can recover only
insofar as the payment has been beneficial
to the debtor.
Art. 1237. Whoever pays on behalf of the
debtor without the knowledge or against the
will of the latter, cannot compel the creditor
to subrogate him in his rights, such as those
arising from a mortgage, guaranty, or
penalty.

Art. 1248. Unless there is an express stipulation


to that effect, the creditor cannot be compelled
partially to receive the prestations in which the
obligation consists. Neither may the debtor be
required to make partial payments.
However, when the debt is in part liquidated
and in part unliquidated, the creditor may
demand and the debtor may effect the
payment of the former without waiting for the
liquidation of the latter.

Articles 1236 and 1237 merely lay down a


presumption. However, by virtue of the parties
freedom to contract, the parties could stipulate
otherwise. But such mutual agreement, being
an exception to presumed course of events as
laid down by Articles 1236 and 1237, must be
adequately proven [Carandang v de Guzman,
2006].

Art. 1235. When the obligee accepts the


performance, knowing its incompleteness or
irregularity, and without expressing any
protest or objection, the obligation is deemed
fully complied with.

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Reimbursement & Subrogation Distinguished


Reimbursement
Subrogation
Personal action to Includes
recover amount paid
reimbursement, but
also the exercise of
other rights attached
to
the
original
obligation
(e.g.
guaranties, securities)

CIVIL LAW

(2) If the creditor ratifies the payment to the


third person;
(3) If by the creditor's conduct, the debtor
has been led to believe that the third
person had authority to receive the
payment. [Art. 1241]
Place of Payment
(1) In the place designated in the obligation.
(2) In the absence of stipulation
a. If obligation is to deliver a determinate
thing: wherever the thing might be at
the moment the obligation was
constituted.
b. In any other case: Domicile of debtor
[Art. 1251]

Art. 1238. Payment made by a third person who


does not intend to be reimbursed by the debtor
is deemed to be a donation, which requires the
debtor's consent. But the payment is in any
case valid as to the creditor who has accepted
it.
To whom
(1) The person in whose favor the obligation
has been constituted; or
(2) His successor in interest; or
(3) Any person authorized to receive it [Art.
1240]

Time of Payment
Upon demand, except(1) When time is of the essence
(2) When the debtor loses the benefit of the
period
(3) When the obligation is reciprocal

Payment to a person who is incapacitated to


administer his property shall be valid:
(1) if he has kept the thing delivered, OR
(2) insofar as the payment has been
beneficial to him. [Art. 1241 par 1]

Form of Payment
Art. 1249. The payment of debts in money
shall be made in the currency stipulated,
and if it is not possible to deliver such
currency, then in the currency which is legal
tender in the Philippines.

Payment made in good faith to any person in


possession of the credit shall release the
debtor. [Art. 1242]

The delivery of promissory notes payable to


order, or bills of exchange or other
mercantile documents shall produce the
effect of payment only when they have been
cashed, or when through the fault of the
creditor they have been impaired.

Payment made to the creditor by the debtor


after the latter has been judicially ordered to
retain the debt shall not be valid. [Art. 1243]
Payment to a third person [Art. 1241 par 2]
Payment made to a third person shall also be
valid insofar as it has redounded to the benefit
of the creditor.

In the meantime, the action derived from the


original obligation shall be held in the
abeyance.
Extraordinary inflation or deflation
Art. 1250. In case an extraordinary inflation
or deflation of the currency stipulated
should supervene, the value of the currency
at
the time of the establishment of the

That payment has redounded to the benefit of


the credit must be proved, except:
(1) If after the payment, the third person
acquires the creditor's rights;

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CIVIL LAW

(5) If debt produces interest, the payment is


not to be applied to the principal unless
the interests are covered.
(6) When no application can be inferred
from the circumstances of payment, it is
applied: (a) to the most onerous debt of
the debtor; or (b) if debts due are of the
same nature and burden, to all the debts
in proportion
(7) Rules of application of payment may not
be invoked by a surety or solidary
guarantor.

obligation shall be the basis of payment,


unless there is an agreement to the contrary.
For extraordinary inflation (or deflation) to
affect an obligation, the following requisites
must be proven:
(1) an official declaration of extraordinary
inflation or deflation from the BSP
(2) obligation was contractual in nature;
and
(3) parties expressly agreed to consider
the effects of the extraordinary
inflation or deflation [Equitable PCI
Bank v Ng Sheung, December 19 2007]

Rules on application of payment cannot be


made applicable to a person whose obligation
as a mere surety is both contingent and
singular. There must be full and faithful
compliance with the terms of the contract.
[Reparations Commission vs. Universal Deep
Sea Fishing Corp, 1978]

A.1 APPLICATION OF PAYMENTS


Designation of the debt to which should be
applied a payment made by a debtor who owes
several debts to the same creditor.
Requisites:
(1) There is a plurality of debts
(2) Debts are of the same kind
(3) Debts are owed to the same creditor and
by the same debtor
(4) All debts must be due, UNLESS parties
so stipulate, or when application is made
by the party for whose benefit the term
has been constituted
(5) Payment made is not sufficient to cover
all debts [Art. 1252]

The debtors right to apply payment can be


waived and even granted to the creditor if the
debtor so agrees (Premiere Development v
Central Surety, 2009).

A.2. DATION IN PAYMENT


Delivery and transmission of ownership of a
thing by the debtor to the creditor as an
accepted equivalent of the performance of the
obligation (dacionenpago).

Rules on Application
(1) Preferential right of debtor - debtor has
the right to select which of his debts he
is paying.
(2) The debtor makes the designation at the
time he makes the payment.
(3) If not, the creditor makes the
application, by so stating in the receipt
that he issues, unless there is cause for
invalidating the contract.
(4) If neither the creditor nor debtor
exercises the right to apply, or if the
application is not valid, the application is
made by operation of law.

Requisites:
(1) Existence of a money obligation
(2) Alienation to the creditor of a property
by the debtor with the creditors consent
(3) Satisfaction of the money obligation
Dation in payment extinguishes the obligation
to the extent of the value of the thing
delivered, either as agreed upon by the parties
or as may be proved, unless the parties by
agreement express or implied, or by their
silence consider the thing as equivalent to
the obligation, in which case the obligation is

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CIVIL LAW

totally extinguished [Tan Shuy v Spouses


Maulawin, 2012].

A.3. TENDER OF
CONSIGNATION

A.3. PAYMENT BY CESSION

Tender of payment: Manifestation made by the


debtor to the creditor of his desire to comply
with his obligation, with offer of immediate
performance.
(1) Preparatory act to consignation
(2) Extrajudicial in character

Special form of payment where the debtor


assigns/abandons ALL his property for the
benefit of his creditors in order that from the
proceeds thereof, the latter may obtain
payment of their credits.
Requisites:
(1) There is a plurality of debts
(2) There is a plurality of creditors
(3) Partial or relative insolvency of debtor
(4) Acceptance of the cession by the creditors
[Art. 1255]

PAYMENT

AND

Consignation: Deposit of the object of


obligation in a competent court in accordance
with the rules prescribed by law whenever the
creditor unjustly refuses payment or because of
some circumstances which render direct
payment to the creditor impossible or
inadvisable.
(1) Principal act which constitutes a form
of payment
(2) Judicial in character

Debtor is released only for the net proceeds


unless there is a stipulation to the contrary.
Cession and Distinguished
Cession
Dacion en pago
Plurality of creditors One creditor
Debtor must be Debtor
not
partially or relatively necessarily in state
insolvent
of financial difficulty
Universality
of Thing delivered is
property is ceded
equivalent
of
performance
Merely
releases Extinguishes
debtor for the net obligation to the
proceeds of things extent of the value
ceded or assigned, of
the
thing
unless
there
is delivered, as agreed
contrary intention
upon, proved or
implied from the
conduct
of
the
creditor
Involves
all Does not involve all
properties of debtor
properties of debtor
Creditor does not Creditor
becomes
become owner of the owner
ceded property

Requisites of consignation
(1) There is a debt due
(2) Consignation is made because of some
legal cause
a. There was tender of payment and
creditor refuses without just cause
to accept it
b. Instances when consignation alone
would suffice as provided under Art.
1256
(3) Previous notice of consignation was
given to those persons interested in the
performance of the obligation
(4) Amount or thing due was placed at the
disposal of the court
(5) After the consignation has been made,
the persons interested were notified
thereof
When Tender and Refusal Not Required [Art.
1256]
(1) Creditor is absent or unknown, or does
not appear at the place of payment.

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(2) Creditor is incapacitated to receive the


thing due at the time of payment.
(3) Without just cause, creditor refuses to
give receipt.
(4) Two or more persons claim the same
right to collect.
(5) Title of the obligation has been lost.

CIVIL LAW

consigned be awarded to him is equivalent to


an acceptance of the consignation, which has
the effect of extinguishing debtors obligation
[Pabugais v Sahijwani, 2004].
Effects of Consignation
If accepted by the creditor or declared properly
made by the Court:
(1) Debtor is released in same manner as if
he had performed the obligation at the
time of consignation
(2) Accrual of interest is suspended from the
moment of consignation.
(3) Deterioration or loss of the thing or
amount consigned, occurring without
the fault of debtor, must be borne by
creditor from the moment of deposit
Any increment or increase in the value of the
thing after consignation inures to the benefit of
the creditor

What constitutes valid consignation


In order that the consignation of the thing due
may release the obligor, it must first be
announced to the persons interested in the
fulfilment of the obligation.
The consignation shall be ineffectual if it is not
made strictly in consonance with the provisions
which regulate payment. (Art. 1257)
How consignation is made
Consignation shall be made by depositing the
things due at the disposal of judicial authority,
before whom the tender of payment shall be
proved, in a proper case, and the
announcement of the consignation in other
cases.

Unless there is an unjust refusal by a creditor


to accept payment from a debtor, Article 1256
cannot apply. The possession of the property
by the petitioners being by mere tolerance as
they failed to establish the existence of any
contractual relations between them and the
respondent, the bank deposit made by the
petitioners intended as consignation has no
legal effect [Llobrera v Fernandez, May 2,
2006].

The consignation having been made, the


interested parties shall also be notified thereof.
Who bears the expenses
The expenses of consignation, when properly
made, shall be charged against the creditor.
[Art. 1259]

Effects of Withdrawal by Debtor [Arts. 12601261]


(1) Before approval of the court - Obligation
remains in force.
(2) After approval of the court or acceptance
by the creditor, with the consent of the
latter - Obligation remains in force, but
guarantors and co-debtors are liberated.
Preference of the creditor over the thing
is lost.
(3) After approval of the court or acceptance
by the creditor, and without creditors
consent - Obligation subsists, without

Withdrawal of Consigned Amount


Before the creditor has accepted the
consignation, or before a judicial declaration
that the consignation has been properly made,
the debtor may withdraw the thing or the sum
deposited, allowing the obligation to remain in
force [Art. 1260, par 2].
The amount consigned with the trial court can
no longer be withdrawn by the debtor because
creditors prayer in his answer that the amount

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OBLIGATIONS

change in the liability of guarantors and


co-debtors, or the creditors right of
preference.

(4) Fault or negligence concurs with the


fortuitous event.
(5) Loss occurs after delay.
(6) Debtor has promised to deliver the same
thing to two or more different parties.
(7) Obligation arises from a criminal act.
(8) Borrower in commodatum: saves his
own things and not the thing of the
creditor during a fortuitous event.

B. LOSS OF THE THING DUE OR


IMPOSSIBILITY OR DIFFICULTY OF
PERFORMANCE
Loss
A thing is lost when it perishes, goes out of
commerce or disappears in such a way that its
existence is unknown or it cannot be recovered
[Art. 1189, no. 2]

Loss of the thing when in possession of the


debtor
Loss was due to the debtors fault. Burden of
explaining the loss of the thing falls upon him,
UNLESS due to an earthquake, flood, storm, or
other natural calamity [Art. 1265].

Effects of Loss [Arts. 1262-1263]


Obligation to Deliver a
Specific Thing
XXXVIII. Obligation
XL. is
extinguished if the thing
was destroyed without
fault of the debtor and
before he has incurred
delay.
XXXIX.

CIVIL LAW

Obligation to Deliver a
Generic Thing
Loss of a generic thing
does not extinguish an
obligation, EXCEPT in
case
of
delimited
generic things, where
the kind or class is
limited itself, and the
whole class perishes.

In Reciprocal Obligations
Extinguishment of the obligation due to loss of
the thing or impossibility of performance
affects both the creditor and debtor; the entire
juridical relation is extinguished.
Partial loss
Art. 1264. The courts shall determine whether,
under the circumstances, the partial loss of the
object of the obligation is so important as to
extinguish the obligation.

An obligation to pay money is generic;


therefore, it is not excused by fortuitous loss of
any specific property of the debtor [Gaisano v
Insurance Company, 2006].

Partial loss due to a fortuitous event does not


extinguish the obligation. The thing due shall
be delivered in its present condition, without
any liability on the part of the debtor, UNLESS
the obligation is extinguished when the part
lost was of such extent as to make the thing
useless.

Actions Against Third Persons


Article 1269. The obligation having been
extinguished by the loss of the thing, the
creditor shall have all the rights of action
which the debtor may have against third
persons by reason of the loss. (1186)
Other cases where loss is attributed to debtor
(1) Law provides that the debtor shall be
liable even if the loss is due to fortuitous
events [Arts. 1942, 1979, 2147, 2159].
(2) Obligor is made liable by express
stipulation.
(3) Nature of the obligation requires an
assumption of risk.

Impossibility of Performance
[Arts. 1266-1267]
When prestation becomes legally or physically
impossible (by fortuitous event or force
majeure), the debtor is released.

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OBLIGATIONS

Impossibility must have occurred without fault


of debtor, and after the obligation has been
constituted.
Subjective impossibility
Where there is no physical or legal loss, but the
thing belongs to another, the performance by
the debtor becomes impossible. The debtor
must indemnify the creditor for damages.

CIVIL LAW

If the renunciation is not gratuitous, the nature


of the act changes and it may be:
(1) dation in payment when the creditor
receives a thing different from that
stipulated;
(2) novation when the object or principal
conditions of the obligation have
changed;
(3) compromise when the matter
renounced is in litigation or dispute and
in exchange of some concession which
the creditor receives.

Partial Impossibility
Courts shall determine whether it is so
important as to extinguish the obligation.
(1) If debtor has performed part of the
obligation when impossibility occurred,
creditor must pay the part done as long
as he benefits from it.
(2) If debtor received full payment from
creditor, he must return excess amount
corresponding to part which was
impossible to perform.

Although the debtor must accept the


remission, nothing prevents the creditor from
making a unilateral declaration of his right,
abandoning and thereby extinguishing his
credit, as expressly allowed by Art 6, CC.
Kinds of Condonation:
A. As to extent
1. Total extinguishes the entire
obligation.
2. Partial refers to only a particular
aspect of the obligation, e.g. to the
amount of indebtedness or to an
accessory obligation only.

Doctrine of Unforeseen Events


Art. 1267. When the service has become so
difficult as to be manifestly beyond the
contemplation of all the parties, the obligor
may also be released therefrom, in whole or in
part.

B. As to Form
Art. 1270. Condonation or remission is
essentially gratuitous, and requires the
acceptance by the obligor. It may be made
expressly or impliedly.
One and the other kind shall be subject
to the rules which govern inofficious donations.
Express condonation shall, furthermore,
comply with the forms of donation.

C. CONDONATION
Condonation or Remission of the Debt
An act of liberality, by virtue of which, without
receiving any equivalent, the creditor
renounces the enforcement of the obligation.
The obligation is extinguished either in whole
or in such part of the same to which remission
refers.

1.

Requisites:
(1) Debt must be existing and demandable.
(2) Renunciation must be gratuitous;
without any consideration.
(3) Debtor must accept the remission. [Art.
1270]

216

Express Condonation
Made formally; in accordance with
forms of ordinary donations. (Art. 1270)
An express remission must be
accepted in order to be effective.
When the debt refers to movable or
personal property, Art 748 will govern;

UP LAW BOC

OBLIGATIONS

if it refers to immovable or real


property, Art 749 applies.
2. Implied Condonation
Inferred from the acts of the parties.

CIVIL LAW

(1) In general
Art. 1275. The obligation is extinguished from
the time the characters of the debtor and
creditor are merged in the same person.

Presumptions of Condonation:
(1) Whenever the private document in which
the debt is found is in the possession of
the debtor, it shall be presumed that the
creditor delivered it voluntarily, unless
the contrary is proved. [Art. 1272]
(2) Delivery of a private document
evidencing credit made voluntarily by
the creditor to the debtor implies the
renunciation of the action of creditor
against the latter. [Art. 1272]
(3) Accessory obligation of pledge has been
remitted when thing after its delivery is
found in the possession of the debtor or
third person. [Art. 1274]

(2) In case of joint or solidary obligations


Confusion in
Confusion in
Joint Obligation
Solidary Obligation
Extinguishes
the Extinguishes
the
share of the person in entire obligation, but
whom
the
two the other debtors may
characters concur (Art be
liable
for
1277)
reimbursement
if
payment was made
prior to remission.
Obligation is not extinguished when confusion
takes place in the person of subsidiary debtor
(e.g. guarantor), but merger in the person of
the principal debtor shall benefit the former.
Note: Where, however, the mortgagee acquires
ownership of the entire mortgaged property,
the mortgage is extinguished; but this does not
necessarily mean the extinguishment of the
obligation secured thereby, which may become
an unsecured obligation.

Effect
Art. 1273. Renunciation of the principal debt
shall extinguish the accessory obligations, but
remission of the latter leaves the principal
obligation in force.

E. COMPENSATION
D. CONFUSION OR MERGER OF
RIGHTS

Compensation: Offsetting of two obligations


which are reciprocally extinguished if they are
of the same value, or extinguished to the
concurrent amount if of different values.

Confusion: The meeting in one person of the


qualities of creditor and debtor of the same
obligation.

Requisites [Art. 1279]


(1) Each obligor is bound principally, and at
the same time a principal creditor of the
other
(2) Both debts must consist in a sum of
money, or if the things due are
FUNGIBLE, of the same kind & quality
Note: The term consumable is
erroneously used in Art 1279. The
appropriate term is fungible.
(3) Both debts are due

Requisites
(1) It should take place between principal
debtor and creditor. (Art 1276)
(2) The very same obligation must be
involved;
(3) The confusion must be total, i.e. as
regards the whole obligation.
Effects

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OBLIGATIONS

(4) Debts are liquidated and demandable


(5) There must be no retention or
controversy over either of the debts,
commenced by third persons and
communicated in due time to the debtor
(6) Compensation is not prohibited by law

Compensation
Capacity to dispose
and receive the thing
is unnecessary since
compensation
operates by law
May be partial

To warrant the application of set off under


Article 1278 of the Civil Code, the debtors
admission of his obligation must be clear and
categorical and not one which merely arise by
inference or implication from the customary
execution of official documents in assuming
the responsibilities of a predecessor [Bangko
Sentral v COA, 2006].

(1) Legal Compensation takes place by


operation of law from the moment all
requisites are present.
Since it takes place ipso jure, when used as a
defense, it retroacts to the date when all its
requisites are fulfilled.
Art. 1290. When all the requisites mentioned
in article 1279 are present, compensation
takes effect by operation of law, and
extinguishes both debts to the concurrent
amount, even though the creditors and
debtors are not aware of the compensation.

Compensation Distinguished from Other Modes


of Extinguishment
Confusion

There are two persons


who
are
mutually
debtors and creditors of
each other in two
separate
obligations,
each arising from the
same cause.

There is only one person


whom the characters of
the creditor and debtor
meet.

total

As to cause
(1) Legal
(2) Voluntary
(3) Judicial
(4) Facultative

Debtor claiming its benefits must prove


compensation; once proven, effects retroact
from the moment when the requisites
concurred.

Involves
only
obligation.

Must
be
performance

Kinds of Compensation
As to extent
(1) Total when two debts are of the
same amount (Art. 1281)
(2) Partial

Effects rise from the moment all the requisites


concur.

There must always be


two obligations.

Payment
Requires capacity to
dispose of the thing
paid and capacity to
receive

Compensation
Counterclaim
Takes
place
by Must be pleaded to be
operation of law
effectual

Effects
(1) Both debts are extinguished to the
concurrent amount, even though the
creditors and debtors are not aware of
the compensation.
(2) Accessory
obligations
are
also
extinguished.

Compensation

CIVIL LAW

one

Legal compensation may apply to:


i. Awards of attorneys fees, against the
litigant and not his lawyer [Gan Tion v
CA, 1969]
ii. Bank deposits, against the accounts of a
depositor
whose
checks
were
dishonoured [BPI v CA, 1996]

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OBLIGATIONS

Note: While a bank generally has a right


of set-off over deposits for the payment
of any withdrawals on the part of a
creditor, the question of whether the
remedy is properly exercised is a
separate matter and depends on the
banks role as the depository bank and
as collecting agent for the check. The
depositary bank must have acted with
the highest degree of care, otherwise it
may not exercise such right of setoff.
[Associated Bank v Tan, 2004]

CIVIL LAW

Art. 1283. If one of the parties to a suit over


an obligation has a claim for damages
against the other, the former may set it off
by proving his right to said damages and the
amount thereof.
(4) Facultative Compensation - When it can be
claimed by one of the parties who,
however, has the right to object to it.
- Compensation which can only be set up
at the option of a creditor, when legal
compensation cannot take place because
some legal requisites in favor of the
creditor are lacking. Creditor may renounce
his right to compensation, and he himself
may set it up. As opposed to conventional
compensation, facultative compensation is
unilateral and does not depend upon the
agreement of the parties.

Respondent owed petitioner P566,000. Later


on, respondent sold a car to petitioner for
P500,000. The claim of respondent that there
could be no legal compensation as one of the
obligations consists of delivery of a car and not
a sum of money must fail. As legal
compensation takes place ipso jure, and
retroacts to the date when its requisites are
fulfilled, legal compensation has already taken
place at the time of the sale [Trinidad v
Acapulco, 2006].

Obligations which cannot be compensated


[Arts. 1287-1288]
(1) Contracts of depositum
(2) Contracts of commodatum
(3) Future support due by gratuitous title
(4) Civil liability arising from a penal offense
(5) Obligations due to the government
(6) Damage caused to the partnership by a
partner

(2) Voluntary Compensation takes place


when parties who are mutually creditors
and debtors of each other agree to
compensate their respective obligations
even though one of the requisites of
compensation may be lacking

Right of a Guarantor
A guarantor may set up compensation as
regards what the creditor may owe the
principal debtor. [Art. 1280]

Art. 1282. The parties may agree upon the


compensation of debts which are not yet
due.

Effect of Assignment of Rights by the Creditor


to a Third Person [Art. 1285]
Debtor cannot set up against
assignee
compensation
With
pertaining to him against
debtors
assignor UNLESS he reserved
consent
such right at the time he gave
his consent
With
Debtor
may
set
up
debtors
compensation of debts previous
knowledge to the assignment but not of

The
only
requisites
of
conventional
compensation are (1) that each of the parties
can dispose of the credit he seeks to
compensate, and (2) that they agree to the
mutual extinguishment of their credits [United
Planters v CA, 2009].
(3) Judicial Compensation takes place by
judicial decree

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but
without
consent

OBLIGATIONS

subsequent ones

stipulated.

Debtor
may
set
up
Without
compensation of all credits
debtors
prior and also later to the
knowledge assignment until he had
knowledge of the assignment

F. NOVATION
Novation
Extinguishment of an obligation by the
substitution or change of the obligation by a
subsequent one which extinguishes or modifies
the first either by changing the object or
principal conditions, or by substituting the
person of the debtor, or by subrogating a third
person in the rights of the creditor.
Unlike other modes of extinguishment, it is a
juridical act of dual functionit extinguishes
an obligation, and at the same time, it creates
a new one in lieu of the old. It operates as a
relative, not an absolute, extinction.

Old
obligation is
extinguished
and replaced
by the new
one

the
former
relations shall
be extinguished
in any event
[Art. 1297]
1.
New
obligation void:
No novation
2.
New
obligation
voidable:
Novation
is
effective

Original or new obligation with suspensive or


resolutory condition
Art. 1299. If original obligation was subject to a
suspensive or resolutory condition, the new
obligation shall be under the same condition,
unless it is otherwise stipulated.
Compatible Conditions
Incompatible Conditions
(a) Fulfillment of both (a) Original obligation is
conditions:
new
extinguished, while
obligation becomes
new obligation exists
demandable
(b) Fulfillment
of (b) Demandability shall
condition concerning
be
subject
to
the
original
fulfillment/
obligation:
old
nonfulfillment of the
obligation is revived;
condition affecting it
new obligation loses
force
(c) Fulfillment
of
condition concerning
the new obligation:
no
novation;
requisite
of
a
previous valid and
effective obligation
lacking

Effect
If Original
Obligation is
Void
Novation is void
if the original
obligation was
void,
except
when
annulment may

be claimed only
by the debtor,
or
when
ratification
validates acts
that
are
voidable [Art.
1298]
1.
Original
obligation
is
void:
No
novation
2.
Original
obligation
voidable:
Effective
if
contract
is
ratified before
novation.

Accessory obligations are also extinguished,


but may subsist only insofar as they may
benefit third persons who did not give their
consent to the novation OR those who may be
affected, upon agreement between the parties.

Requisites
(1) A previous valid obligation
(2) Agreement of all the parties to the new
obligation
(3) Animus novandi or intent to novate
(4) Substantial difference between old and
new obligations and, consequently,
extinguishment of the old obligation
(5) Validity of the new obligation

In General

CIVIL LAW

If New
Obligation is
Void
New obligation
is void, the old
obligation
subsists, unless
the
parties
intended that

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OBLIGATIONS
retained, unless
waived by the debtor.

Kinds of Novation
As to form
(1) Express declared in an unequivocal
terms
(2) Implied the old and new obligations
are on every point incompatible with
each other

As to essence or object
(1) Objective/ Real
(2) Subjective/ Personal
a. Substitution of debtors
i. Expromision
ii. Delegacion
b. Subrogation of a third person to the
rights of the creditor
i. Conventional
ii. Legal

Novation is not presumed


In the absence of an unequivocal declaration of
extinguishment of the pre-existing obligation,
only proof of incompatibility between the old
and new obligation would warrant a novation
by implication. [California Bus Line vs. State
Investment, 2003]

(1) Objective Novation


a. Change of the subject matter
b. Change of cause or consideration
c. Change of the principal conditions or
terms

Test of Incompatibility
Whether or not the old and new obligation can
stand together, each one having an
independent existence. No incompatibility
exists when they can stand together. Hence,
there is no novation. Incompatibility exists
when they cannot stand together. Hence, there
is novation.

(2) Subjective Novation


a. Substitution of debtors
Expromision
Initiative for change does
not emanate from the
debtor, and may even be
made
without
his
knowledge.

Delegacion
Debtor
(delegante)
offers or initiates the
change,
and
the
creditor (delegatorio)
accepts a third person
(delegado)
as
consenting
to
the
substitution.
Requisites
(1) Consent of the
Consent of old debtor,
creditor and the new
new
debtor,
and
debtor
creditor
(2) Knowledge or
XLII.
consent of the old
debtor is not required

For there to be implied novation, the changes


must be essential, i.e. referring to the object,
cause, or principal conditions of the obligation.
As to effect
(1) Total
(2) Partial
Total
(1) Transfers to the person
subrogated the credit
with all the rights
thereto appertaining,
either against the
debtor or third
persons.
(2) Obligation is not
extinguished, even if
the intention is to pay
it.
(3) Defenses against the
old creditor are

CIVIL LAW

Partial
A creditor, to whom
partial payment has
been made, may
exercise his right for
the remainder, and
shall be preferred to
the
person
subrogated in his
place in virtue of the
partial payment.
XLI.

Effects
(1) Old debtor is released (1) Insolvency of the
(2) Insolvency of the new
new debtor revives
debtor does not
the obligation of the
revive the old
old debtor if it was
obligation in case the
anterior and public,
old debtor did not
and known to the old
agree to expromision
debtor.
(3) If with knowledge
(2) New debtor can
and consent of old
demand

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OBLIGATIONS

debtor, new debtor


can demand
reimbursement of the
entire amount paid
and with subrogation
of creditors rights.
(4) If without knowledge
of the old debtor, new
debtor can demand
reimbursement only
up to the extent that
the latter has been
benefited without
subrogation of
creditors rights.

reimbursement of
the entire amount he
has paid from the
original debtor. He
may compel creditor
to subrogate him to
all of his rights.
XLIII.

Extinguishes
an
obligation and gives
rise to a new one.
Defects/vices in the
old obligation are
cured.

Refers to the same right


which passes from one
person to another, without
modifying or extinguishing
the obligation.
Defects/vices in the old
obligation are not cured.

ii. Legal Subrogation takes place by


operation of law
Legal subrogation is not presumed, except in
the following circumstances:
(1) When creditor pays another creditor who
is preferred, even without the debtors
knowledge
(2) When a third person not interested in the
obligation pays with the express or tacit
approval of the debtor
(3) When, even without the knowledge of
the debtor, a person interested in the
fulfillment of the obligation pays,
without prejudice to the effects of
confusion as to the latters share (Art.
1302)

For subjective novation, it is insufficient that


the juridical relation between the parties to the
original contract is extended to a third person.
If the old debtor is not released, no novation
occurs and the third person who has assumed
the debtors obligation becomes merely a codebtor or surety or co-surety. [Conchinyan, Jr. v.
R&B Surety and Insurance Company, 1987]
An accessory surety may not be released if he
expressly waives his discharge from the
obligation in case of change or novation in the
original agreement [Molino v Security Diners
International Corp, 2001].
b. Subrogation
Transfers to the person subrogated the credit
with all the rights thereto appertaining, either
against the debtor or against third persons, be
they guarantors or possessors of mortgages,
subject to stipulation in a conventional
subrogation. [Art. 1303]
i. Conventional Subrogation takes place by
agreement of parties
Difference between Conventional Subrogation
and Assignment of Credit [Licaros v Gatmaitan,
2001]
Conventional
subrogation
Debtors consent is
necessary.

CIVIL LAW

Assignment of credit
Debtors consent is not
required.

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CONTRACTS

CIVIL LAW

CIVIL LAW

CONTRACTS

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CONTRACTS

I. GENERAL
PROVISIONS

CIVIL LAW

inequitable, the court shall decide


what is equitable under the
circumstances.

A.2. AUTONOMY
Contract)

Contract - A contract is a meeting of the minds


between two persons whereby one binds
himself, with respect to the other, to give
something or to render some service [Article
1305]

(also

Freedom

to

Art. 1306. The contracting parties may


establish such stipulations, clauses, terms and
conditions as they may deem convenient,
provided they are not contrary to law, morals,
good customs, public order, or public policy.

A. PRINCIPAL CHARACTERISTICS OF
CONTRACTS (MARCO)

Gateway v Land Bank, 2003: Contracting


parties may establish any agreement, term,
and condition they may deem advisable,
provided they are not contrary to law, morals
or public policy. The right to enter into lawful
contracts constitutes one of the liberties
guaranteed by the Constitution. It cannot be
struck down or arbitrarily interfered with
without violating the freedom to enter into
lawful contracts.

A. 1. MUTUALITY
Art. 1308. The contract must bind both
contracting parties; its validity or
compliance cannot be left to the will of one
of them.
General rule: Any contract which appears to be
heavily weighed in favor of one of the parties or
is left solely to the will of one of the parties is
void [Floirendo v Metrobank, 2007].
Exception: The legality of contracts which is
left to the will of either of the parties may be
upheld if there was a finding of the presence of
essential equality of the parties to the
contracts, thus preventing the perpetration of
injustice on the weaker party [GF Equity v
Valenzona, 2005]

It is necessary for the existence of a contract


that two distinct parties enter into it (autocontracts).
The existence of a contract is not
determined by the number of persons who
intervene in it, but by the number of
parties; not by the number of individual
wills but by the number of declarations of
will.
As long as there are two distinct
patrimonies, even if they are represented
by the same person, the contract will be
valid; e.g. an agent representing both the
buyer and the seller.

A contract may expressly confer upon one


party the right to cancel the contract because
the exercise of that right is a fulfillment of the
provisions of the contract itself [Taylor v Uy
Tieng Pao, 1922]
The determination of the performance may be
left to a third party as long as:
(1) The decision has been made known to
both contracting parties [Article 1309]
(2) The determination is not evidently
inequitable [Article 1310].
If it is

Special disqualifications in freedom to contract


Article 87, Family Code: Every donation or grant
of gratuitous advantage, direct or indirect,
between the spouses during the marriage shall
be void, except moderate gifts which the

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CONTRACTS

spouses may give each other on the occasion of


any family rejoicing. The prohibition shall also
apply to persons living together as husband
and wife without a valid marriage.
Article 1490, Civil Code: The husband and the
wife cannot sell property to each other, except:
(1) When a separation of property was agreed
upon in the marriage settlements; or (2) When
there has been a judicial separation of property
under Article 191.
Article 1491, Civil Code: The following persons
cannot acquire by purchase, even at a public or
judicial auction, either in person or through the
mediation of another:
(1) The guardian, the property of the person
or persons who may be under his
guardianship;
(2) Agents,
the
property
whose
administration or sale may have been
entrusted to them, unless the consent of
the principal has been given;
(3) Executors and administrators, the
property
of
the
estate
under
administration;
(4) Public officers and employees, the
property of the State or of any subdivision
thereof, or of any government-owned or
controlled corporation, or institution, the
administration of which has been
entrusted to them; this provision shall
apply to judges and government experts
who, in any manner whatsoever, take
part in the sale;
(5) Justices, judges, prosecuting attorneys,
clerks of superior and inferior courts, and
other officers and employees connected
with the administration of justice, the
property and rights in litigation or levied
upon an execution before the court
within whose jurisdiction or territory they
exercise their respective functions; this
prohibition includes the act of acquiring
by assignment and shall apply to
lawyers, with respect to the property and
rights which may be the object of any

CIVIL LAW

litigation in which they may take part by


virtue of their profession.
(6) Any others specially disqualified by law.
Article 1782, Civil Code: Persons who are
prohibited from giving each other any donation
or advantage cannot enter into universal
partnership
Limitations to stipulations/what not to
stipulate:
1. Contrary to Law
Pactum commisorium automatic foreclosure
Article 2088, Civil Code: The creditor cannot
appropriate the things given by way of pledge
or mortgage, or dispose of them. Any
stipulation to the contrary is null and void.
Pactum leonina one party bears the lions
share of the risk
Article 1799, Civil Code: A stipulation which
excludes one or more partners from any share
in the profits or losses is void.
Pactum de non alienundo a stipulation not to
alienate
Article 2130, Civil Code: A stipulation forbidding
the owner from alienating the immovable
mortgaged shall be void.
2. Contrary to morals
3.Contrary to good customs
4. Contrary to public order
5. Contrary to public policy
Public policy is the principle under which
freedom of contract or private dealing is
restricted by law for the good of the public. In
determining whether a contract is contrary to
public policy, the nature of the subject matter
determines the source from which such
question is to be solved [Ferrazzinni v Gsell,
1916]
A contract which is neither prohibited by law
nor condemned by judicial decision, nor
contrary to public morals, contravenes no

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i.

He communicated his acceptance to


the obligor before its revocation (by the
original parties)
ii. The contracting parties must have
clearly and deliberately conferred a
favor upon the third person (A mere
incidental benefit or interest of a
person is not sufficient).
iii. The stipulation favoring the third
person is only a part of the contract
iv. No relation of agency exists between
any of the parties and the third person
favored

public policy. In the absence of express


legislation or constitutional prohibition, a
court, in order to declare a contract void as
against public policy, must find that the
contract as to the consideration or thing to be
done, has a tendency to injure the public, is
against the public good, or contravenes some
established interests of society, or is
inconsistent with sound policy and good
morals, or tends clearly to undermine the
security of individual rights, whether of
personal liability or of private property [Gabriel
v Monte de Piedad, 1941]

Florentino v Encarnacion, (1977):


i. Contracts to perform personal acts
which cannot be as well performed by
others are discharged by the death of the
promissor. Conversely, where the service
or act is of such a character that it may
as well be performed by another, or
where the contract, by its terms, shows
that performance by others was
contemplated, death does not terminate
the contract or excuse nonperformance.
ii. In this case the stipulation is a
stipulation pour autrui because the true
intent of the parties is to confer a direct
and material benefit upon a third party.

A.3. RELATIVITY
Article 1311, para.1. Contracts take effect only
between parties, their assigns and heirs,
EXCEPT in case where the rights and
obligations arising from the contract are not
transmissible by their (1) nature, (2) by
stipulation, or (3) by provision of law. The
heir is not liable beyond the value of the
property he received from the decedent
Article 1317. No one may contract in the name
of another without being authorized by the
latter, or unless he has by law a right to
represent him.
A contract entered into in the name of
another by one who has no authority or legal
representation or who has acted beyond his
powers, shall be unenforceable, unless it is
ratified expressly or impliedly by the person
on whose behalf it has been executed,
before it is revoked by the other contracting
party

Accion directa the creditor is authorized by


the statute to sue on his debtors contract
(J.B.L Reyes) e.g.
Lessor v Sublessee [Article 1651, 1652]
Laborers of Contractor v Owner of the work
(Article 1729)
2. Third Person in Possession of Object of
Contract [Article 1312]
In contracts creating real rights, third
persons who come into possession of the
object of the contract are bound thereby,
subject to the provisions of the Mortgage
Law and the Land Registration Laws.

Exceptions to Relativity (Contracts may bind


and affect strangers in the ff. cases):
1. Stipulations Pour Autrui [Article 1311, par.2]
If a contract should contain some
stipulation in favor of a third person, he
may demand its fulfillment, provided:

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A.4. CONSENSUAL

3. Fraud of Creditors by Contracting Parties


[Article 1313]
Creditors are protected in cases of
contracts intended to defraud them.

Article 1315. Contracts are perfected by mere


consent and from that moment, the parties
are bound not only to the fulfillment of what
has been expressly stipulated but also to al
consequences which according to their
nature may be keeping in good faith, usage,
and law.

Creditors of the contracting parties may


rescind contracts intended to defraud them
although they did not intervene therein
(J.B.L. Reyes).

Exceptions: Real contracts, such as deposit,


pledge and commodatum, are not perfected
until the delivery of the object of the obligation
[Article 1316]

4. Tortious Interference [Article 1314]


Any third person who induces another to
violate his contract shall be liable for
damages to the other contracting party
(even though the third person is not bound
by the stipulations).

A.5. OBLIGATORY FORCE


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

Requisites:
i. Existence of a valid contract
ii. Knowledge of the third person of the
existence of the contract
iii. Interference by third person without
legal justification or excuse

Article 1308. The contract must bind both


contracting parties; its validity or
compliance cannot be left to the will of one
of them

Daywalt v Corp. de PP. Agustinos Recoletos


(1919): The liability of the third person in good
faith cannot exceed the liability of the party to
the contract in whose behalf the third person
intermeddles.

Article 1315. Contracts are perfected by mere


consent and from that moment, the parties
are bound not only to the fulfillment of what
has been expressly stipulated but also to all
consequences which according to their
nature may be keeping in good faith, usage,
and law

Lagon v CA (2005):
(1) The word "induce" refers to situations
where a person causes another to choose
one course of conduct by persuasion or
intimidation.
(2) Knowledge alone is not sufficient to make
a third person liable for tortuous
interference. To sustain a case for
tortuous interference, the defendant must
have acted with malice or must have been
driven by purely impious reasons to injure
the plaintiff.

B. ELEMENTS OF CONTRACTS
1) Essential those without which there
is no contract
Consensual
(ordinary)
Essential
Elements
Additional
Elements

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Real
Consent
Object
Cause
Delivery of
the thing
to
be
returned

Solemn
(formal)

Formality
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c. Gratuitous where no correlative


prestation is received by one party
(6) To purpose
a. Transfer of ownership, e.g. sale
b. Conveyance of Use, e.g. commodatum
c. Rendition of Service, e.g. agency
(7) To time of fulfillment
a. Executed where the obligations are
fulfilled at the time the contract is
entered into
b. Executory where fulfillment of
obligations does not take place at the
time the contract is made
(8) To risk
a. Commutative

fulfillment
is
predetermined in advance
b. Aleatory fulfillment is dependent
upon chance
(9) To the nature of the vinculum produced
a. Unilateral only one party is bound by
the prestation; e.g. commodatum
b. Bilateral (synallagmatic)- both parties
are bound by reciprocal prestations,
e.g. sale
All contracts are bilateral in the
consent, but not all are bilateral in
effects.
(10) To their designation/name
a. Nominate where the law gives the
contract a special designation or
particular name; e.g. deposit
b. Innominate where the contract has
no special name
(i) Do ut des (I give so that you may
give)
(ii) Do ut facias (I give so that you may
do)
(iii) Facio ut facias (I do so that you
may do)
(iv) Facio ut des (I do so that you may
give)
Article 1307. Innominate contracts shall be
regulated by the stipulations of the parties,
by the provisions of Titles I and II of this
Book, by the rules governing the most

2) Natural those which are derived from


the nature of the contract and
ordinarily accompany the sane; they
are presumed to exist unless the
contrary is stipulated
3) Accidental those which exist only if
stipulated

C. CLASSIFICATION OF CONTRACTS
(1) To their subject matter
a. Things, e.g. sale, deposit
b. Services, e.g. agency
(2) To formation (CRS)
a. Consensual consent is sufficient to
perfect the contract [Art. 1315]
b. Real delivery, actual or constructive,
is required in addition to consent [Art.
1316]
c. Solemn or formal where special
formalities are required for perfection
[Art. 1356]
(3) To relation to other contracts (PAP)
a. Principal may exist alone; e.g. lease
b. Accessory depends on another
contract for its existence, e.g. guaranty
c. Preparatory a preliminary step
towards the celebration of a
subsequent contract; e.g. agency
(4) To form
a. Common or informal may be entered
into in whatever form as long as there
is consent, object and cause
b. Special or formal required by law to
be in certain specified form
(5) To cause/by equivalence of prestations
(ORG)
a. Onerous there is an exchange of
correlative values
b. Remuneratory

where
the
outstanding prestation is premised
upon services or benefits already
received

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A contract is perfected by mere consent. From


the moment of a meeting of the offer and the
acceptance upon the object and the cause that
would constitute the contract, consent arises.
However, the offer must be certainand the
acceptance seasonable and absolute; if
qualified, the acceptance would merely
constitute a counteroffer. [Insular Life v. Asset
Builders Corp., 2004]

analogous nominate contracts, and by the


customs of the place

D. STAGES OF A CONTRACT
(PrePerCon)
(1) Preparation
(conception
or
generation) when negotiations are
in progress
(2) Perfection (or birth) when the parties
come to an agreement
(3) Consummation (or death) - when the
contract is fully executed

The offer must be certain and the acceptance


absolute. [Art. 1319]
Offer
A unilateral proposition which one party makes
to the other for the celebration of the contract
[Tolentino]

II. Essential Requisites


There is no contract unless the following
requisites concur:
(1) Consent of the contracting parties;
(2) Object certain which is the subject
matter of the contract;
(3) Cause of the obligation which is
established. [Art. 1318, NCC]

Requisites of an Offer:
(1) Definite
(2) Intentional
(3) Complete
Invitation to make offers (advertisements)
(1) Business advertisements of things for
sale are NOT definite offers, just
invitations to make an offer, UNLESS the
contrary appears (Art. 1325).
(2) Advertisements
for
bidders
are
invitations to make proposals, the
advertiser is NOT bound to accept the
lowest or highest bid; UNLESS the
contrary appears. The bidder is the
offeror (Art. 1326).

Article 1318 of the Civil Code states that no


contract exists unless there is a concurrence of
consent of the parties, object certain as subject
matter, and cause of the obligation established.
[Francisco v. Pastor Herrera, 2002]

A. CONSENT
The meeting of the minds of the parties on the
subject matter and cause of the contract.
Requisites
(1) It must be manifested by the concurrence
of the offer and acceptance [Arts. 13191326].
(2) The contracting parties must possess the
necessary legal capacity [Arts. 1327-1329].
(3) It must be intelligent, free, spontaneous,
and real (not vitiated) [Arts. 1330-1346]

e.g. The Terms and Conditions of the Bidding


disseminated by PUREFOODS constitutes the
"advertisement" to bid on the project. The bid
proposals or quotations submitted by the
prospective suppliers including respondent
FEMSCO, are the offers. The reply of petitioner
Purefoods constitutes the acceptance or
rejection of the respective offers. [Jardine Davies
v. CA, 2000]

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(3) Statements of intention: no contract


results even if accepted.

offer annuls the latter and frees the offeror.


[Tolentino]

In a letter informing another that the sender


was in a position and is willing to entertain the
purchase of a yacht under some terms, the word
entertain applied to an act does not mean the
resolution to perform said act, but simply a
position to deliberate for deciding to perform or
not to perform said act. It was merely a position
to deliberate whether or not he would purchase
the yacht and invitation to a proposal being
made to him, which might be accepted by him
or not. [Rosenstock v. Burke, 1924]

Requisites of acceptance:
(1) Unqualified and unconditional, i.e. it must
conform with all the terms of the offer,
otherwise it is a counter-offer [Art. 1319]
(2) Communicated to the offeror and learned
by him [Art. 1319] If made through an
agent, the offer is accepted from the time
the acceptance is communicated to such
agent. [Art. 1322]
(3) May be express/implied, but is not
presumed

Offer terminates upon


(1) Rejection by the offeree
(2) Incapacity (death, civil interdiction,
insanity, or insolvency) of the offeror or
offeree before acceptance is conveyed [Art.
1323]
(3) Counter-offer
(4) Lapse of the time stated in the offer
without acceptance being conveyed
(5) Revocation of the offer before learning of
acceptance
(6) Supervening illegality before acceptance
(J.B.L. Reyes)

Acceptance must be absolute, unconditional,


and without variance of any sort from the offer.
It must also be made known to the offeror. An
acceptance not made in the manner prescribed
is not effective but constitutes a counter-offer.
[Malbarosa v. CA, 2003]
Contracts are perfected by mere consent
Contracts are perfected by mere consent, and
from that moment the parties are bound not
only to the fulfillment of what has been
expressly stipulated but also to all the
consequences which, according to their nature,
may be in keeping with good faith, usage and
law. [Art. 1315]

Acceptance
To produce a contract, the acceptance must
not qualify the terms of the offer. There is no
acceptance sufficient to produce consent,
when a condition in the offer is removed, or a
pure offer is accepted with a condition, or when
a term is established, or changed, in the
acceptance, or when a simple obligation is
converted by the acceptance into an
alternative one; in other words, when
something is desired which is not exactly what
is proposed in the offer. It is necessary that the
acceptance be unequivocal and unconditional,
and the acceptance and the proposition shall
be without any variation whatsoever; and any
modification or variation from the terms of the

Exceptions:
(1) Real contracts, such as deposit, pledge
and commodatum, are not perfected
until the delivery of the object of the
obligation [Art. 1316]
(2) Formal contracts, where the law
requires that a contract be in some
form or be proved in a certain way; the
intent of the parties have to be
accompanied by the requisite formality
[Art. 1356]

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Cognition Theory
Acceptance made by a letter or telegram does
not bind the offeror except from the time it
came to his knowledge. The contract, in such a
case, is presumed to have been entered into in
the place where the offer was made. [Art. 1319,
2nd par.]

Code. By contrast, a voidable or annullable


contract is one in which the essential requisites
for validity under Article 1318 are present, but
vitiated by want of capacity, error, violence,
intimidation, undue influence, or deceit.
(Francisco v. Pastor Herrera, 2000)
Persons incapacitated to give consent [Art. 1327]
(MID)
(1) Minors, except
a. For necessaries [Art.1427]
b. Where
the
minor
actively
misrepresents his age (estoppel)

Option Contract
A preparatory contract in which one party
grants to the other, for a fixed period, the
option to decide whether or not to enter into a
principal contract [Art. 1324]
With consideration

CIVIL LAW

Mercado v. Espiritu (1917): Minors were held in


estoppel through active misrepresentation.
Bambalan v. Maramba (1928): There is no
estoppel if the minority was known by the
other party.
(2) Insane or demented persons, UNLESS they
contract during a lucid interval. [Art. 1328]
(3) Deaf-mutes who do not know how to read
AND write.
Persons disqualified to contract
(1) Those under civil interdiction for
transactions inter vivos [RPC Art. 34]
(2) Undischarged
insolvents
[Sec.
24,
Insolvency Law]
(3) Husband and wife cannot donate to each
other [Art. 123, FC], nor sell to each other if
the marriage is under the regime of
Absolute Community of Property [Art.1490]
(4) The ff. cannot purchase [Art. 1491]:
Prohibited Party
Subject
Guardian
Property of the ward
Agent
Property of the
Principal

Without consideration

Offeror
cannot Offeror may withdraw
unilaterally withdraw by
communicating
his offer.
withdrawal to the
offeree
before
acceptance.
Art. 1324 provides the general rule
regarding offer and acceptance: when the offerer
gives to the offeree a certain period to accept,
"the offer may be withdrawn at any time before
acceptance" except when the option is founded
upon consideration. If option is founded upon a
consideration, the offeror cannot withdraw his
offer before the lapse of the period agreed upon.
However, Art. 1479 modifies the general
rule, which applies to "a promise to buy and sell"
specifically. This rule requires that a promise to
sell to be valid must be supported by a
consideration distinct from the price. The option
can still be withdrawn, even if accepted, if the
same is not supported by any consideration.
[Tuazon v. Del Rosario-Suarez, 2010]

Executors and
Administrators
Public Officers

Capacity to Contract
There are two types of void contracts: (1)
those where one of the essential requisites of a
valid contract as provided for by Article 1318 of
the Civil Code is totally wanting; and (2) those
declared to be so under Article 1409 of the Civil

Justices, judges,
prosecutors, clerks of
court, lawyers

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Incapacity to Give Consent vs. Disqualification


to Contract
Incapacity to Give
Disqualification to
Consent
Contract
Restrains the exercise
Restrains the very
of the right to contract
right itself
Based upon subjective
Based upon public
circumstances of
policy and morality
certain persons
Voidable
Void

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To invalidate consent, the error must be


excusable. It must be real error, and not one
that could have been avoided by the party
alleging it. The error must arise from facts
unknown to him. He cannot allege an error
which refers to a fact known to him, or which
he should have known by ordinary diligent
examination of the facts. An error so patent
and obvious that nobody could have made it, or
one which could have been avoided by ordinary
prudence, cannot be invoked by the one who
made it in order to annul his contract. A
mistake that is caused by manifest negligence
cannot invalidate a juridical act. [Tolentino]

Consent
Requisites of Consent:
(1) intelligent
(2) free
(3) spontaneous
(4) real

Requisites:
a. The error must be substantial regarding:
a. The object of the contract (error in re)
which may be:
i. Mistake as to the identity of the thing
(error in corpore)
ii. Mistake as to the substance of the thing
(error in substantia)
iii. Mistake as to the conditions of the
thing provided, or
iv. Mistake as to the quantity of the thing
(error in quantitate)
b. The error must be excusable
c. The error must be a mistake of fact and not
of law.

Vices of Consent
A contract where consent is given through
a. Mistake
b. Violence
c. Intimidation
d. Undue influence
e. Fraud
is voidable. [Art. 1330]

Mistake
Inadvertent and excusable disregard of a
circumstance material to the contract [J.B.L.
Reyes]

Mistake which vitiates consent is an error of


fact, and not an error of law. Ignorance of the
law excuses no one from compliance therewith
[Art. 3]; but the modern tendency is to allow an
excusable mistake of law to be invoked as
vitiating consent. [Tolentino]

In order that mistake may invalidate consent, it


should refer to the substance of the thing
which is the object of the contract, or to those
conditions which have principally moved one or
both parties to enter into the contract.
[Art.1331] There is no mistake if the party
alleging it knew the doubt, contingency or risk
affecting the object of the contract. [Art. 1333]

See also Art. 526, on Possession: Mistake upon


a doubtful or difficult question of law may be
the basis of good faith.

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Ignorantia Facti Excusat vs. Ignorantia Legis


Neminem Excusat
Mistake of Fact
Mistake of Law
One
or
both One or both parties
contracting
parties arrive at an erroneous
believe that a fact conclusion on the
exists when in reality interpretation of a
it does not, or vice question of law or its
versa
legal effects
Vitiates consent
Does
not
vitiate
consent except when
it involves
mutual
error as to the effect of
an agreement when
the real purpose is
frustrated.

CIVIL LAW

imminent and grave evil upon his person or


property, or upon the person or property of his
spouse, descendants or ascendants, to give his
consent
To determine the degree of intimidation, the
age, sex and condition of the person shall be
borne in mind. [Art. 1335]
The conveyance of several properties by the
wife to her husbands creditors, though
reluctant, is still consent. She assented to the
requirements of the defendants in order that
the civil and criminal actions against them
would be dropped. A contract is valid even
though one of the parties entered into it
against his wishes and desires, or even against
his better judgment. [Martinez vs HSBC, 1910]

Note: The obligation to show that the terms of


the contract had been fully explained to the
party who is unable to read or understand the
language of the contract, when fraud or
mistake is alleged, devolves on the party
seeking to enforce it. [Art. 1332]

Violence
Serious or irresistible force used to
extort consent [Art. 1335]
Requisites:
(1) One party is compelled to give his
consent by a reasonable and wellgrounded fear of an evil;
(2) The evil must be imminent and grave;
(3) The evil must be upon his person or
property, spouse, descendants or
ascendants;
(4) The evil must be unjust.

Art. 1332 altered the old rule that said


that a person who affixes his signature to a
document is bound thereby. This was
necessitated by the fact that there continues to
be a number of people without good education;
and that the documents [in question] have been
written in English or Spanish. The provision was
intended to protect a party to a contract
disadvantaged by illiteracy, ignorance, mental
weakness, or some other handicap. If fraud is
alleged, person enforcing the contract must
show that the terms thereof have been fully
explained to the former; and if a party pleads
that he signed without knowing its contents,
burden shifts to other party to show that the
former fully understood the contents. [Leonardo
v. CA, 2004]

If a contract is signed merely because of fear


of displeasing persons to whom obedience and
respect are due, the contract is still valid, for
by itself, reverential fear is not wrong. [PARAS,
Civil Code]
Violence
Physical compulsion
External or prevents
the will to manifest
itself

Intimidation
One of the contracting parties is compelled by
a reasonable and well-grounded fear of an

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Intimidation
Moral compulsion
Internal or induces the
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Note: Violence or intimidation shall annul the


obligation, although it may have been
employed by a third person who did not take
part in the contract. [Art. 1336]

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have been employed by both contracting


parties. [Art. 1344]
Art. 1339. Failure to disclose facts, when
there is a duty to reveal them, as when the
parties are bound by confidential relations,
constitutes fraud.

Undue Influence
When a person takes improper advantage of
his power over the will of another, depriving
the latter of a reasonable freedom of choice.
Requisites:
(1) Improper advantage
(2) Power over the will of another
(3) Deprivation of the latters will of a
reasonable freedom of choice

Art. 1340. The usual exaggerations in trade,


when the other party had an opportunity to
know the facts, are not in themselves
fraudulent.
Art. 1341. A mere expression of an opinion
does not signify fraud, unless made by an
expert and the other party has relied on the
former's special knowledge.

Circumstances to consider:
a. Relationship of the parties (family,
spiritual, confidential etc.)
b. That the person unduly influenced was
suffering from infirmity (mental
weakness, ignorance etc.) [Art.1337]
Note: By analogy, undue influence employed
by a third person may annul the contract.

Art. 1342. Misrepresentation by a third


person does not vitiate consent, unless such
misrepresentation has created substantial
mistake and the same is mutual.
Art. 1343. Misrepresentation made in good
faith is not fraudulent but may constitute
error.

Test of Undue Influence: Whether or not the


influence exerted has so overpowered or
subjugates the mind of a contracting party as
to destroy his free agency, making him express
the will of another rather than his own. [CosoFernandez Deza, 1921]

Dolo Causante vs. Dolo Incidente


Dolo Causante
Dolo Incidente
Refers
to
those Refers
to
those
deceptions
or deceptions
or
misrepresentations of misrepresentations
a serious character which are not serious
employed by one in
character
and
party and without without which the
which the other party other party would
would
not
have have still entered into
entered into the the contract
contract
Renders the contract Renders the party
voidable
liable for damages

In the absence of a confidential or fiduciary


relationship between the parties, the law does
not presume that one person exercised undue
influence upon the other. [Loyola v. CA, 2000]
Fraud
When,
through
insidious
words
or
machinations of one of the contracting parties,
the other is induced to enter into a contract
which, without them, he would not have
agreed to. [Art. 1338]

Dolo incidente, or incidental fraud, which is


referred to in Article 1344, are those which are
not serious in character and without which the

In order that fraud may make a contract


voidable, it should be serious and should not

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other party would still have entered into the


contract. Dolo causante determines or is the
essential cause of the consent, while dolo
incidente refers only to some particular or
accident of the obligation. The effects of dolo
causante are the nullity of the contract and the
indemnification of damages, while dolo
incidente obliges the person employing it to pay
damages. [Tankeh v. DBP, 2013]

CIVIL LAW

subsequent acts of the parties. [Spouses Lopez


v. Spouses Lopez, 2009]
Requisites (DAP):
(1) A deliberate Declaration contrary to the
will of the parties;
(2) Agreement of the parties to the
apparently valid act, and
(3) The Purpose is to deceive or to hide from
third persons although it is not
necessary that the purpose be illicit or
for purposes of fraud

Fraud to vitiate consent must fulfill two


conditions: (1) The fraud must be dolo causante
or it must be fraud in obtaining the consent of
the party. The deceit must be serious. The
fraud is serious when it is sufficient to impress,
or to lead an ordinarily prudent person into
error; that which cannot deceive a prudent
person cannot be a ground for nullity. The
circumstances of each case should be
considered, taking into account the personal
conditions of the victim. (2) The fraud must be
proven by clear and convincing evidence and
not merely by a preponderance thereof. [ECE
Realty v. Mandap, 2014]

Absolute Simulation
(Simulados)
No real transaction
is intended.
Fictitious contract.
Void. (Because there
is an absolute lack of
declaration of will)

Relative Simulation
(Disimulados)
Real transaction is
hidden.
Disguised contract.
Bound as to hidden
agreement, so long as it
does not prejudice a
third person and is not
contrary to law, morals,
good customs, public
order or public policy.
The characteristic of simulation is the fact that
the apparent contract is not really desired or
intended to produce legal effects or in any way
alter the juridical situation of the parties. Thus,
where a person, in order to place his property
beyond the reach of his creditors, simulates a
transfer of it to another, he does not really
intend to divest himself of his title and control
of the property; hence, the deed of transfer is
but a sham. Lacking, therefore, in a fictitious
and simulated contract is consent which is
essential to a valid and enforceable contract.
[Manila Banking v. Silverio, 2005]

Note: However, fraud in its general sense (false


representation of a fact) coming about in the
consummation stage of the sale, as opposed to
the negotiation and perfection stages, entitles
the aggrieved party to the rescission of the
sales contract. [Spouses Tongson v. Emergency
Pawnshop, 2010]
Simulation of Contracts
Takes place when the parties do not really
want the contract they have executed to
produce the legal effects expressed by its
wordings. It may be absolute or relative [Arts.
1345-1346]

If the parties [merely] state a false cause in the


contract to conceal their real agreement, the
contract is relatively simulated and the parties
are still bound by their real agreement. Hence,
where the essential requisites of a contract are
present and the simulation refers only to the

The primary consideration in determining the


true nature of a contract is the intention of the
parties. Such intention is determined not only
from the express terms of their agreement, but
also
from
the
contemporaneous and

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content or terms of the contract, the agreement


is absolutely binding and enforceable between
the parties and their successors in interest.
[Valerio v. Refresca, 2006]

CIVIL LAW

Exceptions to the Exception


a. In case of marriage settlements
under Art. 130, NCC
b. In case of partition of properties
inter vivos by the deceased under
Art. 1080, NCC [JLT Agro v.
Balansag, 2005)]
(4) Impossible things or services
(5) Objects which are indeterminable as to
their kind, the genus should be expressed

With respect to a third person acting in good


faith, the apparent contract must be
considered as the true contract. The
declaration that the constract is simulated
does not prejudice him.
Note: Relative simulation is presumed by law in
case of Art. 1602 (Contracts presumed to be
Equitable Mortgages)

In order that a thing, right, or service may be


the object of a contract, it should be in
existence at the moment of the celebration of
the contract, or at least, it can exist
subsequently or in the future.

E. OBJECT OF CONTRACTS
The subject matter; the thing, right or service
which is the subject matter of the obligation
arising from the contract. [Tolentino]

A FUTURE THING may be the object of a


contract. Such contract may be interpreted as
a:
a) Conditional contract, where its efficacy
should depend upon the future existence
of the thing.
b) Aleatory contract, where one of the
contracting parties assumes the risk that
the thing will never come into existence,
e.g. insurance.

Requisites
(1) Within the commerce of men [Art. 1347]
(2) Not legally or physically impossible
[Art.1348]
(3) In existence or capable of coming into
existence [See Arts. 1461, 1493, 1495]
(4) Determinate or determinable, without
the need of a new contract between the
parties [Arts. 1349, 1460, par.2]

In case of doubt about the nature of the


contract, it must be deemed conditional as
doubt shall be resolved in favor of greatest
reciprocity of interests.

All things or services may be the object of


contracts, EXCEPT:
(1) Things which are outside the commerce
of men
(2) Intransmissible rights
(3) Future inheritance except in cases
authorized by law
Requisites:
a. The succession has not yet been
opened;
b. The object of the contract forms
part of the inheritance; and
c. The promissor has an expectancy of
a right which is purely hereditary in
nature

F. CAUSE OF CONTRACTS
The essential and impelling reason why a party
assumes an obligation (Manresa). Motive, on
the other hand, is the particular reason for a
contracting party which does not affect the
other.

Requisites (ELT)
(1) Exists at the time of the contract is
entered into [Arts. 1352, 1409, par. 3]

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(2) Lawful (ibid).


(3) True or real [Art.1353]

Contracts

Beneficence

Moral Obligation as a Cause


In Villaroel v. Estrada (1940), where a moral
obligation is based upon a previous civil
obligation which has already been barred by
the statute of limitations at the time the
contract is entered into, it constitutes a
sufficient cause or consideration to support a
contract (natural obligation).

As to the Thing
Prestation or promise The thing or service
of a thing or service by itself
the other
As to Contracting Parties
Different with respect May be the same for
to each part
both parties

BUT,
In Fisher v. Robb (1939), if the moral obligation
arises wholly from ethical considerations, it
cannot constitute a sufficient cause to support
an onerous contract, as when the promise is
made on the erroneous belief that one was
morally responsible for the failure of an
enterprise (moral obligation).

Distinguished from Motive


Cause
Motive
Proximate reason for Remote reason for the
contract
contract
Objective or juridical Psychological
and
reason
purely
personal
reason
Always the same for Differs
for
each
each
contracting contracting party
party
Illegality
affects Illegality does not
existence or validity of affect existence or
the contract
validity of contract

Effect of Lack of Cause, Unlawful Cause, False


Cause and Lesion (Arts. 1352 1355)
Cause
Effect
Lack of Cause If there is no cause
absence or total whatsoever, contract is
lack of cause
VOID; a fictitious sale is
VOID.

Motive becomes cause when it predetermines


the purpose of the contract.

NOTE: Cause must exist


at the time of the
perfection of the contract;
it need not exist later.
Contrary to law, If cause is unlawful,
morals,
good transaction is VOID.
customs, public
policy and public If parts of a contract are
order
(unlawful illegal but the rest are

Cause in contracts [Art. 1350]


Remuneratory

Contracts

The
The service or Mere
undertaking
benefit which is liberality of
or
the remunerated
the
promise
of
benefactor
the thing or
service by the
other party

Cause vs. Object


Cause
Object
As to Remuneration
The service or benefit The thing which is
which is remunerated given in remuneration
As to Donation
The liberality of the The thing which is
donor or benefactor
given or donated

Onerous

CIVIL LAW

Pure

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cause)

CONTRACTS
supported
by
lawful
cause, claimant of such
has the burden of
showing proof; otherwise,
the whole contract is
VOID.

GENERAL RULE:
Article 1356, par. 1. Contracts shall be
obligatory, in whatever form they may have
been entered into, provided all the essential
requisites for their validity are present
Spiritual System of the Spanish
Code: The law looks more on the spirit
rather than the form of contracts

Contract with illegal


cause may still produce
effect in certain cases
where parties are not of
equal guilt: (1) innocent
party cant be compelled
to perform his obligation
and he may recover what
has already been given;
(2) if both parties are
guilty, neither can sue the
other, the law leaving
them as they are (in pari
delicto).
Falsity of cause Contract with a false
cause is stated cause
is
merely
but is untrue
revocable/voidable.

EXCEPTION:
(1) When the law requires that a contract be
in some form in order that it may be valid
or enforceable [Art. 1356, par. 2]
(2) When the law requires that a contract be
proved in a certain way to be enforceable
Statute of Frauds) [Art. 1356, par. 2]
(3) When the law requires contract to be in
some form for convenience [Art. 1357 and
1358]

A.
KINDS
OF
REQUIRED BY LAW

FORMALITIES

A.1. FOR THE VALIDITY OF CONTRACTS


(AD ESENTIA / AD SOLIMNITATEM/
SOLEMN CONTRACTS)

Parties are given a chance


to show that a cause
really exists, and that said
cause is true and lawful.
Lesion
or
inadequacy
of
cause cause is
not proportionate
to object

CIVIL LAW

Formal or Solemn
Contract
Donations of
Immovables
Donations of
Movables

Special Form Required


by Law
Must be in a public
instrument [Art. 749]
Must be in a written
contract if the donation
exceeds P500 [Art.
748]
Partnerships where Must be in public
real
property
is instrument; otherwise
contributed
the
contract
of
partnership is void [Art.
1771, 1773]
Contracts
of The principal loan and
antichresis
the interest, if any,
must be specified in
writing; otherwise, the

Inadequacy of cause shall


not
invalidate
the
contract except when: (1)
there is fraud, mistake,
undue influence (2) when
parties
intended
a
donation

Note: Inadequacy of cause may be a badge of


fraud.

III. FORM OF
CONTRACTS
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Agency to sell real


property
or
any
interest therein

Stipulation to pay
interest on loans,
interest for the use of
money
Stipulation limiting
common
carriers
duty of extraordinary
diligence to ordinary
diligence

CONTRACTS
contract of antichresis
is void [Art. 2134]
Authority of the agent
must be in writing;
otherwise, the sale is
null and void [Art.
1874]
Must be expressly
made in writing [Art.
1956]

CIVIL LAW

subscribed by the party charged, or by his


agent; evidence, therefore, of the
agreement cannot be received without the
writing, or a secondary evidence of its
contents:
a. An agreement that by its terms is not
to be performed within a year from the
making thereof;
b. A special promise to answer for the
debt, default, or miscarriage of
another;
c. An agreement made in consideration of
marriage, other than a mutual promise
to marry;
d. An agreement for the sale of goods,
chattels or things in action, at a price
not less than five hundred pesos,
unless the buyer accept and receive
part of such goods and chattels, or the
evidences, or some of them, of such
things in action or pay at the time some
part of the purchase money; but when
a sale is made by auction and entry is
made by the auctioneer in his sales
book, at the time of the sale, of the
amount and kind of property sold,
terms of sale, price, names of the
purchasers and person on whose
account the sale is made, it is a
sufficient memorandum;
e. An agreement of the leasing for a
longer period than one year, or for the
sale of real property or of an interest
therein;
f. A representation as to the credit of a
third person.
3. Those where both parties are incapable of
giving consent to a contract.

Must be (1) in writing,


signed by the shipper
or owner; (2) supported
by
a
valuable
consideration; and (3)
reasonable, just, and
not contrary to public
policy [Art. 1744]
Chattel mortgage
Must be recorded in
Chattel
Mortgage
Register [Art. 2140]
Transfer of large Requires transfer of
cattle
the
certificate
of
registration [Rev. Adm.
Code, Sec. 523]

A.2. FOR THE PURPOSE OF PROVING


THE EXISTENCE OF THE CONTRACT
(AD PROBATIONEM/ STATUTE OF
FRAUDS)
Art. 1403, Civil Code. The following contracts
are unenforceable, unless they are ratified:
1. Those entered into in the name of another
person by one who has been given no
authority or legal representation, or who
has acted beyond his powers;
2. Those that do not comply with the Statute
of Frauds as set forth in this number. In the
following cases an agreement hereafter
made shall be unenforceable by action,
unless the same, or some note or
memorandum, thereof, be in writing, and

239

This article speaks of contracts that cannot


be proved except by written note or
memorandum, unless the party charged
waives the objection [Rule 123, Sec. 21,
Rules of Court]

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CIVIL LAW

Registration of the instrument only adversely


affects third parties [Fule v Court of Appeals,
1998].

This article applies to executory contracts


only [Almirol v Monserrat, 1925]

An oral promise to reduce to writing an


agreement that is within the Statute of Frauds
is itself unenforceable [J.B.L. Reyes]

Before the contracting parties may be


compelled to execute the needed form, the
contract should be:
1) Perfected or valid
2) Enforceable under the Statute of Frauds

A.3. FOR THE EFFECTIVITY OF THE


CONTRACT AGAINST THIRD PERSONS
Art. 1357, Civil Code. If the law requires a
document or other special form, as in the
acts and contracts enumerated in the
following article, the contracting parties may
compel each other to observe that form,
once the contract has been perfected. This
right may be exercised simultaneously with
the action upon the contract.

Enumerated contracts in Art. 1358 are valid


even when not reduced into writing, although
parties may have recourse under Art. 1357 to
compel execution of the writing, except in the
following cases:
1) Solemn Contracts (action under Art. 1357
is not available at all)
2) Real Contracts (action under Art. 1357 is
available if there is consent, subject
matter, cause, and delivery)
3) Contracts under the Statutes of Fraud
(remedy under Art. 1357 is applicable
only if the defense of the Statute is
waived expressly or impliedly by the
party charged

Art. 1358, Civil Code. The following must


appear in a public document:
Acts and contracts which have for their
object
the
creation,
transmission,
modification or extinguishment of real rights
over immovable property; sales of real
property or of an interest therein a governed
by Articles 1403, No. 2, and 1405;
The cession, repudiation or renunciation of
hereditary rights or of those of the conjugal
partnership of gains;
The power to administer property, or any
other power which has for its object an act
appearing or which should appear in a
public document, or should prejudice a third
person;
The cession of actions or rights proceeding
from an act appearing in a public document.
All other contracts where the amount
involved exceeds five hundred pesos must
appear in writing, even a private one. But
sales of goods, chattels or things in action
are governed by Articles, 1403, No. 2 and
1405.

The recourse under Article 1357 does NOT


impose an obligation but a privilege on
both parties
Action under this Article 1357 may be
exercised simultaneously with (i.e. need
not be separate nor need it precede) the
action to enforce the contract, although
questions of form must be decided first.

IV. REFORMATION OF
INSTRUMENTS

Article 1357 and 1358 is only needed for


convenience, not validity or enforceability.
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CONTRACTS

Reformation remedy in equity by means of


which a written instrument is made or
construed so as to express or conform to the
real intention of the parties when some error or
mistake has been committed [J.B.L. Reyes]

terms
of
their
agreement.
equity of reformation
is ordinarily limited to
written agreements,
and its purpose is to
establish
and
perpetuate the true
agreement;

Rationale: It would be unjust and inequitable


to allow the enforcement of a written
instrument which does not reflect or disclose
the real meeting of the minds of the parties
[J.B.L. Reyes]

intended to declare
the inefficiency which
the contract already
carries in itself and to
render the contract
inefficacious

[Multi-Ventures
Capital
Management
Corporation v Stalwart, 2007]
(1) The presumption is that an instrument
sets out the true agreement of the
parties and that it was executed for
valuable consideration. Thus, when there
is some error or mistake in the contract,
the onus probandi is upon the party who
insists that the contract should be
reformed.
(2) While intentions involve a state of mind,
subsequent and contemporaneous acts
of the parties as well as the evidentiary
facts as proved and admitted can be
reflective of ones intention.
(3) Expediency and convenience, which was
the purpose of the execution of
purchase and sale agreement, is not a
ground for reformation of instrument.

REQUISITES [Art. 1359]:


a. There must be a meeting of the minds of
the contracting parties
b. Their true intention is not expressed in the
instrument;
c. Such failure to express their true intention
is due to mistake, fraud, inequitable
conduct, or accident; and
d. There is clear and convincing proof of
mistake, fraud, inequitable conduct, or
accident
If mistake, fraud, inequitable conduct, or
accident has prevented a meeting of the minds
of the parties, the proper remedy is not
reformation of the instrument but annulment
of the contract [Art. 1359, par.2]
Veluz v Veluz (1968): The action for reformation
of instrument should not be confused with the
action for annulment of contract.
Reformation of
Instrument
Presupposes a valid,
existing contract, in
which there had been
a meeting of the
minds of the parties
but the instrument
drawn up and signed
by them does not
correctly express the

CIVIL LAW

[Rosello-Bentir v Leanda, 2000]


(1) The right of reformation is necessarily
an invasion or limitation of the parol
evidence rule since, when a writing is
reformed, the result is that an oral
agreement is by court decree made
legally effective.
(2) The prescriptive period for actions
based upon a written contract and for
reformation of an instrument is ten (10)
years under Article 1144 of the Civil
Code.

Annulment
Presupposes
a
defective contract in
which the minds of
the parties did not
meet, or the consent
of one was vitiated.

A. CASES WHERE REFORMATION IS


PROPER
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A.1. MISTAKE

CIVIL LAW

Art. 1362. If one party was mistaken and the


other acted fraudulently or inequitably in such
a way that the instrument does not show their
true intention, the former may ask for the
reformation of the instrument.

The mistake should be of fact generally,


and not of law [BPI v Fidelity and Surety
Co., 1927]
i. Mutual
Art. 1361. When a mutual mistake of the
parties causes the failure of the
instrument to disclose their real
agreement, said instrument may be
reformed.

A.4. ACCIDENT [ART. 1364]


Art. 1364. When through the ignorance, lack of
skill, negligence or bad faith on the part of the
person drafting the instrument or of the clerk
or typist, the instrument does not express the
true intention of the parties, the courts may
order that the instrument be reformed.
No fraud exists in the sense that
neither of the parties took part therein.

ii. Unilateral
Art. 1362. If one party was mistaken
and the other acted fraudulently or
inequitably in such a way that the
instrument does not show their true
intention, the former may ask for the
reformation of the instrument.

A.5. SEVERE PACTO DE RETRO


RELATIVE SIMULATION

Art. 1365. If two parties agree upon the


mortgage or pledge of real or personal
property, but the instrument states that the
property is sold absolutely or with a right of
repurchase, reformation of the instrument is
proper.

Art. 1363. When one party was


mistaken and the other knew or
believed that the instrument did not
state their real agreement, but
concealed that fact from the former,
the instrument may be reformed.

B.
WHO
MAY
ASK
REFORMATION [ART. 1368]

A.2. FRAUD

FOR

1.

Either party of his successors in interest, if


the mistake was mutual; otherwise,
2. Upon petition of the injured party, or his
heirs and assigns

i. Active
Art. 1362. If one party was mistaken
and the other acted fraudulently or
inequitably in such a way that the
instrument does not show their true
intention, the former may ask for the
reformation of the instrument

C. CASES WHERE REFORMATION IS


NOT PROPER
1.

Simple donations inter vivoswherein no


condition is imposedbecause donation
is an act of liberality [Art. 725] and cannot
be compelled);
2. Willsno reformation before the testator
dies because the making of a will is
strictly personal [Art. 784], a free act [Art.
839], and essentially revocable [Art. 828];
3. When the real agreement is void
because there is nothing to reform

ii. Passive (concealment) [Art. 1363]


Art. 1363. When one party was
mistaken and the other knew or
believed that the instrument did not
state their real agreement, but
concealed that fact from the former,
the instrument may be reformed.

A.3. INEQUITABLE CONDUCT [ART. 1362]


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Implied Ratification/Estoppel: the party who


has brought an action to enforce the

CIVIL LAW

instrument cannot subsequently ask for its


reformation [Art. 1367]

V. INTERPRETATION OF CONTRACTS

CARDINAL TEST: Intention of the parties, to be


derived from the terms of the contract.

one party and to the detriment of the


other, or by construction, relieve one of
the parties from the terms which he
voluntarily consented to, or impose on
him those which he did not.

Bautista v CA (2000):
(1) Where the language of a contract is plain
and unambiguous, its meaning should
be determined without reference to
extrinsic facts or aids. The intention of
the parties must be gathered from that
language, and from that language alone.
(2) Courts cannot make for the parties better
or more equitable agreements than they
themselves have been satisfied to make,
or rewrite contracts because they operate
harshly or inequitably as to one of the
parties, or alter them for the benefit of

Borromeo v Reyes (1972): While ordinarily the


literal sense of the words employed is to be
followed, such is not the case where they
"appear to be contrary to the evident intention
of the contracting parties." Intention shall
prevail.
Kasilag v Rodriguez (1939):
Another
fundamental rule in the interpretation of
contracts is that the terms, clauses and

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conditions contrary to law, morals and public


order should be separated from the valid and
legal contract and when such separation can
be made because they are independent of the
valid contract. A lawful promise made for a
lawful consideration is not invalid merely
because an unlawful promise was made at the
same time and for the same consideration.
EXCEPTION:
(1) Where the statute expressly or by
necessary implication declares the entire
contract void
(2) Where the terms, clauses, and
conditions, by an established connection
or by manifest intention of the parties, is
inseparable
from
the
principal
obligation, and is a condition, juridically
speaking, of that the nullity of which it
would also occasion [Manresa]

Doubts
where it
cannot be
known
what may
have been
the
intention
or will of
the
parties,
the
contract
shall be
null and
void.

A. RULES ON DOUBTS [ART. 1378]


Principal
Objects

Gratuitous
Contracts

Onerous
Contracts

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CIVIL LAW
Absolutely
impossible to
settle doubts by
the rules and
only refer to
incidental
circumstances,
the
least
transmission of
rights
and
interests shall
prevail.

Absolutely
impossible to
settle doubts
by the rules
and only refer
to
incidental
circumstances
the doubt shall
be settled in
favor of the
greatest
reciprocity of
interests.

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VI. DEFECTIVE
CONTRACTS

CIVIL LAW

must be known or coud have been known at


the time of making of the contract. [Tolentino]
Characteristics of Rescissible Contracts:
(1) The defect consists in injury or
damage either to one of the
contracting parties or to third persons;
(2) Before rescission, they are valid, and
therefore, legally effective;
(3) They can be attacked directly only and
not collaterally;
(4) They can be attacked only by a
contracting party or a third person
who is injured or defrauded; and
(5) They are susceptible of convalidation
only by prescription and not
ratification

A. RESCISSIBLE CONTRACTS
Contracts which are valid until rescinded. All
essential requisites of a contract exist but there
is injury or damage to one of the parties or to
third persons external or extrinsic defect
consisting of an economic damage or lesion.
(Paras)
Rescission
Process designated to render inefficacious a
contract validly entered into and normally
binding, by reason of external conditions,
causing an economic prejudice to a party or to
his creditors (Scaevola).

Distinguished from Rescission/Resolution


under Art. 1191 [Congregation of the Religious
Virgin Mary vs. Orola, 2008]
Art. 1191 Rescission
Art. 1381 Rescission by
or Resolution for
reason of lesion
Breach of Stipulation
Applies
only
to Applies
whether
reciprocal
obligations
are
obligations,
such reciprocal or unilateral
that a partys breach and
whether
the
thereof partakes of a contract has been fully
tacit
resolutory fulfilled
condition
which
entitles the injured
party to rescission.
Predicated
on Predicated on injury to
breach of faith.
economic interests of
the
party
plaintiff/lesion.
HOWEVER, not all
economic
prejudices
are recognized by law.
Principal action that Subsidiary action.
is
retaliatory
in
character.

Remedy granted by law to the contracting


parties and to third persons in order to secure
reparation for damages caused them by a
contract, even if the contract is valid, by means
of the restoration of things to their condition
prior to the celebration of said contract
(Manresa)
Relief to protect one of the parties or a third
person from all injury and damages which the
contract may cause, to protect some
preferential right [Aquino v. Taedo, 1919]
Rescission is a remedy granted by law to the
contracting parties and even to third persons,
to secure reparation for damages caused to
them by a contract, even if this should be valid,
by means of the restoration of things to their
condition at the moment prior to the
celebration of said contract. [Tolentino]
Lesion
The injury which one of the parties suffers by
virtue of a contract which is disadvantageous
for him. To give rise to rescission, the lesion

The

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of The cause of action is

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damages for the subordinated to the


breach is purely existence
of
an
secondary.
economic
prejudice.
Hence,
where
the
defendant makes good
the damages caused,
the action cannot be
maintained
or
continued.
Mutual restitution when declared proper as
between the parties involved
Constitutes
Constitutes abrogation
termination of the of the contract from
obligation
and the beginning and to
release of the parties restore the parties to
from
further their relative positions
obligations
from as if no contract has
each other
been made
Declares the contract
void at its inception
and puts an end to it as
though it never was
May be demanded May be demanded by
only by a party to the a third party prejudiced
contract
in the contract
May be denied by Extension of time does
court when there is not affect the right to
sufficient reason to ask for rescission
justify the extension
of time
Non-performance is Various reasons of
the only ground for equity are grounds for
the
right
to rescission
rescission

CIVIL LAW

of absentees, if the latter suffer the


lesion stated in the preceding
number;
(3) Those undertaken in fraud of creditors
when the latter cannot in any other
manner collect the claims due them;
(4) Those which refer to things under
litigation if they have been entered
into by the defendant without the
knowledge and approval of the
litigants or of competent judicial
authority;
(5) All other contracts specially declared
by law to be subject to rescission.
Requisites before a Contract Entered Into in
Behalf of Wards or Absentees May Be
Rescinded on the Ground of Lesion:
(1) Contract was entered into by a
guardian in behalf of his ward or by a
legal representative in behalf of an
absentee [Arts. 1381, Nos. 1 and 2]
Note: A guardian is authorized
only to manage the estate of the ward;
should he dispose a portion thereof
without authority from the court by
way of a contract, the same is
unenforceable under Art. 1403(1),
irrespective of whether there is lesion
or not.
(2) It was entered into without judicial
approval [Art. 1386]
(3) Ward or absentee suffered lesion of
more than one-fourth of the value of
the property which is the object of the
contract. [Art. 1381, Nos. 1 and 2]
(4) There is no other legal means of
obtaining reparation for the lesion.
[Art. 1383]
Note for Art. 1381 (4): Any
disposition of the thing subject of
litigation or any act which tends to
render inutile the courts impending
disposition in such case without the

Requisites of a Valid Rescission [Art. 1381-1383,


1385, 1389]
Art. 1381. The following contracts are
rescissible:
(1) Those which are entered into by
guardians whenever the wards whom
they represent suffer lesion by more
than one-fourth of the value of the
things which are the object thereof;
(2) Those agreed upon in representation

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knowledge and approval of the litigants


or of the court, is unmistakably and
irrefutably indicative of bad faith.
However, even without knowledge or
approval from the court, the conveyance
of a property subject of litigation may
still be valid but is susceptible for
rescission under Art. 1381(4).
A
definitive
judicial
determination with respect to the thing
subject of litigation is not a condition
sine qua non before the rescissory action
contemplated under Article 1381(4) of the
Civil Code may be instituted. The
primordial purpose of Article 1381(4) of
the Civil Code is to secure the possible
effectivity of the impending judgment by
a court with respect to the thing subject
of litigation. [Ada v. Baylon, 2012]

execution which cannot exist when the debt is


not yet demandable at the time the rescissory
action is brought. [Tolentino]

(5) Person bringing the action must be


able to return whatever he may be
obliged to restore. [Art. 1385(1)]
(6) Object of the contract must not be
legally in the possession of a third
person who did not act in bad faith
[Art. 1385(2)]

Conflict between Arts. 1382 and 1198 if the


obligation is subject to suspensive period is
more apparent than real
Payment made by an insolvent is rescissible.
(Art. 1382), but a debtor can be compelled to
pay by the creditor even before the expiration
of the period since by his insolvency he has
already lost his right to the benefit of such
period. [Art. Art. 1198(1)]

Note: Even secured creditors are entitled to


accion pauliana.
Art. 1382. Payments made in a state of
insolvency for obligations to whose
fulfillment the debtor could not be
compelled at the time they were effected,
are also rescissible.
Requisites Before Payment made by Insolvent
Can Be Rescinded:
(1) It was made in a state of insolvency;
(2) Obligation must have been one which
debtor could not be compelled to pay
at the time such payment was effected.

Requisites before a Contract Entered Into in


Fraud of Creditors May Be Rescinded:
(1) There is a credit existing prior to the
celebration of the contract;
(2) There is fraud, or at least, the intent to
commit fraud to the prejudice of the
creditor seeking rescission;
(3) Creditor cannot in any legal manner
collect his credit; and
(4) Object of the contract must not be
legally in the possession of a third
person who did not act in bad faith.

The conflict can be resolved by considering the


priority of dates between the two debts. If the
obligation with a period became due before
the obligation to the creditor seeking the
rescission became due, then the latter cannot
rescind the payment even if such payment was
effected before the expiration of the period;
but if the obligation with a period became due
after the obligation to the creditor seeking
rescission became due, then the latter can
rescind the payment. [Manresa]

Accion Pauliana
The action to rescind contracts in fraud of
creditors. Consequently, accion pauliana
presupposes a judgment and unsatisfied

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Effects of Rescission
It creates an obligation to return the things
which were the object of the contract, together
with their fruits, and the price with its interests.

CIVIL LAW

persons who did not


act in bad faith.
Otherwise, damages
may be demanded
from
the
person
causing the loss. (Art.
1385)
Prescribes in 10 years Prescribes in 4 years
[Lalicon v. National Housing Authority, 2011]

However, if the object of the contract is in the


possession of third persons in good faith,
rescission cannot take place and indemnity for
damages may be demanded from the person
causing the loss [Art. 1385]

For persons under guardianship and for


absentees, the period of four years shall not
begin until the termination of the former's
incapacity, or until the domicile of the latter is
known. [Art. 1389]

See Table, Rescission by Reason of Lesion


Distinguished from Rescission/Resolution
under Art. 1191
Rescission
Art. 1191

Art. 1381

Do all creditors benefit from the rescission of


the contract?
As a rule, the rescission should benefit only the
creditor who obtained the rescission, because
the rescission is to repair the injury caused to
him by the fraudulent alienation. If a balance is
left after satisfying the claim of the creditor
who brough the action, other creditors who are
qualified to bring an accion pauliana should be
given the benefit of rescission, instead of
requiring them to bring other rescissory
actions. However, creditors who only became
such after the fraudulent alienation, cannot
benefit from the rescission.

Rescission in
Rescission by Reason
Reciprocal
of Lesion
Obligations
(Resolution)
A resolutory condition The action is based on
is
implied
upon a partys breach of
breach of one party.
obligation and cannot
be instituted except
when
the
party
suffering damage has
no other legal means
to obtain reparation.
[Art. 1383]
Grants the injured Creates the obligation
party the option to to return the things
pursue,
either
a which were the object
rescission or specific of
the
contract,
performance of the together with their
obligation,
with fruits, and the price
payment of damages with its interests
in either case
This can only be
carried out when he
who
demands
rescission can return
what he is obliged to
restore, also when
there
are
none
endangered
third

Presumption of Fraud
When alienation of property presumed in fraud
of creditors:
a. Alienation by gratuitous title if the debtor
has not reserved sufficient property to pay
all of his debts contracted before
alienation [Art. 1387(1), NCC]
b. Alienation by onerous title if made by a
debtor against whom some judgment has
been rendered in any instance or some
writ of attachment has been issued [Art.
1387(2), NCC]
See also: Badges of Fraud

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The test as to whether or not a conveyance is


fraudulent is if it prejudices the rights of the
creditors. [Tolentino]

CIVIL LAW

Note: Art. 1390 refers to a proper action in


court. The validity of a voidable contract may
only be attacked either by way of a direct
action or by way of defense via a counterclaim,
and not a special or affirmative defense.
[Jurado]

A conveyance leaving no property for other


creditors to attach is an evidence of fraud.
Citing Oria v McMicking (1912), the following are
Badges of Fraud:
1) Consideration is fictitious or inadequate;
2) Transfer was made while suit had begun
or pending;
3) Sale was upon credit by insolvent
debtor;
4) There was large indebtedness or
complete insolvency;
5) Transfer consisted of all or nearly all
property especially when insolvent or
greatly;
6) The transfer was made between father
and
son
when
other
above
circumstances present; and
7) There was failure of vendee to take
exclusive possession of all property
embarrassed financially.
[China Banking v. CA, March 7, 2000]

Voidable/ Annullable Contracts:


(1) Those where one of the contracting
parties is incapable of giving consent to
a contract, and
(2) Those where the consent is vitiated by
mistake, violence, intimidation, undue
influence or fraud
Characteristics of Voidable Contracts:
(1) Its defect consists of the vitiation of
consent of one of the contracting parties;
(2) It is binding until it is annulled;
(3) It is susceptible of convalidation by
ratification or prescriotion; amd
(4) Its defect or voidable character cannot
be invoked by third persons
Note: Failure of an heir to obtain authority from
his co-heirs does not result in his incapacity to
give consent so as to render the contract
voidable, but rather, renders the contract valid
but unenforceable against Conrados co-heirs for
having been entered into without their authority.
[Heirs of Ureta, Sr. v. Heirs of Ureta, September
14, 2011]

B. VOIDABLE CONTRACTS
Contracts which are valid until annulled,
unless ratified. Defect is more or less intrinsic,
as in the case of vitiated consent. [Paras]
Art. 1390. The following contracts are
voidable or annullable, even though there
may have been no damage to the
contracting parties:
(1) Those where one of the parties is
incapable of giving consent to a
contract;
(2) Those where the consent is vitiated by
mistake, violence, intimidation, undue
influence or fraud.
These contracts are binding, unless they are
annulled by a proper action in court. They
are susceptible of ratification.

Rescission and Annulment Distinguished


Rescission
Nullity
Merely produces the Declares the inefficacy
inefficacy of the which the contract
contract, which did already carries in itself
not essentially exist
in the contract
Needs ratification to Requires an act of
be effective
ratification to be cured
Private
interest Direct influence of the
alone governs.
public
interest
is
involved.

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May be compatible
with the perfect
validity
of
the
contract
A remedy
Equity predominates
May be demanded
by third parties
affected
by
the
contract

CONTRACTS

CIVIL LAW

benefited by the thing or price received by him


(Art. 1399)

Based on a vice of the


contract
whic