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CIVIL LAW REVIEW

Introduction
TOLENTINO, CIVIL CODE, Commentaries &
Jurisprudence, Volume 1, hereinafter cited as
Tolentino:
Concepts of Law - The term law may be
understood in 2 concepts: in the general or
abstract sense, and in the specific or material
sense.
In the general sense, law is defined as
the science of moral rules, founded on the
rational nature of man, w/c govern his free
activity, for the realization of the individual &
social ends, of a nature both demandable &
reciprocal. (Sanchez Roman.)
In the specific sense, it is defined as
a rule of conduct, just, obligatory,
promulgated by legitimate authority, & of
common observance & benefit. (ibid.)

it commands that something be done, in


w/c case it is mandatory;
it commands that something should not be
done, in w/c case it is prohibitory; &
it commands that what it permits to be
done should be tolerated or respected,
in w/c case it is permissive.
Codification of Laws.
A code is a collection of laws of the same
kind; a body of legal provisions
referring to a particular branch of law.
Reasons for codification:
the necessity of simplifying & arranging the
many juridical rules scattered in
several laws & customs;
the necessity of unifying various legislation
in the same country; &
the necessity of introducing reforms
occasioned by social changes.

Foundation of Law.-- Law rests upon the


concepts of order, co-existence, & liberty.

Balane:

Characteristics of Law:
1. it is a rule of human conduct;
2. promulgated by competent authority;
3. obligatory and
4. of general observance.

There are two great models of a


modern civil code, the French Civil Code
(Code Napoleon) and the German Civil
Code {BGB or Buogeoliches Gesetzbuch
[Beuo w/c means "town," "that w/c has
reference to a citizen;" buch w/c means
"book;" BGB means "a law book governing
citizens."]

General Divisions of Law.-- Law in its


most comprehensive sense has been divided
into 2 general groups: divine law & human
law. By divine law is meant that in w/c God
himself is the legislator who has promulgated
the law; by human law is meant that w/c is
promulgated by man to regulate human
relations.
Human law is in turn divided into 2
main classes:
general or public law &
individual or private law. These in turn are
sub-divided as follows:
General or public law:
International law;
Constitutional law;
Administrative law;
Criminal law;
Religious law.
Individual or private law:
Civil law;
Mercantile law;
Procedural law.
Kinds of Specific Law.-- Every law
commands, bec. it is obligatory; but it
commands in 3 different ways:

Changes fr. the Old Civil Code in the


New Civil Code:
Creation of new rights.-- E.g., in the case of
spurious children who were given rights
for the first time (successional right,
right of support, etc.). New provisions
on Human Relations (Articles 33-36),
Reformation of Instruments (Art. 1359),
two additional quasi-contracts (Art.
2174 & 2175), moral & nominal
damages (Arts. 2217 & 2221).
Adoption of new solutions like Art. 461
(change in the river course), Art. 1256
(consignation), Art. 1658 (lease.)
Clarification of old provisions like Art. 275
(Legitimation), Art. 992 (illegitimate
children's right to inherit ab intestato),
Art. 1410 (void contracts)
Omission of certain subjects, e.g., dowry
w/c is very western. In the Phils., we
have the opposite of dowry, the bigay-

kaya. These contracts were abolishedcensos, usus & habitation (subsumed in


easement & lease.)

UMALI V. ESTANISLAO 209 SCRA 446


(1992)

Civil Law Defined.


the mass of precepts w/c determine &
regulate the relations of assistance, authority
& obedience among the members of a family,
& those w/c exist among members of a
society for the protection of private
interests. (Sanchez Roman.)

Facts:
RA 7167 was enacted granting
certain tax exemptions. Sec.3 of such law
stated that the law would take effect upon
its approval. The law was approved on
Dec.19, 1991 by the President. It was
published in a newspaper of general
circulation on Jan.14, 1992.

Art. 1. This Act shall be known as the


Civil Code of the Philippines.

Issue: Did RA 7167 take effect upon its


approval on Dec.19, 1991 or on Jan.30,
1992, 15 days after its publication?

Tolentino:
Civil Code defined.-- A civil code is a
collection of laws w/c regulate the private
relations of the members of civil society,
determining their respective rights &
obligations, w/ reference to persons, things, &
civil acts.
Sources of the Civil Code:
The Civil Code of 1889;
The codes, laws, & judicial decisions, as well
as the works of jurists of other countries,
such as Spain, the various states of the
American Union, etc.;
Doctrines laid down by the SC of the Phils.;
Filipino customs & traditions;
Philippine statutes, such as the Marriage Law,
the Divorce Law, the Code of Civ. Proc. &
the Rules of Court.
The Code Commission itself
Works of jurists & commentators of various
nations (added by Jurado, CIVIL LAW
REVIEWER.)
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 EO 200.)

Balane:
The Civil Code took effect on August 30, 1950
according to the case of Lara v. del Rosario
(isang letter na lang, ako na to a! Obiter
Master), one year after its publication,
reckoned fr. the date of actual release

Held: Reiterating Tanada v. Tuvera, the


clause unless it is otherwise provided
refers to the date of effectivity & not to the
requirement of publication itself w/c cannot
in any event be omitted. This clause does
not mean that the legislator may make the
law effective immediately upon approval,
or on any other date w/o its previous
publication.
Publication is indispensable in every
case, but the legislature may in its
discretion provide that the usual fifteen
(15) day period shall be shortened or
extended.
BALANE CASES:
PESIGAN V. ANGELES 129 SCRA 174
Held: The word laws in Art. 2 includes
circulars & regulations w/c prescribe
penalties.
Publication is necessary to
apprise the public of the contents of the
regulations & make the said penalties
binding on the persons affected thereby.
PEOPLE V. VERIDIANO 132 SCRA 523
Held: When PR Go Bio, Jr. committed the
act complained of in May '79, there was no
law penalizing such act. BP 22 became
effective only on June 29, 79, 15 days after
its publication. Before the public may be
bound by its contents, especially its penal
provisions, the law must be published & the
people officially informed of its contents.
For, if a statute had not been published
before its violation, then, in the eyes of the
law, there was no such law to be violated
&, consequently the accused could not
have committed the alleged crime.
TANADA V. TUVERA 136 SCRA 27
Held: The publication of all presidential
issuances of a public nature or of
2

general applicability is mandated by law.


The clear object of the law is to give the
general public adequate notice of the various
laws w/c are to regulate their actions &
conduct as citizens.
W/o such notice &
publication, there would be no basis for the
application of the maxim ignorantia legis non
excusat. It would be the height of injustice to
punish or otherwise burden a citizen for the
transgression of a law of w/c he had no notice
whatsoever, not even a constructive one. It
is needless to say that the publication of
presidential issuances of a public nature or
of general applicability is a requirement of
due process. It is a rule of law that before a
person may be bound by law, he must first be
officially & specifically informed of its
contents.
TANADA V. TUVERA 146 SCRA 446
Held: [T]he clause "unless it is otherwise
provided" refers to the date of effectivity &
not to the requirement of publication itself,
w/c cannot in any event be omitted. This
clause does not mean that the legislature
may make the law effective immediately
upon approval, or on any other date, w/o its
previous publication.
Publication is indispensable in every
case, but the legislature may in its discretion
provide that the usual 15-day period shall be
shortened or extended.
It is not correct to say that under the
disputed
clause
publication
may
be
dispensed w/ altogether. The reason is that
such omission would offend due process
insofar as it would deny the public knowledge
of the laws that are supposed to govern it.
Conclusive presumption of knowledge
of the law.-- The conclusive presumption that
every person knows the law presupposes that
the law has been published if the
presumption is to have any legal justification
at all.
The term laws should refer to all laws
& not only to those of general application, for
strictly speaking all laws relate to the people
in general albeit there are some that do not
apply to them directly.
RULE: All statutes, including those of
local application & private laws, shall be
published as a condition for their effectivity,
w/c shall begin 15 days after publication
unless a different effectivity date is fixed by
the legislature.
Coverage.-- Covered by this rule are
PDs & EOs promulgated by the Pres. in the
exercise of legislative powers. Administrative
rules & regulations must also be published if
their purpose is to enforce or implement
existing law pursuant to a valid delegation.

Interpretative regulations & those


merely internal in nature, i.e., regulating
only the personnel of the administrative
agency & not the public, need not be
published. Neither is publication required
of the so-called letters of instructions
issued
by
administrative
superiors
concerning the rules or guidelines to be
followed by their subordinates in the
performance of their duties.
Publication must be in full or it is no
publication at all since its purpose is to
inform the public of the contents of the
laws. The mere mention of the number of
the PD, the title of such decree, its
whereabouts, the supposed date of
effectivity, & in a mere supplement of the
OG
cannot
satisfy
the
publication
requirement. This is not even substantial
compliance.
Balane:
General application of the provision:
The law takes effect on the 16th day.
General rule: It must be published either
in the OG or in a newspaper of gen. circ.
Exception: The law itself may provide for
a different mode of publication, either as to
form (published in some other way
provided it is a reasonable mode of
publication)
or
effectivity
date
(a
reasonable period fr. publication; cannot be
immediately upon approval).
Rationale.-- The rationale for requiring
publication is to give notice to the public in
determining their actions so as to conform
to the law. "How can I follow something
the existence of w/c I do not know?"
Q: Is a law granting citizenship required to
be published?
A: Yes. The SC ruled that The term laws
should refer to all laws & not only to those
of general application, for strictly speaking,
all laws relate to the people in general
albeit there are some that do not apply to
them directly. (Tanada v. Tuvera, 146 S
446, 453.)
Art. 3. Ignorance of the law excuses no
one fr. compliance therew/.
Tolentino:
Reasons
for
Presumption
of
Knowledge of Law.
If laws will not be binding until they are
actually known, then social life will be
impossible, bec. most laws cannot be
enforced due to their being unknown to
many;
3

it is absurd to absolve those who do not know


the law & increase the obligations of
those who know it;
it is almost impossible to prove the contrary,
when a person claims ignorance of the
law;
in our conscience, we carry norms of right &
wrong, & a sense of duty, so that our
reason indicates many times what we
have to do; & in more complicated
juridical relations, there are lawyers who
should be consulted.
What Laws Covered.-- Philippine laws are
covered. There is no conclusive presumption
of knowledge of foreign laws.
Even our
courts cannot take judicial notice of them.
Ignorance of a foreign law will not be a
mistake of law but a mistake of fact.
And w/ respect to local laws, the
article is limited to mandatory & prohibitory
laws. It does not include those w/c are
merely permissive. (Manresa.)
No Exceptions Admitted.-- The rule is
based on public interest & is designed
precisely to avoid abuse through allegation
that the law has not come to the knowledge
of a party. But it has been held by our CA
that the rule should not be applied w/ equal
force to minors who, due to their lack of
intelligence, must be treated differently.
(Peo. v. Navarro, 51 OG 4062.)
Mistake of Fact.-- Ignorance may either be
of law or of fact.
Ignorance of fact
(ignorantia facti) may excuse a party fr. the
legal consequences of his conduct; but not
ignorance of law, for ignorantia juris
neminem excusat.
Difficult Question 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, e.g., Art.
526, par. 3 w/c provides: Mistake upon a
doubtful or difficult question of law may be
the basis of good faith.
Balane:
Art.
3
creates
a
conclusive
presumption w/c in some instances may be
unreasonable or harsh. But the alternative is
worse, w/c is anarchy. Bec. the law realizes
its severity, it is sometimes mitigated in
several provisions such as Art. 526, par.3
(quoted above).

BALANE CASE:
KASILAG V. RODRIGUEZ 69 PHIL 217
Held: Gross & inexcusable ignorance of
the law may not be the basis of GF but
excusable ignorance may be such basis (if
it is based upon ignorance of a fact.) It is a
fact that the petitioner is not conversant w/
the laws bec. he is not a lawyer.
In
accepting
the
mortgage
of
the
improvements he proceeded on the wellgrounded belief that he was not violating
the prohibition regarding the alienation of
the land. In taking possession thereof & in
consenting to receive its fruits, he did not
know, as clearly as a jurist does, that the
possession & enjoyment of the fruits are
attributes of the contract of antichresis &
that the latter, as a lien, was prohibited by
Sec. 116. Thus, as to the petitioner, his
ignorance of the provisions of sec. 116 is
excusable & may be the basis of GF.

Art. 4. Laws shall have no retroactive


effect, unless the contrary is provided.

Tolentino:
Concept of Retroactive Law.-A
retroactive law is one intended to affect
transactions w/c occurred, or rights w/c
accrued, before it became operative, & w/c
ascribes to them effects not inherent in
their nature, in view of the law in force at
the time of their occurrence.
It is one w/c creates a new
obligation & imposes a new duty, or
attaches a new disability, in respect to
transactions or considerations already
past. (Balane quoting Tolentino.)
Reason for the Article.-- A law that has
not yet become effective cannot be
considered as conclusively known by the
people. To make a law binding even before
it has taken effect may lead to arbitrary
exercise of legislative power.
Exceptions to Rule:
When the law itself so expressly provides.-However, this has two exceptions:
when the retroactivity of a penal statute
will make it an ex post facto law, &
when the retroactive effect of the statute
will constitute an impairment of the
obligation of contract.
4

In case of Penal statutes.-- Penal laws


shall have retroactive effect insofar as
they favor the accused who is not a
habitual criminal, even though at the time
of the enactment of such laws final
sentence has already been rendered.
(Art. 22, RPC.)
In case of Remedial statutes.-- Remedial
statutes are those w/c refer to the method
of enforcing rights or of obtaining redress
of their invasion.
In case of Curative statutes.-- Curative
statutes are those w/c undertake to cure
errors & irregularities, thereby validating
juridical or administrative proceedings,
acts of public officers, or private deeds &
contracts w/c otherwise would not
produce their intended consequences by
reason of some statutory disability or the
failure to comply w/ come technical
requirement. But these statutes cannot
violate constitutional provisions, nor
destroy vested rights of a 3rd person.
They cannot affect a judgment that has
become final.
In case of laws interpreting others.-These are laws w/c are intended to clarify
doubts or interpret an existing law.
In case of laws creating new rights.-The principle that a new law shall not
have retroactive effect only governs
rights arising fr. acts done under the rule
of the former law; but if a right be
declared for the first time by a new law it
shall take effect fr. the time of such
declaration, even though it has arisen fr.
acts subject to the former laws, provided
that it does not prejudice another
acquired right of the same origin.
If the law is of an emergency measure &
authorized by the police power of the
State. (added by Balane.)
Art. 5. Acts executed against the
provisions of mandatory or prohibitory laws
shall be void, except when the law itself
authorizes their validity.

Tolentino:
Mandatory & Directory Laws.
Directory laws are those provisions w/c are
mere matter of form, or w/c are not
material, do not affect any substantial
right, & do not relate to the essence of
the thing to be done, so that compliance
is a matter of convenience rather than
substance.
Mandatory laws are statutory provisions w/c
relate to matters of substance, affect

substantial rights & are the very


essence of the thing required to be
done.
Balane:
A mandatory law is one w/c
prescribes some element as a requirement,
e.g., Art. 804 w/c requires that a will must
be in writing.
A prohibitory law is one w/c forbids
something, e.g., Art. 818 w/c forbids joint
wills.
Balane quoting Jurado:
Exceptions to the above provision.
When the law itself authorizes its validity.-Law here refers to the juridical order
in its totality.
Where the law itself authorizes its validity,
but punishes the violator (e.g., where
the marriage was solemnized by a
person who does
not have legal
authority, but the party or parties
believing in GF, that such person has
authority to do so, then the marriage is
valid but the person who solemnized
the same shall be criminally liable.)
Where the law merely makes the act
voidable (e.g., a marriage celebrated
through violence or intimidation or
physical incapacity or fraud is valid until
it is annulled).
Where the law declares the act as void, but
recognizes legal effects arising fr. it
(e.g., children born of void marriage are
classified
as
illegitimate
children
entitled to the rights in Art. 176, FC).
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 w/ a right
recognized by law.
Tolentino:
Elements of Right.-- Every right has 3
elements: (1) the subjects, (2) the object,
& (3) the efficient cause.
The subjects of rights are persons; rights
exist only in favor of persons. There
are 2 kinds of subjects:
the active subject, who is entitled to
demand the enforcement of the right; &
the passive subject, who is duty-bound to
suffer its enforcement.
Things & services constitute the object of
rights.
The efficient cause is the fact that gives
rise to the legal relation.
5

Kinds of Rights.-- Rights may be classified


into political & civil; the former include those
referring to the participation of persons in the
gov't of the State, while the latter include all
others.
Civil rights may be further classified into:
the rights of personality;
family rights; &
patrimonial rights.

debtor (as in case of remission or


condonation) the renunciation of a real
right is unilateral & depends upon the
exclusive will of the owner of the right.

The rights to personality & family


rights are not subject to waiver; but
patrimonial rights can generally be waived.

Facts: PR was charged w/ rebellion. After


the filing of the information, a petition for
habeas corpus was filed. Said petition was
dismissed on the basis of the agreement of
the parties under w/c PR would remain in
the legal custody & would face trial before
the court having custody over his person.
On June 1987, Pres. Aquino issued EO 187
w/c restored the penalty for rebellion to
prision mayor. PR filed a petition for bail,
w/c was granted.

Renunciation or Waiver.-Waiver is
defined as the relinquishment of a known
right w/ both knowledge of its existence & an
intention to relinquish it. Voluntary choice is
the essence of waiver.
Balane:
Exceptions to the Rule that Rights can
be waived:
If the waiver is contrary to one of the 5
considerations (law, public order, public
policy, morals or good customs);
if the waiver would be prejudicial to a 3rd
party w/ a right recognized by law.
Elements of a Valid Waiver:
Existence of a right;
Knowledge of existence thereof;
An intention to relinquish the right (implied in
this is the capacity to dispose of the
right.) (Balane quoting Herrera v.
Borromeo, 152 S 171.)
Tolentino:
The renunciation must be made in a
clear & unequivocal manner. The formality
required by law for such renunciation, if any,
should be followed; if no particular formality
is required, the renunciation may even be
tacit, provided the intent to renounce can be
clearly established.
Scope of Waiver.-- The doctrine of waiver
is generally applicable to all rights &
privileges to w/c a person is legally entitled,
w/n secured by contract, conferred by
statute, or guaranteed by the Consti.,
provided such rights & privileges rest in the
individual & are intended for his sole benefit.
Waiver of Obligations.-Generally,
obligations cannot be renounced.
But a
person may exempt himself fr. an obligation
w/c is inherent in a right, upon the
renunciation of such right. For example, see
Art. 628.
Renunciation of Real Rights.-- According
to Valverde, while the renunciation of a
personal right requires the consent of the

PEOPLE V. DONATO 198 SCRA 130


(1991)

Issue: Did PR waive his right to bail when


he entered into the agreement?
Held: While it is true that bail cannot be
denied to PR for he is charged w/ a bailable
offense, he is not entitled to the same as
he had waived his right to bail when he
agreed to remain in legal custody.
The doctrine of waiver extends to
the rights & privileges of any character, &
since the word waiver covers any
conceivable right, it is the general rule that
a person may waive any matter w/c affects
his property, & any alienable right or
privilege of w/c he is the owner or w/c
belongs to him or to w/c he is legally
entitled to, provided such rights & privileges do not infringe on the rights of
others, & further provided the waiver of the
right or privilege is not forbidden by law, &
does not contravene public policy.
Rights guaranteed to one accused
of a crime fall naturally into two classes: (a)
Those in w/c the state, as well as the
accused, is interested, & (b) those w/c are
personal to the accused, w/c are in the
nature of personal privileges. Those of the
first class cannot be waived, those of the
second may be.
This Court has recognized waivers
of constitutional rights such as the rights
against unreasonable searches & seizures,
the right to counsel & to remain silent, &
the right to be heard. The right to bail is
another of the constitutional rights w/c can
6

be waived. It is a right personal to the


accused & whose waiver would not be
contrary to law, public order, morals or good
customs, or prejudicial to a third person w/ a
right recognized by law.

Art. 7.
Laws are repealed only by
subsequent ones, & their violation or nonobservance shall not be excused by disuse,
or custom or practice to the contrary.
When the courts declare a law to be
inconsistent w/ the Constitution, the former
shall be void & the latter shall govern.
Administrative or executive acts, orders &
regulations shall be valid only when they are
not contrary to the laws or the Constitution.
Balane: Leges posteriores priores contrarias
abrogant.
Tolentino:
Reason for the Article.-- Since laws are
promulgated by competent authority of the
State, they can cease to have effect only
through the will of the State.
Repeal of Laws. - 2 kinds of repeal of a
law:
express or declared repeal, contained in a
special provision of a subsequent law, &
implied or tacit repeal, w/c takes place when
the provisions of the subsequent law are
incompatible or inconsistent w/ those of
an earlier law.
Requisites of Implied Repeals:
the laws cover the same subject matter, &
the latter is repugnant to the earlier.
Repeal of Repealing Law.-- When a law
w/c expressly repeals a prior law is itself
repealed, the law first repealed shall not be
revived unless expressly so provided. But if
the prior law was repealed, not expressly but
by implication, the repeal of the repealing law
will revive the prior law, unless the language
of the last law provides otherwise.
Lapse of Laws. There are laws w/c, w/o
any repeal, cease to have effect bec. they
lapse by their own terms, as a (1) law for a
fixed period, or (2) w/o express provision; the
intent of the law may indicate that its
effectivity shall be for a limited period, as the
case of the Emergency Powers Act.

Art. 8. Judicial decisions applying or


interpreting the laws or the Constitution
shall form a part of the legal system of the
Philippines.

Balane: This is a common law principle.


This shows that our New Civil Code is not a
full-blooded Civil Law scion.
Tolentino:
Decisions
not
Source
of
Law.-Jurisprudence, in our system of gov't,
cannot be considered as an independent
source of law; it cannot create law. But the
Court's
interpretation
of
a
statute
constitutes part of the law as of the date it
was
originally
passed,
since
the
construction
merely
establishes
contemporaneous legislative intent that
the interpreted law carried into effect.
Doctrine of stare decisis.-- The doctrine
of stare decisis is based on the principle
that once a question of law has been
examined & decided, it should be deemed
settled & closed to further argument. The
doctrine, however, is flexible; so, that
when, in the light of changing conditions, a
rule has ceased to be of benefit & use to
society, the courts may rightly depart fr. it.
PEOPLE V. LICERA 65 SCRA 270 (1975)
Facts: In 1965, Licera was charged w/
illegal possession of firearms. He invoked
as his legal justification for his possession
of the Winchester rifle his appointment as
secret agent by Governor Leviste.
He
claims that as secret agent, he was a
peace officer &, thus, pursuant to People
vs. Macarandang, was exempt fr. the
requirements relating to the issuance of
license to possess firearms.
Issue: Is he exempt?
Held:
In the case of People vs.
Macarandang, the SC interpreted Sec .879,
RAC that the appointment of a civilian as a
secret agent to assist in the maintenance
of peace & order sufficiently places him
w/in the category of a peace officer,
thereby exempted fr. the requirements
relating to firearm licenses.
Art. 8, NCC decrees that judicial
decisions applying or interpreting the laws
or the Constitution form part of this
7

jurisdiction's legal system. These decisions,


although in themselves not law, constitute
evidence of what the laws mean.
The
application or interpretation placed by the
courts upon a law is part of the law as of the
date of the enactment of the said law since
the Court's application or interpretation
merely establishes the contemporaneous
legislative intent that the construed law
purports to carry into effect.
People
vs.
Mapa
revoked
the
Macarandang precedent only in 1967.
Certainly, a new doctrine abrogating an old
rule should only operate prospectively &
should not adversely affect those favored by
the old rule, especially those who relied
thereon & acted on good faith thereof.
PEOPLE V. PINUILA 55 O.G. 23 P. 4228
(1958)
Facts: Pinuila was charged w/ murder. In the
course of the trial, the court dismissed the
case on question of jurisdiction.
Upon
appeal, the SC remanded the case, following
the doctrine in People vs. Salico w/c held that
an appeal by the government fr. an order of
dismissal for lack of jurisdiction when such
jurisdiction really existed, w/c order of
dismissal was based on or prompted by a
MTD filed by the accused himself, did not
place him in jeopardy. Pinuila was convicted.
He appeals.
Meanwhile, the SC had
abandoned the Salico doctrine, it not being in
accordance w/ the law on double jeopardy.
Issue: Will the new doctrine apply to Pinuila?
Held: No. The new doctrine cannot be
applied to this case. The doctrine enunciated
in People v. Salico has long become final &
conclusive & has become the law of the case.
It may be erroneous, judged by the law on
double jeopardy as recently interpreted by
the SC. Even so, it may not be disturbed &
modified. The SC's recent interpretation of
the law may be applied to new cases, but
certainly not to an old one finally &
conclusively determined. The rule is founded
on the policy of ending litigation, & to be
necessary to enable an appellate court to
perform its duties satisfactorily & effectively.
Paras, dissenting: This is a criminal case,
hence, an interpretation favorable to the
accused must be given retroactive effect.

CO VS. CA 227 SCRA 444


Facts: In payment for his share of the
expenses of a salvaging operation,
petitioner issued a check on Sept.1, 1983
in favor of the salvaging firm. This was
dishonored by the bank. Petitioner was
then charged w/ violation of BP 22. The
lower court convicted him. Upon appeal,
petitioner alleged that the lower court
should not have relied upon the ruling in
Que vs. People, w/c stated that a check
issued
merely
to
guarantee
the
performance
of
an
obligation
is
nevertheless covered by BP 22.
He
contends that when he issued the check,
the delivery of a bouncing check as
guarantee for an obligation was not
considered a punishable offense, as
pronounced in Circular No.4 dated Dec.15,
1981 of the Ministry of Justice. The CA
rejected his argument & affirmed his
conviction; it stated that the Que doctrine
did not amount to the passage of new law
but was merely a construction or
interpretation of an existing one.
Held:
Judicial decisions applying or
interpreting the laws or the Constitution
shall form a part of the legal system of the
Philippines (Art.8, NCC).
SC decisions,
although in themselves not laws, are
nevertheless evidence of what the laws
mean. However, when a SC doctrine is
overruled & a different view is adopted, the
new
doctrine
should
be
applied
prospectively, & should not apply to parties
who had relied on the old doctrine & acted
on the faith thereof.

Art. 9. No judge or court shall decline to


render judgment by reason of the silence,
obscurity or insufficiency of the laws.
Balane:
In a situation contemplated by
this Art., the judge will be guided by
customs & principles of right & justice.
Tolentino:
Applicability of Article.-- This article
does not apply to criminal prosecutions,
bec. when there is no law punishing an act,
8

the case must be dismissed, however,


reprehensible the act may seem to the judge.
Obscurity or Deficiency of Law.-- If the
law is vague or obscure, the court should
clarify it in the light of the rules of statutory
construction; if it is silent or insufficient, the
court should fill the deficiency by resorting to
customs or general principles of law.
Concept of Customs.-- Custom may be
defined as the juridical rule w/c results fr. a
constant & continued uniform practice by the
members of a social community, w/ respect
to a particular state of facts, & observed w/ a
conviction that it is juridically obligatory.
Requisites of Custom:
plurality of acts, or various resolutions of a
juridical question raised repeatedly in life;
uniformity, or identity of the acts or various
solutions to the juridical questions;
general practice by the great mass of the
social group;
continued performance of these acts for a
long period of time;
general
conviction
that
the
practice
corresponds to a juridical necessity or
that it is obligatory; &
the practice must not be contrary to law,
morals or public order.
Custom distinguished fr. Law.-- As to
origin, custom comes fr. the society, while
law comes fr. the governmental power of the
State; the former is a spontaneous, while the
latter is a conscious creation.
As to form, custom is tacit, being
manifested in acts or usages, while law is
express, manifested in solemn & official form.
The former is unwritten law, the latter is
written law.
What Custom Applied.-- When the place
where the court is located & the domicile of
the parties are different, & each place has a
different custom, it is to be presumed that
they knew the custom of their domicile & not
that of the court's location. If the domiciles of
the parties are different & they have different
customs, Manresa believes that there is no
reason for making a preference, & the matter
should be treated as if there is no custom.
Sanchez Roman sustains the view, however,
that in the absence of reasons for preference,
the general rule should be to apply the
custom of the place for the performance or
consummation of the juridical act.
Art. 10.
In case of doubt in the
interpretation or application of laws, it is
presumed that the lawmaking body intended
right & justice to prevail.

Art. 11. Customs w/c are contrary to


law, public order or public policy shall not
be countenanced.

Balane:
Custom can be applied
suppletorily only if custom is not contrary
to any law.
Tolentino: The Courts will not recognize
the force of a custom in opposition to
positive law.
Art. 12. A custom must be proved as a
fact, according to the rules of evidence.

Tolentino:
Requisites of Custom. In order that
custom may have the force of suppletory
rule, it must have the following requisites:
plurality of acts, or various resolutions of a
juridical question raised repeatedly in
life;
uniformity, or identity of the acts or various
solutions to the juridical question;
general practice by the great mass of the
social group;
continued performance of these acts for a
long period of time;
general conviction that the practice
corresponds to a juridical necessity or
that it is obligatory; &
the practice must not be contrary to law,
morals, or public order.
Non-existence of Custom. When the
alleged custom or usage is not known to
those who have the best means of knowing
it, this ignorance is, in some sense, positive
evidence of its non-existence.
BALANE CASE:
YAO KEE V. SY-GONZALES
737

167 SCRA

Held: Custom is defined as a rule of


conduct formed by repetition of acts,
uniformly observed (practiced) as a social
rule, legally binding & obligatory. The law
requires that a custom must be proved as
a fact, according to the rules of evidence.
On this score the Court had occasion to
state that a local custom as a source of
right can not be considered by a court of
justice unless such custom is properly
established by competent evidence like
any other fact. The same evidence, if not
one of a higher degree, should be required
of a foreign custom.
9

Art. 13. When the laws speaks of years,


months, days or nights, it shall be understood
that years are of three hundred sixty-five
days each; months, of thirty days; days of
twenty-four hours; & nights fr. sunset to
sunrise.
If months are designated by their name,
they shall be computed by the number of
days w/c they respectively have.
In computing a period, the first day shall
be excluded, & the last day included.

Balane: Art. 13 has been superseded by


Sec. 31, Book I of EO 292 (Administrative
Code of 1987) w/c provides that:
Sec. 31. Legal Periods.-- "Year" shall be
understood to be twelve (12) calendar
months; "months" of thirty (30) days, unless
it refers to a specific calendar month in w/c
case it shall be computed according to the
number of days the specific month contains;
"day," to a day of twenty four (24) hours; &
"nights," fr. sunset to sunrise.

Baviera:
This article applies only to
legal provisions & not to contracts,
where the parties may stipulate on the
manner of computing years, months &
days.

Tolentino:
Meaning of Week.-- The term week,
when computed according to the calendar,
means a period of 7 days beginning on
Sunday & ending on Saturday, but where the
word is used simply as a measure of duration
of time & w/o reference to the calendar, it
means a period of 7 consecutive days w/o
regard to the day of the week on w/c it
begins.
Meaning of Month.-- There are several
senses in w/c the term month may be
understood. A lunar mo. is composed of 28
days. A calendar mo. as designated in the
calendar, w/o regard to the no. of days it may
contain, etc. The Code, however, does not
use month in either of these senses, but
strictly in a legal sense, as a period
composed of 30 days.
Computation of Time.-- When the act &
the period are contractual, not required by

law, court order, or rule of court, the


exception referring to Sundays & holidays
does not apply, & the act must be done on
the last day, even if the latter should be a
Sunday or a holiday. This is in consonance
w/ the rule that the contract is the law
between the contracting parties.

NAMARCO V. TECSON
(1969)

29 SCRA 70

Facts:
On Oct.14, 1955, the CFI-Mla.
rendered judgment in a civil case, Price
Stabilization Corp. vs. Tecson, et al. Copy
of this decision was served on Oct.21, 1955
upon defendants in said case. On Dec.21,
1965, NAMARCO, as successor to all the
properties, assets, rights, & choses in
action of Price, as pltff in that case &
judgment creditor therein, filed w/ the
same
court,
a
complaint
against
defendants for the revival of the judgment
rendered therein. Def. Tecson moved to
dismiss said complaint, upon the ground of
prescription of action, among others. The
motion was granted by the court. Hence,
the appeal to the CA w/c was certified to
the SC, upon the ground that the only
question raised therein is one of law.
Issue: WON the present action for the
revival of a judgment is barred by the
statute of limitations.
Held: Pursuant to Art. 1144 (3), NCC, an
action for judgement must be brought w/in
10 yrs fr. the time the judgment sought to
be revived has become final. This in turn,
took place on Dec.21, 1955 or 30 days fr.
notice of the judgment. The issue is thus
confined to the date on w/c the 10 yrs fr.
Dec.21, 1955 expired. Pltff alleges that it
was Dec.21, 1965, but appellee maintains
otherwise. He alleges that when the law
speaks of years, it shall be understood that
years are of 365 days each. And, 1960 &
1964 being leap years, therefore 10 yrs of
365 days each, or an aggregate of 3650
days, fr. Dec.21, 1955, expired on Dec.19,
1965.
The action to enforce a judgment
w/c became final on December 21, 1955
prescribes in 10 years. Since the Civil Code
computes years in terms of 365 days
each, the action has prescribed on
10

December 19, 1955, since the two


intervening leap years added two more days
to the computation. It is not the calendar
year that is considered.

are; they must, therefore, obey its laws, &


may prosecuted for violating them.

76 SCRA 560

On the other hand, aliens enjoy the


civil rights guaranteed by the Consti to all
the inhabitants of the State. They come
under the protection of the Bill of Rights in
the same manner as citizens.

Facts: Petitioners were charged w/ serious


oral defamation, a crime w/c prescribes in 6
months.
They moved to quash the
information on the ground that the offense
charged had prescribed. Petitioners counted
the months according to their number of
days. The lower court denied their motion,
computing the months as having 30 days.

Exemption under International Law.-Under the theory of extraterritoriality,


foreigners may be exempted fr. the
operation of the Phil. laws in the following
cases:
when the offense is committed by a foreign
sovereign while in Phil. territory;
when the offense is committed by
diplomatic representatives; &
when the offense is committed in a public
or armed vessel of a foreign country.

QUIZON V. BALTAZAR
(1977)

Held: The RPC provides that an action for


serious oral defamation prescribes in six
months. The months should be computed by
the regular 30 days, not the calendar months.
Hence, where the crime was committed on
November 11, 1963, & the action was filed
exactly 180 days later, said action was filed
on time.

Art. 14.
Penal laws & those of public
security & safety shall be obligatory upon all
who live or sojourn in Philippine territory,
subject
to
the
principles
of
public
international law & to treaty stipulations.

Offenses in Merchant Vessels.-A


merchant vessel of foreign registry does
not enjoy the extraterritorial privilege of
foreign public or war vessels. An offense
committed on such vessel while it is in a
Phil. port, constituting a breach of public
order & a viol. of the policy established by
the legislature, is triable in Phil. ports.
Art. 15. Laws relating to family rights
& duties, or to the status, condition & legal
capacity of persons are binding upon
citizens of the Philippines, even though
living abroad.

Tolentino:
Balane:
There are 2 principles involved here:
Territoriality - means that our criminal laws
are enforceable only w/in Phil. territory.
Exception to the territoriality principle is
Art. 2 of RPC.
Generality - means that w/in the Phil.
territory, our criminal laws will apply to
anyone, citizen or alien. Exceptions: (1)
treaty stipulations w/c exempted some
persons w/in the jurisdiction of the Phil.
courts. & (2) ambassadors (consuls are
subject to the jurisdiction of our criminal
courts) (Schneckenburger v. Moran.)
Tolentino:
Applicability of Laws to Aliens. Every
sovereign state has absolute & exclusive
power of government w/in its own territory.
Aliens owe a local & temporary allegiance to
the government of the country where they

Theories on Personal Law.


Domiciliary theory the personal laws of a
person are determined by his domicile.
Nationality theory the nationality or
citizenship determines the personal
laws of the individual. This is followed
by our Civil Code.
Capacity to Contract.-- If under the law
of the State of w/c a party to a contract is a
citizen, he is already of age at the time he
enters into the contract, he cannot set such
contract aside on t he ground of minority,
even if under the laws of the Phils. he is
still a minor. (Government vs. Frank, 13 P
238.)
Renunciation of Allegiance.-The
question of how a citizen may strip himself
of the status as such citizen is governed by
his national law.
BALANE CASES:
TENCHAVEZ V. ESCANO 15 SCRA 355
11

Held: At the time the divorce decree was


issued, Escano, like her husband, was still a
Filipino citizen. She was then subject to
Philippine law under Art. 15, NCC. Philippine
law, under the NCC then now in force, does
not admit absolute divorce but only provides
for legal separation.
For Phil. courts to recognize foreign
divorce decrees bet. Filipino citizens would be
a patent violation of the declared policy of
the State. Moreover, recognition would give
rise to scandalous discrimination in favor of
wealthy citizens to the detriment of those
members of our society whose means do not
permit them to sojourn abroad & obtain
absolute divorce outside the Phils. Therefore,
a foreign divorce bet. Filipino citizens, sought
& decreed after the effectivity of the NCC, is
not entitled to recognition as valid in this
jurisdiction.
VAN DORN V. ROMILLO 139 SCRA 139
Held: Only Phil. nationals are covered by the
policy against absolute divorces, the same
being considered contrary to our concept of
public policy & morality. However, aliens may
obtain divorces abroad, w/c may be
recognized in the Phils., provided they are
valid according to their national law.
In this case, the divorce in Nevada
released PRs fr. the marriage according to
American law, under w/c divorce dissolves
the marriage. Thus, pursuant to his national
law, Upton is no longer the husband of
petitioner. He would have no standing to sue
in the case below as petitioner's husband
entitled to exercise control over conjugal
assets.
Art. 16. Real property as well as personal
property is subject to the law of the country
where it is situated.
However, intestate & testamentary
successions, both w/ respect to the order of
succession & to the amount of successional
rights & to the intrinsic validity of
testamentary provisions, shall be regulated
by the national law of the person whose
succession is under consideration, whatever
may be the nature of the property &
regardless of the country wherein said
property may be found.

Tolentino:
Law on Property. Property is subject to
the laws of the country in w/c it is located;
Savigny bases this principle upon a
voluntary submission to local laws implied
in the holding of property w/in the country.
Real property is governed by lex situs, the
law of the space where the land is situated.
Personal property follows the modern
doctrine mobilia sequuntur personam
(movables follow the owner).
Law on Succession.-- The law governing
succession may be considered fr. the point
of view of (a) the execution of wills, & (b)
the distribution of property. The formalities
of execution of will are generally governed
by the law of the place of execution (Art.
17, par. 1.) But the distribution of the
estate is governed by the law of the nation
of the deceased.
The distribution of the estate may
involve various questions:
The order of succession in cases of
intestacy;
The intrinsic validity of the testamentary
provisions in case of testate succession;
The extent or amount of property w/c each
heir is entitled to inherit;
The capacity of certain heirs to succeed, &
Questions of preterition, disinheritance, &
collation.
All these matters are governed by
the law of the nation of the decedent,
irrespective of the nature & location of the
properties left by him at the time of his
death.
Applicability of Foreign Law.-The
second par. of this article can be invoked
only when the deceased was vested w/ a
descendible interest in prop. w/in the
jurisdiction of the Phils.
The
intrinsic
validity
of
the
provisions of the will of a foreigner who
dies in the Phils. is to be determined by the
laws of his own state or country, & not by
those of the Phils. Thus, a condition in a
will of a foreigner that his legatee respect
his order that his prop. be distributed
according to the laws of the Phils. instead
of the laws of his own country, was held
illegal & considered as not written.

Balane:
In Art. 16 par. 1 provides that the lex
situs or lex rei sitae governs real or personal
prop. This rule applies even to incorporeal
property. In Tayag v. Benguet Consolidated,
the SC said that Phil. courts have jurisdiction
over shares of stocks located in the Phils.

Art. 17. The forms & solemnities of


contracts, wills, & other public instruments
shall be governed by the laws of the
country in w/c they are executed.

12

When the acts referred to are executed


before the diplomatic or consular officials of
the Republic of the Philippines in a foreign
country, the solemnities established by
Philippine laws shall be observed in their
execution.
Prohibitive laws concerning persons, their
acts or property, & those w/c have for their
object public order, public policy & good
customs shall not be rendered ineffective by
laws or judgments promulgated, or by
determinations or conventions agreed upon
in a foreign country.

Issue: Which law should apply, Philippine


law or California law?
Held: Where the testator was a citizen of
California, & domiciled in the Philippines,
the amount of successional rights should
be governed by his national law. However,
since the conflicts of law rules of California
provides that in case of citizens who are
residents of another country, the law of the
country of domicile should apply, then
Philippine law on legitimes was applied.
Hence,
under
Philippine
laws,
the
acknowledged natural daughter cannot be
deprived of her legitime.

Balane: The rule in par. 1 is known as the


lex loci celebrationis.
Tolentino:
Validity & Effects of Obligations.-- The
code fails to mention the law w/c shall govern
the validity & effects of obligations:
First, the law designated by the parties shall
be applied;
If there is no stipulation on the matter, & the
parties are of the same nationality, their
national law shall be applied;
If this is not the case, the law of the place of
perfection of the obligation shall govern
its essence & nature, & the law of the
place of the performance shall govern its
fulfillment;
However, if these places are not specified &
they cannot be deduced fr. the nature &
circumstances of the obligation, then the
law of the domicile of the passive subject
shall apply. (Manresa & Valverde.)
AZNAR V. GARCIA 61 O.G. NO. 46 P. 7303
(1963)
Facts: Edward Christensen, a U.S. citizen
executed a will in Manila where he
bequeathed to Maria Helen Christensen
P3,600 & the rest of his property to his
daughter Maria Lucy.
The executor thus
made the project of partition in accordance
w/ the will. Helen opposed said partition
insofar as it deprived her of her legitime as
an acknowledged natural child & that the
distribution should be governed by Phil. laws.
The lower court ruled that since the deceased
was a U.S. citizen, the successional rights &
intrinsic validity of his will are to be governed
by California Law under w/c a testator has the
right to dispose of his property in the way he
desires.

BELLIS V. BELLIS 20 SCRA 358 (1967)


Facts: Amos Bellis, born in Texas & an
American citizen, had 5 legitimate children
w/ his 1st wife, 3 legitimate children w/ his
2nd wife & 3 illegitimate children.
He
executed a will in the Philippines where he
bequeathed P120T to his 3 illegit children &
the rest of his estate to all his legit
children. He died while a resident of Texas.
The will was admitted to probate. Two
illegit children filed their opposition to the
project of partition on the ground that they
were deprived of their legitimes. The lower
court overruled the opposition, applying
Art.16, NCC where the national law of the
decedent (in this case, Texan law) would
govern & w/c did not provide for legitimes.
Held: Renvoi is not applicable where the
decedent is the national & the domiciliary
of the same country. Where the testator
was a citizen of Texas & domiciled in Texas,
the intrinsic validity of his will should be
governed by his national law. Since Texas
law does not require legitimes, then his will
w/c deprived his illegitimate children of the
legitimes is valid. Whatever the public
policy or good customs involved in our
system of legitimes, Congress has not
intended to extend the same to the
succession of foreign nationals for it has
specifically chosen to leave the amount of
successional rights to the decedents
national law.
13

Baviera:
Baviera:
Why was Texas law applied
when there was no proof of Texas law?

Other Conflict of Law Rules:


Art. 829. A revocation done outside the
Philippines, by a person who does not have
his domicile in this country, is valid when it is
done according to the law of the place where
the will was made, or according to the law of
the place in w/c the testator had his domicile
at the time; & if the revocation takes place in
this country, when it is in accordance w/ the
provisions of this Code.
Art. 1039.
Capacity to succeed is
governed by the law of the nation of the
decedent.
Art. 1753. The law of the country to w/c
the goods are to be transported shall govern
the liability of the common carrier for their
loss, destruction or deterioration.
Art. 26, FC. All marriages solemnized
outside the Philippines in accordance w/ the
laws in force in the country where they were
solemnized, & valid there as such, shall also
be valid in this country, except those
prohibited under Articles 35 (1), (4), (5) & (6),
36, 37 & 38.
Where a marriage between a Filipino
citizen & a foreigner is validly celebrated & 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.

Q: Would the ruling in Tenchavez still be the


same, even after the amendment introduced
in Art. 26 by EO 227?
A: Yes, bec. the Tenchavez spouses are
Filipinos. Art. 26 par. 2 does not apply to
them.
Requisites of Art. 26 par. 2:
one of the spouses is a foreigner
a divorce decree is obtained
the divorce decree is obtained at the
instance of the foreign spouse
under the divorce decree, the foreignerspouse acquires the capacity to remarry.

Q:
Suppose at the time of the
marriage, both spouses are Filipinos.
Afterwards, one becomes naturalized.
Would Art. 26 par. 2 still be applied?
A: No. This would be a circumvention
of the law. The 2nd paragraph applies
only to mixed marriages fr. the very
beginning
&
not
when
one
subsequently becomes naturalized. It
contemplates a situation where one
party was already a foreigner at the
time of the marriage
This refers to the formal or
extrinsic requirements only, namely:
1. authority of the solemnizing officer
2. valid marriage license
3. marriage ceremony
The national law of the parties
govern the essential or intrinsic
requirements, namely:
1. legal capacity
2. consent
Art. 80, FC.
In the absence of a
contrary
stipulation
in
a
marriage
settlement, the property relations of the
spouses shall be governed by Philippine
laws, regardless of the place of the
celebration of the marriage & their
residence.
This rule shall not apply:
Where both spouses are aliens;
With respect to the extrinsic validity of
contracts affecting property not situated in
the Philippines & executed in the country
where the property is located; &
With respect 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 their extrinsic validity.
HUMAN RELATIONS
Art. 19.
Every person must, in the
exercise of his rights & in the performance
of his duties, act w/ justice, give everyone
his due, & observe honesty & good faith.
14

Art. 20. Every person who, contrary to


law, willfully or negligently causes damage to
another, shall indemnify the latter for the
same.
Art. 21. Any person who willfully causes
loss or injury to another in a manner that is
contrary to morals, good customs or public
policy shall compensate the latter for the
damage.

GLOBE MCKAY V. CA
(1989)

176 SCRA 778

Facts: PR was an employee of Globe McKay.


He discovered some fraudulent transactions
w/c he reported to the GM. The GM later
accused him of being the crook & that he was
a swindler. He was asked to leave his things
& desk open for inspection.
Police
investigation was also conducted w/c found
him innocent. The lie detector test also
showed
negative
results.
These
notw/standing, 6 criminal cases for estafa
were filed against him. In the meantime, he
was dismissed fr. work. Pending the case, he
sought employment in another company, w/c
rejected him in view of a letter sent by
Globes GM labeling him as dishonest. PR
thus filed for damages against Globe. The
lower court ruled for PR.
Held: Affirmed. While an employer has the
right to dismiss an employee who was
involved in anomalous transactions, the right
of dismissal should not be exercised in an
abusive manner, such as by making
accusations of being a crook, forcing him to
take a forced leave, threatening to file a
hundred suits against him. Hence, the
employer is liable for damages.
Although Art.19 provides only for the
rule of conduct for the guidance of human
relations & maintenance of social order &
does not provide a remedy for its violation,
an action for damages under Art. 21 or 22
would be proper. Art. 21 was adopted to
remedy the countless gaps in the statutes,
w/c leave so many victims of moral wrongs
helpless, even though they have actually
suffered material & moral injury. In view of
the circumstances of the case, PR has a right
to recover damages under Art. 19 in relation
to Art. 21.

VELAYO V. SHELL 54 O.G. NO. 46 P.


7303 (1956)
Facts:
CALI, a domestic corporation
engaged in the air transportation business
was a debtor of Shell Phils. It called for a
meeting w/ all its principal creditors to
inform the latter of its state of insolvency.
In the meeting, a C-54 plane owned by
CALI, w/c was in the U.S., was mentioned.
As the creditors failed to reach an
agreement as to the division of its assets, a
committee was formed w/ Shells GM as its
head. Unknown to the other creditors, bec.
of the information fr. the meeting, Shell
Phils assigned its credit to Shell U.S., w/c
immediately brought a collection suit
against CALI & had the C-54 plane
attached. Thus, this action by Velayo, as
the assignee of CALIs assets.
Held: Shell Phils. acted in bad faith when
it made a hasty assignment of its credits
w/o informing the other creditors, in
violation of the agreement among all the
creditors of CALI to settle the division of
CALIs assets amicably.
Such move
enabled Shell Phils. to collect the entire
amount of its credit to the prejudice of
other preferred creditors. Such betrayal of
confidence violated Art. 19 as implemented
by Art.21.
PNB V. CA 83 SCRA 237 (1978)
Facts: PR entered into a contract of lease
of sugar allotment w/ a certain Tuason. PR
offered the use of her sugar quota at
P2.50/picul. But, as the sugar quota was
mortgaged to PNB bec. of a loan by PR, the
lease had to be approved by PNB. The
branch manager recommended the price to
be raised to P2.80/picul, to w/c Tuason
agreed.
However, the BOD of PNB
disapproved said lease, requiring at least
P3/picul. Because of this, the contract did
not materialize & PR suffered losses.
Held: The law makes it imperative that
every person must in the exercise of his
rights & in the performance of his duties,
act w/ justice, give everyone his due, &
observe honesty & good faith. This PNB
failed to do. Time was of the essence in
the approval of lease of sugar quota
allotments since the same must be utilized
15

during the milling season, otherwise it may


be reallocated. Certainly, PNB knew that the
agricultural year was about to expire & that
by its disapproval of the lease, PR would be
unable to utilize her sugar quota. While the
BOD of PNB had the power to approve the
lease of the sugar quota allotments of its
debtor, its act in unduly refusing to grant
such approval when the terms of the lease
were reasonable constitutes a violation of Art.
21 of the Civil Code.
Baviera: The Board of Directors should
have been held liable, not the bank.

BALANE V. YU CHIANG 54 O.G. NO. 3, P.


687 (1957)
Facts: Marcela Balane, a 19-year old girl,
agreed to cohabit w/ Yu Chiang in view of a
notarial instrument signed by the latter. In
such instrument, it provided that as he could
not yet marry Marcela due to some
inconveniences, it is their understanding &
agreement to live together, that Yu Chiang
obliges himself to support Marcela & their
offspring.
When Marcela got pregnant &
asked Yu to marry her, he refused.
He
similarly refused to support the child. The
lower court ruled in Marcelas favor in her
action for support & recognition.
Held: Evidence shows that at the time of
cohabitation, there was no impediment to
their marriage.
The instrument tends to
show that there was a promise of marriage.
Even w/o the latter, Yu is liable for damages
for defloration & cohabitation. Under the
NCC, it is not necessary that there is a breach
of a promise of marriage in order that
Marcela may recover damages. Art. 21 is
applicable.
There is not question that
Marcela suffered moral damages by reason of
having been induced to live w/ Yu in a
manner that is contrary to morals & good
customs, as a result of w/c she bore a child
w/c Yu now refuses to recognize & support.

Art. 22. Every person who through an act


of performance by another, or any other
means, acquires or comes into possession of
something at the expense of the latter w/o
just or legal ground, shall return the same to
him.

Art. 23.
Even when an act or event
causing damage to another's property was
not due to the fault or negligence of the
defendant, the latter shall be liable for
indemnity if through the act or event he
was benefited.
Art. 24. In all contractual, property or
other relations, when one of the parties is
at a disadvantage on account of his moral
dependence, ignorance, indigence, mental
weakness, tender age or other handicap,
the courts must be vigilant for his
protection.
Art. 25. Thoughtless extravagance in
expenses for pleasure or display during a
period of acute public want or emergency
may be stopped by order of the courts at
the instance of any government or private
charitable institution.
Art. 26. Every person shall respect the
dignity, personality, privacy & peace of
mind of his neighbors & other persons. The
following & similar acts, though they may
not constitute a criminal offense, shall
produce a cause of action for damages,
prevention & other relief:
Prying into the privacy of another's
residence;
Meddling w/ or disturbing the private
life or family relations of another;
Intriguing to cause another to be
alienated fr. his friends;
Vexing or humiliating another on
account of his religious beliefs, lowly
station in life, place of birth, physical
defect, or other personal condition.

LAGUNZAD V. GONZALES 92 SCRA 476


(1979)
Facts: Petitioner began the filming of The
Moises Padilla Story. Because Padillas
mother & her sisters objected to some
parts of the story relating to Moises private
life, a licensing agreement was entered into
between them where P agreed to pay a
certain sum to the family. P failed to pay
fully so an action was filed against him.
The lower court ruled for PR.

16

Held: Affirmed. Being a public figure ipso


facto does not automatically destroy in toto a
person's right to privacy. The right to invade
a person's privacy to disseminate public
information does not extend to fictional or
novelized representation of a person, no
matter how public a figure he or she may be.
The licensing agreement is valid & has the
force of law between the parties as the
provisions thereof are not contrary to law,
morals, good customs, public order or public
policy. Petitioner should comply w/ it in good
faith.
That said agreement violates his
freedom of expression cannot be upheld.
The right of freedom of expression,
indeed, occupies a preferred position in the
hierarchy of civil liberties. However, it is
limited by the clear & present danger rule &
the balancing of interest test. The latter
requires the court to take conscious &
detailed consideration of the interplay of
interest observable in a given situation. The
interests observable in this case are the right
to privacy & freedom of expression. Taking
into account the interplay of those interest,
we
hold
that
under
the
particular
circumstances presented, & considering the
obligations in the contract, the validity of
such contract must be upheld bec. the limits
of freedom of expression are reached when
expression
touches
upon
matters
of
essentially private concern.
AYER V. CAPULONG 160 SCRA 865 (1988)
Facts:
Ayer Productions Ltd. started the
filming of The Four Day Revolution. PR
Senator Enrile manifested that he would not
approve of the use, appropriation or
exhibition of his name, picture, or that of his
family in said production. PR claimed that
the film violated his right to privacy.
Held: Senator Enrile cannot object to his
inclusion in the movie on the EDSA
Revolution by invoking his right to privacy.
The right of privacy is not an absolute right. A
limited intrusion into a person's privacy has
long been regarded as permissible where that
person is a public figure & the information
sought to be elicited fr. him or to be
published about him constitutes matters of a
public character. Succinctly put, the right of
privacy cannot be invoked to resist
publication & dissemination of matters of
public interest. The right of privacy of a public

figure is necessarily narrower than that of


an ordinary citizen.
As distinguished fr. Lagunzad v.
Gonzales, w/c involved a film biography
necessarily including at least his immediate
family, the subject matter of the movie in
this case is one of public concern & does
not relate to the individual or public life of
Senator Enrile.

Art. 29.
When the accused in a
criminal prosecution is acquitted on the
ground that his guilt has not been proved
beyond reasonable doubt, a civil action for
damages for the same act or omission may
be instituted. Such action requires only a
preponderance of evidence. Upon motion
of the defendant, the court may require the
plaintiff to file a bond to answer for
damages in case the complaint should be
found to be malicious.
If in a criminal case the judgment of
acquittal is based upon reasonable doubt,
the court shall so declare. In the absence of
any declaration to that effect, it may be
inferred fr. the text of the decision whether
or not the acquittal is due to that ground.

MENDOZA
(1961)]

V.

ALCALA

[2

1032

Facts:
Def Mendoza was charged w/
estafa. While the crim case was pending,
plaintiff Alcala filed a civil case based on
the very same receipt upon w/c the crim
axn was predicated.
The crim court
acquitted the def. The civ court ruled
against Mendoza. On appeal, the appellate
court dismissed plaint Alcala on the ground
that when the court makes an express
finding that the facts upon w/c the decision
may be based do not exist, the same is
conclusive & is a bar to the prosecution
based on the same set of facts.
Issue:
WON the def could still be
prosecuted for the collection of the amount
stated in the said receipt in a civil case
after he had been acquitted by the court on
a charge of estafa based on the said
receipt.

17

Held: Yes. Nowhere in the decision rendered


in the crim case is found an express
declaration that the fact fr. w/c the civ axn
might arise did not exist. The phrase that
the guilt of the def has not been satisfactorily
established is held to be equivalent to a
declaration that the acquittal was based on
reasonable doubt & does not preclude a suit
to enforce the civ liab for the same act or
omission under Art 29.
MENDOZA V. ARRIETA [91 S 113 (1979)]
Facts: Three-way vehicular collision resulted
in the crim prosecution of Montoya, truck
driver & Salazar, jeepney driver. Mendoza,
owner of the Benz filed a crim vs. Montoya &
a civ case vs. Salazar. The court rendered a
decision absolving Salazar fr. any liability in
view of its findings that the collision was the
result of Montoyas negligence. Montoya was
found guilty of damage to property thru
reckless imprudence but Salazar was
acquitted & absolved fr. civ & crim liab. No
damages were awarded to Mendoza since he
filed civ case vs. Salazar & not Montoya.
Mendoza again filed a civ case vs. Salazar &
Timbol, the owner of the truck.
Issue:
WON
complaint vs. Timbol

res

judicata

bars

Held: NO. There is no res judicata, the


parties & causes of action being different.
Furthermore, under Art. 31 of the Civil Code,
When the civil action is based on an obligation not arising fr. crime, the civil action
may proceed independently of the criminal
proceedings regardless of result of the latter.
Citing Garcia v. Florido, "As we have stated at
the outset, the same negligent act causing
damages may produce a civil liability arising
fr. crime or create an action for quasi-delict or
culpa extra-contractual. The former is a
violation of the criminal law, while the latter
is a distinct & independent negligence,
having always had its own foundation &
individuality. Some legal writers are of the
view that in accordance w/ Article 31, the civil
action based upon quasi-delict may proceed
independently of the criminal proceeding for
criminal negligence & regardless of the result
of the latter. Hence, the proviso in Section 2
of Rule 111 (requiring reservation of civil
actions) w/ reference to Articles 32, 33, & 34
of the Civil Code, is contrary to the letter &
spirit of the said articles, for these articles
were drafted & are intended to constitute as

exceptions to the general rule stated in


what is now Section 1 of Rule 111. The
proviso, w/c is procedural, may also be
regarded as an unauthorized amendment
of substantive law, Articles 32, 33 & 34 of
the Civil Code, w/c do not provide for the
reservation required in the proviso."
However, a civil action for damages
against the owner-driver of the jeep would
not prosper bec. civil liability arising fr.
crime co-exists w/ criminal liability in
criminal cases. Hence, the offended party
had the option to prosecute on civil liability
arising fr. crime or fr. quasi-delict. His
active participation in the criminal case
implies that he opted to recover the civil
liability arising fr. crime. Hence, since the
acquittal in the criminal case, w/c was not
based on reasonable doubt, a civil action
for damages can no longer be instituted.
REPUBLIC V. BELLO [120 S 203 (1983)]
Facts:
Def Arceno was a cashier &
disbursing officer of the Capiz Agric School.
He was charged for malversation of public
funds. He was acquitted by the CFI. The
prov fiscal then filed a civ case for the
recovery of the amount he failed to
account. The court dismissed said case on
the ground that it was barred by prior
judgment.
Issue: WON the acquittal of Arceno in the
crim case bars the filing of the civ axn vs.
him.
Held: NO. The evid of the prosecution is
not enough to establish the guilt of the
accused as it opens an avenue leading to a
belief that the accused might be innocent.
The evid presented by the state did not
remove the possibility that Arceno might
not be guilty. In the crim case, the LC
declared that his acquittal was upon a
finding that the evid of the prosec was not
suff to establish the guilt of A beyond
reasonable doubt. There is no finding that
fact upon w/c the civ case is based does
not exist. The civ axn barred by such a
declaration is the civ liab arising fr. the
offense charged w/c is impliedly instituted
w/ the crim axn.
A person may be
acquitted of malversation but he could be
liable for the restoration or at least proper
18

accting of the funds if he shld spend them for


purposes w/c are unauthorized.

separate civ axn. Instead, she filed a sep


civ axn arising fr. the same defamatory
words. LC dismissed the case.
Issue: WON plaintiff is barred fr. filing the
sep civ axn.

PADILLA V. CA [129 S 558 (1990)]


Facts:
The Mayor was sued for grave
coercion. TC convicted them. CA reversed &
acquitted them on the ground of reasonable
doubt but at the same time ordered them to
pay actual damages.
Issue:
WON the acquittal based on
reasonable doubt extinguishes the civ liab of
accused.
Held: NO. Such acquittal will not bar a civil
case for damages arising fr. the demolition of
petitioner's market stalls. The acquittal on
the ground that their guilt has not been
proven beyond reasonable doubt refers to the
element of Grave Coercion (the acts should
have been denominated malicious mischief/
threat) & not to the fact of that the stalls
were demolished. Under the Rules of Court,
the extinction of penal action carries w/ it the
extinction of civil only if there is a declaration
that facts fr. w/c civil may arise did not exist.
Also, Art. 29 of the Civil Code does not state
that civil liability can be recovered only in a
separate civil action. The civil liability can be
recovered either in the same or a separate
action. The purpose of recovering in the same
action is to dispense w/ the filing of another
civil action where the same evidence is to be
presented, & the unsettling implications of
permitting reinstitution of a separate civil
action. However, a separate civil action is
warranted when (1) additional facts are to be
established; (2) there is more evidence to be
adduced; (3) there is full termination of the
criminal case & a separate complaint would
be more efficacious than a remand. Hence,
CA did not err in awarding damages despite
the acquittal.
REYES V. SEMPIO-DY [141 S 208 (1986)]
Facts: A crim complaint for intriguing vs.
honor was filed vs. D.
She immediately
pleaded guilty & was sentenced to pay P50
as fine. Reyes, represented by her private
prosecutor, was not able to adduce evid to
prove damages & neither was she able to
make a reservation of her rt. to file a

Held: NO. The failure of the plaint Reyes


to file a sep civ axn did not foreclose her rt.
to file a sep complaint for damages. Under
A33, there is no requirement that as a
condition precedent to the filing of a sep
civ axn for damages a reservation to file
said civ axn be first made in the crim case
& such reservation is not necessary,
provision of R111 S2 notw/standing.
MAXIMO
(1986)]

V.

GEROCHI

[144

326

Facts: Panghilasan was charged w/ estafa.


Maximo intervened in the case thru her
private prosec. LC acquitted Panghilasan
for failure to establish her guilt beyond
reasonable doubt & found if the accused
had any oblig, it is simply civil in nature
that could be properly ventilated w/in the
context of civ law.
MFR was filed by
plaintiff praying that the accused who
admitted her civ liab be sentenced to pay
the value of the checks. LC denied.
Issue: WON the LC should ruled on the civ
liab of the accused.
Held: YES. Citing Padilla v. CA, the court
may acquit & at the same time order
payment of civil liability in the same case.
The rationale is that there is no reason to
require a separate civil action where the
facts to be proved in the civil case have
been proven in the criminal case, & due
process has already been accorded to the
accused, & to prevent needless clogging of
court dockets & unnecessary duplication of
litigation.

Art. 33. In cases of defamation, fraud &


physical injuries, a civ axn for damages,
entirely separate & distinct fr. the criminal
action, may be brought by the injured
party. Such civil action shall proceed
independently of the criminal prosecution,
& shall require only a preponderance of
evidence.

19

Art. 34. When a member of a city or


municipal police force refuses or fails to
render aid or protection to any person in case
of danger to life or property, such peace
officer shall be primarily liable for damages,
& the city or municipality shall be subsidiarily
responsible therefor. The civil action herein
recognized shall be independent of any
criminal proceedings, & a preponderance of
evidence shall suffice to support such action.
Rule 111, Sec. 2. Institution of separate
civil action. - Except in the cases provided for
in Section 3 hereof, after the criminal action
has been commenced, the civil action w/c
has been reserved cannot be instituted until
final judgment has been rendered in the
criminal action.
(a) Whenever the offended party shall
have instituted the civil action (arising fr. the
crime - Baltic) as provided for in the first
paragraph of section 1 hereof before the
filing of the criminal action is subsequently
commenced, the pending civil action shall be
suspended, in whatever stage before final
judgment it may be found, until final
judgment in the criminal action has been rendered. However, if no final judgment has
been rendered by the trial court in the civil
action, the same may be consolidated w/ the
criminal action upon application w/ the court
trying the criminal action. If the application is
granted, the evidence presented & admitted
in the civil action shall be deemed
automatically reproduced in the criminal
action, w/o prejudice to the admission of
additional evidence that any party may wish
to present. In case of consolidation, both the
criminal & the civil actions shall be tried &
decided jointly.
(b) Extinction of the penal action does not
carry w/ it extinction of the civil, unless the
extinction proceeds fr. a declaration (need
not be an express declaration- Baltic) in a
final judgment that the fact fr. w/c the civil
might arise did not exist. (Rules of Court.)
Sect 3. When civ axn may proceed
independently. - In the cases provided for in
Arts 32,33,34 & 2176 of the CC, the
independent civ axn w/c has been reserved
may be brought by the offended party, shall
proceed independently of the crim axn, &
shall require only a preponderance of evid.

Sec 5. Elements of prejudicial Q - The 2


essential elements of a prej Q are: a) the
civ axn involves an issue similar or
intimately related to the issue raise in the
crim axn; & b) the resolution of such issue
determines WON the crim axn may
proceed.
Sec. 6.
Suspension by reason of
prejudicial Q. - A petition for suspension of
the crim axn based upon the pendency of a
prejudicial Q in a civ axn may be filed in
the office of the fiscal or the court
conducting the preliminary investigation.
When the crim axn has been filed in court
for trial, the petition to suspend shall be
filed in the same crim axn at any time
before the prosecution rests.

ABELLANA
(1974)]

V.

MARAVE

[57

106

Facts: Abellana was charged w/ physical


inj thru reckless imprudence.
He was
found guilty & sentenced to pay damages
in favor of Rs. However, A appealed the
case tot he CFI w/c reversed & tried the
case de novo. In the meantime, Rs waived
their rt. to the civ axn impliedly instituted
w/ the crim case & reserved their rt. to file
a sep axn.
Issue: WON Rs can still reserve their rt. to
file a sep civ axn before the CFI.
Held: YES. The argument that a sep civ
axn can be legally filed & allowed only at
the institution of the crim axn & never on
appeal is untenable. This ignores what is
explicitly prov in S7 of R123, that an
appealed case shall be tried in all respects
anew in the CFI as if it had been orig.
instituted in that court. The fact that an
offended party failed at the initial stage to
seek recovery for damages in a civ suit
thru oversight is not a bar to the institution
of an indep civ axn bec a substantive rt.
granted by S33 CC may not be frittered
away by a construction w/c would render it
nugatory. Also, grant of power given to SC
to promulgate rules relating to pleading,
etc, does not extend to any diminution,
increase or modif of substantive rts.

20

ESCUETA
(1974)]

V.

FANDIALAN

[61

278

Facts: D was convicted of physical injuries


by the CFI w/c was affirmed by the CA. This
became final on 8/31/55. On 6/56, plaintiff
having reserved his rt. to institute a sep civ
axn, filed w/ the CFI a complaint to enforce
defs civil liab under A100 RPC, but such was
later dismissed for lack of interest in 1962.
After 7 yrs, plaintiff refiled the civ case. CFI
dismissed on the ground of prescription--the
phys injuries having been committed 16 yrs
ago.
Issue: Under A33, when does the plaints
cause of axn accrue: fr. the date of the
commission or fr. final conviction?
Held: WHEN COMMITTED. Applic period is 4
years. Plaints civ axn for damages would
have been implicitly instituted w/ the crim
axn but plaint expressly reserved his rt. to
institute the civ axn sep & independently of
the crim axn. Such sep civ axn under A33
may be brought even w/o reservation &
proceeds to trial & final judgment irrespective
of the result of the crim axn. Plaints civ axn
did not arise fr. nor depend upon the result of
the crim axn but fr. the defs act of infliction
of phys injuries.
Plaint derived no
enforceable rt. fr. the judgment of conviction.
MADEJA V. CARO [126 S 295 (1983)]
Facts:
Madeja filed a crim case vs. Japzon
for homicide thru reckless imprudence. She
reserved her rt. to file a sep civ axn for
damages. While the crim case was pending,
she filed a civ axn for damages. Judge Caro
dismissed the civ case bec under R111S3(a),
the axn may be instituted only after final
judgment has been rendered in the crim axn.
Issue: WON the civ axn vs. J may proceed
independently of the crim axn vs. her.
Held: YES. An independent civil action
under Art. 33 may proceed independently of
the criminal case. Citing Carandang v.
Santiago [97 P 94 (1955)], "The term
"physical injuries" is used in the generic
sense, not the crime of physical injuries
defined in the Revised Penal Code. It includes
not only physical injuries but consummated,
frustrated
&
attempted
homicide."
Defamation & fraud are also used in their
generic sense bec. there are no specific

provisions in the Revised Penal Code using


these terms as means of offenses defined
therein.
Baviera:
The separate civil action
should have been based on 2176
because the death here was caused
by negligence.
If the death is
intentional, A33 will apply.
This
provision was based on the US
concept of intentional torts, such as
battery, defamation. If physical inj
were caused by negligence, clearly
A2176 on Q-delict should apply.

Art. 35. When a person, claiming to be


injured by a criminal offense, charges
another w/ the same, for w/c no
independent civil action is granted in this
Code or any special law, but the justice of
the peace finds no reasonable ground to
believe that a crime has been committed,
or the prosecuting attorney refuses or fails
to institute criminal proceedings, the
complainant may bring a civil action for
damages against the alleged offender.
Such civil action may be supported by a
preponderance of evidence. Upon the
defendant's motion, the court may require
the plaintiff to file a bond to indemnify the
defendant in case the complaint should be
found to be malicious.
If during the pendency of the civil
action, an information should be presented
by the prosecuting attorney, the civil action
shall be suspended until the termination of
the criminal proceedings.
Art. 36. Pre-judicial questions, w/c must
be decided before any criminal prosecution
may be instituted or may proceed, shall be
governed by rules of court w/c the
Supreme Court shall promulgate & w/c
shall not be in conflict w/ the provisions of
this Code.
Rule 111, Sec. 5. Elements of prejudicial
question. - The two (2) essential elements
of a prejudicial question are:
(a) the civil action involves an issue
similar or intimately related to the issue
raised in the criminal action;

21

(b) the resolution of such issue


determines whether or not the criminal action
may proceed. (Rules of Court.)
Rule 111, Sec. 6. Suspension by reason of
prejudicial question. - A petition for
suspension of the criminal action based upon
the pendency of a prejudicial question in a
civil action may be filed in the office of the
fiscal or the court conducting the preliminary
investigation. When the criminal action has
been filed in court for trial, the petition to
suspend shall be filed in the same criminal
action any time before the prosecution rests.
(ibid.)

Balane:
Bigamy - Art. 349, RPC. Contracting of
second or subsequent marriage:
before legal dissolution of first marriage
before declaration of presumptive death of
absent spouse.
MERCED V. DIAZ [109 P 156 (1960)]
Facts:
Merced filed a complaint for
annulment of second marriage w/ EC. EC
filed a complaint for bigamy vs. M. LC held
that the judicial declaration of nullity of a
second & bigamous marriage is not
necessary; there is no need in this case to
decide the nullity of the second marriage or
to determine the existence of the grounds for
annulling the same.
Issue: WON an axn to annul the second
marriage is a prejudicial Q in a prosec for
bigamy
Held: YES. The civil case for annulment is a
prejudicial question to be determined before
the criminal case can proceed. Consent is an
essential element of a valid marriage.
Without consent, the marriage is void. But
the question of invalidity cannot ordinarily be
decided in the criminal action for bigamy &
since the prosec for bigamy does not lie
unless the elements of the second marriage
appear to exist, it is necessary that a decision
in a civil axn to the effect that the second
marriage contains all the essentials of
marriage must first be secured.
LANDICHO V. RELOVA [22 S 731 (1968)]

Facts: First wife filed a complaint vs. P for


bigamy. One month later, Ps second wife
filed a petition to annul their marriage on
the ground that P forced, threatened &
intimidated her into marrying him.
P
moved to suspend the hearing of the crim
case pending the decision on the Q of the
validity of the second marriage. This was
denied.
Issue: WON a prejudicial Q exists.
Held: Parties to a second marriage should
not be permitted to judge for themselves
its nullity, only competent courts having
such authority. Prior to such declaration of
nullity, the validity of the first marriage is
beyond Q. A party who contracts a second
marriage then assumes the risk of being
prosecuted for bigamy.
"The mere fact that there are
actions to annul the marriages entered into
by accused in a bigamy case does not
mean that "prejudicial questions" are
automatically raised in civil actions as to
warrant the suspension of the criminal
case. In order that the case of annulment
of marriage be considered a prejudicial
question to the bigamy case against the
accused, it must be shown that petitioner's
consent to such marriage must be the one
that was obtained by means of duress,
force & intimidation to show that his act in
the second marriage must be involuntary &
cannot be the basis of his conviction for the
crime of bigamy. The situation in the
present case is markedly different. At the
time the petitioner was indicted for
bigamy, the fact that two marriage ceremonies had been contracted appeared to be
indisputable. And it was the second spouse,
not the petitioner who filed the action for
nullity on the ground of force, threats &
intimidation. And it was only later that
petitioner as defendant in the civil action,
filed a third party complaint against the
first spouse alleging that his marriage w/
her should be declared null & void on the
ground of force, threats & intimidation.
Assuming the first marriage was null & void
on the ground alleged by petitioner, that
fact would not be material to the outcome
of the criminal case.
Parties to the
marriage should not be permitted to judge
for themselves its nullity, for the same
must be submitted to the judgment of a
competent court & only when the nullity of
22

the marriage is so declared can it be held as


void, & so long as there is no such
declaration, the presumption is that the
marriage exists. Therefore, he who contracts
a second marriage before the judicial declaration of nullity of the first marriage assumes
the risk of being prosecuted for bigamy."

Art. 43.
If there is a doubt, as between
two or more persons who are called to
succeed each other, as to w/c 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 & there shall be no
transmission of rights fr. one to the other.
Tolentino:
This article applies only when the question of
survivorship involves persons "who are
called to succeed each other." Hence, it
cannot apply to other cases w/c do not
involve succession.
When the persons involved would succeed
each other, however, then this article
applies, whether the death be actual or
merely presumed fr. absence or other
circumstances.
Are Rules of Court Repealed?-- There is
every indication that the Code Commission
intended to repeal the presumptions on
survivorship under the Rules of Court, bec.
the presumptions laid down therein are
sometimes absurd & mere guesswork. [I
Tolentino 176]
Compare w/ Rule 131, Sec. 5 (jj), (kk)

Rule 131, Sec. 5 (jj). That except for


purposes of succession, when two persons
perish in the same calamity, such as wreck,
battle, or conflagration, & it is not shown who
died first, & there are no particular
circumstances fr. w/c it can be inferred, the
survivorship is determined fr. the probabilities
resulting fr. the strength & age of the sexes,
according to the following rules:
1. If both were under the age of fifteen
years, the older is deemed to have survived;
2. If both were above the age of sixty, the
younger is deemed to have survived;
3. If one is under fifteen & the other
above sixty, the former is deemed to have
survived;

4. If both be over fifteen & under sixty,


& the sex be different, the male is deemed
to have survived; if the sex be the same,
the older;
5. If one be under fifteen or over sixty,
& the other between those ages, the latter
is deemed to have survived.
(kk) That if there is a doubt, as between
two or more persons who are called to
succeed each other, as to w/c of them died
first, whoever alleges the death of one
prior to the other, shall prove the same; in
the absence of proof, they shall be
considered to have died at the same time.
(Rules of Court.)

BALANE CASE:
JOAQUIN V. NAVARRO [93 P 257]
Where there are facts, known or
knowable, fr. w/c a rational conclusion can
be made, the presumption (in the Rules of
Court) does not step in, & the rules of
preponderance of evidence controls.
Are there particular circumstances
on record fr. w/c reasonable inference of
survivorship bet. AJ & her son can be
drawn?
Is Francisco Lopez'
(the sole
witness) testimony competent & sufficient
for the purpose?
It is our opinion that the testimony
contains facts quite adequate to solve the
problem of survivorship bet. AJ & JN, Jr. &
keep the statutory presumption out of the
case. It is believed that in the light of the
conditions painted by Lopez, a fair &
reasonable inference can be arrived at,
namely: that JN, Jr. died before his mother.
While the possibility that the mother
died before the son can not be ruled out, it
must be noted that this possibility is
entirely speculative & must yield to the
more rational deduction fr. proven facts
that it was the other way around. JN, Jr.,
was killed, while running, in front of, & 15
meters fr. the Club. Still in the prime of life,
30, he must have negotiated that distance
in 5 seconds or less, & so died w/in that
interval fr. the time he dashed out of the
bldg. AJ could have perished w/in those 5
or fewer seconds, but the probabilities that
she did seem very remote.
According to Lopez' testimony, the
collapse of the club occurred about 40
minutes after JN, Jr. died, & it was the
collapse that killed AJ. The CA said that the
interval bet. JN, Jr.'s death & the breaking
down of the edifice was "minutes." Even
so, it was much longer than 5 seconds,
23

long enough to warrant the inference that AJ


was still alive when her son expired.
The CA mentioned several causes,
besides the bldg.s collapse, by w/c AJ could
have been killed.
All these causes are
speculative. xxx Nor was AJ likely to have
been killed by falling beams bec. the bldg.
was made of concrete & its collapse, more
likely than not, was sudden. As to fumes,
these do not cause instantaneous death;
certainly, not w/in the brief space of 5
seconds bet. her son's departure & his death.
It will be said that all this is indulging
in inferences that are not conclusive. Sec. 69
(ii) of R 123 does not require that the
inference
necessary
to
exclude
the
presumption therein provided be certain. It is
the "particular circumstances fr. w/c it
(survivorship) can be inferred" that are
required to be certain as tested by the rules
of evidence. In speaking of inference the rule
can not mean beyond doubt, for "inference is
never certainty, but it may be plain enough
to justify a finding of fact."
In conclusion, the presumption that AJ
died before her son is based purely on
surmises, speculations, or conjectures w/o
any sure foundation in evidence.
The
opposite theory is deduced fr. established
facts w/c, weighed by common experience,
engender the inference as a very strong
probability.
Gauged by the doctrine of
preponderance of evidence by w/c civil cases
are decided, this inference ought to prevail.
Balane:
In Sec. 5 (jj) of R 131, there is no presumption
of simultaneity but of survivorship.
Q: Did the court in Joaquin v. Navarro rule
w/c of the 2 presumptions prevail over the
other? Did it apply either presumption?
A: No to both questions.
The presumption applies only if there
is no evidence as to who died first. If there
are enough facts to go by, you do not use
either presumption. Art. 43 as well as Sec. 5
(jj) of R 131 cannot be applied if there are
facts to go by.
In questions other than succession
(like insurance, resolutory conditions, reserva
troncal, donation inter vivos), apply Rule 131,
Sec. 5 (jj)
The case did not resolve the issue as
to w/n there is a conflict bet. Art. 43 & R 131,
Sec. 5 (jj) of the ROC. To reconcile the two,
the following rules may be of help:
Art. 43 applies only when succession is
involved; ROC [referring to Sec. 5 (jj) R
131] applies only when 2 persons perish
in the same calamity.

When succession is involved but the


persons did not perish in the same
calamity, apply Art. 43; When the
persons perished in the same calamity
but succession is not involved, apply
ROC.
When neither element is present, neither
provision will apply.
The conflict will arise only when succession
is involved & 2 persons died in the
same calamity. In case of conflict, Art.
43 will apply (this is only an opinion.)
RAM: The 1988 Revised Rules on Evidence
removed whatever conflict there was bet.
the ROC & Art. 43 of the NCC. In fact, Art.
43 is now substantially reproduced as Sec.
5 (kk) of R 131 of the ROC.
LAW ON PERSONS
Tolentino:
Concept of Person.-- In a juridical sense,
the term "person" is now understood as
any being, physical or moral, real or
juridical & legal, susceptible of rights &
obligations, or of being the subject of legal
relations. (Sanchez Roman.)
Classes of Persons.-- (1) human beings
or men, called natural persons; & (2)
entities formed by the association of men,
known as juridical persons, or as artificial,
fictitious, abstract, or moral persons.
Status of persons.-- The status of a
person is the legal condition or class to w/c
one belongs in society; it is the legal or
juridical position of the individual in society,
or w/ regard to the rest of the community.
The status of a person may be
political or civil.
Civil status may be grouped into 3
classes: (a) status as a member of the
society; (b) status as member of a family;
& (c) status w/ respect to the person
himself.
The qualities w/c create a status are
only those inherent in the person himself.
Characteristics of status.-- The status
of a person is outside the commerce of
man; hence, (1) it is inalienable, (2) it is
imprescriptible, (3) it cannot be the object
of compromise, (4) the action to claim it
cannot be renounced, & (5) the rights
arising fr. it cannot be exercised by
creditors.
I. Civil Personality
24

Tolentino:
Personality is the quality derived fr. being a
person.
While a person is any being
susceptible
of
rights
&
obligations,
personality is the aptitude of that becoming
the subject, active or passive, of juridical
relations.
Characteristics.-It is not a being, but a quality of certain
beings;
it is not a physical element, but a juridical
concept;
it is not an object of contract, or of
possession, & cannot be impaired by
agreement;
it is a matter of public interest.

this capacity requires both intelligence


& will; xxx Thus, JC can exist w/o CA,
but the existence of the latter implies
that of the former.
Balane: JC has no degrees, either you
have it or not. CA has degrees.
JURIDICAL
CAPACITY
fitness to be the
subject of legal
relations
inherent in every
natural person
lost through death

CAPACITY
TO
ACT
power to do acts w/
legal effect
acquired & may be
lost
subject
to
restrictions:
minority, etc.

A. ELEMENTS
Art. 37. Juridical capacity, w/c is the
fitness to be the subject of legal relations, is
inherent in every natural person & is lost only
through death. Capacity to act, w/c is the
power to do acts w/ legal effect, is acquired &
may be lost.
Art 38. Minority, insanity or imbecility,
the state of being a deaf-mute, prodigality &
civil interdiction are mere restrictions on
capacity to act & do not exempt the
incapacitated person fr. certain obligations,
as when the latter arise fr. his acts or fr.
property relations, such as easements.

Tolentino:
Capacity of Public Interest.-The
capacity or incapacity of persons depends
upon the law & cannot be modified,
extended, or restricted by agreement.
Both JC & CA are not rights, but qualities of
persons; hence, they cannot be alienated
or renounced.

B. RESTRICTIONS
ACT

ON

CAPACITY

TO

1. MINORITY.

Tolentino:

Tolentino:

Capacity may be (1)


juridical
capacity, & (2) capacity to act. The union of
these 2 forms the full civil capacity. (Balane
calls the 2 the constitutive elements of
personality.)

The unemancipated minor cannot


enter into contracts (Art. 1327); but he
may be estopped fr. disavowing his
contract if he has misled the other party as
to his age. The SC has held that:

Juridical capacity is synonymous to


legal capacity & to personality. They all refer
to the aptitude for the holding & enjoyment
of rights. On the other hand, capacity to act
refers to the aptitude for the exercise of
rights, & is often referred to merely as
"capacity."

xxx [T]he sale of real estate,


effected by minors who have already
passed the ages of puberty & adolescence
& are near the adult age, when they
pretend to have already reached their
majority, while in fact they have not, is
valid, & they cannot be permitted
afterwards to excuse themselves fr.
compliance w/ the obligation assumed by
them or seek their annulment.
This
doctrine is entirely in accord w/ the
provisions of our law on estoppel.
(Mercado vs. Espiritu, 37 Phil. 215.

Comparison.-Juridical capacity (JC) is just one, indivisible,


irreducible, & essentially the same for all
men; it is an inherent & ineffaceable
attribute of man, & attaches to him by the
mere fact of his being a man.
But capacity to act (CA) is conditional &
variable. It is acquired & may be lost.
The mere existence of man is not
sufficient to confer capacity to act, bec.

But there is authority to the effect


that misrepresentation of an incapacitated
person does not bind him.

25

"xxx Misrepresentation made by a


party as to his age does not estop him fr.
denying that he was of age or fr. asserting
that he was under age, at the time he
entered into the contract, for the breach of
w/c an action is brought. Under the principle
of
estoppel,
the
liab.
resulting
fr.
misrepresentation has its juridical source in
the capacity of the person making the
misrepresentation to bind himself.
If the
person making the misrepresentation cannot
bind himself by contract, he cannot also be
bound by any misrepresentation he may
have made in connection therew/. A person
entering into a contract must see to it that
the other party has sufficient capacity to bind
himself." (Young vs. Tecson, 39 OG 953.)
RA 6809 An Act Lowering the age of
majority fr. 21 to 18 years
Sec 1. Art 234 of EO 209, the Family code
is hereby amended to read as follows:
Art 234. Emancipation takes place by
the attainment of majority.
Unless o/w
provided, majority commences at the age of
18 years.
Sec 2. Arts 235 & 237 of the same Code
is also hereby amended to read as follows:
Art 236. Emancipation shall terminate
parental autho over the person & property of
the child who shall then be qualifies &
responsible for all acts of civil life, save the
excs established by existing laws in special
cases.
Contracting marriage shall require
parental consent until the age of 21.
Nothing in this Code shall be construed
to derogate fr. the duty or responsibility of
parents & guardians for children & wards
below 21 yrs of age mentioned in the second
& third pars of 2180 of CC.
Sec 4. Upon the effectivity of this Act,
existing wills, bequests, donations, grants,
insurance policies & similar instruments
containing references & provisions favorable
to minors will retroact to their prejudice.
Sec 5. This act shall take effect upon
completion of its publication in at least 2
newspapers of gen circulation.
Approved, Dec 13, 1989.

A.

CIVIL ACTS

Art 797. Persons of either sex under 18


yrs of age cannot make a will.
Art 1489.
All persons who are
authorized in this Code to obligate
themselves, may enter into a K of sale,
saving the modifications contained in the
ff. articles.
Where necessaries are sold & delivered
to a minor or other person w/o capacity to
act, he must pay a reasonable price
therefor. Necessaries are those referred to
in Art 290.
Art 14 FC. In case either or both of the
contracting parties, not having been
emancipated by a previous marriage, are
between the ages of 18 & 21, they shall, in
addition to the requirements of the
preceding articles, exhibit tot he 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.
Such
consent shall be 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 2 witnesses &
attested bef any official authorized by law
to administer oaths.
The personal
manifestations shall be recorded in both
application for marriage license, & the
affidavit, if one is executed instead, shall
be attached to said applications.
B.

DELICTS

Art 101. par 3 RPC. Should there be no


person having such insane, imbecile or
minor
under
his
authority,
legal
guardianship or control, or if such person
be insolvent, said insane, imbecile or minor
shall respond w/ their own property,
excepting prop exempt fr. execution, in
accordance w/ civil law.

C.

QUASI-DELICTS

Art 2182 NCC. If the minor or insane


person causing damage has no parents or
guardian, the minor or insane person shall
26

be answerable w/ his own property in an axn


vs. him where a guardian ad litem shall be
appointed.

2. INSANITY

OR IMBECILITY.

Tolentino:
Insanity includes the various forms of mental
disease, either inherited or acquired, in
w/c there is a perversion of the mentality,
as when the person is suffering fr.
illusions, hallucinations, or delusions,
unnatural exaltation or depression, or
insane ideas of persecution or power.
An insane person cannot make a valid will or
testament (Art. 798); & he cannot validly
give consent to contracts (Art. 1327, par.
2.)
Imbecility is a defect in the quantity of
mental development. The mental ages
up to the completed eighth year are
included.
A.

CIVIL ACTS
Art 1323. An offer becomes ineffective
upon the death, civil interdiction, insanity, or
insolvency of either party before acceptance
is conveyed.
Art 1327. The ff. cannot give consent to
a K:
1) Unemancipated minors;
2) Insane or demented persons, &
deaf-mutes who do not know how to write.
Art 1399. When the defect of the K
consists in the incapacity of one of the
parties, the incapacitated person is not
obliged to make any restitution except insofar
as he has been benefited by the thing or
price received by him.

3. DEAF-MUTISM
Tolentino
can make a valid will, so long as its content
have been communicated or made known
to him in some practicable manner (Art.
807.) But when the deaf-mute does not
know how to read & write, he cannot give
consent to contracts (1327, par. 2, & he
cannot personally accept or repudiate an
inheritance (1048.)

Art 1327. The ff. cannot give consent to a


K:

1) Unemancipated minors;
2) Insane or demented persons, &
deaf-mutes who do not know how to write.
Art 820. Any person of sound mind & of
the age of 18 yrs or more, & not blind, deaf
or dumb & able to read & write, may be a
witness to the execution of a will
mentioned in 805 of this Code.

4. CIVIL INTERDICTION
Tolentino:
This is an accessory penalty imposed upon
persons who are sentenced to a principal
penalty not lower than reclusion temporal
(Art. 41, RPC.) Art. 34 of the RPC provides:
Art. 34. Civil interdiction shall deprive
the offender during the time of his
sentence of the rights of parental authority,
or guardianship, either as to the person or
property of any ward, of marital authority,
of the right to manage his property, & of
the right to dispose of such property by any
act or any conveyance inter vivos.
Art. 135.
Any of the ff. shall be
considered
suff
cause
for
judicial
separation of property:
1) that the spouse of the petitioner has
been sentenced to a penalty w/c carries w/
it civil interdiction;
xxx
Art 142.
The administration of all
classes of exclusive property of either
spouse may be transferred by the court to
the other spouse:
xxx
3) When one spouse is sentenced to a
penalty w/c carries w/ it civil interdiction;
xxx

5. PRODIGALITY.
R 92 Sec 2. Under this Rule, the
word incompetent includes persons
suffering the penalty of civil interdiction or
who are hospitalized lepers, prodigals,
deaf & dumb who are unable to read &
write, those who are of unsound mind,
even though they have intervals, &
persons not being of unsound mind, but by
reason of age, disease, weak mind, &
27

other similar causes, cannot w/o outside aid,


take care of themselves, & manage their
property, becoming thereby an easy prey for
deceit & exploitation.
Tolentino:
A spendthrift or prodigal is "a person who, by
excessive drinking, gambling, idleness or
debauchery of any kind shall so spend,
waste or lessen his estate as to expose
himself or his family to want or suffering.
Prodigality in itself does not limit the capacity
of a person to act. It seems erroneous to
include prodigality in the Art. 38 bec. as a
circumstance w/c limits capacity, bec.
there is no specific provision of law w/c
implements this general provision. It is
not the circumstance of prodigality, but
the fact of being under guardianship, that
restricts the capacity to act of the
spendthrift.
6. INSOLVENCY.

Art 1919. Agency is extinguished:


xxx
3) By the death, civil interdiction, insanity
or insolvency of the principal or agent;
xxx
Art 1810. The property rts of a partner
are:
1) His rts in the specific partnership
property;
2) His interest in the partnership; &,
3)
His rt. to participate in the
management.
Art 2238.
So long as the conjugal
partnership or absolute community subsists,
its property shall not be among the assets to
be taken possession of by the assignee for
the payment of the insolvent debtors
obligations, except insofar as the latter have
redounded to the benefit of the family. If it is
the
husband
who
is
insolvent,
the
administration of the conjugal partnership or
absol community may, by order of the court,
be transferred to the wife or to a third person
other than the assignee.
ACT NO. 1956 (INSOLVENCY LAW)
Art 70. If any debtor, being insolvent, or
in contemplation of insolvency, w/in 30 days
before the filing of a petition by or vs. him, w/
a view of giving preference to any creditor or

person having a claim vs. him or who is


under any liability for him, procures any
part of his property to be attached,
sequestered, or seized on execution, or
makes any payment, pledge, mortgage,
assignment, transfer, sale or conveyance of
any part of his property, either directly or
indirectly, absolutely or conditional, to
anyone, the person receiving such
payment, pledge, mortgage, assignment,
transfer, sale or conveyance, or to be
benefited thereby, or by such attachment
or seizure, having reasonable cause to
believe that such debtor is insolvent & that
such attachment, sequestration, seizure,
payment, pledge, mortgage, conveyance,
transfer, sale or assignment is made w/ a
view to prevent his property fr. coming to
his assignee in insolvency, or to defeat the
object of, or in anyway hinder, impede or
delay the operation of or to evade the
provisions of this Act, such attachment,
sequestration, seizure, payment, pledge,
mortgage, transfer, sale, assignment or
conveyance is void, & the assignee or the
receiver, may recover the property of the
value thereof as assets of such insolvent
debtor.
If such payment, pledge,
mortgage, conveyance, sale, assignment,
or transfer is not made in the usual &
ordinary course of business of the debtor,
or if such seizure is made under a
judgment w/c the debtor has confessed or
offered to allow, that fact shall be prima
facie evidence of fraud. Any payment,
pledge, mortgage, conveyance, sale,
assignment, or transfer of property or
whatever character made by the insolvent
w/in one month before the filing of the
petition in insolvency by or vs. him, except
for a valuable pecuniary consideration
made in GF, shall be void. All assignments,
transfers, conveyances, mortgages, or
encumbrances of real estate shall be
deemed under this section, to have been
made at the time the instrument conveying
or affecting such realty was filed or
recorded in the office of the Reg. of Deeds
of the province or city where the same is
situated.
Tolentino:
When a person has been adjudicated an
insolvent, he cannot dispose of his
prop. existing at the time of the
commencement of the insolvency
proceedings; & no payments of prop. or
credit can be made to him.
28

The President shall subsequently notify


the Congress of every contract entered into
in accordance w/ this provisions w/in thirty
days fr. its execution.

7. ALIENAGE
Constitution
Art. XII, Sec. 2. All lands of the public
domain, waters, minerals, coal, petroleum &
other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife,
flora & fauna, & other natural resources are
owned by the State. With the exception of
agricultural lands, all other natural resources
shall not be alienated. The exploration,
development, & utilization of natural
resources shall be under the full control &
supervision of the State. Such activities may
be directly undertaken by the State, or it may
enter into co-production, joint venture,
production-sharing agreements w/ Filipino
citizens, or corporations or associations at
least sixty per centum of whose capital is
owned by such citizens. Such agreements
may be for a period of not exceeding twentyfive years, renewable for not more than
twenty-five years, & under such terms &
conditions as may be provided by law. In
cases of water rights for irrigation, water
supply, fisheries, or industrial uses other than
the development of water power, beneficial
use may be the measure & limit of the grant.
The State shall protect the
marine wealth in its archipelagic
territorial sea, & exclusive economic
reserve its use & enjoyment to
citizens.

nation's
waters,
zone, &
Filipino

The Congress may, by law, allow smallscale utilization of natural resources by


Filipino citizens, as well as cooperative fish
farming, w/ priority to subsistence fishermen
& fishworkers in rivers, lakes, bays, &
lagoons.
The President may enter into agreements
w/ foreign-owned corporations involving
either technical or financial assistance for
large-scale exploration, development, &
utilization of minerals, petroleum, & other
mineral oils according to the general terms &
conditions provided by law, based on real
contributions to the economic growth &
general welfare of the country. In such
agreements, the State shall promote the
development, & use of local scientific &
technical resources.

Art. XII, Sec. 7.


Save in cases of
hereditary succession, no private lands
shall be transferred or conveyed except to
individuals, corporations, or associations
qualified to acquire or hold lands of the
public domain.
Art. XII, Sec. 8.
Notw/standing the
provisions of Section 6 of this Article, a
natural-born citizen of the Philippines who
has lost his Philippine citizenship may be a
transferee of private lands subject to
limitations provided by law.
Art. XII, Sec. 11.
No franchise,
certificate,
or
any
other
form
of
authorization for the operation of a public
utility shall be granted except to citizens of
the Philippines or to corporations or
associations organized under the laws of
the Philippines at least sixty per centum of
whose capital is owned by such citizens,
nor shall such franchise, certificate or
authorization be exclusive in character or
for a longer period than fifty years. Neither
shall any such franchise or right be granted
except under the condition that it shall be
subject to amendment, alteration, or repeal
by Congress when the common good so
requires. The State shall encourage equity
participation in public utilities by the
general public. The participation of foreign
investors in the governing body of any
public utility shall be limited to their proportionate share in its capital, & all
executive & managing officers of such
corporation or association must be citizens
of the Philippines.
Art. XVI, Sec. 11. (1) The ownership &
management of mass media shall be
limited to citizens of the Philippines, or to
corporations, cooperatives or associations,
wholly owned & managed by such citizens.
The Congress shall regulate or prohibit
monopolies in commercial mass media
when the public interest so requires. No
combination in restraint of trade or unfair
competition therein shall be allowed.

29

(2) The advertising industry is impressed


w/ public interest, & shall be regulated by law
for the protection of consumers & the
promotion of the general welfare.
Only Filipino citizens or corporations or
associations at least seventy per centum of
the capital of w/c is owned by such citizens
shall be allowed to engage in the advertising
industry.
The participation of foreign investors in
the governing body of entities in such
industry
shall
be
limited
to
their
proportionate share in the capital thereof, &
all the executive & managing officers of such
entities must be citizens of the Philippines.

obligations arising fr. law, such as those


imposed on family relations.
Incapacitated persons are also
civilly liable for crimes committed by them,
even if they are exempted fr. criminal liab.
(Art. 101, RPC.) They are liable for quasidelicts, under the express provisions of
Articles 2181 & 2182.
They are liable on quasi-contracts,
on the principle that nobody can unjustly
enrich himself at the expense of another.
Where necessaries are delivered to
a minor or other incapacitated person, he
must pay a reasonable price therefore.
(Art. 1489.)

Art. XIV, Sec. 4. (2)


Educational
institutions, other than those established by
religious groups & mission boards, shall be
owned solely by citizens of the Philippines, or
corporations or associations at least sixty per
centum of the capital of w/c is owned by such
citizens. The Congress may, however, require
increased Filipino equity participation in all
educational institutions.

Art. 39. The following circumstances,


among others, modify or limit capacity to
act: age, insanity, imbecility, the state of
being a deaf-mute, penalty, prodigality,
family
relations,
alienage,
absence,
insolvency
&
trusteeship.
The
consequences of these circumstances are
governed by this Code, other codes, the
Rules of Court, & in special laws. Capacity
to act is not limited on account of religious
belief or political opinion.

The control & administration of all


educational institutions shall be vested in
Filipino citizens.

A married woman, eighteen years of


age or over, is qualified for all acts of civil
life, except in cases specified by law.

No educational institution shall be


established exclusively for aliens & no group
of aliens shall comprise more than one-third
of the enrolment in any school. The
provisions of this subsection shall not apply
to schools established for foreign diplomatic
personnel & their dependents &, unless
otherwise provided by law, for other
temporary foreign residents.

Tolentino:
Citizenship may affect the right of persons in
matters where the State may validly
discriminate between aliens & its citizens
for reasons of public policy, w/o doing
violence to the equal protection of the
laws. See constitutional provisions, infra.
Balane:
Incapacitated persons (fr. Tolentino)-They may have obligations arising fr. all
sources, except contracts.
They have

Balane:
There is a lapse in the enumeration. Art.
38
enumerates
6
circumstances
limiting,
modifying
or
restricting
capacity to act whereas Art. 39
enumerates 11. The two articles could
have been merged into one article.
Tolentino:
The enumeration made here is not
exclusive of other circumstances modifying
capacity to act.
Guardianship of Incompetents.-- For
definition of incompetents, see Rule 93,
Sec. 2, ROC, infra.
Even w/o guardianship, persons
under civil interdiction, deaf-mutes who do
not know how to read & write, & those of
unsound mind, are of limited capacity. W/
respect, however, to hospitalized lepers,
prodigals, & those who cannot take care of
themselves & manage their prop., it is the
30

fact of guardianship w/c will limit their


capacity to act.

first 120 days of the 300 days preceding


the birth of the child.

Family
Relations.-Ascendants
&
descendants, brothers & sisters, & collateral
relatives w/in the 4th civil degree (as
cousins), cannot validly marry; their marriage
would be incestuous or against public policy
& void. Husband & wife, during the marriage,
cannot give donations to each other.

The ff. provisions of the NCC are


relevant:

Absence.-- A person is absent when he


disappears fr. his domicile, & his whereabouts
are unknown (381.)
He cannot properly
administer his properties, & so another
person is appointed to administer them.
Physical condition.-- Physical incapacity to
enter into the married state, or impotence, is
a ground for annulment of marriage [Art.
55(5), FC], & a person who is blind, or deaf or
dumb, cannot be a witness to the execution
of a will. (820.)
II. KINDS OF PERSONS

ART. 742.
Donations made to
conceived & unborn children may be
accepted by those persons who would
legally represent them if they were already
born.
ART. 1025. In order to be capacitated
to inherit, the heir, devisee or legatee
must be living at the moment the
succession opens, except in case of
representation, when it is proper.
A child already conceived at the time of
the death of the decedent is capable of
succeeding provided it be born later under
the conditions prescribed in article 41.

A. NATURAL PERSONS
BALANE/ BAVIERA CASE:
1.
COMMENCEMENT
PERSONALITY

OF

ART. 37.
Juridical capacity, w/c is the
fitness to be the subject of legal relations, is
inherent in every natural person & is lost only
through death. Capacity to act, w/c is the
power to do acts w/ legal effect, is acquired &
may be lost.
ART. 40. Birth determines personality; but
the conceived child shall be considered born
for all purposes that are favorable to it,
provided it be born later w/ the conditions
specified in the following article.

Tolentino:
Personality fr. Birth.-- Birth means the
removal of the fetus fr. the mother's womb.
Conceived Child.-- The personality of the
conceived child has 2 characteristics: (1) it
is essentially limited, bec. it is only for
purposes favorable to the child, & (2) it is
provisional or conditional, bec. it depends
upon the child being born alive later, such
that if it is not born alive, its personality
disappears as if it had never existed.
Period of Conception.-Legally, in a
normal child, the period of conception is the

GELUZ V. CA [2 S 801 (1961)]


FACTS: Nita Villanueva came to know the
defendant (Antonio Geluz) for the first time
in 1948-- thru her aunt. In 1950, she
became pregnant by her present husband
before they were legally married. During to
conceal her pregnancy fr. her parent, she
had herself aborted by def.
After the
marriage w/ the pltff., she again became
pregnant. As she was employed in the
COMELEC & her pregnancy proved to be
inconvenient, she had herself aborted
again by def. in Oct 1953. Less than 2
years later, she again became pregnant.
On 2/21/55, she again repaired to the def's
clinic. Nita was again aborted of a 2-month
old fetus, in consideration of the sum of
P50.
It is the third & last abortion that
constitutes pltff's basis in filing this action
& award of damages The CA & the trial
court predicated the award of damages
upon the provisions of the initial par. of Art.
2206 of the NCC.
HELD: This award, we believe, to be error
for the said art., in fixing an award for the
death of a person, does not cover the case
of an unborn fetus that is not endowed w/
personality.
31

Parents of unborn fetus cannot sue


for damages on its behalf. A husband of a
woman who voluntarily procured her abortion
could not recover damages fr. the physician
who caused the same. (1) Since an action for
pecuniary damages on account of personal
injury or death pertains primarily to the
injured, no such right of action could derivatively accrue to the parents or heirs of an
unborn child. In fact, even if a cause of action
did accrue on behalf of the unborn child, the
same was extinguished by its pre-natal
death, since no transmission to anyone can
take place fr. one that lacked juridical
personality
(or
juridical
capacity,
as
distinguished fr. capacity to act). It is no
answer to invoke the provisional personality
of a conceived child (conceptus pro nato
habetur) under Article 40 of the Civil Cod,
bec. that same article expressly limits such
provisional personality by imposing the
condition
that
the
child
should
be
subsequently born alive: "provided it be born
later w/ the condition specified in the
following article." In the present case, there is
no dispute that the child was dead when
separated fr. its mother's womb.
(2) This is not to say that the parents
are not entitled to collect any damages at all.
But such damages must be those inflicted
directly upon them, as distinguished fr. the
injury or violation of the rights of the
deceased, his right to life & physical integrity.
Because the parents cannot expect either
help, support or services fr. an unborn child,
they would normally be limited to moral
damages for the illegal arrest of the normal
development of the spes hominis that was
the fetus, i.e., on account of distress &
anguish attendant to its loss, & the
disappointment of their parental expectations
(Art. 2217, CC), as well as to exemplary
damages, if the circumstances should
warrant them (Art. 2230, CC). But in this
case, there is no basis for an award of moral
damages, evidently bec. the husband's
indifference to the previous abortions clearly
indicates that he was unconcerned w/ the
frustration of his parental hopes & affection.

ART. 41. For civil purposes, the fetus is


considered born if it is alive at the time it is
completely delivered fr. the mother's womb.
However, if the fetus had an intrauterine life

of less than seven months, it is not deemed


born if it dies w/in twenty-four hours after
its complete delivery fr. the maternal
womb.

Tolentino:
Separation from Mother.-This is
produced by the cutting of the umbilical
cord, whether the removal takes place
naturally or by surgical operation.
Alive at Birth.-- The duration of extrauterine life is immaterial; for acquisition of
juridical personality, it is enough that the
child lives even for an instant.
Test of Life.-- The general opinion is that
independent life required for juridical
personality can be shown only by complete
respiration. The cry of the child, although it
is not a necessary sign of life, is evidence
that it has acquired complete respiration.
Another indication of complete respiration
is the floating of the lungs when placed in
water; this means that air has penetrated
into the lungs by breathing.
Viability Not Required.-Viability
means that the child is capable of living, &
this is determined by the extent of the
development of its organs.
Premature Birth.-- In this case, if the
child does not live 24 hours completely
separated fr. the mother's womb, it does
not acquire juridical personality. This is an
absolute requirement for fetuses w/c have
an intrauterine life of less than 7 mos.
(Balane quoting Manresa & JBL.)
"The aborted creature does not
reach the category of a natural person &
consequently
is
not
born
in
the
contemplation of law."
(Geluz v. CA,
supra.)
This is so, even if the child is killed
before the period lapses & it can be proved
that it could have survived that period if it
had not been prevented by the willful act of
another.
On the other hand, juridical
personality is acquired even if the survival
for 24 hours is caused only by medical or
scientific means w/o w/c the child would
have died before the lapse of that period.
Balane:
Outline of Articles 40 & 41
1. For civil personality to be acquired, one
must be born.-- A fetus is born after it is
completely separated fr. the mother's
womb w/c is produced by the cutting of the
32

umbilical cord; after the separation, the child


now survives by itself.
There was an additional requirement
in the OCC: only that fetus is considered born
w/c has a "uniform form." This has been
taken out in the NCC.
The question of determining the exact
duration of intrauterine life is a problem even
medical science is not equipped to answer as
of the moment.
2.
Once birth occurs, personality for
favorable purposes retroacts fr. the moment
of conception.-The retroactivity rule is
qualified-- only for purposes favorable to the
child.
2. EXTINGUISHMENT
A.

CONTRACTS

ART. 42. Civil personality is extinguished


by death. The effect of death upon the rights
& obligations of the deceased is determined
by law, by contract & by will.

Tolentino:
Natural Death.-- This art. refers to natural
or physical death, bec. this is the only kind of
death recognized by present legislation. The
law does not recognize the so-called "civil
death," known to legislation in the past, by
virtue of w/c a man who was alive was
considered dead for all purposes bec. of a
conviction for crime or of the taking of a
religious profession.
Balane: Physical death & legal death are the
same.
ART. 777. The rights to the succession
are transmitted fr. the moment of death of
the decedent.
ART. 776. The inheritance includes all the
property, rights & obligations of a person w/c
are not extinguished by his death.
ART. 1919. Agency is extinguished:
(3) By the death, civil interdiction,
insanity or insolvency of the principal or of his
agent.
xxx

ART. 1830. Dissolution (of partnership)


is caused:
xxx
(5) By the death of any partner.
xxx
ART. 603. Usufructuary is extinguished:
(1) By the death of the usufructuary,
unless a contrary intention clearly appears;
ART. 1311. Contracts take effect only
between the parties, their assigns & heirs,
except in case where the rights &
obligations arising fr. the contract are not
transmissible by their nature, or by
stipulation or by provision of law. The heir
is not liable beyond the value of the
property he received fr. the decedent.

RUFO MAURICIO CONST. VS. IAC


FACTS: Cabiliza was charged w/ homicide
& damage to prop. thru reckless
imprudence when the dump truck he was
driving sideswiped a car owned by Solidum
causing the latters death.
During the
pendency of his appeal of the TCs
conviction, C died. A Notice of death w/
manifestation of the intention of RMC as er
of C to proceed w/ the case was filed bec.
RMC
was subsid liable.
The criminal
liability of C was extinguished but the civil
liability was not & bec C was insolvent, a
subsid writ of exec was enforced vs. RMC
HELD: The contention of RMC (P) that Cs
death wiped out not only his primary civil
liability but also his ers subsidiary liability
is w/o merit. The death of the accused
during the pendency of his appeal or
before the jdmt vs. him became final &
exec extinguishes his crim. Liability but not
his civil liability should the obligation arise
not fr. a crime (since no crime was
committed, the accused not having been
convicted by final jdmt-still innocent) but fr.
quasi-delict as in this case. The liability of
the er would not be subsidiary but solidary
w/ his driver (unless said er can prove there
was no negligence on his part at all, that is,
if he can prove due diligence in the
selection & supervision of his driver). And
in CAB since er was not a party in the crim.
Case, he is given the opportunity to
33

present his defense so the hearing on the


motion to quash the subsid WOE must be
reopened.
PEOPLE VS. BAYOTAS
FACTS:
Bayotas was charged w/ rape &
during the pendency of his appeal of his
conviction, he died. The SC dismissed the
crim aspect of the case & the only issue left
to be resolved is WON Bs civil liability arising
fr. the offense survives his death.
HELD: The SC held that it depends on the
kind of civil liability you are enforcing against
the accused.
If the civil liab arises fr. CRIME
Death of the accused pending appeal of his
conviction extinguishes his crim. liability
AS WELL AS THE CIVIL LIAB BASED
SOLELY ON THE CRIMINAL ACT
In recovering civil liab ex delicto, the same
has to be determined in the crim action,
rooted as it is in the cts pronouncement
of guilt or innocence of the accused. In
such cases, extinction of the crim action
due to the death of the accused pending
appeal inevitably signifies concomitant
extinction of the civil liab. MORS OMNIA
SOLVI death dissolves all things.
If the claim for civil liab is predicated on a
SOURCE OF OBLIGATION OTHER THAT
THE DELICT
The claim survives notw/standing the death
of the accused. Art 1157 of the NCC
enumerates these other sources of oblig
fr. w/c the civil liab may arise as a result
of the same act/omission.
Where the civil liability survives, an action for
recovery therefor may be pursued but
only by way of filing a SEPARATE CIVIL
ACTION & subject to Sec. 1, R111 of the
1985 Rules on Crim. Pro.
This separate civil action may be enforced
either against the executor/admin of the
accused, depending on the source of oblig
upon w/c the same is based.

they were issued to guarantee payment of


obligation (pursuant to Min. of Justice
Circular. The TC also held that no civil
liability can be enforced due to acquittal of
both accused. Civil liab can be enforced
only in a sep. action on the agmt.
guaranteed by the checks. While MBC
appealed the case in the CA, TTS died.
HELD: The civil liab cannot be enforced
bec it was not the personal liab of TTS but
of the corp. MBC is actually enforcing a
contractual, not a tortuous liability.
Assuming that it is a tortuous claim, it must
still be addressed against the corp. bec the
checks were issued for the corps obligs.
Necessarily, any claim for tortuous liability
must be ventilated in a separate action vs.
the proper party.
Bayotas ruling reiterated, adding
that: Finally, the private offended party
need not fear a forfeiture of his right to file
this separate civil action by prescription, in
cases where during the prosecution of the
criminal action & prior to its extinction, the
private-offended party instituted together
therew/ the civil action. IN such case, the
statute of limitations on the civil liability is
deemed interrupted during the pendency
of the crim case, conformably w/ provisions
of Art. 1155 of the NCC, that should
thereby avoid any apprehension on a
possible
deprivation
of
right
by
prescription.
B.

CRIM LIABILITY

ART. 89. How criminal liability is totally


extinguished. - Criminal liability is totally
extinguished:
(1) By the death of the convict, as to
the personal penalties; & as to pecuniary
penalties, liability therefor is extinguished
only when the death of the offender occurs
before final judgment.

MANSION BISCUIT CORP VS. CA


FACTS: Ty Tek Suan (TTS) as pres. Of ETBC
ordered biscuits fr. MBC issuing 4 postdated
checks w/c later bounced. An information for
violation of BP 22 was filed against TTS & his
co-signee SG. The LC granted the MTD bec.
the checks were not covered by BP 22 bec

B. JURIDICAL PERSONS

ART. 44.
persons:

The following are juridical

34

(1) The State & its political subdivisions;


(2) Other corporations, institutions &
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
&
associations for private interest or purpose to
w/c the law grants a juridical personality,
separate & distinct fr. that of each
shareholder, partner or member.

Tolentino:
Concept -- A juridical person is an abstract
being, formed for the realization of collective
purposes to w/c the law has granted capacity
for rights & obligations. The members may
change but the juridical person remains
subsisting w/o alteration. Its personality is
manifested only in the realm of patrimonial
relations; it has no family & personal rights.
Balane:
A juridical person is an organic unit resulting
fr. a group of persons or mass or property to
w/c the State grants or recognizes personality
& capacity to hold patrimonial rights
independent
of
those
of
component
members. (quoting Ruggiero.)
BALANE CASE:
BARLIN V. RAMIREZ [7 P 41]
Facts:
The def., Ramirez, having been
appointed by the pltff parish priest, took
possession of the church on 7/5/01.
He
administered if as such under the orders of
his superiors until 11/14/02. His successor
having been then appointed, the latter made
a demand on this def. for the delivery to him
of the church, convent, & cemetery, & the
sacred ornaments, books, jewels, money, &
other prop. of the church. The def., by a
written document of that date, refused to
make such delivery, stating that "the town of
Lagonoy, in conjunction w/ the parish priest
of thereof, has seen fit to sever connection w/
the Pope at Rome & his representatives in
these Islands, & to join the Filipino Church,
the head of w/c is at Mla.
In 1/4, the pltff. brought this action
against def., alleging in his amended
complaint that the Roman Catholic Church
was the owner of the church bldg., the
convent, cemetery, the books, money, &
other prop. belonging thereto, & asking that it
be restored to the possession thereof & that
the def. render an account of the prop. w/c he

had received & w/c was retained by him, &


for other relief. The CFI-Ambos Camarines
ruled in favor of the pltff.
HELD: It is suggested by the appellant
that the Roman Catholic Church has no
legal personality in the Philippine Islands.
This suggestion, made w/ reference to an
institution w/c antedates by almost a
thousand years any other personality in
Europe, & w/c existed "when Grecian
eloquence still flourished in Antioch, &
when idols were still worshipped in the
temple of Mecca," does not require serious
consideration.
ART. 45. Juridical persons mentioned in
Nos. 1 & 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 & associations for private
interest or purpose are governed by the
provisions of this Code concerning
partnerships.

Tolentino:
What Governs Juridical Persons.-- The
State is governed by the provisions of the
Consti; provinces & municipalities are
governed by the Local Gov't Code & the
Revised Admin. Code; & chartered cities,
by their respective charters.
Corporations created by special
charter are governed primarily by such
charter; & those created under general law
are governed by the Corporation Code.
Partnerships & associations must be
governed primarily by their contracts of
association, & only secondarily by law, bec.
partnerships are created by contract, & it is
a fundamental rule that the contract has
the force of law between the contracting
parties.
ART. 46. Juridical persons may acquire
& possess property of all kinds, as well as
incur obligations & bring civil or criminal
actions, in conformity w/ the laws & regulations of their organization.
Tolentino:
Capacity of Juridical Persons.-The
juridical person is not completely at par w/
35

natural persons as to capacity, bec. it cannot


exercise rights w/c presuppose physical
existence, such as family rights, making of
wills, etc.
Extinguishment of Capacity.-The
juridical capacity of artificial persons is
extinguished upon the termination of its
existence in accordance w/ the law governing
it or w/ its articles of asso. or incorp.
ART. XII, SEC. 3. Lands of the public
domain are classified into agricultural, forest
or timber, mineral lands, & national parks.
Agricultural lands of the public domain shall
be limited to agricultural lands.
Private
corporations or associations may not hold
such lands of the public domain except by
lease, for a period not exceeding twenty-five
years, renewable for not more than twentyfive years, & not to exceed one thousand
hectares in area. Citizens of the Philippines
may lease not more than five hundred
hectares, or acquire not more than twelve
hectares thereof by purchase, homestead, or
grant in excess of twelve hectares.
Taking into account the requirements of
conservation, ecology & development &
subject to the principles of agrarian reform,
the Congress shall determine, by law, the size
of lands of the public domain w/c may be
acquired, developed, held or leased & the
conditions therefor.
ART. XII, SEC. 7.
Save in cases of
hereditary succession, no private lands shall
be transferred or conveyed except to
individuals, corporations, or associations
qualified to acquire or hold lands of the public
domain. (ibid.)
(not in Baviera's outline)
ART. 47.
Upon the dissolution of
corporations, institutions & other entities for
public interest or purpose mentioned in No. 2
of article 44, their property & 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 &
other assets shall be applied to similar
purposes for the benefit of the region,
province, city or municipality w/c during the
existence of the institution derived the
principal benefits fr. the same.

ART. 48. Superseded by Art. IV, Sec. 1


of the 1987 Constitution
ART. IV, SEC. 1.
The following are
citizens of the Philippines:
(1)
Those who are citizens of the
Philippines at the time of the adoption of
this Constitution;
(2) Those whose fathers or mothers are
citizens of the Philippines;
(3) Those born before January 17, 1973
of Filipino mothers, who elect Philippine
citizenship upon reaching the age of
majority; &
(4)
Those who are naturalized in
accordance w/ law.
ART. 49. Naturalization & the loss &
reacquisition
of
citizenship
of
the
Philippines are governed by special laws.
ART. 50. For the exercise of civil rights
& the fulfillment of civil obligations, the
domicile of natural persons is the place of
their habitual residence.

Balane:
Requisites of Domicile: (1) physical
presence; (2) animus manendi (intent to
remain) (Gallego v. Vera, 73 P 453.)
Three kinds of Domicile:
Domicile of Origin.-Domicile of the
parents of a person at the time he was
born
Domicile of Choice.-- Domicile chosen by a
person to change his original domicile.
Aside fr. the 2 requisites mentioned
above, a third requisite must be present
in domicile of choice, animus non
revertendi (intention not to return to
one's old domicile as his permanent
place.)
Domicile by Operation of Law.-- E.g., Art.
69, FC.
Three Rules in Domicile:
A man must have a domicile somewhere.
A domicile once established remains until a
new one is acquired.
A man can have only 1 domicile at a time.
Domicile & Residence. Domicile is not
the same as residence.
Domicile is
residence plus habituality.

36

Importance of Understanding Domicile.-In case of revocation of wills (Art. 829), place


of performance of obligation (Art. 1251, par.
3), renvoi (Aznar v. Garcia.)
ART. 51.
When the law creating or
recognizing them, or any other provision does
not fix the domicile of juridical persons, the
same shall be understood to be the place
where
their
legal
representation
is
established or where they exercise their
principal functions.

Tolentino:

FAMILY CODE
NOTE: The FC took effect on August 3, 1988
following its complete publication in the
Manila Chronicle on August 4, 1987.
(Arts. 1-54
Outline)

follow

ART. 1. Marriage is a special contract


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

Prof.

Ruben

Balane's

MARRIAGE
A. DEFINITION
Tolentino:

Marriage
a
Social
Institution.-Marriage is a contract only in form, but in
essence it is an institution of public order,
founded on custom & morality. It is a
contract sui generis w/c cannot be
compared to any other contract.
Characteristics:
(1)
It is civil in
character, bec. it is established by the
State independently of its religious aspect;
(2) it is an institution of public order or
policy, governed by rules established by
law w/c cannot be made inoperative by the
stipulation of the parties; (3)
it is an
institution of natural character, bec. one of
its objects is the satisfaction of the intimate
sentiments & needs of human beings for
the organic perpetuation of man.

Definitions of Marriage.-The term


marriage has 2 distinct meanings. In one
sense, it is limited to the procedure by w/c a
man & a woman become husband & wife. In
this concept, it is defined as "that act by w/c
a man & a woman unite for life, w/ the intent
to discharge towards society & one another
those duties w/c result fr. the relation of
husband & wife."

Balane:

In the second sense, marriage is a


status involving duties & responsibilities w/c
are no longer matter for private regulations,
but the concern of the State. xxx As such, it is
defined as "the civil status of one man & one
woman, legally united for life, w/ rights &
duties w/c, for the establishment of families
& the multiplication of the species, are, fr.
time to time may thereafter be, assigned by
law to matrimony." (Balane quoted Tolentino
on the meaning of marriage.)

Tolentino:

Purposes of Marriage.-- In general: (1)


reproduction, (2) education of the offspring,
& (3) mutual help. The immediate purpose
is the constitution of a complete & perfect
community bet. 2 individuals of different
sexes;
the
remote
purpose
is
the
preservation of the human race.

Marriage is a contract. Art. 52, NCC


provides that M is not a mere contract. Art.
1, FC, on the other hand provides that M is
a special contract. Both emphasize that M
is not just a contract.

Differentiated fr. Ordinary Contracts:


As to parties: Ordinary contracts (0C)
may be entered into by any no. of
persons, whether of the same or
different sex, while marriage (M) can be
entered into only by one man & one
woman;
As to contractual rights & obligations:
In OC, the agreement of the parties
have the force of law bet. them while in
M, the law fixes the duties & rights of
the parties;
As to termination: OC can be terminated
by mutual agreement of the parties,
37

while M cannot be so terminated; neither


can it be terminated even though one of
the
parties
subsequently
becomes
incapable of performing his part; &
As to breach: Breach of OC gives rise to an
action for damages, while breach of the
obligations of a husband or a wife does
not give rise to such an action; the law
provides penal & civil sanctions, such as
prosecution for adultery or concubinage,
& proc. for legal sep.;
As to effect: OC do not create status, M
does. (no. 5 was added by Balane.)
Balane:
Quite logically, marriage is the
starting point of any family relation bec. in
our legal system, the family is the keystone
of society, the basic unit of society. And
marriage is the keystone of the family. This is
a value judgement. Marriage does not have
to be the keystone of the family. But we
choose it to be that way.
xxx
Much arguments have been
raised regarding the status of children on the
distinction of legitimate fr. illegitimate
children. There are those who propose the
abolition of the distinction as it is not the fault
of the illegitimate child that he is such. But
one of the unintended consequence of
abolishing the distinction is to erode the
institution of marriage. Are we ready to take
that path?
Tolentino:
Principal Effects of Marriage:
personal & economic relations bet. the sps.,
w/c become sources of impt. rights &
duties;
the legitimacy of sexual union & of the
family;
the personal & economic relations bet.
parents & children, w/c gives rise to
considerable rights & duties;
the family rel'p, fr. w/ flow various juridical
consequences, such as impediments to
marriage, right to support, & rights to
inheritance;
incapacity of the sps. to make donations to
each other;
disqualification of the sps. to testify against
each other;
modification of crim. liab., such as by way of
exemption when one spouse defends the
other fr. unlawful aggression or is his
accessory after the fact, or mitigation
when the crime is committed in
vindication of a grave offense to the
spouse, or aggravation when the injured
is the spouse of the offender, such as in
parricide.

Contract to Marry.-Where parties


mutually agree to marry each other at
some future time, there is a contract to
marry. xxx It can be distinguished fr. an
ordinary contract in that the promise of
either party cannot be enforced by court
action, bec. the consent to the actual
marriage must be purely voluntary.
Breach
of Promise.-There is
repudiation where before the time set for
the performance of the marriage, one party
declares that he will not carry it out, or
refuses to further communicate w/ or
maintain a suitor's relation w/ the other
party, or puts himself in a position where
he cannot execute the contract, as when
he marries another.
Damages for Breach.-- [T]he action for
breach of promise to marry has no standing
in the civil law, apart fr. t he right to
recover money or property advanced by
the plaintiff upon the faith of such
promise." (De Jesus v. Syquia, 58 P 866.)
We believe that an action based
purely on breach of the contract to marry,
will not lie. xxx It is true that she may
suffer fr. wounded feelings & mental
anguish, & these are recognized as
elements of moral damages under article
2217; but before such damages can be
recovered, there must first be a right of
action, & there is no law granting a right of
action on breach of contract to marry.
However, we believe that if the action for
damages is based on tort or quasi-delict, or
on articles 19, 21, or 22 of the present
Code, there would be a sufficient legal
basis or right of action for damages.
Effect of Seduction.-- xxx [I]t is possible
legally to base an action upon the carnal
knowledge of the pltff. by the def., or upon
the seduction, as a fact separate fr. the
contract to marry. The promise to marry
would only be the means of accomplishing
the seduction. If the offended woman has
been led to submit to carnal intercourse by
the promise of marriage, she should be
entitled to damages, not only on the basis
of tort or quasi-delict, but under the
provisions of art. 21.
xxx
The essence of the action
would not be the breach of the contract,
but the tortuous or wrongful act or
seduction
accomplished
through
the
deceitful promise.
Abuse of right.-- Even when there has
been no seduction, we believe that under
art. 19, damages, may under certain
circumstances, be recovered against a
party who repudiates a contract to marry;
but the basis of the action cannot be the
mere breach of contract itself, but some
act constituting an abuse of right.
38

Unjust enrichment.-- Another legal basis in


connection w/ a breach of contract to marry
is art. 22 on unjust enrichment. xxx Gifts to
the person to whom the donor is engaged to
be married are considered legally as
conditional,
&
upon
breach
of
the
engagement by the donee, may be recovered
by the donor. (see Domalagan v. Bolifer, 33 P
471.)
Oral Agreement.-Under 1403 "an
agreement made
in consideration of
marriage, other a mutual promise to marry,"
shall be unenforceable by action, unless the
same, or some note or memorandum thereof,
be in writing, & subscribed the party sought
to be charged. (Statute of Frauds.)
It seems to us that the writing is not
necessary in an action for damages for
breach of a contract to marry. First, where
the party who sues for damages has already
given the consideration for the promise of the
def., it is unjust to deny the action on the plea
of the Statute of Frauds. Second, the Statute
should apply only when the action is to
enforce the contract; but not when it is for
damages for breach.
GOITIA V. CAMPOS RUEDA [35 P 252]
FACTS: This is an action for support by G
(wife) against R (husband). After 1 mo. of
marriage, R repeatedly demanded fr. G to
perform "unchaste & lascivious acts on R's
genitals." Bec. of G's refusal, R maltreated G
by word & deed, inflicting bodily injuries on G.
To escape R's lewd designs & avoid further
harm, G left the conjugal home & took refuge
in her parent's house. G filed an action for
support w/ the trial court. this was dismissed
on the ground that R could not be compelled
to give support if G lived outside of the
conjugal home, unless there was legal sep. G
appealed.
HELD: Marriage is something more than a
mere contract. It is a new relation, the rights,
duties, & obligations of w/c rest not upon the
agreement of the parties but upon the
general law w/c defines & prescribes those
rights, duties, & obligations. Marriage is an
institution, in the maintenance of w/c in its
purity the public is deeply interested. It is a
relation for life & the parties cannot
terminate it at any shorter period by virtue of
any contract they may make. The reciprocal
rights arising fr. this relation, so long as it
continues, are such as the law determines fr.
time to time & none other. When the legal
existence of the parties is merged into one by

marriage, the new relation is regulated &


controlled by the state or gov't. upon
principles of public policy for the benefit of
society as well as the parties. And when
the object of a marriage is defeated by
rendering its continuance intolerable to one
of the parties & productive of no possible
good to the community, relief in some way
should be obtainable.
The law provides that the H, who is
obliged to support the wife, may fulfill this
obligation either by paying her a fixed
pension or by maintaining her in his own
home at his option. However, the option
given by law is not absolute. The law will
not permit the H to evade or terminate his
obligation to support his wife if the wife is
driven away fr. the conjugal home bec. of
the H's own wrongful acts. In this case,
where the wife was forced to leave the
conjugal abode bec. of the lewd designs &
physical assaults of the H, the W may claim
support fr. the H for separate maintenance
even outside of the conjugal home.
B.
REQUISITES
MARRIAGE

OF

VALID

ART. 4. The absence of any of the


essential or formal requisites shall render
the marriage void ab initio, except as
stated in Art. 35 (2).
A defect in any of the essential
requisites shall
render the marriage
voidable as provided in Article 45.
An irregularity in the formal requisites
shall not affect the validity of the marriage
but the party or parties responsible for the
irregularity shall be civilly, criminally &
administratively liable.

Balane:
There are two kinds of requisites, the
essential & the formal.
There are three essential requisites:
legal capacity of the contracting parties,
consent freely given &
difference in sex (other commentators
opine that this third is already included
in legal capacity.)
39

3 formal requisites:
(1) authority of the solemnizing officer,
(2) a valid marriage license &
(3) some form of ceremony.
Distinction.-Absence,
Irregularity of Requisites:

Defect,

Absence of a requisite, whether essential or


formal, renders the marriage void. Absence
means a total want of a requisite.
E.g., the total absence of a marriage
license (absence of a formal requisite)
w/c renders the M void.
A defect in the essential requisite makes the
marriage voidable
was

ART. 39. The action or defense for the


declaration of absolute nullity of a marriage
shall not prescribe. xxx

E.g., where the consent of either party


vitiated by intimidation.

An irregularity in the formal requisite does


not
affect the validity of the marriage but this is
w/o
prejudice
to
the
criminal,
civil
or
administrative
liability of erring officials.
E.g., where the marriage license was
issued w/o complying w/ the 10-day
posting requirement. (Art. 17, FC.)
1.
Difference in Sex (an essential
requisite)-- Arts. 2 par. 1, 4 par. 1, 39
ESSENTIAL

ART. 2. No marriage shall be valid, unless


these essential requisites are present:
Legal capacity of the contracting parties
who must be a male & a female;
Consent freely given in the presence of
the solemnizing officer.

Balane: The phrase "who must be a male &


a female" was not found in the NCC.
ART. 4.
The absence of any of the
essential or formal requisites shall render the
marriage void ab initio, except as stated in
Article 35 (2).
xxx

1. A. LEGAL CAPACITY

ART. 5. Any male or female of the age


of eighteen years or upwards not under
any of the impediments mentioned in Arts.
37 & 38, may contract marriage.
ART. 37.
Marriages between the
following are incestuous & void fr. the
beginning,
whether
the
relationship
between the parties be legitimate or
illegitimate:
Between ascendants & descendants of
any degree; &
Between brothers & sisters, whether of
the full or half blood.
ART. 38. The following marriages shall
be void fr. the beginning for reasons of
public policy:
Between collateral blood relatives,
whether legitimate or illegitimate, up to the
fourth civil degree;
Between step-parents & step-children;
Between parents-in-law & children-inlaw;
Between the adopting parent & the
adopted child;
Between the surviving spouse of the
adopting parent & the adopted child;
Between the surviving spouse of the
adopted child & the adopter;
Between an adopted child & a
legitimate child of the adopter;
Between adopted children of the same
adopter; &
Between parties where one, w/ the
intention to marry the other, killed that
other persons spouse or his or her own
spouse.

1. B. CONSENT
CONTRACTING PARTIES

OF

40

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 & twenty-one,
they shall, in addition to the requirements of
the preceding arts., exhibit to the local civil
reg., the consent to their marriage of their
father, mother, surviving parent or guardian,
or persons having legal charged of them, in
the order mentioned. Such consent shall be
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 & attested before any official
authorized by law to administer oaths. The
personal manifestation shall be recorded in
both application for marriage license, & the
affidavit, if one is executed instead, shall be
attached to said application.
ART. 15. Any contracting party between
the age of 21 & 25 shall be obliged to ask
their parents or guardian for advice upon the
intended marriage. If they do not obtain such
advice, or if it be unfavorable, the marriage
license shall not be issued till after 3 months
following the completion of the publication of
the application therefore. A sworn statement
by the contracting parties to the effect that
such advice has been sought, together w/ the
written advice given, if any, shall be attached
to the application for marriage license.
Should the parents or guardian refuse to give
any advice, this fact shall be stated in the
sworn statement.
ART. 16. In the cases where parental
consent or parental advice is needed, the
party or parties concerned shall, in addition
to the requirements of the preceding articles,
attach a certificate issued by a priest, imam
or minister authorized to solemnize marriage
under Art. 7 of this Code or a marriage
counselor duly accredited by the proper govt
agency to the effect that the contracting
parties have undergone marriage counseling.
Failure to attach said certificate of marriage
counseling shall suspend the issuance of the
marriage license for a period of three months
fr. the completion of the publication of the
application. Issuance of the marriage license
w/in the prohibited pd shall subject the
issuing officer to administrative sanctions but
shall not affect the validity of the marriage.

Should only one of the contracting


parties need parental consent or parental
advice, the other party must be present at
the counseling referred to in the preceding
paragraph.

EIGENMANN VS. GUERRA


FACTS: E filed an action for annulment of
his marriage to G based on the ff. Grounds:
1. P was between 16-20 at the time of the
celebration of the marriage & the same
was done w/o the consent of his mother; &
2. His consent was obtained thru threats,
intimidation & force exerted by Gs father.
LC dismissed the complaint.
HELD:
In his application for marriage
license, E represented himself to be over
25 yrs of age, making G believe that he
was capacitated to marry him w/o need of
parental consent. Now he is precluded
under the doctrine of estoppel fr. asserting
or proving otherwise.
The claim of P that his consent was
not freely given is w/o factual basis. The
remark of Gs father was merely an
admonition expected fr. parents & not the
kind of threat envisioned by law as would
invalidate a marriage.
With respect to the interpretation of
Art. 15 & 45 (1), the written & sworn
consent refers only to the issuance of a
marriage license, & such formal reqt is not
essential to the validity of a marriage
solemnized under a license if the other
requisites are present. In fact, what the
art. Declares as a voidable marriage is one
solemnized w/o the consent of the parent,
etc, & it may be inferred that the consent
may be given in any form-written or oral, or
even implied fr. the acts. CAB Es mother
was present at the time of the celebration
of the marriage & did not object thereto.
FORMAL
2. Some Form of Ceremony (a formal
requisite.)-- Articles 3 par. 3, 4 par. 1,
6

41

ART. 3. The formal requisites of marriage


are:
Authority of the solemnizing officer;
A valid marriage license except in the
cases provided for in Chapter 2 of this Title; &
A marriage ceremony w/c takes place w/
the appearance of the contracting parties
before the solemnizing officer & their
personal declaration that they take each
other as husband & wife in the presence of
not less than two witnesses of legal age.

2.a Authority of the Solemnizing Officer

solemnize marriages expired on May 1,


1970 & the ceremony took place on May
14, 1970.
Second requirement that was lacking was
an essential req.: W, being a foreigner,
was required by law to secure fr. his
countrys diplomatic or consular services a
certificate of legal capacity to marry, w/c
he did not do.
Also there was no proof that FP,
being under 23, had secured a sworn
statement that she had sought parental
advice.

ART. 7. Marriage may be solemnized by:


Any incumbent member of the judiciary
w/in the courts jurisdiction;
Any priest, rabbi, imam, or minister of any
church or religious sect duly authorized by his
church or religious sect & registered w/ the
civil registrar general, acting w/in the limits of
the written authority granted him by his
church or religious sect & provided that at
least one of the contracting parties belongs
to the solemnizing officers church or
religious sect;
Any ship captain or airplane chief only in
the cases mentioned in Art. 31; (articulo
mortis)
Any military commander of a unit to w/c a
chaplain is assigned, ;in the absence of the
latter, during military operation, likewise only
in the cases mentioned in Art. 32;
Any consul general, consul or vice-consul
in the case provided in Art. 10

Tolentino:
Ceremony
of
Marriage.-The
requirement of a marriage ceremony
prevents the recognition in the Phils. of
what are known as "common law
marriages." A common law marriage is a
present agreement bet. a man & a woman
w/ capacity to enter into such rel'p, to take
ea. other as H & W, followed by
cohabitation.
Art. 4. The absence of any of the
essential or formal requisites shall render
the marriage void ab initio, except as
stated in Article 35 (2).
xxx

FACTS: W was a 21 yr.-old American who


married FP in 1969. FP discovered in the
local civil registrar a marriage K between W &
one GP. P was charged w/ bigamy & was
convicted.

Art. 6. No prescribed form or religious


rite for the solemnization of the marriage is
required. It shall be necessary, however for
the
contracting
parties
to
appear
personally before the solemnizing officer &
declare in the presence of not less than two
witnesses of legal age that they take each
other as husband & wife. This declaration
shall be contained in the marriage
certificate w/c shall be signed by the
contracting parties & their witnesses &
attested by the solemnizing officer.

HELD: In order that a person may be held


guilty of bigamy, the second & subsequent
marriage must have all the essential
elements of a valid marriage. IN CAB, the 2 nd
marriage was not validly celebrated, there
were certain formal & essential requisites
that were lacking.

In case of a marriage in articulo mortis,


when the party at the point of death is
unable to sign the marriage certificate, it
shall be sufficient for one of the witnesses
to the marriage to write the name of said
party, w/c fact shall be attested by the
solemnizing officer.

First was the lack of authority of the


solemnizing officer. Rev. Diazs authority to

Balane:

PEOPLE VS. WHIPKEY

42

Requisites of some form of ceremony:

circumstances, what took place before the


justice of the peace amounted to a
marriage.

Personal appearance of the contracting


parties in the presence of the solemnizing
officer. This rules out proxy marriages.

(not in Balanes outline)

The declaration that they declare in some


manner that they take each other as H &
W.
This provision is worded broadly.
There is no set formula for the
declaration, no particular words are
required. It does not even have to be oral
provided
that
there
is
sufficient
manifestation of their will that they take
each other as H & W.
Presence of at least 2 witnesses of legal age.
Some say that the absence of this 3rd
requisite renders the marriage void.
Others say it is only an irregularity.
Tolentino:
It is not necessary to the validity of
the marriage that the contracting parties
should recite precisely the words of the
statute.
It is enough that the words
employed evidence mutual consent.
Failure to Sign or Issue Certificate.-- The
certificate is merely of evidentiary value, &
failure to sign the same does not render the
marriage a nullity.
The consent can be
proved by other competent evidence, such as
the testimony of the solemnizing officer, of
the parties themselves, of the witnesses to
the marriage, & of others present at the
wedding.
MARTINEZ V. TAN [12 P 731]
Facts: Pltff. Rosalia Martinez commenced
this action for the cancellation of the cert. of
marriage & for damages. Pltff. claimed that
what took place before the justice of the
peace did not constitute a legal marriage
under Gen. Orders No. 68, Sec. 6, "No
particular form for the ceremony of marriage
is required, but the parties must declare, in
the presence of the person solemnizing the
marriage, that they take each other as
husband & wife." CFI found for def.
HELD:
The parties addressed a signed
petition to the justice of the peace stating
that they had agreed to marry, & asking the
justice of the peace to marry them. Before
the justice of the peace, they stated under
oath that they ratified the contents of their
petition & insisted on what they asked for.
This statement was signed by them, in the
presence of witnesses that they produced. A
certificate was then made out by the justice
of the peace, signed by him & the witnesses,
stating the parties had been married by him.
Both the parties knew the contents of the
document w/c they signed.
Under the

Art. 8.
The marriage shall be
solemnized publicly in the chambers of the
judge or in open court, in the church,
chapel or temple, or in the office of the
consul-general, consul or vice-consul, as
the case may be, & not elsewhere, except
in cases of marriages contracted at the
point of death or in remote places in
accordance w/ Article 29 of this Code, or
where both of the parties request the
solemnizing officer in writing in w/c case
the marriage may be solemnized at a
house or place designated by them in a
sworn statement of that effect.

Sempio-Dy:
This provision is only
directory, not mandatory, so that noncompliance therew/ will not invalidate the
marriage.
SAN GABRIEL V. SAN GABRIEL [56 O.G.
P. 3555 (1960)]
The mere fact that the marriage
took place on a Sunday also would not
necessarily vitiate the marriage on the
ground that it constitutes a violation of the
requirement that the marriage shall be
solemnized publicly in the office of the
judge in open court.
2.b Marriage License

Art. 9. A marriage license shall be


issued by the local civil registrar of the city
or municipality where either contracting
party
habitually
resides,
except
in
marriages where no license is required in
accordance w/ Chapter 2 of this Title.
Sempio-Dy: The solemnizing officer is not
required to investigate w/n the license was
issued in the place required by law.
(People v. Jansen 54 P 176.)
Art. 10. Marriages between Filipino
citizens abroad may be solemnized by a
consul- general, consul or vice-consul of
the Republic of the Philippines. The
issuance of the marriage license & the
duties of the local civil registrar & of the
43

solemnizing officer w/ regard to the


celebration of marriage shall be performed by
said consular official.

Sempio-Dy: By "Filipinos citizens abroad"


may mean Filipinos permanently residing
abroad or who are mere transients or on
vacation there. Consuls on home assignment
in the Phils. cannot solemnize marriages.
Salonga, Private International Law II,
1995 ed. (hereinafter Salonga):
Consular Marriages.-- xxx The prevailing
rule is that a marriage performed before a
consular or diplomatic agent empowered by a
sending State to officiate marriages is valid in
the receiving State only if the latter has
agreed to his acting in that capacity.
2. REQUIREMENTS

FOR ISSUANCE

A. APPLICATION

Art. 11. Where a marriage license is


required, each of the contracting parties shall
file separately a sworn application for such
license w/ the proper local civil registrar w/c
shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age & date of birth;
(4) Civil Status;
(5) If previously married, how, when &
where the previous marriage was dissolved or
annulled;
(6) Present residence & citizenship;
(7) Degree of relationship of the
contracting parties;
(8) Full name, residence & citizenship of
the father;
(9) Full name, residence & citizenship of
the mother; &
(10) Full name, residence & citizenship of
the guardian or person having charge, in case
the contracting party has neither father nor
mother & is under the age of 21 years.
The applicants, their parents or guardians
shall not be required to exhibit their
residence certificates in any formality in
connection w/ the securing of the marriage
license.

B.

PROOF

OF CAPACITY

Art. 12. The local civil registrar, upon


receiving such application, shall require the
presentation
of
the
original
birth
certificates or, in default thereof, the
baptismal certificates of the contracting
parties or copies of such documents duly
attested by the persons having custody of
the originals. These certificates or certified
copies of the documents required by this
Article need not be sworn to & shall be
exempt fr. the documentary stamp tax. The
signature & official title of the person
issuing the certificate shall be sufficient
proof of its authenticity.
If either of the contracting parties is
unable to produce his birth or baptismal
certificate or a certified copy of either bec.
of the destruction or loss of the original, or
if it is shown by an affidavit of such party or
of any other person that such birth or
baptismal certificate has not been received
though the same has been required of the
person having custody thereof at least 15
days prior to the date of the application,
such party may furnish in lieu thereof his
current
residence
certificate
or
an
instrument drawn up & sworn to before the
local civil registrar concerned or any public
official authorized to administer oaths.
Such instrument shall contain the sworn
declaration of two witnesses of lawful age,
setting forth the full name, residence &
citizenship of such contracting party & of
his or her parents, if known, & the place &
date of birth of such party. The nearest of
kin of the contracting parties shall be
preferred as witnesses, or in their default,
persons of good reputation in the province
or the locality.
The presentation of birth or baptismal
certificate shall not be required if the parents of the contracting parties appear
personally before the local civil registrar
concerned & swear to the correctness of
the lawful age of said parties, as stated in
the application, or when the local civil
registrar shall, by merely looking at the
applicants upon their personally appearing
before him, be convinced that either or
both of them have the required age.

44

Tolentino:
Documents Required.-- To prove the ages
of the contracting parties, the ff. may be
required by the local civ. registrar:
Original or certified copies of birth
certificates.
In the absence of birth certs., the original or
certified copies of baptismal certs.
In the absence of the above documents, the
party may present his residence cert. or
the affidavit of 2 witnesses.
When Proof of Age Dispensed With:
When the parents of the contracting parties
appear personally bef. the local civ. reg.
& swear to the correctness of their ages;
When the local civ. reg. is convinced, by
merely looking at the parties that they
have the required ages;
When a party has formerly married, but is
widows, or divorced, or the previous
marriage has been invalidated. (see art.
13.)
Art. 27. In case either or both of the
contracting parties are at the point of death,
the marriage may be solemnized w/o the
necessity of a marriage license & shall
remain valid even if the ailing party
subsequently survives.
Art. 28. If the residence of either party is
so located that there is no means of
transportation to enable such party to appear
personally before the local civil registrar, the
marriage may be solemnized w/o the
necessity of a marriage license.
Art. 29. In the cases provided for in the
two preceding articles, the solemnizing
officer shall state in an affidavit executed
before the local civil registrar or any other
person legally authorized to administer oaths
that the marriage was performed in articulo
mortis or that the residence of either party,
specifying the barrio or barangay, is so
located that there is no means of
transportation to enable such party to appear
personally before the local civil registrar &
that the officer took the necessary steps to
ascertain the ages & relationship of the
contracting parties & the absence of a legal
impediment to the marriage.
Art. 30. The original of the affidavit
required in the last preceding article,
together w/ a legible copy of the marriage
contract, shall be sent by the person

solemnizing the marriage to the local civil


registrar of the municipality where it was
performed w/in the period of 30 days after
the performance of the marriage.
Art. 31. A marriage in articulo mortis
between passengers or crew members may
also be solemnized by a ship captain or by
an airplane pilot not only while the ship is
at sea or the place is in flight, but also
during stopovers at ports of call.
Art. 32. A military commander of a
unit, who is a commissioned officer, shall
likewise have authority to solemnize
marriages in articulo mortis between
persons w/in the zone of military
operations, whether members of the armed
forces or civilians.
Art. 33. Marriages among Muslims or
among members of the ethnic cultural
communities may be performed validly w/o
the necessity of marriage license, provided
that they are solemnized in accordance w/
their customs, rites or practices.
Art. 34. No license shall be necessary
for the marriage of a man & a woman who
have lived together as husband & wife for
at least five years & w/o any legal
impediment to marry each other. The
contracting parties shall state the foregoing
facts in an affidavit before any person
authorized by law to administer oaths. The
solemnizing officer shall also state under
oath that he ascertained the qualifications
of the contracting parties & found no legal
impediment to the marriage.

Tolentino:
This art. intends to facilitate & encourage
the marriage of persons who have been
living together in a state of concubinage for
more than 5 yrs. The publicity & other
attendant inconveniences in securing the
marriage license, might be embarrassing to
such persons & deter them fr. legalizing
their union.
Sempio-Dy: Besides, the marriage of the
parties will result in the legitimization of
natural children born to them during their
cohabitation.

45

Note:
The fact of absence of legal
impediment bet. the parties must be present
at the time of the marriage, not during their
5-yr. cohabitation.
PEOPLE VS. DAVID
FACTS: D & complainant EG applied for a
marriage license & were issued, in lieu of
Prov. Form #95A, an official receipt, for lack
of the regular form. Subsequently, they were
married. EG found out that D was previously
married to LG so she filed a suit for bigamy.
Ds defense was that the 2nd marriage was
void for lack of a valid marriage license
HELD: A mere defect or irregularity in the
issuance of a license does not affect the
validity of the marriage. It is the complete
absence of a license w/c makes such
marriage void.
IN CAB, since the regular
form was not available, the OR issued by the
proper official served as the license itself &
not just a mere evidence of payment. Since
all the req. for the issuance of the license has
been fulfilled, the receipt can be considered a
valid license for all intents & purposes. Thus,
D is guilty of bigamy!
LORIA VS. FELIX
FACTS: F & M had been living together as
Husband & Wife. During the early part of the
liberation, M became seriously ill. The priest,
upon learning that these 2 souls have been
living together w/o the benefit of marriage
asked them to ratify their union accdg to
Catholic rites. The marriage was celebrated
in articulo mortis. M recovered for a while,
but she died a yr. later. The Ps, claiming to
be Ms grandnephews & nieces, demanded
that F deliver the props left by their grant
aunt. F claims his right over the props as Ms
widower.
HELD: F is entitled to the props bec the
marriage was valid.
Ps allege that the
marriage was invalid bec the priest failed to
make & file the affidavit required by Secs. 2021. SC- It was the priests obligation-noncompliance w/ it should bring no serious
consequences to the married pair, specially
where it was caused by the emergency.
The law permits marriages in articulo
mortis w/o marriage license but it requires
the priest to make the affidavit & file it. Such
affidavit contains the date usually required
for the issuance of a Marriage license & it

substitutes for the latter. If a marriage


celebrated w/o the license is not voidable,
then this marriage should not also be
voidable for lack of such affidavit.
2.C. MARRIAGE CEREMONY
ART. 6. No prescribed form or religious
rite for the solemnization of the marriage is
required. It shall be necessary, however for
the
contracting
parties
to
appear
personally before the solemnizing officer &
declare in the presence of not less than two
witnesses of legal age that they take each
other as husband & wife. This declaration
shall be contained in the marriage
certificate w/c shall be signed by the
contracting parties & their witnesses &
attested by the solemnizing officer.
In case of a marriage in articulo
mortis, when the party at the point of
death is unable to sign the marriage
certificate, it shall be sufficient for one of
the witnesses to the marriage to write the
name of said party, w/c fact shall be
attested by the solemnizing officer.
ART. 8.
The marriage shall be
solemnized publicly in the chambers of the
judge or in open court, in the church,
chapel or temple, or in the office of the
consul-general, consul or vice-consul, as
the case may be, & not elsewhere, except
in cases of marriages contracted at the
point of death or in remote places in
accordance w/ Article 29 of this Code, or
where both of the parties request the
solemnizing officer in writing in w/c case
the marriage may be solemnized at a
house or place designated by them in a
sworn statement of that effect.
Art. 22.

SAN GABRIEL V. SAN GABRIEL


FACTS: This is an action for support by the
wife & her child. Husband counter-claimed
for annulment of the marriage on the
grounds of irregularity in the celebration of
the marriage & the issuance of the
marriage license.
HELD: The mere fact that the marriage
took place on a Sunday also would not
46

necessarily vitiate the marriage on the


ground that it constitutes a violation of the
requirement that the marriage shall be
solemnized publicly in the office of the judge
in open court.
The facts that the applications were
signed by a clerk & not by the Assistant Local
Reg. And that the marriage license itself was
not signed by the LCR but by a clerk do not
necessarily vitiate the marriage if all the
essential requisites for its validity were
complied w/.
These irregularities are
primarily for the lookout of the subscribing
officer.

Q: If the victim of the crimes of rape,


seduction,
abduction,
&
acts
of
lasciviousness happens to be a girl less
than 18 yrs. old, can she validly marry the
offender?
A: We believe that she can. It is submitted
that the circumstances contemplated by
the RPC are of an exceptional character, &
should be considered as an exception to
the provisions of the FC on the legal
capacity to marry. xxx If merely bec. she
is below the age of consent she will not be
permitted to marry the offender, then we
will have the absurd case where the law
gives a remedy w/ one & denies it w/ the
other hand.

essential

Art. 35. The following marriages shall


be void fr. the beginning:

Art. 2. No marriage shall be valid, unless


these essential requisites are present:

(1) Those contracted by any party


below eighteen years of age even w/ the
consent of parents or guardians;
xxx

3.
Legal Capacity (an
requisite.)-- Art. 2 par. 1

(1) Legal capacity of the contracting


parties who must be a male & a female; xxx
A.

Balane:
There is here an absolute
absence of an essential requisite.

AGE.

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


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

Art. 45. A marriage may be annulled


for any of the following causes, existing at
the time of the marriage:

Balane: 18 yrs. old is an absolute minimum.

(1) That the party in whose behalf it is


sought to have the marriage annulled was
18 years of age or over but below 21, & the
marriage was solemnized w/o the consent
of the parents, guardian or person having
substitute parental authority over the
party, in that order, unless after attaining
the age of 21, such party freely cohabited
w/ the other & both lived together as
husband & wife;
xxx

Tolentino:

Tolentino:

Tolentino:
Age of Consent.-- The age for each party
provided in Art. 5 is generally known as the
"age of consent." for marriage. Eighteen yrs.
is the "age of consent" bec. below this age, a
party to a marriage cannot give a binding
valid consent.

Age of Legal Capacity.-- For a


consent that would result in a valid
marriage, the parties should be 21
age. The age of 21 is, thus, the "age
capacity" to marry.

perfect
binding
yrs. of
of legal

Effect of Penal Law.-- Under Art. 344, RPC,


the marriage of the offender w/ the offended
party shall extinguish the criminal action or
remit the penalty already imposed upon him.

Want of Parental Consent.-- The law


does not expressly authorize the parent
whose consent is required, to ratify the
marriage. xxx We believe that xxx the
ratification by the parent whose consent is
wanting must be recognized as sufficient to
validate the marriage, provided such
ratification is made before the party to the
M reaches 21 yrs. old. Art. 47, par. 1
recognizes the right of such parent to ask
for the A of the M bef. the child who has
married w/o parental consent reaches the
47

age of 21. This right can be waived. Besides,


if the nullity proceeds fr. the absence of
consent, there is no juridical reason why such
defect cannot be cured by subsequent
confirmation. xxx

Between the adopting parent & the


adopted child;

Art. 47.
The action for annulment of
marriage must be filed by the following
persons & w/in the periods indicated herein:

Between the surviving spouse of the


adopted child & the adopter;

(1) For causes mentioned in number 1 of


Article 45 by the party whose parent or
guardian did not give his or her consent, w/in
five years after attaining the age of 21; or by
the parent or guardian or person having legal
charge of the minor, at any time before such
party reached the age of 21;
xxx

Balane:
This kind of marriage can be ratified by
cohabitation for a reasonable period of time
after the minor reaches the age of 21. Here
ratification can set in even before the
prescription sets in.
Art. 39. The action or defense for the
declaration of absolute nullity of a marriage
shall not prescribe. xxx
B.

RELATIONSHIP.

Art. 37. Marriages between the following


are incestuous & void fr. the beginning,
whether the relationship between the parties
be legitimate or illegitimate:

Between the surviving spouse of the


adopting parent & the adopted child;

Between an adopted child


legitimate child of the adopter;

&

Between adopted children of the same


adopter; &
xxx
Tolentino:
Collateral Blood Relatives.-- Marriages
bet. nephews & aunts, uncles & nieces, &
first cousins are prohibited under par. (1).
This prohibition is based on scientific
opinion as well as on public opinion. They
are contrary to good morals. Although not
conclusive, there is scientific & expert
opinion that, except in rare cases, children
of first cousins suffer fr. organic defects, &
in many instances are idiots, weak-minded,
deaf, nearsighted, etc., in other words,
their marriage tends to weaken the race.
Art. 39. The action or defense for the
declaration of absolute nullity of a marriage
shall not prescribe. xxx

c. Prior Marriage.
Balane:

(1) Between ascendants & descendants of


any degree; &
(2) Between brothers & sisters, whether
of the full or half blood.

There are 3 kinds of marriage that are


void bec. of a prior marriage:

Art. 38. The following marriages shall be


void fr. the beginning for reasons of public
policy:

There are 3 requisites under Art. 41:

Between
collateral
blood
relatives,
whether legitimate or illegitimate, up to the
fourth civil degree;
Between step-parents & step-children;
Between parents-in-law & children-in-law;

A bigamous or polygamous marriage, not


falling under Art. 41.

Absence of the prior spouses for at


least 4 consecutive yrs. or at
least 2 consecutive yrs. if it falls
under Art. 391, NCC.
The spouse present has a wellfounded belief that the absent
spouse was already dead.
The institution by the spouse
present
of
a
summary
proceeding
of
presumptive
death of the absent spouse. A
declaration by the court of the
48

presumptive death is of course


required.
In Art. 40 where the marriage was contracted
after a void ab initio marriage w/c has not
been declared void by final judgment.
In Art. 53 in case of a subsequent marriage
w/c does not comply w/ the requirements
of Art. 52.
In Art. 52, you have to do 3 things:
Judgment of annulment or nullity of
marriage must be registered in the
appropriate registry.
The registration of the partition &
distribution of the properties of the
spouses in the appropriate civil
registry.
The delivery of the common children's
presumptive legitime.
Art. 35. The following marriages shall be
void fr. the beginning:
xxx
(4)
Those bigamous or polygamous
marriages not falling under Article 41;
xxx.
(6) Those subsequent marriages that are
void under Article 53.
Art. 40. The absolute nullity of a previous
marriage may be invoked for purposes of
remarriage on the basis solely of a final
judgment declaring such previous marriage
void.

Tolentino:
[F]or purposes of remarriage it would be
necessary to such void M to secure a final
judgement declaring it null & void fr. the
beginning. W/o such final judgment, the
previous void marriage would constitute an
impediment to the remarriage, & a marriage
license may be denied. This article applies
only when a license is to be obtained for a
subsequent marriage.
DOMINGO V. CA [226 SCRA 572 (1993)]
A spouse may petition for the declaration of
nullity of her marriage for a purpose other
than her remarriage.

Facts: Delia Domingo filed a pet. for decl.


of nullity of her marriage w/ Roberto
Domingo, on the ground that, unknown to
her, he was previously married at the time
of their marriage. She prays that their
marriage be declared null & void &, as a
consequence, to declare that she is the
exclusive owner of all properties she
acquired during the marriage & to recover
them fr. him.
Roberto moved to dismiss the
petition on the ground that the marriage
being void ab initio, the petition for decl. of
nullity is unnecessary citing Peo. v. Aragon
& Peo. v. Mendoza. Roberto claims that
decl of nullity is necessary under Art. 40,
FC only for the purpose of remarriage. The
lower court denied the motion. CA affirmed
the denial.
HELD:
The Declaration of nullity of a
marriage under Art. 40 may be resorted to
even for a purpose other than remarriage.
Crucial to the proper interpretation
of Art. 40 is the position of the word
"solely." xxx. As it is placed, it is meant to
qualify "final judgment." Had the provision
been stated as follows:
"The absolute
nullity of a previous marriage may be
invoked
solely
for
purposes
of
remarriage...," the word "solely" will qualify
"for purposes of remarriage" & the husband
would have been correct.
That Art. 40 as finally formulated
included the significant clause denotes that
such final judgment declaring the previous
marriage void need not be obtained only
for purposes of remarriage.
ATIENZA V. BRILLANTES [243 SCRA 32
(1995)]
Facts: This is an administrative complaint
filed by Atienza for Gross Immorality &
Appearance of Impropriety against J.
Brillantes, Presiding Judge of MTC, Mla. It
was alleged in the complaint that Brillantes
has been cohabiting w/ Yolanda De Castro
(w/ whom Atienza had 2 children) when he
(Brillantes) was already married to one
Zenaida Ongkiko w/ whom he has 5
children. xxx Resp. denies having been
married to Ongkiko, although he admits
having 5 children w/ her. He alleges that
while he & Ongkiko went through a
49

marriage ceremony, the same was not valid


for lack of marriage license. The second
marriage bet. the two also lacked the
required license. He claims that when he
married De Castro in LA, California, he
believed, in all GF & for all legal intents &
purposes, that he was single bec. his first
marriage was solemnized w/o a license.
HELD: Under the FC, there must be a judicial
decl. of the nullity of a previous marriage bef.
a party thereto can enter into a 2nd
marriage. (Art. 40.) Art. 40 is applicable to
remarriages entered into after the effectivity
of the FC regardless of the date of the first
marriage.
Said art. is given "retroactive
effect insofar as it does not prejudice or
impair vested or acquired rights in
accordance w/ the NCC or other laws." (Art.
256, FC.) This is particularly true w/ Art. 40
w/c is a rule of procedure. Resp. has not
shown any vested right that was impaired by
the application of Art. 40 to his case.
The fact that procedural statutes may
somehow affect the litigants' rights may not
preclude their retroactive application to
pending actions. The retroactive application
of procedural laws is not violative of any right
of a person who may feel that he is adversely
affected. The reason is that as a general rule
no vested right may attach to, nor arise fr.,
procedural laws.

Art. 41.
A marriage contracted by any
person during the subsistence of a previous
marriage shall be null & void, unless before
the celebration of the subsequent marriage,
the prior spouse had been absent for four
consecutive years & the spouse present had
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 2 years shall be sufficient.
For the purpose of contracting the
subsequent marriage under the preceding
paragraph, the spouse present must institute
a summary proceeding as provided in this
Code for the declaration of presumptive
death of the absentee, w/o prejudice to the
effect of reappearance of the absent spouse.

Article 391. The following shall be


presumed dead for all purposes, including
the division of the estate among the heirs:
(1) A person on board a vessel lost
during a sea voyage, or an aeroplane w/c 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, & has been missing
for four years;
(3) A person who has been in danger of
death under other circumstances & his
existence has not been known for four
years.

Tolentino: The period was reduced in the


FC to 2 years in the foregoing cases.
REPUBLIC V. NOLASCO [220 SCRA 20
(1993)]
The declaration of presumptive death
under Art. 41, FC is available only for the
purpose of remarriage.
Facts: Gregorio Nolasco was a seaman.
During one of the calls of his ship to
England, he met Janet Monica Parker, a
British subject. From that chance meeting,
Janet lived w/ Nolasco on his ship for 6
mos. When Nolasco's contract expired in
1960, Janet went w/ him in returning home
to San Jose, Antique. In Jan. 1982, Nolasco
married Janet in Catholic sites in Antique.
After
the
marriage,
Nolasco
obtained another employment contract as
a seaman, leaving his pregnant wife w/ his
parents. Sometime, in 1/83, while working
overseas, Nolasco received a letter fr. his
mother informing him that Janet had
already given birth to his son. The letter
also informed him that Janet left Antique
after giving birth. xxx
In 88, or 5 yrs. after the
disappearance of Janet, Nolasco filed an
action for the decl. of presumptive death of
his wife Janet under Art. 41, FC, claiming
that all his efforts to look for her proved
fruitless.
50

xxx
The trial court granted the
petition. CA affirmed the ruling. Hence this
petition for review.
HELD:
A petition to declare an absent
spouse presumptively dead may not be
granted in the absence of any allegation that
the spouse present will remarry.
There are 4 requisites for the declaration of
presumptive death under Art. 41:
That the absent spouse has been missing for
4 consecutive years, or 2 consecutive yrs.
if the disappearance occurred where
there is a danger of death under the
circumstances laid down in Art. 391.
That the spouse present wishes to remarry
That the spouse present has a well-founded
belief that the absentee is dead.
That the present spouse files a summary
proceeding for the declaration of
presumptive death of the absentee.
The Court believes that resp. Nolasco
failed to conduct a search for his missing wife
w/ such diligence as to give rise to a "wellfounded belief" that she is dead. The Court
considers
the
investigation
allegedly
conducted by Nolasco in his attempt to
ascertain the whereabouts of Janet as to
sketchy to form the basis of a reasonable or
well-founded belief that she was already
dead.
For instance, when he arrived in
Antique, instead of seeking the help of local
authorities or of the British Embassy, he
secured another seaman's contract & went to
London. We do not consider that walking into
a major city w/ a simple hope of somehow
bumping into one particular person there xxx
can be regarded as a reasonable diligent
search. The Court also views Nolasco's claim
that Janet declined to give any info. as to her
personal background even after marrying
Nolasco as too convenient an excuse to
justify his failure to locate her.
BIENVENIDO V. CA
[237 SCRA 676
(1994)]
When a man contracts a subsequent
marriage while the first marriage is
subsisting, the second marriage as a general
rule is void for being bigamous. He who
invokes that the second marriage is voidable
for being an exception under Art. 83 of the
NCC has the burden of proving it.

Facts: Aurelio Camacho married Conseja


Velasco in '42. In '62, w/o this marriage
being dissolved, Aurelio married Luisita
Camacho in Tokyo. In '67, Aurelio met
Nenita Bienvenido. Aurelio courted & won
her & they cohabited until Aurelio's death
in '88. In '82, Aurelio bought a house & lot.
In the deed of sale & in the TCT in his
name, he was described as single. In '84,
he sold the said house & lot to Nenita.
When Aurelio died, Luisita filed an action to
annul the sale to Nenita alleging that it was
in fraud of her as the legitimate wife of
Aurelio.
Nenita opposed the action
claiming that she was a buyer in GF. The
trial court upheld the sale in favor of
Nenita. The CA reversed. Hence, this
petition for review.
HELD: There is no presumption that the
marriage bet. Aurelio & Luisita is valid. As
a general rule, under Art. 83, NCC, a
subsequent marriage contracted while the
previous one is still subsisting is void.
There are exceptions to this rule but he
who is invoking the exception has the
burden of proving the existence of the
conditions for the said exception to arise.
In the case at bar, the burden of proof was
on Luisita to show that at the time of her
marriage to Aurelio, Aurelio's first wife had
been absent for at least 7 yrs. & that he
had no news that she was alive. She failed
to discharge this burden. What applies,
therefore, is the general rule
xxx.
Consequently, there is no basis for holding
that the prop. in question was prop. of his
conjugal partnership bet. Luisita & Aurelio
bec. there was no partnership in the first
place.
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 &
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, w/ due notice to the spouses of the
subsequent marriage & w/o prejudice to

51

the fact of reappearance being judicially


determined in case such fact is disputed.
Balane:
Marriage under Art. 41 is valid unless
terminated under Art. 42. Notice that the law
uses the term "terminated" & not annulled.
This is bec. marriage under Art. 41 is a good
marriage.
The effect of the affidavit of
reappearance is that the subsequent
marriage is terminated unless it is judicially
challenged.
Tolentino:
If both parties to the subsequent marriage
acted in BF (knowing that the absent spouse
is alive), the said marriage is void ab initio
under Art. 44.
Q: If only one party has acted in BF, is the M
valid?
A: If the spouse who contracted the 2nd M
knew that in spite of the absence of his
spouse for the period provided in 41 said
absent spouse was alive, his 2nd M should
be considered void as bigamous under
35(4), bec. an essential element in 41 to
make it an exception is wanting.
If such present spouse has acted in GF
& the declaration of presumptive death has
been obtained, the BF of the 2nd spouse will
not affect the validity of the M, but the
provisions of 43 will operate against him,
such as the revocation of donations by
reason of M made to him, of his designation
as beneficiary in any insurance of the
innocent spouse, & his disqualification to
inherit fr. the innocent spouse.
When No Action Taken.-- If the absentee
reappears, but no step is taken to terminate
the subsequent M, either by affidavit or by
court action, his mere reappearance, even if
made known to the spouses in the 2nd M, will
not terminate such M.
[I]t is incorrect to say that the first M
is dissolved by the celebration of the 2nd. It
would be more accurate to say that since the
2nd M has been contracted bec. of a
presumption that the former spouse is dead,
such presumption continues in spite of his
physical reappearance, & by fiction of law, he
must be regarded as legally an absentee,
until the subsequent M is terminated as
provided by law. The result of this is the
suspension of the legal effects of M as to him
as long as the 2nd M subsists.

GOMEZ V. LIPANA [38 S 615 (1958)]


Where a husband & his second wife fr.
whom he concealed his first marriage,
acquired properties during their marriage,
the second marriage being void, is subject
to collateral attack in the intestate
proceedings instituted by the judicial
administratrix for the forfeiture of the
husband's share under Article 1417,
Spanish Civil Code (no longer in force) .
"The legal situation arising fr. these facts is
that while insofar as the second wife was
concerned, she having acted in good faith,
her marriage produced civil effects & gave
rise, just the same, to the formation of the
conjugal partnership wherein she was
entitled
to
an
equal
share
upon
dissolution." The only JUST AND EQUITABLE
solution is to give one-half of the properties
to the second wife, & the other half to the
conjugal partnership of the first marriage.
CONSUEGRA V. GSIS [37 S 315 (1971)]
Where the husband designated his
second family as beneficiaries of his life
insurance policy, upon his death, both his
first wife & second family share 50-50 in
the benefits. Since the first marriage has
not been dissolved, his wife remains as his
legal heir. Although the second marriage is
presumed void, having been contracted
during the subsistence of the first
marriage, there is a need for a judicial
declaration of its nullity, w/c is no longer
possible, the death of the husband having
terminated
the
second
conjugal
partnership of gains.
Baviera: The court should not have
applied Gomez v. Lipana, since there
is no provision in the Civil Code giving
effect to a void marriage in good
faith.

PEOPLE V. MENDOZA [95 S 845 (1954)]


A subsequent marriage contracted by any
person during the lifetime of his spouse is
illegal & void fr. its performance, & no
judicial decree is necessary to establish its
invalidity. A prosecution for bigamy based
on said void marriage will not lie.

52

PEOPLE V. ARAGON [100 P 1033 (1957)]


- cited People v. Mendoza

Baviera: As a defense in bigamy, there


is no need for judicial declaration of
nullity of a void marriage; as far as
determination of property relations is
concerned, there is a need for such
judicial declaration for purposes of
remarriage.

Art. 43.
The termination of the
subsequent marriage referred to in the
preceding Article shall produce the following
effects:
(1) The children of the subsequent
marriage conceived prior to its termination
shall be considered legitimate, & their
custody & support in case of dispute shall be
decided by the court in a proper proceeding;
(2) The absolute community of property
or the conjugal partnership, as the case may
be, shall be dissolved & liquidated, but if
either spouse contracted said marriage in
bad faith, his or her share of the net profits of
the
community
property
or
conjugal
partnership property shall be forfeited in
favor of the common children or, if there are
none, the children of the guilty spouse by a
previous marriage or, in default of children,
the innocent spouse;
(3) Donations by reason of marriage shall
remain valid, except that if the donee
contracted the marriage in bad faith, such
donations made to said donee are revoked by
operation of law;
(4) The innocent spouse may revoke the
designation of the other spouse who acted in
bad faith as beneficiary in any insurance
policy, even if such designation be stipulated
as irrevocable; &
(5) The spouse who contracted the
subsequent marriage in bad faith shall be
disqualified to inherit fr. the innocent spouse
by testate & intestate succession.
Art. 44.
If both spouses of the
subsequent marriage acted in bad faith, said

marriage shall be void ab initio & all


donations by reason of marriage &
testamentary dispositions made by one in
favor of the other are revoked by operation
of law.

Tolentino:
If the subsequent marriage is not
terminated
by
the
subsequent
reappearance or by judicial declaration, but
by death, do these effects arise?
A:
It is submitted that generally if a
subsequent M is dissolved by the death of
either spouse, the effects of dissolution of
valid M shall arise. The GF or BF of either
spouse can no longer be raised, bec., as in
annullable or voidable M, the M cannot be
questioned except in a direct action for
annulment.
But if both parties acted in BF,
under 44, the M is void ab initio. In such
case, the validity of the M can be attacked
collaterally at any time, & the effects
provided on 44 can be applied even if the
dissolution is by death of one of the
spouses.
Art. 53. Either of the former spouses
may marry again after complying w/ the
requirements of the immediately preceding
Article;
otherwise,
the
subsequent
marriage shall be null & void.
Art. 52. The judgment of annulment or
of absolute nullity of the marriage, the
partition & distribution of the properties of
the spouses, & the delivery of the
children's presumptive legitimes shall be
recorded in the appropriate civil registry &
registries of property; otherwise, the same
shall not affect third persons.
Art. 39. The action or defense for the
declaration of absolute nullity of a marriage
shall not prescribe. xxx

D.

CRIME.

Art. 38. The following marriages shall


be void fr. the beginning for reasons of
public policy:
Xxx
53

(9) Between parties where one, w/ the


intention to marry the other, killed that other
person's spouse, or his or her own spouse.

Balane:
Art. 38 (9) used to be Art. 80 (6) of the NCC.
Two changes were made: (1) the killing must
be w/ the intention to marry the other; (2)
conviction is not required, a preponderance
of evidence being sufficient.
Tolentino:
Killing of Spouse.-- It is submitted that a
criminal conviction for the killing is not
necessary to render the marriage void under
the FC. The removal of the requirement by
the FC must be taken as deliberate.
Art. 39. The action or defense for the
declaration of absolute nullity of a marriage
shall not prescribe. xxx

E.

PHYSICAL

xxx The physical incapacity referred to by


the law as a ground for A of M, is
impotence [impotentia copulandi/ coeundi
as distinguished fr. impotentia generandi
(sterility)], or that physical condition of the
H or the W in w/c sexual intercourse w/ a
normal person of the opposite sex is
impossible.
Impotence refers to lack of power to
copulate, the absence of the functional
capacity for the sexual act. The defect
must be lasting to be a ground for
annulment. The test of impotence is not
the capacity to reproduce, but the capacity
to copulate. (Sarao v. Gueverra.)
The refusal of the wife to be
examined does not create the presumption
of her impotency bec. Filipino girls are
inherently shy & bashful. The trial court
must order the physical examination of the
girl, bec. w/o proof of impotency, she is
presumed to be potent. To order her to
submit to a physical examination does not
infringe on her constitutional right against
self-incrimination
(Sempio-Dy
citing
Jimenez v. Canizares, Aug. 31, 1960.)
Triennial Cohabitation.-- This doctrine
provides that if the wife be a virgin & apt
after 3 yrs. of cohabitation, the H will be
presumed to be impotent, & the burden will
be upon him to overcome the presumption
& does not prevent impotency to be proved
by another proper evidence.

CAPABILITY.

Art. 45. A marriage may be annulled for


any of the following causes, existing at the
time of the marriage:
xxx

Balane: Some commentators say that this


is disputable presumption is applicable in
our jurisdiction.

(5)
That either party was physically
incapable of consummating the marriage w/
the other, & such incapacity continues &
appears to be incurable;
xxx

Tolentino:

Balane:
Physical Incapacity: Requisites: (1) The
incapacity exists at the time of the
celebration of the M; (2) Such incapacity
must be permanent (it continues to the time
when the case for annulment is being tried) &
incurable ; (3) It must be unknown to the
other contracting party; (4) the other spouse
must not himself/ herself be impotent.
This kind of marriage
ratified by ratification.

cannot be

Action Barred.-The action on this


ground is barred in the following cases: (1)
If the other party had knowledge of the
incurable impotence bef. the M, bec. this
would imply that he renounces copulation,
w/c is a personal right; (2) If both spouses
are impotent, & such impotence existed
bef. the M, continues, & appears incurable,
bec. in this case an impotent pltff could not
have expected copulation w/ the other
spouse.
Art. 47. The action for annulment of
marriage must be filed by the following
persons & w/in the periods indicated
herein:
xxx

Tolentino:
54

(5) For causes mentioned in numbers 5 &


6 of Article 45, by the injured party, w/in five
years after the marriage.

F.PSYCHOLOGICAL INCAPACITY.

Art. 36. A marriage contracted by any


party who, at the time of the celebration, was
psychologically incapacitated to comply w/
the essential marital obligations of marriage,
shall likewise be void even if such incapacity
becomes
manifest
only
after
its
solemnization. (As amended by E.O. No. 227)

Sempio-Dy:
Provision is Taken fr. Canon Law.-- Par. 3
of Can 1095 of the New Code of Canon Law
provides that:
"Matrimonial Consent
The following are incapable of contracting
marriage:
xxx
3.
Those who, bec. of causes of a
psychological nature, are unable to assume
the essential obligations of marriage.
The Committee decided to adopt par.
3 of the New Code of Canon Law as a ground
for the declaration of nullity of marriage for
the following reasons: (1) As a substitute for
divorce; (2) As a solution to the problem of
Church-annulled marriages; (3)
As an
additional remedy to parties who are
imprisoned by a marriage that exists in name
only as they have long separated bec. of the
inability of one of them to perform the
essential obligations of marriage.
Psychological Incapacity Distinguished
fr. Vice of Consent.-Psychological
incapacity is not a question of defective
consent but a question of fulfillment of a valid
consent.

Committee would like the judge to interpret


the provision on a case-to-case basis,
guided by experience, the findings of
experts & researchers in psychological
disciplines, & by decisions of Church
tribunals w/c, although not binding on the
civil courts, may be given persuasive effect
since the provision was taken fr. Canon
Law.
Q:
Is
the
Psychologically
Incapacitated Person Disqualified fr.
Marrying Again?
A: The Committee believes that there is no
need to disqualify the psychologically
incapacitated
fr.
contracting
another
marriage bec. the fact of his psychological
incapacity for marriage would be revealed
anyway when he applies for a marriage
license for the 2nd marriage, & the other
party is thus placed on guard to conduct
discreet investigation about the matter.
General
Characteristics
of
term
"Psychological Incapacity":
It must
exhibit gravity, antecedence & incurability:
(1) Gravity, if the subject cannot carry out
the normal & ordinary duties of marriage &
family shouldered by any average couple
existing under ordinary circumstances of
life & work; (2) antecedence, if the roots of
the trouble can be traced to the history of
the subject before the marriage although
its overt manifestation appear only after
the wedding; & (3)
incurability, if
treatments required exceed the ordinary
means of the subject, or involve time &
expense beyond the reach of the subject.
Q: Who can File the Action to Declare
the Marriage Void?
A:
Either party,
i.e., even the
psychologically incapacitated can file the
action.
Q: What is the Status of the Children
under this Article?
A: The children conceived or born before
the decree of nullity of marriage are
considered legitimate (Art. 54.)
SANTOS V. CA [240 SCRA 20 (1995)]

Psychological Incapacity Distinguished


fr. Insanity.-- Mental incapacity or insanity
of some kind, like physical incapacity, is a
vice
of
consent,
while
psychological
incapacity is not a species of vice of consent.

Meaning of "psychological incapacity"


confined to the most serious cases of
personality disorders demonstrative of
insensitivity or inability to give meaning &
significance to the marriage.

Q:
Why Were No Examples of
Psychological Incapacity Given in this
Article?
A: The Committee did not give any examples
of psychological incapacity for fear that the
giving of examples would limit the
applicability of the provisions under the
principle of ejusdem generis. Rather, the

Facts: On 9/20/86, Leouel Santos & Julia


Rosario Bedia exchanged vows bef. a mun.
trial judge of Iloilo City. They lived w/ the
wife's parents. One yr. later, a child was
born of their marriage. Quarrels marred
the marriage bec. of frequent interference
55

by Julia's parents. On 5/18/88, Julia left for


the US to work as a nurse despite Leouel's
pleas. For the first time in 7 mos. Julia called
him up by long distance promising to return
home once her contract expires in 1/89. She
never did. When Leouel was in the US in
1990 to undergo a training program under
the auspices of the AFP, he tried to locate
Julia, but to no avail. Hence this action in
Negros Oriental, under Art. 36, FC. Summons
was served by publication. Julia opposed the
complaint, claiming it was Leouel who had
been irresponsible & incompetent. But she
filed a manifestation stating she would
neither appear nor submit evidence. From an
order of the lower court dismissing the
complaint for lack of merit, & the CA
affirming said order, Leouel filed this petition
for certiorari.
HELD: It should be obvious, looking at all the
disquisition, including, & most importantly,
the deliberations of the FC Revision
Committee itself, that the use of the phrase
"psychological incapacity" in Art. 36 has not
been meant to comprehend all such possible
cases of psychoses as, likewise mentioned by
some ecclesiastical authorities, extremely low
intelligence,
immaturity,
&
like
circumstances. xxx Art. 36 cannot be taken
& construed independently of, but must
stand in conjunction w/, existing precepts in
our marriage law.
Thus correlated,
psychological incapacity should refer to no
less than a mental (not physical) incapacity
that causes a party to be truly incognitive of
the
basic
marital
covenants
that
concomitantly
must
be
assumed
&
discharged by the parties to the marriage w/,
as so expressed by Art. 68, FC include their
mutual obligations to live together, observe
love, respect & fidelity & render help &
support.
(Balane:
This is a tentative
definition of psychological incapacity.) There
is hardly any doubt that the intendment of
the law has been to confine the meaning of
"psychological incapacity" to the most
serious cases of personality disorders clearly
demonstrative of an utter insensitivity or
inability to give meaning & significance to the
marriage. This psychological condition must
exist at the time the marriage is celebrated.
xxx.

Art. 39. The action or defense for the


declaration of absolute nullity of a marriage
shall not prescribe. However, in the case of

marriages celebrated before the effectivity


of this Code & falling under Article 36, such
action or defense shall prescribe in 10
years after this Code shall have taken
effect. (As amended by E.O. No. 227)

Tolentino:
Retroactivity of Art. 36.-- By providing
for a 10-yr prescriptive period for marriages
of this nature solemnized bef. the
effectivity of the FC, the latter has actually
given a retroactive effect to the present
article.
We submit that this is a juridical
mistake. It is like an ex post facto provision
translated into the filed of civil law. It
contravenes the provisions of Art. 255 w/c
allows retroactivity of the FC provisions
only when it does not impair or prejudice
vested or acquired rights.
C. VOID MARRIAGES

ART. 35. The following marriages shall


be void fr. the beginning:
Those contracted by any party below
eighteen years of age even w/ the consent
of parents or guardians;
Those solemnized by any person not
legally authorized to perform marriages,
unless such marriages were contracted w/
either or both parties believing in good
faith that the solemnizing officer had the
legal authority to do so;
Those solemnized w/o license, except
those covered by the preceding Chapter;
Those
bigamous
or
polygamous
marriages not falling under Article 41;
Those contracted through mistake of
one contracting party as to the identity of
the other; &
Those subsequent marriages that are
void under Article 53.
ART. 36. A marriage contracted by any
party who, at the time of the celebration,
was psychologically incapacitated
to
comply w/ the essential marital obligations
of marriage, shall likewise be void even if
such incapacity becomes manifest only
after its solemnization. (As amended by
E.O. No. 227)

Tolentino:
56

Originally, this article provided that


the action to declare the nullity of this
marriage shall prescribe in 10 yrs. after its
celebration. This was repealed by EO227,
even before the FC took effect. Therefore,
the action for the declaration of nullity of this
marriage does not prescribe.
But if the marriage had been
solemnized before the FC took effect, EO 227
provides that the actions shall prescribe in 10
yrs. after the effectivity of the FC or on Aug.3,
1998.
NOTE: THERE IS A NEW LAW PASSED THIS
YR. OR LAST YEAR REMOVING THE 10 YR
PRESCRIPTIVE
PERIOD
FOR
THOSE
MARRIAGES CELEBRATED BEFORE THE FAMILY
CODE. IN OTHER WORDS, THE ACTION TO
DECLARE THE MARRIAGE NULL AND VOID,
WHETHER IT WAS CELEBRATED BEFORE OR
AFTER THE FC, IS IMPRESCRIPTIBLE.
ART. 37. Marriages between the following
are incestuous & void fr. the beginning,
whether the relationship between the parties
be legitimate or illegitimate: :
(1)
Between
ascendants
&
descendants of any degree; &
(2) Between brothers & sisters, whether
of the full or half blood.
ART. 38. The following marriages shall be
void fr. the beginning for reasons of public
policy:
(1) Between collateral blood relatives,
whether legitimate or illegitimate, up to the
fourth civil degree;
(2) Between step-parents & step-children;
(3) Between parents-in-law & children-inlaw;
(4) Between the adopting parent & the
adopted child;
(5) Between the surviving spouse of the
adopting parent & the adopted child;
(6) Between the surviving spouse of the
adopted child & the adopter;
(7) Between an adopted child & a
legitimate child of the adopter;
(8) Between adopted children of the same
adopter; &
(9) Between parties where one, w/ the
intention to marry the other, killed that other
persons spouse or his or her own spouse.
ART. 39. The action or defense for the
declaration of absolute nullity of a marriage
shall not prescribe. (However, in the case of

marriage celebrated before the effectivity


of this Code & falling under Art. 36, such
action or defense shall prescribe in 10 yrs.
after this code shall have taken effect-now
repealed)
ART. 40. The absolute nullity of a
previous marriage may be invoked for
purposes of remarriage on the basis solely
of a final judgment declaring such previous
marriage void.
ART. 41. A marriage contracted by any
person during the subsistence of a previous
marriage shall be null & void, unless before
the
celebration
of
the
subsequent
marriage, the prior spouse had been
absent for four consecutive years & the
spouse present had 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 2 years
shall be sufficient.
For the purpose of contracting the
subsequent marriage under the preceding
paragraph, the spouse present must
institute a summary proceeding as
provided in this Code for the declaration of
presumptive death of the absentee, w/o
prejudice to the effect of reappearance of
the absent spouse.

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 &
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, w/ due notice to the spouses of the
subsequent marriage & w/o prejudice to
the fact of reappearance being judicially
determined in case such fact is disputed.
ART. 43. The termination of the
subsequent marriage referred to in the
57

preceding Article shall produce the following


effects:
(1) The children of the subsequent
marriage conceived prior to its termination
shall be considered legitimate, & their
custody & support in case of dispute shall be
decided by the court in a proper proceeding;
(2) The absolute community of property
or the conjugal partnership, as the case may
be, shall be dissolved & liquidated, but if
either spouse contracted said marriage in
bad faith, his or her share of the net profits of
the
community
property
or
conjugal
partnership property shall be forfeited in
favor of the common children or, if there are
none, the children of the guilty spouse by a
previous marriage or, in default of children,
the innocent spouse;
(3) Donations by reason of marriage shall
remain valid, except that if the donee
contracted the marriage in bad faith, such
donations made to said donee are revoked by
operation of law;
(4) The innocent spouse may revoke the
designation of the other spouse who acted in
bad faith as beneficiary in any insurance
policy, even if such designation be stipulated
as irrevocable; &
(5) The spouse who contracted the
subsequent marriage in bad faith shall be
disqualified to inherit fr. the innocent spouse
by testate & intestate succession.
ART. 44.
If both spouses of the
subsequent marriage acted in bad faith, said
marriage shall be void ab initio & all
donations by reason of marriage &
testamentary dispositions made by one in
favor of the other are revoked by operation of
law.

SANTOS V. CA
Meaning
of
"psychological
incapacity"
confined to the most serious cases of
personality disorders demonstrative of
insensitivity or inability to give meaning &
significance to the marriage.
FACTS:
On 9/20/86, Leouel Santos &
Julia Rosario Bedia exchanged vows bef. a

mun. trial judge of Iloilo City. They lived w/


the wife's parents. One yr. later, a child
was born of their marriage.
Quarrels
marred the marriage bec. of frequent
interference by Julia's parents. On 5/18/88,
Julia left for the US to work as a nurse
despite Leouel's pleas. For the first time in
7 mos. Julia called him up by long distance
promising to return home once her contract
expires in 1/89. She never did. When
Leouel was in the US in 1990 to undergo a
training program under the auspices of the
AFP, he tried to locate Julia, but to no avail.
Hence this action in Negros Oriental, under
Art. 36, FC.
Summons was served by
publication. Julia opposed the complaint,
claiming it was Leouel who had been
irresponsible & incompetent. But she filed
a manifestation stating she would neither
appear nor submit evidence.
From an
order of the lower court dismissing the
complaint for lack of merit, & the CA
affirming said order, Leouel filed this
petition for certiorari.
HELD: It should be obvious, looking at all
the
discussions,
including,
&
most
importantly, the deliberations of the FC
Revision Committee itself, that the use of
the phrase "psychological incapacity" in
Art. 36 has not been meant to comprehend
all such possible cases of psychoses as,
likewise mentioned by some ecclesiastical
authorities, extremely low intelligence,
immaturity, & like circumstances. xxx Art.
36 cannot be taken & construed
independently of, but must stand in
conjunction w/, existing precepts in our
marriage
law.
Thus
correlated,
psychological incapacity should refer to no
less than a mental (not physical) incapacity
that causes a party to be truly incognitive
of the basic marital covenants that
concomitantly must be assumed &
discharged by the parties to the marriage
w/, as so expressed by Art. 68, FC include
their mutual obligations to live together,
observe love, respect & fidelity & render
help & support.
(Balane:
This is a
tentative
definition
of
psychological
incapacity.) There is hardly any doubt that
the intendment of the law has been to
confine the meaning of "psychological
incapacity" to the most serious cases of
personality disorders clearly demonstrative
of an utter insensitivity or inability to give
meaning & significance to the marriage.
This psychological condition must exist at
the time the marriage is celebrated. Xxx
58

In the book, Canons & Commentaries


on Marriage, this psychological incapacity
consists of the ff:
true inability to commit oneself to the
essential of marriage;
this inability to commit oneself must refer to
the essential obligations of marriage: the
conjugal act, the community of life &
love, the tendering of mutual help, the
procreation & education of offspring;
the inability must be tantamount to a
psychological abnormality.
The mere
difficulty of assuming these obligs, w/c
could be overcome by normal effort,
obviously does not constitute incapacity.
The
canon
contemplates
a
true
psychological disorder w/c incapacitates
a person fr. giving what is due. It must
be proved not only that the person is
afflicted by a psychological defect, but
that the defect did in fact deprive the
person at the moment of giving consent,
of the ability to assume the essential
duties of marriage & consequently of the
possibility of being bound by these
duties.

under a void marriage or w/o benefit of a


marriage. Under this prop regime, property
acquired by both spouses through their
work & industry shall be governed by the
rules on equal co-ownership & any prop
acquired during the union is prima facie
presumed to have been obtained through
their joint efforts. A party who did not
participate in the acquisition of the prop
shall still be considered as having
contributed thereto jointly if said partys
efforts consisted in the care & maintenance
of the family household. (Unlike CPG, fruits
of sep. prop. are not included in coownership)
Art. 148 This applies when the commonlaw spouses suffer fr. a legal impediment to
marry each other or when they do not live
exclusively w/ each other as husband &
wife. Only the prop acquired by both of
them
through
their
ACTUAL
joint
contributions of money, prop or industry
shall be owned in common & in proportion
to
respective
contributions.
Said
contributions are prima facie presumed to
be equal.

PI should be characterized by
gravity;
juridical antecedent; &
incurability.

Arts. 50-52 in rel to Art 102 & 109


apply only to voidable /valid marriages &
exceptionally to void marriages under Art.
40.

VALDEZ VS. RTC

DOMINGO V. CA

FACTS: AV (h) & CG(s) were married & they


begot 5 children. AV sought the declaration
of nullity of their marriage on the ground of
mutual psychological incapacity (PI) to
comply w/ their essential marital obligations.
The RTC granted said petition & ordered them
to liquidate their properties accdg to Art. 147
of the FC in relation to Arts. 50-52 .
The
question is WON Arts. 50-52 in relation to
Arts. 102 & 109 govern such liquidation of
prop in void ab initio marriages based on Art.
36.

A spouse may petition for the declaration


of nullity of her marriage for a purpose
other than her remarriage.

HELD: NO. In void marriages, regardless of


the cause thereof, the prop. relations of the
parties during the pd of cohabitation is
governed by Arts. 147 or 148.
Art. 147 This peculiar kind of ownership
applies when a man & a woman, suffering no
legal impediment to marry each other, so
exclusively live together as husband & wife

FACTS:
Delia Domingo filed a pet.
for decl. of nullity of her marriage w/
Roberto Domingo, on the ground that,
unknown to her, he was previously married
at the time of their marriage. She prays
that their marriage be declared null & void
&, as a consequence, to declare that she is
the exclusive owner of all properties she
acquired during the marriage & to recover
them fr. him.
Roberto moved to dismiss the
petition on the ground that the marriage
being void ab initio, the petition for decl. of
nullity is unnecessary citing Peo. v. Aragon
& Peo. v. Mendoza. Roberto claims that
decl of nullity is necessary under Art. 40,
FC only for the purpose of remarriage. The
59

lower court denied the motion. CA affirmed


the denial.

litigation was characterized by a no-holds


barred contest & not by collusion.

HELD:
The Declaration of nullity of a
marriage under Art. 40 may be resorted to
even for a purpose other than remarriage.

GOMEZ V. LIPANA

Crucial to the proper interpretation of


Art. 40 is the position of the word "solely."
xxx. As it is placed, it is meant to qualify
"final judgment." Had the provision been
stated as follows: "The absolute nullity of a
previous marriage may be invoked solely for
purposes of remarriage...," the word "solely"
will qualify "for purposes of remarriage" & the
husband would have been correct.
That Art. 40 as finally formulated
included the significant clause denotes that
such final judgment declaring the previous
marriage void need not be obtained only for
purposes of remarriage.
TUASON VS. CA
FACTS: VT filed a pet for annulment or
declarations of nullity of her marriage to ET
on grds of psy incapacity of ET who was a
druggie, physically abusive, etc. ET in his
answer alleged that it was VT who was a
druggie. Bec ET was not able to attend one
of the scheduled hearings, the LC decided on
the basis of VTs evid & ruled in her favor. VT
filed for Dissolution of their CPG. ET filed a
pet for Relief of Jdmt of the dec. annulling the
marriage.
HELD: The order for annulment of their
marriage was valid. A final & executory jdmt
or order of the RTC may be set aside on the
grd of fraud, accident, mistake or excusable
negligence (FAME). The failure of his counsel
to notify his in not excusable bec notice sent
to counsel is binding upon the client.
The absence of the prosecuting officer
did not render the order void although in
granting annulment of marriage & legal sep,
the pros. Atty. or fiscal is ordered to appear
on behalf of the State for the purpose of
preventing any collusion bet. the parties & to
take care that their evidence is not fabricated
or suppressed(Arts. 48 & 60 of FC), bec in the
CAB, ET actively participated in the
proceedings by filing several pleadings &
cross-examining the witnesses of his wife. It
is crystal clear that every stage of the

FACTS: J contracted 2 marriages in his life,


one w/ M in 1930 & another w/ I in 1939. In
1943 J & I acquired a lot in Cubao. In 1958
I died intestate. Pets, as Is heirs, filed an
action for forfeiture of Js share in the prop.
Under the existing law (OCC), a party who
has caused the nullity of the marriage shall
have no part in the CPG.
HELD: Where a husband & his second wife
fr. whom he concealed his first marriage,
acquired properties during their marriage,
the second marriage being void, is subject
to collateral attack in the intestate
proceedings instituted by the judicial
administratrix for the forfeiture of the
husband's share under Article 1417,
Spanish Civil Code (no longer in force) .
"The legal situation arising fr. these facts is
that while insofar as the second wife was
concerned, she having acted in good faith,
her marriage produced civil effects & gave
rise, just the same, to the formation of the
conjugal partnership wherein she was
entitled
to
an
equal
share
upon
dissolution." The only JUST AND EQUITABLE
solution is to give one-half of the properties
to the second wife, & the other half to the
conjugal partnership of the first marriage.
VDA. DE CONSUEGRA V. GSIS
FACTS: JC contracted 2 marriages. One w/
RD & the 2nd w/ BB (iloveyoubb!). When JC
died, the proceeds of his LIFE INSURANCE
POLICY were paid to BB & children bec they
were the beneficiaries named in the policy.
JC also had RETIREMENT INSURANCE
BENEFITS but w/o any beneficiaries named.
RD filed a claim as JCs only legal heir. BB
also filed a claim stating that since they
were the beneficiaries in the Life insurance
policy, they are the ones entitled to receive
the ret. Ins benefits. The GSIS & the LC
ruled that RD was entitled to 1/2 & BB &
children were also entitled to 1/2.
HELD: Affirmed. The LC correctly cited
the case of Lao v. Dee Tim wherein it was
held that: since the first marriage has not
been dissolved or declared void, the CPG
established by that marriage has not
ceased. Nor has the first wife lost or
60

relinquished her status as putative heir of her


husband under the NCC, entitled to share in
his estate upon his death should she survive
him.. Although the second marriage is
presumed void ab initio, having been
contracted during the subsistence of the first
marriage, there is a need for a judicial
declaration of its nullity. And inasmuch as the
conjugal partnership formed by the 2nd
marriage was dissolved before judicial
declaration of nullity, the only just &
equitable solution in this case would be to
recognized the right of the 2nd wife to her
share of 1/2 in the prop acquired by her
husband, & consider the other half as
pertaining to the CPG of the first marriage.

by 2nd marriage bec their marriage was


void by operation of law.
PEOPLE V. ARAGON
Same as People v. Mendoza
Baviera: As a defense in bigamy, there
is no need for judicial declaration of
nullity of a void marriage; as far as
determination of property relations is
concerned, there is a need for such
judicial declaration for purposes of
remarriage.

D. VOIDABLE MARRIAGE
Baviera:
The court should not have
applied Gomez v. Lipana, since there is
no provision in the Civil Code giving
effect to a void marriage in good faith.

NOTES: Under the NCC, there is a need for a


jud declaration of nullity of marriage for the
purpose of marrying again. The old rule that
a marriage w/c is void ab initio need no
judicial decree of nullity is abandoned for the
purpose of remarriage. Thus, under the FC,
even if the marriage is one that is void fr. the
beginning, the 2nd marriage would still be
void if the parties to the 1 st marriage did not
have that marriage decreed a nullity.
This is also for the purpose of
protecting the parties of the 2nd marriage fr.
prosecution for bigamy.
PEOPLE V. MENDOZA
FACTS: M married J in 1936. During the
subsistence of this marriage, M again married
O in 1941. The 1st wife died in 1943 so M
married C in 1949. This last marriage gave
rise to his prosecution for bigamy.
HELD: M is not liable for bigamy. The law in
force at the time M contracted the 2nd
marriage provided that a subsequent
marriage contracted by any person during
the lifetime of his spouse is illegal & void fr.
its performance, & no judicial decree is
necessary to establish its invalidity.
Thus, when M married C, he was
suffering NO impediment as it can be
considered that he has no spouse by 1st
marriage bec. she died, & he had no spouse

1. GROUNDS
ANNULMENT

FOR

Art. 45 FC. A marriage may be annulled


for any of the following causes, existing at
the time of the marriage:
That the party in whose behalf it is
sought to have the marriage annulled was
18 yrs. old or over but below 21, & the
marriage was solemnized w/o the consent
of the parents, guardian or person having
substitute parental authority over the
party, in that order, unless after attaining
the age of 21, such party freely cohabited
w/ the other & both lived together as
husband & wife;
That either party was of unsound mind,
unless such party after coming to reason,
freely cohabited w/ the other as husband &
wife;
That the consent of either party was
obtained by fraud, unless such party
afterwards, w/ full knowledge of the facts
constituting the fraud, freely cohabited w/
the other as husband & wife;
That the consent of either party was
obtained by force, intimidation or undue
influence, unless the same
having
disappeared or ceased, such party
thereafter freely cohabited w/ the other as
husband & wife;
That either party was physically
incapable of consummating the marriage
w/ the other, & such incapacity continues &
appears to be incurable; or

61

That either party was afflicted w/ a


sexually-transmissible diseases found to be
serious & appears to be incurable.

agreement to marry Cruz in fear. Marias


grandfather testified that his son (uncle)
pointed a gun at him when he tried to stop
the latter fr. forcing Maria to marry Cruz.

JIMENEZ VS. CANIZARES (109 P 273)

Concurring (Gatmaitan):
Marriage
license was secured on the same day that
it was applied for. It was therefore void for
lack of the required 10 days of publication.

Facts: J filed an axn for annulment of his


marriage on the ground that the orifice of his
wifes genitalia was too small to allow the
penetration of a male organ for copulation.
The wife did not file an answer nor attend the
hearings. She refused to submit to a medical
examination.
Issue :WON marriage may be annulled solely
on the basis of the husbands testimony
Held : No.
The existence of the legal
grounds enumerated by law must be proved
by indubitable evidence to annul a marriage.
The presumption is in favor of potency; the
husbands testimony alone is insufficient
evidence. The wife must submit to a physical
examination w/c in CAB is not selfincriminating as she isnt being charged w/ a
crime. Wifes refusal to be examined doesnt
give rise to the presumption arising out of
suppression of evidence, i.e., that it is
adverse. Women of this country are shy by
nature & wouldnt submit to a physical
examination unless compelled by competent
authority.
PAULINO V. CRUZ (4 C.A. REP 1207)
Facts: Maria Paulino filed an axn to annul her
marriage to Cruz on the ground that her
uncle made her sign documents - w/c turned
out to be an application for a marriage
license & marriage contract - through force,
threat,
intimidation
&
fraudulent
misrepresentation. Maria didnt cohabit w/
Cruz, but was convicted of adultery when she
ran away w/ Patricio Cabrera 19 days after
the alleged marriage.
Issue: WON marriage may
despite conviction of adultery

be

annulled

Held: Yes. The conviction of adultery is


immaterial;
a married woman may be
convicted of adultery even if the marriage is
subsequently declared void.
Marias
testimony showed that her uncle slapped her
& pushed her head against a post so that
Maria signed what was supposed to be an

TOLENTINO :
Party of Unsound Mind. (45.2) -- The
test of unsoundness of mind is WON the
party at the time of the M was capable of
understanding the nature & consequences
of the M. Insanity must exist at the time of
the M, to avoid it.
Somnambulism has the same effect
as insanity. (Sanchez Roman.)
Burden of Proof -- Presumption of the law
is generally in favor of sanity, & he who
alleges the insanity of another has the
burden of proving it. But once general
insanity is proved to exist, it is presumed to
continue; & if a recovery or a lucid interval
is alleged, the burden to prove such
allegation is on the person making it.
Ratification -- Par. 2 gives the right of
action to annul to the insane spouse &
provides for ratification after regaining
reason. No right of action is given to the
sane spouse; this is based on the
assumption that he knew of the insanity of
the other party & is placed in estoppel. But
if he did not know of such insanity at the
time of the M, he is given a right of action
under Art. 47 par. 2, any time before the
death of the insane spouse.
Sexually Transmissible Disease. (45.6)
-- The reason for this cause for A is the
danger to the health of the other spouse &
offspring, giving rise to possibility of
avoidance of sexual relations, & the failure
to attain one of the purpose of M, that is,
the procreation of children & raising of a
family.
Ratification of Voidable Marriage.-The law does not fix a definite period
during w/c this cohabitation should last in
order to constitute ratification. xxx It is
submitted that when the cohabitation has
continued for such a length of time, after
the cause of nullity has ceased to exist, as
to give rise to a reasonable inference that
the party entitled to bring the action for
nullity prefers to continue w/ the M, there is
ratification w/c purges the M of its original
defect.

62

Ratification refers to the right of


action itself; prescription refers only to the
remedy. There can be no remedy where
there is no more right of action.
Marriages Not Subject to Ratification
(the law does not provide for their
ratification):
Where one of the spouses is incurably
impotent;
Where one of the spouses has an incurable
sexually transmissible disease;
The defect of the M in these 2 cases is
not one that merely affects consent.
Ratification cures a defect in consent; it
cannot cure a physical defect.
The action to annul in these cases will
exist as long as the period of prescription has
not expired.
A marriage where a sane spouse marries an
insane spouse w/o the knowledge of the
insanity. Although the insane spouse can
ratify the M after recovering reason, the
sane spouse cannot be barred fr. asking
for A even if he has continued to cohabit
w/ the insane spouse after learning of
such insanity.
BALANE :
Force, Intimidation & Undue Influence.-Definitions of "violence," "intimidation," &
"undue influence" are in Arts. 1335 to 1337
NCC.
Art. 1335. There is violence when in
order to wrest consent, serious or irresistible
force is employed.
There is intimidation when one of the
contracting parties is compelled by a
reasonable & well-grounded fear of an
imminent & 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 & condition of the person shall
be borne in mind.
A threat to enforce one's claim through
competent authority, if the claim is just or
legal, does not vitiate consent.
Art. 1336. 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. 1337. There is 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. The ff. circumstances
shall be considered:
the confidential,
family, spiritual & other relations between
the parties, or the fact that the person
alleged to have been unduly influenced
was suffering fr. mental weakness, or was
ignorant or in financial distress.
Sexually-Transmissible
Disease.
-Requisites: (1) Disease must be sexually
transmissible; (2) Disease is found to be
serious; (3)
It must be apparently
incurable; (4) STD must exist at the time
of the marriage; (5) It was unknown to the
other party when the M was solemnized; &
(6) the other party must himself/ herself
be free fr. STD. A marriage where either
party was afflicted w/ STD may not be
ratified by cohabitation bec. cohabitation
may be suicidal.
Note: There are 2 voidable marriages w/c
cannot be ratified: (1) voidable marriage
bec. of impotence (here, there will be
contradiction in terms; how can you
cohabit if you are impotent?); & (2)
voidable marriage due to STD.
Art. 46 FC.
Any of the following
circumstances
shall
constitute
fraud
referred to in No. 3 of the preceding Article:
(1) Non-disclosure of a previous
conviction by final judgment of the other
party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact
that at the time of the marriage, she was
pregnant by a man other than her
husband;
(3)
Concealment
of
sexually
transmissible disease, regardless of its
nature, existing at the time of the
marriage; or;
(4) Concealment of drug addiction,
habitual alcoholism or homosexuality or
lesbianism existing at the time of the
marriage.

63

No other misrepresentation or deceit as to


character, health, rank, fortune or chastity
shall constitute such fraud as will give
grounds for action for the annulment of
marriage.

BUCCAT VS. BUCCAT [72 P 19]


There has been no misrepresentation
or fraud when the husband at the time of the
marriage knew that the wife was pregnant;
the marriage cannot be annulled. The child
was born less than 3 months after the
celebration of the marriage. As the woman
was at an advanced stage of pregnancy at
the time of the marriage, such condition must
have been patent to the husband.
ANAYA VS. PALAROAN [36 S 97]
Husbands non-disclosure to his wife of his
premarital relationship w/ another woman,
who was his relative, does not constitute the
fraud w/c is a ground for annulment of
marriage. Fraud as a vice of consent in
marriage is limited exclusively by law to
those kinds or species of fraud enumerated in
the provision. Congress intention to confine
the circumstances that can constitute fraud
as a ground for annulment may be deduced
fr. the fact that, of all the causes of nullity
enumerated in the article, fraud is the only
one given special treatment in a subsequent
article w/in the chapter on void & voidable
marriages.
TOLENTINO :
Marriage through Fraud.-- FC limits the
cases w/c would constitute fraud sufficient for
annulment of M to those enumerated in Art.
46. Bec. of the enumeration, w/c must be
considered as restrictive, no other case of
fraud may be admitted.
Concealment of Pregnancy.-- Where a
man has had sexual intercourse w/ his wife
before the M, & she is pregnant at the time of
M, although he may not be the author of the
pregnancy, the M will not be annulled. This is
based on the theory that there is no fraud,
bec. the man knows his wife to be unchaste,
as he was himself a party to her premarital
immorality.
Concealment of Diseases.-- Compared w/
Art. 45 (6):

Under 45 (6), STD is an independent cause


for annulment. Under 46, concealment
of a STD constitutes fraud under par. 3.
Under 45 (6), the STD existing at the time
of the M must be found to be serious &
appear to be incurable. Under Art. 46
(3), the STD need not be serious or
incurable. To be aground for A, it must
have been "concealed" by the sick
party. It is the fraud that is the ground
for A.
This difference has a very impt.
consequence. If the disease falls under Art
45 (6), the M is not subject to ratification
by continued cohabitation. If the disease
falls under Art. 46 (3), the ground for A is
fraud, & the M is ratified under par. 3 of Art.
45, if the spouse who is well, after knowing
of the disease of the other, continues to
cohabit w/ him or her as H & W.
Effect of Cure
-- Rehabilitation or
recovery will not bar the action. The defect
of the M is not the disease, addiction or
alcoholism itself but the fraud w/c vitiated
the consent of the other party.
BALANE:
To find what crimes involve moral
turpitude, you go by decisions of the SC.
Crimes against property are generally
considered crimes of moral turpitude.
Homosexuality.-- Sexual orientation is
not enough. One has to be a practicing
homosexual.
2. ACTION

FOR

ANNULMENT

Art. 47 FC. The action for annulment of


marriage must be filed by the following
persons & w/in the periods indicated
herein:
(1) For causes mentioned in no. 1 of
Art. 45, by the party whose parent or
guardian did not give his or her consent
w/in 5 years after attaining the age of 21,
or by the parent or guardian or person
having legal charge of the minor, at any
time before such party has reached the age
of 21;
(2) For causes mentioned in no. 2 of
Art. 45, by the sane spouse, who had no
knowledge of the other's insanity or by any
relative or guardian or person having legal
charge of the insane at any time before the
death of either party, or by the insane
64

spouse during a lucid interval


regaining sanity;

or after

(3) For causes mentioned in no. 3 of Art.


45, by the injured party, w/in five years after
discovery of the fraud;
(4) For causes mentioned in no. 4 of Art.
45, by the injured party, w/in five years fr. the
time the force, intimidation or undue
influence disappeared or ceased;
(5) For causes mentioned in nos. 5 & 6 of
Art. 45, by the injured party, w/in 5 years
after the marriage.

BAVIERA:
What in 1988 if wife
discovered husband had a venereal
disease 2 years after the marriage?
A: Apply Art. 47(5)

ART. 48 FC. In all cases of annulment or


declaration of absolute nullity of marriage,
the Court shall order the prosecution atty. or
fiscal assigned to it to appear on behalf of the
State to take steps to prevent collusion
between the parties & to take care that
evidence is not fabricated or suppressed.
In the cases referred to in the preceding
paragraph, no judgment shall be based upon
a stipulation of facts or confession of
judgment.
Art. 49 FC. During the pendency of the
action & in the absence of adequate
provisions in a written agreement between
the spouses, the Court shall provide for the
support of the spouses & the custody &
support of their common children. The Court
shall give paramount consideration to the
moral & material welfare of said children &
their choice of the parent w/ whom they wish
to remain as provided for in Title IX. It shall
also provide for appropriate visitation rights
of the other parent.

TOLENTINO VS. VILLANUEVA [56 S 1]


Facts: Tolentino filed an axn to annul his
marriage to Helen based on fraud, as he
discovered immediately after the marriage
that Helen was pregnant despite their having
no sexual relations (i.e., Helen left the house

immediately
after
the
marriage
celebration). Helen was declared in default
when she failed to file a responsive
pleading despite service of summons. CFI
also ordered the fiscal to determine WON
there was collusion, but Tolentino refused
to show his evidences to the fiscal & to
submit to his interrogation.
Issue: WON CFI correctly dismissed the
axn due to the fiscals lack of intervention
Held: Yes. The fiscals investigation is a
prerequisite to annulment where the
defendant defaulted.
Marriage is more
than a mere contract, thus, the prohibition
against annulling a marriage based on a
stipulation of facts or by confession of
judgment or by non-appearance of
defendant. When the defendant fails to
appear, the law enjoins the Court to direct
the prosecuting officer to intervene for the
State.
JOCSON VS. ROBLES [22 S 521]
Facts :Gloria Jocson filed an axn for
annulment & for damages on the ground
that her marriage to Robles was bigamous
(she discovered that he had married a
Josefina Fausto 1st). Robles also claimed
that their marriage was invalid bec. he had
been coerced to marry her by her parents
& brothers. He filed a M for summary
judgment supported by affidavits of the
Gloria's father & brothers. Gloria also
submitted the case for judgment on the
pleadings.
The court denied both, &
dismissed the case when both failed to
attend a scheduled hearing..
Issue: WON
correct

denials

&

dismissal

was

Held: Yes. The court correctly denied the


motion for summary judgment in view of
the Civil Code provisions (Arts. 88 & 1011)
expressly prohibiting the rendition of a
decree of annulment of marriage upon a
stipulation of facts or a confession of
judgment.
The affidavits of the wife's
father & brothers amounts to these
methods not countenanced by the Civil
Code.

65

VILLAROMAN VS. ESTEBAN


11736]

[73 O.G.

Facts: Jorge V. & Carmencita E. claimed that


they were 25 & 23 yrs. old, respectively,
when they applied for their marriage license.
Jorge was really only 18 yrs. old. For awhile,
Jorge stayed w/ Carmencita in Manila on
weekends but stayed & studied in Baguio (as
shown by his transcripts) most of the time,
but when he turned 19 & 9 mos. old, he
abandoned her & their child. Jorge filed an
axn to annul the marriage on the basis of age
& lack of parental consent.
Carmencita
contends that he is estopped as he himself
stated that he was 25 on the marriage
license.
Issue: WON marriage was null & void
Held: Yes. The principle of estoppel cannot
apply to defeat a suit for annulment on the
ground that plaintiff was not of age when he
contracted marriage. The legal capacity of
the contracting parties is a matter of law.
The causes for annulment enumerated by
(then) Art. 85 CC, including the ages (<20
yrs. if male & <18 yrs. if female) of the
contracting
parties
requiring
parental
consent, cannot be modified or altered by
their joint acts or omissions, or by that of
either of them. Further, staying w/ the wife
only on Sats. & Sundays indicates transient
sexual intercourse, not cohabitation. This, &
the conduct of the man in abandoning his
wife before reaching the age of majority or
even, accdg to his wife, 9 mos. after he
attained legal age, negates the intention on
his part to confirm or ratify a defective
marriage by cohabiting & living w/ the
woman as her husband.
TOLENTINO :
Insanity. Where the sane spouse knew of
the insanity of the other, he is estopped to
seek annulment where he has lived w/ the
wife claimed to have been insane for several
years & children have been born to them.
Conviction of Crime: Requisites: (1) The
crime involves moral turpitude & (2) There
has been a conviction.
Effect of Collusion.-- If the parties succeed
in obtaining a decree of annulment by
collusion notw/standing observance of Art.
48, such decree must be held to be
absolutely void if no cause really existed. It
would be against public policy.

Action to Annul Marriage.-- Annulment


of M is an action in rem, for it concerns the
status of the parties, & status affects or
binds the whole world. The res is the
relation bet. the parties, or their marriage
tie.
BALANE :
Marriage under 45(3) & 47(3) can
be ratified by cohabitation for a reasonable
period w/c may set in even before the 5-yr.
prescriptive period has expired.
3. EFFECT

OF

ANNULMENT

Art. 50 FC. The effects provided for by


paragraphs (2), (3), (4) & (5) of Article 43 &
by Article 44 shall also apply in the proper
cases to marriages w/c are declared void
ab initio or annulled by final judgment
under Articles 40 & 45.
The final judgment in such cases shall
provide for the liquidation, partition &
distribution of the properties of the
spouses, the custody & support of the
common children, & the delivery of their
presumptive legitimes, unless such matters
had been adjudicated in previous judicial
proceedings.
All creditors of the spouses as well as of
the absolute community or the conjugal
partnership shall be notified of the
proceedings for liquidation.
In the partition, the conjugal dwelling &
the lot on w/c it is situated, shall be adjudicated in accordance w/ the provisions of
Articles 102 & 129.
Art. 51 FC. In said partition, the value of
the presumptive legitimes of all common
children, computed as of the date of the
final judgment of the trial court, shall be
delivered in cash, property or sound
securities, unless the parties, by mutual
agreement judicially approved, had already
provided for such matters.
The children or their guardian, or the
trustee of their property, may ask for the
enforcement of the judgment.
The delivery of the presumptive
legitimes herein prescribed shall in no way
66

prejudice the ultimate successional rights of


the children accruing upon the death of
either or both of the parents; but the value of
the properties already received under the
decree of annulment or absolute nullity shall
be considered as advances on their legitime.
NOTE: The word 'delivered' in par. 1 is
wrong according to DLC as it is violative
of Art. 777; it is contrary to principles of
succession.

Art. 52 FC. The judgment of annulment or


of absolute nullity of the marriage, the
partition & distribution of the properties of
the spouses, & the delivery of the children's
presumptive legitimes shall be recorded in
the appropriate civil registry & registries of
property; otherwise, the same shall not affect
their persons.
Art. 53 FC. Either of the former spouses
may marry again after complying w/ the
requirements of the immediately preceding
Article; otherwise, the subsequent marriage
shall be null & void.
Art. 54 FC. Children conceived or born
before the judgment of annulment or
absolute nullity of the marriage under Article
36 has become final & executory shall be
considered legitimate. Children conceived or
born of the subsequent marriage under
Article 53 shall likewise be legitimate.
Art. 165 FC. Children conceived & born
outside a valid marriage are illegitimate,
unless otherwise provided in this Code.
(referring to Art. 54.)

BAVIERA: If child was conceived or born


before final judgment of a void or
annullable
marriage,
it
is
still
legitimate.
TOLENTINO:
Effects of Voidable Marriages.-A
voidable marriage is valid & produces all its
civil effects, until it is set aside by judgment
of a competent court in an action for
annulment.
Under the FC, the rule applicable to
marriages void fr. the beginning applies to
voidable marriages. (see Art. 50, FC. )

As to children born in voidable


marriages, the NCC & the FC have the
same rule; the children are legitimate.
Effects of the Setting Aside Any
Defective Marriages (whether void ab
initio, or voidable, or a subsequent
marriage terminated upon reappearance of
a spouse presumed to be dead):
(1) There will be a liquidation, partition, &
distribution of the properties of the
spouses.
Liquidation involves the inventory of
the properties & payment of the obligations
of the spouses & of the marriage.
Partition is the process in w/c the
remaining properties will be divided into
the various portions to be allocated to all
the parties.
Distribution is the delivery to the
spouses & the children, in the proper cases,
of the shares or properties allocated to
them respectively in the partition.
(2)
In determining the share of each
spouse in the properties of the M, the
properties, or their value, that had been
donated in consideration of M by the
innocent spouse to the spouse in BF, shall
be revoked by operation of law & returned
to the innocent spouse to become part of
his distributable prop.
(3) The children conceived or born bef. the
judgment becomes final are considered
legitimate. The judgment shall provide for
their custody & support. Their presumptive
legitime fr. each parent (as if the parent
died & they inherit fr. him or her on the
date of final judgment) shall be delivered to
them in cash, prop. or securities.
(4) The innocent spouse may revoke the
designation of the spouse in BF as
beneficiary in the former's life insurance
policy.
(5) The spouse in BF shall be disqualified
to inherit fr. the innocent spouse even
under a will or testament.
(6) The conjugal dwelling & the lot on w/c
it is built will be given to the spouse w/
whom the common children choose to
remain, unless the parties agree otherwise.
(7)
If both spouses acted in BF, all
donations by reason of M fr. one to the
other, & all testamentary provisions made
by one in favor of the other, are revoked by
operation of law.

67

(8) The judgment, the partition & distribution


of the prop. of the spouses, & the delivery of
the children's presumptive legitimes shall be
recorded in the appropriate civil registry.
(9)
After all the foregoing, the former
spouses are free to marry again; otherwise,
the subsequent M shall be void.
Liability for Damages.-- [I]t is submitted
that in an appropriate case, damages may be
recovered by an injured party fr. another
responsible for the nullity of a void or
voidable marriage. The basis of the liability
will be the commission of an unlawful act or
BF. Arts. 20 & 21 of the NCC can serve as the
legal basis for an action for damages.
BALANE:
General rule:
Children of voidable marriage are legitimate.
Children conceived & born of a void marriage
are illegitimate. There are two exceptions
(Art. 54 FC):
1. Art. 36 (psychological incapacity)
2. Art. 53
E. CONFLICT OF LAW RULE

Art. 26 FC. All marriages solemnized


outside the Philippines in accordance w/ the
laws in force in the country, where they were
solemnized, & valid there as such, shall also
be valid in this country, except those
prohibited under Articles 35 (1), (4), (5) & (6),
36, 37, 38.
Where a marriage between a Filipino
citizen & a foreigner is validly celebrated & 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 E.O. 227, dated July 17,
1987.)
Art. 35
(1) - below 18
(4) - bigamous or polygamous
(5) - mistake as to identity
(6) - non-registration w/ the LCR of the ff:
judgment of annulment or absolute nullity
of the marriage
partition & distribution of properties of the
spouses
delivery of the children's presumptive
legitimes

Art. 36 - psychological incapacity


Art. 37 - incestuous marriages
Art. 38 - marriages that are void as
against public policy.

BAVIERA: Art. 26 par. 2 applies only to


mixed marriages & not to a spouse
who has become naturalized, i.e.,
doesnt apply to a Filipino spouse who
thereafter becomes a US citizen &
then divorces his spouse, who is still a
Filipino.
Bar Q: In 1971, A & B, both Filipinos,
got
married.
In
1980,
they
established life in the US. In 1987,
they both applied for & were granted
US citizenship.
In 1989, A, the
husband, successfully applied for
divorce. In 1990, he married another
woman. Valid?
A: Divorce was valid. Both became
US citizens before they filed for
divorce. American law governs.

VAN DORN VS. ROMILLO [139 S 139 ]


Facts: Alice Reyes is a Filipino citizen. She
married Richard Upton, a US citizen, in HK.
They resided in the Phils. & had 2 children.
In 1982, they obtained a divorce in Nevada,
where Alice later remarried Theodore Van
Dorn. In 1983, Upton filed a suit in RTCPasay City to ask for an accounting & to
obtain the right to manage Alices shop
(The Galleon Shop in Ermita), alleging that
it was conjugal property.
Issue: Effect of foreign divorce on the
parties
Held: Pursuant to his national law, Upton
is no longer Alices husband & he has no
standing to sue as her husband entitled to
exercise control over conjugal assets. He is
estopped by his own representation before
the Nevada court fr. asserting his rights
over alleged conjugal property in the Phils.
To maintain, as the husband does, that
under our laws, the wife has to be
considered still married to him & still
subject to a wife's obligations under CC
cannot be just. In CAB, the wife should not
68

be obliged to live together w/, observe


respect & fidelity, & render support to her
husband, & he should not continue to be one
of her heirs w/ possible rights to conjugal
property. She should not be discriminated
against in her own country if the ends of
justice are to be served.

Art. 26 par. 1 of the FC is a


domestic, internal rule applicable only to
Filipino nationals.
However, universally
incestuous marriages-- such as those bet.
parents & children or bet. brothers &
sisters-will be considered void here,
whatever may be the nationality of the
spouses.

BAVIERA: The second paragraph of Art.


26 was brought about by the ruling of
the SC in Van Dorn v. Romillo.

As a general rule, a marriage should


be upheld if valid according to the law of
the place of celebration, unless the M itself
or the enjoyment of the incidents of the
marital relationship would offend the
strongly-held notions of decency & morality
of a State that has a close relationship to
the contracting parties.

JOVITO SALONGA, Private International


Law II, 1995 ed. :
Philippine Law on Formal Validity.-- Phil.
law adheres to the imperative rule: a
marriage formally valid where celebrated is
valid elsewhere (the maxim locus regit actum
is applied compulsorily; the law of the place
of celebration, the lex loci celebrationis, is
solely decisive.)
Par. 1 of Art. 17, NCC
embodies the maxim locus regit actum: "The
forms & solemnities of contracts, wills, &
other public instruments, shall be governed
by the laws of the country in w/c they are
executed."
To establish a valid foreign marriage, 2
things must be proven, namely, (1) the
existence of the foreign law as a question of
fact; & (2) the alleged foreign marriage by
convincing evidence.
(Yao Kee v. SyGonzales, supra.)
Marriage by Proxy.-Proxy marriages,
where permitted by the law of the place
where the proxy participates in the marriage
ceremony, are entitled to recognition in
countries
adhering
to
the
lex
loci
celebrationis rule, at least insofar as formal
validity is concerned.
BAVIERA:
Marriage by proxy abroad
affects formal requisite only. It can be
argued as valid.

SALONGA (contd.):
Philippine Law on Substantive Validity.-W/ reference to marriages celebrated abroad,
Phil. law primarily refers to the law of the
place of celebration. xxx The general rule
expressed in the formula "valid where
celebrated, valid everywhere" admits of at
least 2 exceptions: (1) in the case of Filipino
nationals who marry abroad before Phil.
consular or diplomatic officials; (2) in the
saving clause of Art. 26 par. 1.

Art. 26 par. 2 applies to a situation


where the alien spouse was the one who
obtained the divorce decree abroad
capacitating him or her to remarry, in w/c
case the Filipino spouse shall likewise have
the capacity to remarry.
TOLENTINO:
This rule seems to place a Filipino citizen
on a plane of inequality. The reason for this
is that our law does not allow the Filipino to
seek a foreign divorce, hence, if he obtains
one, it is not recognized in the Phils. He is
subject to the Phil. law on status, wherever
he goes.
BALANE:
If the marriage w/c is solemnized abroad is
void under Phil. law, it is considered void in
the Phils.
Exceptions: Art. 35, paragraphs 2 & 3.
This is the only instance where we
recognized foreign divorce. Take note that
the requirements in Art. 52 need not be
complied w/ bec. there is no such
requirement in Art. 26, par. 2.
Requisites.-- There are four requisites for
this Article to apply:
The marriage must be one between a
Filipino & a foreigner
Divorce is granted abroad.
Divorce must have been obtained by the
alien spouse
Divorce must capacitate the alien spouse
to remarry.
Query: Suppose the foreign spouse was a
former Filipino citizen.
Does the law
require that the foreign spouse was already
a foreigner at the time the marriage was
contracted?
A: There is no Supreme Court ruling on
this. But a 1993 DOJ opinion tells us that
69

Art. 26 does not require that the alien spouse


was already a foreigner at the time of the
marriage.
F. MUSLIM CODE (P.D. 1083)
Art. 13. (1) Application. The provisions of
this Title shall apply to marriage & divorce
wherein both parties are Muslims, or wherein
only the male party is a Muslim & the marriage is solemnized in accordance w/ Muslim
law or this Code in any part of the Philippines.
(2) In case of a marriage between a
Muslim & non-Muslim, solemnized not in
accordance w/ Muslim law or this Code
(Muslim Code), the Civil Code of the
Philippines shall apply.
Art. 29. (1) (Subsequent Marriage) By
divorcee - (1) No woman shall contract a
subsequent marriage unless she has
observed an idda of three monthly courses
counted fr. the date of divorce. However, if
she is pregnant at the time of the divorce,
she may remarry only after delivery.

BAVIERA: Q: A Christian woman married


a Muslim under the Muslim Code. Then
they got married under Catholic rites.
Muslim divorced her.
Can the wife
remarry?
A: Yes, if she observes the conditions of
Art. 29, PD 1803. The first marriage
celebrated under the Muslim Code
governs. The church rites just ratified
the first marriage.

G. PENAL SANCTIONS - ACT 3613,


THE MARRIAGE LAW, SECS. 30-42
* Secs. 30-36 were superseded by New Civil
Code; now Title I of Family Code
Sec. 37. Influencing parties in religious
respects. - Any municipal secretary or clerk of
the Municipal Court (now Local Civil
Registrar), who directly or indirectly attempts
to influence any contracting party to marry or
refrain fr. marrying in any church, sect, or
religion or before any civil authority, shall be
guilty of a misdemeanor & shall, upon
conviction
thereof,
be
punished
by

imprisonment for not more than one month


& a fine of not more than two hundred
pesos.
Sec. 38. Illegal issuance or refusal of
license. - Any municipal secretary (now
Local Civil Registrar) or clerk of the
Municipal Court of Manila (Local Civil
Registrar) who issues a marriage license
unlawfully or who maliciously refuses to
issue a license to a person entitled thereto
or fails to issue the same w/in twenty-four
hours after the time when, according to
law, it was proper to issue the same, shall
be punished by imprisonment for not less
than one month nor more than two years,
or by a fine of not less than two hundred
pesos nor more than two thousand pesos.
Sec. 39.
Illegal solemnization of
marriage. - Any priest or minister
solemnizing marriage w/o being authorized
by the Director of the Philippine National
Library (now Director of National Library) or
who, upon solemnizing marriage, refuses to
exhibit his authorization in force when
called upon to do so by the parties or
parents, grandparents, guardians, or
persons having charge; & any bishop or
officer, priest, or minister of any church,
religion or sect the regulations & practices
whereof require banns or publications
previous to the solemnization of a marriage
in accordance w/ section ten (superseded
by Art. 60, New Civil Code, now under Art.
12, EO No. 209, as amended), who
authorizes the immediate solemnization of
a marriage that is subsequently declared
illegal; or any officer, priest or minister
solemnizing marriage in violation of the
provisions of this act, shall be punished by
imprisonment for not less than one month
nor more than two years, or by a fine of not
less than two hundred pesos nor more than
two thousand pesos.
Sec. 40. Marriages in improper places. Any officer, minister, or priest solemnizing
marriage in a place other than those
authorized by this Act, shall be punished by
a fine of not less than twenty five pesos nor
more than three hundred pesos, or both, in
the discretion of the court.
Sec. 41. Failure to deliver marriage
certificate. - Any officer, priest or minister
failing to deliver to either of the contracting
70

parties one of the copies of the marriage


contract or to forward the other copy to the
authorities w/in the period fixed by law for
said purpose, shall be punished by
imprisonment for not more than one month
or by a fine of not more than three hundred
pesos, or both, in the discretion of the court.
Sec. 42. Affidavit on marriage "in articulo
mortis." - Any officer, priest, or minister who,
having solemnized a marriage in articulo
mortis or any other marriage of exceptional
character, shall fail to comply
w/ the
provisions of Chapter II of this Act (Chapter 2,
Title III, New Civil Code, now Title I, Family
Code), shall be punished by imprisonment for
not less than one month nor more than two
years, or by a fine of not less than three
hundred pesos nor more than two thousand
pesos, nor both, in the discretion of the court.
Sec. 43.
Unlawful signboards. - Any
person who, not being authorized to
solemnize marriage, shall publicly advertise
himself, by means of signs or placards placed
on his residence or office or through the
newspapers, as authorized to solemnize
marriage, shall be punished by imprisonment
for not less than one month nor more than
two years, or by a fine of not less than fifty
pesos nor more then two thousand pesos, or
both, in the discretion of the court.
Sec. 44. General penal clause. - Any
violation of any provision of this Act not specifically penalized, or of the regulations to be
promulgated by the proper authorities, shall
be punished by a fine of not more then two
hundred pesos or by imprisonment for not
more than one month, or both, in the
discretion of the court.
Sec. 45.
Disqualification of priests &
ministers. - Any priest or minister of the
gospel or any denomination, church, sect, or
religion convicted of the violation of any of
the provisions of this Act or of any crime
involving moral turpitude, shall, in addition to
the penalties incurred in each case, be
disqualified to solemnize marriage for a
period of not less than six months nor more
than six years at the discretion of the court.
(As amended by Act No. 4236).

IV.

LEGAL SEPARATION

TENCHAVEZ VS. ESCANO [15 S 355


(1965)]
Facts: Vicenta E., a sheltered colegiala
fr. Cebu, secretly but validly married Pastor
T., an ex-army officer & engineer. They
eventually became estranged bec. of the
opposition of Vs parents to the marriage.
Due to the scandal, V went to Misamis
Occidental & then to the US to study. In
the US, she secured a divorce fr. a Nevada
court, while her parents got her a decree of
annulment fr. the Church. V later married
Russel Moran, w/ whom she had children.
They live in California;
V became an
American citizen on Aug. 1958. In 1955,
Pastor filed a complaint against V for legal
separation against Vs parents. He asked
for P1M damages.
Issue: WON legal sepn should be granted
Held: YES. A foreign divorce between
Filipino citizens, sought & decreed after the
effectivity of the NCC, is not entitled to
recognition in the Phils., & neither is the
marriage contracted w/ another party by
the divorced consort subsequent to the
foreign decree of divorce, entitled to
validity in this country.
A marriage
celebrated after a foreign decree of divorce
is adulterous, & justifies an action for legal
separation on the part of the innocent
consort of the 1st marriage. The invalid
divorce also entitles the innocent spouse to
recover damages (P25th moral damages;
basis - 2176). However, an action for
alienation of affection against the parents
of ones consort does not lie in the absence
of proof of malice or unworthy motives on
their part.
BAVIERA:
What is important is the
citizenship at the time of marriage.
Loophole: supposing the wife became
an
American
citizen first, then
divorced her Filipino husband, would
it still constitute as adultery giving
rise to legal separation? [NO]

BAVIERA:
This resulted fr. the Tripoli
Agreement.
71

Annulment
&
Legal
Separation
Distinguished:
(1)
Annulment (A) is
caused by some circumstance existing at the
time of the M, while the cause of legal
separation (LS) arises after the celebration of
the M; (2) an A of M terminates the marital
bond bet. the parties while LS does not; & (3)
A of M, once final, cannot be set aside so as
to restore the marital relation, while LS may
be terminated & marital relations resumed by
the reconciliation of the parties.
Tolentino:
Divorce & Its Kinds.-Divorce is the
dissolution or partial suspension, by law, of
the marital relation; the dissolution being
termed divorce fr. the bond of matrimony, or
a vinculo matrimonii; the suspension being
known as divorce fr. bed & board, or a mensa
et thoro. The former is sometimes also called
absolute, & the latter relative divorce.
Legal Separation & Separation of
Property.-In the former, there is a
suspension of common marital life, both as to
person & property, while in the latter, only
the property relation is affected, & the
spouses may be actually living together.
Legal Separation & Separation of
Spouses.-- Legal Separation (LS) can be
effected only be decree of the court; but the
spouses may be separated in fact w/o any
judgment of the court. Under the NCC, any
contract for personal separation between
husband & wife shall be void & of no effect.
[Art. 221 (1), NCC.] With the repeal of Art.
221, & the omission fr. the FC of a similar
provision, the rule prior to the NCC is
restored, & such agreements are again valid.
Foreign Divorces.-- A foreign divorce bet.
Filipino citizens, sought & decreed after the
effectivity of the NCC, is not entitled to
recognition as valid in the Phils. This is still
the rule under the FC.
A. GROUNDS

ART. 55. A petition for legal separation


may be filed on any of the following grounds:
(1) Repeated physical violence or grossly
abusive conduct directed against the
petitioner, a common child, or a child of the
petitioner;
(2) Physical violence or moral pressure to
compel the petitioner to change religious or
political affiliation;
(3) Attempt of respondent to corrupt or
induce the petitioner, a common child, or a

child of the petitioner, to engage in


prostitution, or connivance in such
corruption or inducement;
(4) Final judgment sentencing the
respondent to imprisonment of more than
six years, even if pardoned;
(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 w/o justifiable cause for more
than one year.
For purposes of this Article, the term
"child" shall include a child by nature or
adoption.

BALANE:
This is an exclusive enumeration.
Observe that some grounds would
tend to overlap w/ the grounds for
annulment. In such a case, the aggrieved
party has the option, either to bring an
action for annulment or for LS.
Par. (1).-- TOLENTINO: The violence
must be of a serious degree, but does not
have to amount to an attempt against the
life of the petitioner., w/c is covered by par.
(9). The violence must be repeated, to the
extent that common life w/ def. becomes
extremely difficult for the plaintiff.
It is submitted that the repeated
physical violence or the grossly abusive
language should be committed only by one
spouse & not by both to each other.
Par. (2).-- TOLENTINO: The physical
violence or moral pressure to compel the
plaintiff to change religious or political
affiliation need not be repeated. A single
incident would be enough.
BALANE: The pressure must be undue. It
becomes undue when the other spouse is
deprived of the free exercise of his or her
will.
Par. (3).-- TOLENTINO: If both spouses
agree that the wife or a daughter engage in
prostitution, neither one should be allowed
72

to obtain LS, on the principle that a person


should come to court w/ clean hands.
Par. (4).-- TOLENTINO: The crime for w/c
the def. was convicted is immaterial.
Par. (5).-- BALANE: This ground does not
have to exist at the time of the marriage.
Distinguish this fr. Art. 46 (4).
Par. (6).-- BALANE: Questions.-- (1) Will
knowledge of one party that the other was a
lesbian or a homosexual bar the action for
LS? (2) Does homosexuality contemplate
sexual orientation or does it contemplate only
homosexual practice?
BAVIERA :
Homosexuality refers to
practice, not by nature; if by nature,
then Art. 36 will apply.
TOLENTINO:
On pars. 5 & 6.-- These grounds can be
reason for actions for LS only when they
come to exist after the celebration of the
marriage. If the defect had existed at the
time of the marriage, but the marriage had
been ratified by continued cohabitation or the
action to annul has prescribed, it is submitted
that the action for LS may not be
subsequently brought.
Par. (7).-- TOLENTINO: Would this include
a subsequent marriage by a person after a
declaration of presumptive death of the other
spouse?
It is submitted that every
subsequent marriage, where there is a
subsisting prior marriage, should give the
other spouse the right to ask for LS.
Par. (8).-TOLENTINO:
Sexual
Infidelity.-- Under the NCC, the act of a wife
in having sexual intercourse w/ any other
man not her husband will constitute adultery.
On the other hand, concubinage is committed
by the husband in three ways:
(1) by
maintaining a mistress in the conjugal
dwelling: (2) by having sexual intercourse w/
the
other
woman
under
scandalous
circumstances; & (3) by cohabiting w/ her in
any other place.
xxx
To equalize the
situation of husband & wife in this respect,
the FC makes "sexual infidelity" sufficient
ground for either to justify the grant of LS.
Sexual Perversion.-This includes all
unusual or abnormal sexual practices w/c
may be offensive to the feelings or sense of
decency of either the husband or the wife.
But if the act of sexual perversion is by free
mutual agreement, neither party can ask for
LS, bec. they are equally guilty of the
perverse act.

BALANE: Sexual Perversion is a flexible


concept. It is basically, a cultural thing.
GANDIONCO VS. PENARANDA
SCRA 725]

[155

A civil action for LS based on concubinage


may proceed ahead, or simultaneously w/,
a criminal action for concubinage, bec. said
civil action is not one "to enforce the civil
liability arising fr. the offense" even if both
the civil & criminal actions arise fr. or are
related to the same offense. A decree of
LS, on the ground of concubinage may be
issued upon proof of preponderance of
evidence in the action for LS. No criminal
proceeding or conviction is necessary.
Par. (9).-TOLENTINO:
An attempt
against the life of the plaintiff spouse, as a
ground for LS, implies that there is intent to
kill. xxx [But] the act against the life of
the plaintiff spouse must be wrongful in
order to constitute a ground for LS.
BAVIERA:
Even if repeated physical
violence, this can fall under No. 1.
Par. (10).-- TOLENTINO: Under Art. 101,
"the spouse who has left the conjugal
dwelling for a period of three months or
has failed w/in the same period to give any
information as to his or her whereabouts
shall be prima facie presumed to have no
intention of returning to the conjugal
dwelling.
Art. 56.
The petition for legal
separation shall be denied on any of the
following grounds:
Where the aggrieved party has
condoned the offense or act complained of;
Where the aggrieved party has
consented to the commission of the offense
or act complained of;
Where there is connivance between the
parties in the commission of the offense or
act constituting the ground for legal
separation;
Where both parties have given ground
for legal separation;
Where there is collusion between the
parties to obtain the decree of legal
separation; or
73

Where
the
prescription.

action

is

barred

by

TOLENTINO: LS is a personal right & does


not survive death.
BALANE: There are other grounds not found
in Art. 56 :
(1) Death of either party pendente lite.
(Lapuz v. Eufemio, supra.) and
(2) Reconciliation pendente lite. (Art. 66 par.
1.)
Par. (1).-- TOLENTINO: Condonation as
Defense.-- Condonation is the forgiveness
of a marital offense constituting a ground for
LS, & bars the right to LS.
It may be express or implied. It is express
when signified by words or writing, & it is
implied when it may be inferred fr. the acts of
the injured party.
BALANE: Condonation is pardon w/c comes
after the offense.
MATUBIS VS. PRAXEDES
(1960)]

[109 P 788

Facts: Socorro Matubis & Zoilo Prexedes


were married in 1943. In 1944, they agreed
to live separately. In 1948, they executed an
agreement whereby each relinquished his/her
right over the other as husband/wife, couldnt
prosecute the other for concubinage or
adultery, wasnt entitled to support nor could
claim anything fr. the other. In 1955, Zoilo
cohabited & had a child w/ another woman.
Alleging abandonment & concubinage,
Socorro filed an axn for legal sepn.
Issue: WON agreement contained consent
w/c barred the axn for legal sepn
Held: Yes.
The wifes condonation &
consent are necessarily the import of par.
6(b) of the agreement. The second part of the
agreement constituted a license to commit a
ground for legal sepn. The condonation &
consent were express. The law (then Art. 100
CC) provides that legal separation may be
claimed only by the innocent spouse provided
the latter has not condoned or consented to
the adultery or concubinage committed by
the other spouse; plaintiff having condoned
&/or consented in writing to the concubinage
committed by the defendant husband, she is
now undeserving of the court's sympathy.

BAVIERA: The stipulation, though void,


was equivalent to express consent.

Par. (2).-Consent.-TOLENTINO:
Consent is the agreement or conformity in
advance of the commission of the act w/c
would be a ground for LS.
Par. (3).-Connivance.-TOLENTINO:
Connivance is distinguished fr. consent in
that consent is unilateral, or an act of only
one
spouse.
Connivance
implies
agreement, express or implied, by both
spouses to the ground for LS.
Par. (4).-- Recrimination.-- TOLENTINO:
Recrimination is a countercharge in a suit
for LS that the complainant is also guilty of
an offense constituting a ground for LS.
This defense is based on the principle that
a person must come to court w/ clean
hands.
Par. (5).-Effect of Collusion.-TOLENTINO: Collusion is the agreement
bet. husband & wife for one of them to
commit, or to appear to commit or
presented in court as having committed, a
matrimonial offense, or to suppress
evidence of a valid defense, for the
purpose of enabling the other to obtain LS.
B. LIMITATION OF ACTION
Art. 57. In action for legal separation
shall be filed w/in five years fr. the time of
the occurrence of the cause.
TOLENTINO:
Law does not encourage LS, & provides for
prescription of the action even when the
offended party has not had knowledge of
the cause. xxx If plaintiff does not come
to know of the ground for LS, & 5 yrs.
expire fr. the date of its occurrence, he
cannot sue for LS.
BROWN VS. YAMBAO
(1957)]

[54 O.G. 1827

Facts: While Brown was interred by the


Japanese fr. 1942-45, Juanita Yambao, his
wife, committed adultery w/ Carlos Field &
bore the latters child. Brown found out
only when he was released in 1945. They
executed an agreement liquidating the
conjugal partnership & assigning some
74

properties to Yambao. Thereafter, they lived


separately, & Brown had children w/ another
woman. In 1955, he filed an axn for legal
separation on the ground of adultery, praying
that the agreement be ratified. CFI-Manila
denied it on the ground of consent,
connivance & prescription under Art. 102
NCC (axn prescribes 1 year fr. time plaintiff
became cognizant of the cause & w/in 5
years fr. the causes occurrence).
Issue: WON Browns axn is already barred
Held: Yes. Brown did not petition for LS until
10 years after he learned of his wifes
adultery. Even if the wife did not interpose
the defense of prescription, the courts can
take cognizance thereof, bec. actions seeking
a decree of legal separation or annulment of
marriage involve public interest, & it is the
policy of our law that no such decree be
issued if any legal obstacles thereto appear
on the record. Also, the husband was guilty of
commission of the same offense by living w/
another woman. Evidence of his misconduct
& the wifes failure to set it up as a defense
were proper subjects of the fiscals inquiry /
intervention.
BAVIERA: This is an exception to the
Rules of Court provision that defenses
not raised in the pleadings will not be
considered,
since
provisions
on
marriage are substantive in nature.
Prescription here is not a mere statute
of limitations but a substantive right.

DE OCAMPO V. FLORENCIANO (2/23/60)


Facts: De Ocampo & Florenciano married in
1938. In 1951, De Ocampo discovered that
his wife was having illicit relations.
De
Ocampo sent here to Manila to study beauty
culture, but the wife still dated around. In
1952, they began living apart. In 1955, De
Ocampo surprised his wife in the act w/ a
Nelson Orzame. He told her he would file a
petn for legal sepn. Wife agreed so long as
she wasnt criminally charged w/ adultery.
CFI & CA denied petn bec. there was
confession of judgment, condonation &
consent.
Issue: WON there
judgment & collusion

was

confession

of

Held: NO. Decree granted. Art. 101 NCC


doesnt exclude as evidence an admission
or confession made by the guilty spouse
outside the court. It merely prohibits a
decree of sepn based solely on such
confession.
Here, there was other
evidence to prove adultery. The confession
of judgment prohibited is when the
defendant confesses in court the right of
the plaintiff to the judgment sought or files
a pleading expressly agreeing to the
plaintiffs demand.
Further, collusion
cannot be inferred fr. the mere fact that the
guilty party confesses to the offense, &
proof that the defendant desires the sepn
& makes no defense is not by itself
collusion.
C. HEARING

Art. 58. An action for legal separation


shall in no case be tried before six months
shall have elapsed since the filing of the
petition.

TOLENTINO: This is intended to give the


spouses a chance to reconcile.
BALANE: Incidental matters may be heard
even during the six-month cooling-off
period.
RUFUS RODRIGUEZ, The FAMILY CODE
of the Philippines Annotated, 2nd ed.:
During the six month period, the court may
still act to determine the custody of the
children, alimony & support pendente lite.
SOMOSA-RAMOS VS. VAMENTA [46 S
110 (1972)]
Facts: Lucy Somosa-Ramos sued her
husband Clemente for legal sepn on the
grounds of concubinage & for attempting
against her life. She also sought a writ of
preliminary mandatory injunction so that
her paraphernal & exclusive property under
Clementes management could be returned
to her. Clemente moved to suspend the
hearing of the petition due to the 6 month
cooling-off period; Judge Vamenta granted
his motion.
Held: An ancillary remedy of preliminary
mandatory injunction is not barred by the
75

six-month statutory suspension of trial in an


action for legal separation. Art. 103 NCC is
not an absolute bar to the hearing of a
motion for prel. injunction prior to the
expiration of the 6 months period. The law
remains cognizant of the need in certain
cases for judicial power to assert itself, e.g.,
Art. 104 NCC (now Art. 61, FC), in w/c there
appears to be a recognition that the question
of management of the spouses' respective
property need not be left unresolved even
during the 6 months period. An administrator
may even be appointed for the management
of the prop. of the conjugal partnership.
ARANETA VS. CONCEPCION
(1956)]

[99 P 709

Facts:Luis Araneta filed an axn for LS


against Emma, his wife. After the issues were
joined, Emma filed an Omnibus petition to
secure custody of their 3 minor children, a
monthly support of P5th, the return of her
passport, & to enjoin Luis fr. ordering his
hirelings fr. harassing her. Luis prayed that
the parties be required to submit their
evidences, alleging that his wife isnt entitled
to custody bec. she abandoned the children &
that CPG assets cannot justify her claim for
support.
Judge Concepcion denied Luis
prayer but granted Emmas petn on the
ground that Art. 103 NCC (now Art. 58 FC)
prohibits the introduction of any evidence on
the merits or incidents of the case.
Issue: WON evidence may be admitted
Held: Yes. The 6 month cooling-off period
does not override other provisions, e.g.,
determination of the childrens custody,
alimony, & support pendente lite.
Law
expressly
enjoins
that
these
should
determined by the court accdg to the
circumstances.
Evidence not affecting the
cause of separation, like the actual custody of
the children, the means conducive to their
welfare & convenience during the pendency
of the case, should be allowed so that the
court may determine w/c is best for their
custody.

Art. 59 FC. No legal separation may be


decreed unless the Court has taken steps
toward the reconciliation of the spouses & is
fully satisfied, despite such efforts, that
reconciliation is highly improbable.

TOLENTINO: The effort of the Court is not


limited to the period before trial (at least 6
mos.) but may be continued even after trial
& before judgment is rendered.
PACETE VS. CARRIAGA
321]

[231 SCRA

Art. 58 FC mandates that an action for LS


must "in no case be tried before six months
shall have elapsed since the filing of the
petition," obviously in order to provide the
parties a "cooling-off" period.
In this
interim, the court should take steps toward
getting the parties to reconcile.
Art. 60 FC. No decree of legal
separation shall be based upon a
stipulation of facts or a confession of
judgment.
In any case, the Court shall order the
prosecuting attorney or fiscal assigned to it
to take steps to prevent collusion between
the parties & to take care that the evidence
is not fabricated or suppressed.
See De Ocampo case, supra, for ruling on
confession of judgment.
1. RIGHTS & OBLIGS
OF PARTIES

Art. 61 FC. After the filing of the petition


for legal separation, the spouses shall be
entitled to live separately fr. each other.
The court, in the absence of a written
agreement between the spouses, shall
designate either of them or a third person
to administer the absolute community or
conjugal
partnership
property.
The
administrator appointed by the court shall
have the same powers & duties as those of
a guardian under the Rules of Court.

SABALONES VS. CA

[230 SCRA 79]

In an action for legal separation, where the


spouses did not agree as to who will
administer the conjugal partnership, the
Court may appoint one of the spouses.
76

Such appointment may be implied, as when


the trial court denied the petitioner any share
in the conjugal properties (thus also
disqualifying him as administrator thereof.)
That designation was in effect approved by
the CA when it issued in favor of the resp.
wife the preliminary injunction now under
challenge.
Art. 62 FC. During the pendency of the
action for legal separation, the provisions of
Article 49 shall likewise apply to the support
of the spouses & the custody & support of the
common children.
Art. 49 FC. During the pendency of the
action & in the absence of adequate
provisions in a written agreement between
the spouses, the Court shall provide for the
support of the spouses & of their common
children. The Court shall give paramount
consideration to the moral & material welfare
of said children & their choice of the parent
w/ whom they wish to remain as provided for
in Title IX. It shall also provide for appropriate
visitation rights of the other parent.

TOLENTINO:
Effects of Filing Petition:
The spouses can live separately fr. each other
The administration of the common prop.,
whether in absolute community or
conjugal partnership of gains, shall be
given by the Court to either of the
spouses or to a third person, as is best for
the interests of the community.
In the absence of a written agreement of the
spouses, the Court shall provide for the
support bet. the spouses & the custody &
support of the common children, taking
into account the welfare of the children &
their choice of the parent w/ whom they
wish to remain.
When the consent of one spouse to any
transaction of the other is required by
law, judicial authorization shall be
necessary, unless such spouse voluntarily
gives such consent.
Alimony "pendente lite."-During the
pendency of the suit for legal separation
upon a complaint filed & admitted, it is the
duty of the court to grant alimony to the wife
& to make provisions for the support of the
children not in the possession of the father.
Should def. appear to have means to pay
alimony & refuses to pay, either an order of
execution may be issued or a penalty for
contempt may be imposed, or both.
Custody of the Children.-While the
action is pending, the custody of the children

may be determined in one of two ways: (1)


by agreement of the spouses w/c shall not
be disturbed unless prejudicial to the
children; & (2) by court order, w/c shall be
based on the sound discretion of the judge,
taking into account the welfare of the
children as the ruling consideration.
LERMA VS. CA [61 S 440 (1974)]
Facts: Lerma filed a criminal complaint for
adultery against Diaz, the wife, & Ramirez.
3 months later, Diaz filed an axn against
Lerma for legal sepn &/or separation of
properties, custody of their children &
support, & an urgent petition for support
pendente lite for her & the youngest son.
Lerma opposed, setting up the adultery
charge as his defense. Trial court & CA
granted Diazs application for support
pendente lite. A year later, Diaz was found
guilty of adultery.
Issue: WON adultery may be invoked as a
defense against a claim for support
pendente lite
Held: Yes.
The wife having been
convicted of adultery, she is not entitled to
support pendente lite.
Art. 292 NCC
contemplates the pendency of a court
action & a prima facie showing that the
action will prosper; it doesnt preclude the
loss of the right in certain cases. Diaz
having been convicted of adultery, the
probable failure of her suit for legal sepn
can be foreseen. Further, the right to
separate
support
&
maintenance
presupposes the existence of a justifiable
cause to claim legal separation. The loss of
the substantive right to support in such a
situation is incompatible w/ any claim for
support pendente lite.
2. EFFECT OF DEATH OF
A SPOUSE
LAPUZ SY VS. EUFEMIO
(1972)]

[43 S 177

Facts: Carmen Lapuz Sy was abandoned


by
her husband, Eufemio.
She later
discovered that he was cohabiting w/
another woman. She filed a petn for legal
separation.
Before the trial could be
completed, Carmen died in a vehicular
accident. Eufemio moved for dismissal.
77

Granted. Carmens self-assumed substitute,


Lapuz, appealed.
Issue: WON death of a party abates an axn
for legal sepn, even if the axn involves
property rights.
Held: Yes. Death of the plaintiff before a
decree of legal separation abates such
action. "An action for legal separation w/c
involves nothing more than bed-& board
separation of the spouses is purely personal.
The NCC recognizes this by: (1) allowing only
the innocent spouse (& no one else) to claim
legal separation; (2) providing that the
spouses can, by their reconciliation, stop or
abate the proceedings & even rescind a
decree of LS already granted. Being personal,
it follows that the death of one party to the
action causes the death of the action itself actio personalis moritur cum persona." Even
if property rights are involved, bec. these
rights are mere effects of the decree of legal
separation, being rights in expectation, these
rights do not come into existence as a result
of the death of a party. Also under the ROC,
an action for legal separation or annulment of
marriage is not one w/c survives the death of
spouse.
MACADANGDANG V. CA
[108 S 314
(1981)]
Facts: Filomena & Antonio Macadangdang
were able to expand their buy & sell business
in Davao del Norte into merchandising,
trucking,
transportation,
milling
etc.
However, their marriage deteriorated. They
separated. Upon returning fr. Cebu, Filomena
discovered Antonios illicit affairs.
She
instituted an axn for legal sepn, w/c the trial
court granted. She filed a petn for the
appointment of an administrator of the CPG.
TC granted, CA affirmed. Antonio appealed
to SC, but died during the pendency of the
appeal.
Issue: Effect of his death on the appt. of an
administrator
Held: The death of a spouse after a final
decree of legal separation has no effect on
the decree. The law (Art. 106 NCC) clearly
spells out the effect of a final decree of legal
separation on the conjugal property, i.e.,
dissolution & liquidation of the CPG or ACP.
Upon
the
liquidation
&
distribution
conformably w/ the law on the effects of a
final decree of LS, the law on intestate

succession should take over the disposition


of the remaining properties w/c were
allocated to the deceased spouse, i.e.,
properties allocated to the deceased
spouse by virtue of the liquidation of
conjugal assets shall be distributed in
accordance w/ the laws on intestate
succession.
D.
DECREE
SEPARATION

OF

LEGAL

1. EFFECTS
Art. 63. The decree of legal separation
shall have the following effects:
(1) The spouses shall be entitled to live
separately fr. each other, but the marriage
bonds shall not be severed;
(2) The absolute community or the
conjugal partnership shall be dissolved &
liquidated but the offending spouse shall
have no right to any share of the net profits
earned by the absolute community or the
conjugal partnership, w/c shall be forfeited
in accordance w/ the provisions of Article
43 (2);
Art. 43. The termination of the
subsequent marriage referred to in the
preceding Article shall produce the
following effects:
xxx
(2) The absolute community of property
or the conjugal partnership, as the case
may be, shall be dissolved & liquidated, but
if either spouse contracted said marriage in
bad faith, his or her share of the net profits
of the community property or conjugal
partnership property shall be forfeited in
favor of the common children or, if there
are none, the children of the guilty spouse
by a previous marriage or, in default of
children, the innocent spouse;
(3) The custody of the minor children
shall be awarded to the innocent spouse,
subject to the provisions of Article 213 of
this Code; &
Art. 213. In case of separation of the
parents, parental authority shall be
exercised by the parent designated by the
Court. The Court shall take into account all
78

relevant considerations, especially the choice


of the child over seven years of age, unless
the parent chosen is unfit.

conjugal assets.
v.CA)

No child under seven years of age shall


be separated fr. the mother, unless the court
finds compelling reasons to order otherwise.

Art. 64. After the finality of the decree


of legal separation, the innocent spouse
may revoke the donations made by him or
by her in favor of the offending spouse, as
well as the designation of the latter as a
beneficiary in any insurance policy, even if
such
designation
be
stipulated
as
irrevocable. The revocation of the donation
shall be recorded in the registries of
property in the places where the properties
are
located.
Alienations,
liens
&
encumbrances registered in good faith
before the recording of the complaint for
revocation in the registries of property shall
be respected. The revocation of or change
in the designation of the insurance
beneficiary shall take effect upon written
notification thereof to the insured.

(4) The offending spouses shall be


disqualified fr. inheriting fr. the innocent
spouse by intestate succession. Moreover,
provisions in favor of the offending spouse
made in the will of the innocent spouse shall
be revoked by operation of law.

BALANE:
There are four (4) other effects
Donation propter nuptias may be revoked by
the innocent spouse. (Art. 64.)
Designation of the guilty spouse in the
insurance policy may be revoked. (id.)
Cessation of the obligation of mutual support.
(Art. 198.)
Wife may continue using the surname before
the decree of legal separation. (Art. 372,
NCC.)

The action to revoke the donation


under this Article must be brought w/in 5
years fr. the time the decree of legal
separation become final.

2. RECONCILIATION

TOLENTINO:
Support & Assistance.-- After the decree
of LS, the obligation of mutual support bet.
the spouses ceases; however, the court may
order the guilty spouse to give support to the
innocent spouse. (Art. 198.)
Successional Rights.-- The guilty spouse,
by virtue of the decree of LS becomes
disqualified to succeed the innocent spouse.
She would not even be entitled to the
legitime. xxx But if the will is executed after
the decree, the disposition in favor of the
offender shall be valid.
LEDESMA VS. INTESTATE
PEDROSA
[219 SCRA 806]

(citing Macadangdang

ESTATE

OF

The law mandates the dissolution &


liquidation of the prop. regime of the spouses
upon finality of the decree of LS.
Such
dissolution & liquidation are necessary
consequences of the final decree. This legal
effect of the decree of legal separation ipso
facto or automatically follows, as an
inevitable
incident
of,
the
judgment
decreeing the LS for the purpose of
determining the share of each spouse in the

Art. 65. If the spouses should reconcile,


a corresponding joint manifestation under
oath duly signed by them shall be filed w/
the court in the same proceeding for legal
separation.

TOLENTINO:
Concept
of
Reconciliation.-Reconciliation is a mutual agreement to
live together again as husband & wife. It
must be voluntary mutual agreement.
It is submitted that the fact of
resuming common life is the essence of
reconciliation & terminates the legal
separation even if the joint manifestation
has not been filed in court.
BALANE:
Contrary view.-- Technically, what will set
aside the decree of LS is the filing of a joint
verified manifestation of reconciliation.
Without that, the court cannot act motu
proprio.

79

Art. 66. The reconciliation referred to in


the preceding Article shall have the following
consequences:

not listed or not notified, unless the debtorspouse has sufficient separate properties to
satisfy the creditor's claim.

(1) The legal separation proceedings, if


still pending, shall thereby be terminated at
whatever stage; &

TOLENTINO:

(2) The final decree of legal separation


shall be set aside, but the separation of
property & any forfeiture of the share of the
guilty spouse already effected shall subsist,
unless the spouses agree to revive their
former property regime.
The court order containing the foregoing
shall be recorded in the proper civil registries.

New Regime.-The FC authorizes the


spouses to agree to "revive their former
property regime." We submit that this is
not restrictive & does not limit the spouses
to the regime they had before the decree
of LS. The spouses are placed in the same
position as before the marriage & could
establish the property regime they want, as
if making a marriage settlement. xxx If
they do not agree on any system, then by
law their new regime will be that of
separation of property.

BALANE:
Effects of Reconciliation:
Custody over the children.-- Joint custody is
restored.
Compulsory & intestate succession is
restored.
Testamentary succession.-There is no
revival. Reconciliation will not necessarily
revive the institution of the guilty spouse
in the will of the innocent spouse.
Donation propter nuptias will remain revoked.
Art. 67. The agreement to revive the
former property regime referred to in the
proceeding Article shall be executed under
oath & shall specify:
(1) The properties to be contributed anew
to the restored regime;
(2) Those to be retained as separated
properties of each spouse; &
(3) The names of all their known
creditors, their addresses & the amounts
owing to each.
The agreement of revival & the motion for
its approval shall be filed w/ the court in the
same proceeding for legal separation, w/
copies of both furnished to the creditors
named therein. After due hearing, the court
shall, in its order, take measures to protect
the interest of creditors & such order shall be
recorded in the proper registries of
properties.
The recording of the order in the registries
of property shall not prejudice any creditor

V. RIGHTS AND OBLIGATIONS


BETWEEN HUSBAND AND WIFE
Tolentino:
Dual Aspect of Family Relations.-- There
are 2 aspects in family relations, one
internal & another external. In the internal
aspect, w/c is essentially natural & moral,
the family is commonly known to be sacred
& inaccessible even to the law. It is only in
the external aspects, where third persons &
the public interest are concerned, that the
law fixes rules regulating family relations.
A. IN GENERAL

Art. 68. The husband & wife are obliged


to live together, observe mutual love,
respect & fidelity, & render mutual help &
support.

BALANE:
These are called legal obligations but they
are more of a statement of policy. An
action for specific performance is not
proper to enforce these obligations. The
only possible consequences are found in
Art.100 for ACP & 127 for CPG.
With regard to the mutual obligation of
fidelity, there are consequences both civil
& criminal (adultery or concubinage.).
80

With respect to support, there are legal


provisions in the FC w/c carry out the duty.
TOLENTINO:
Right of Cohabitation.-- Marriage entitles
the husband & wife to each other's society,
that is, they are mutually entitled to
cohabitation or consortium. This means that
they shall have a common life, under the
same roof, to better fulfill those obligations
inherent in the matrimonial status.
Scope of Right.-- The right of cohabitation
includes domestic & sexual community of the
spouses, the extent of both of w/c will differ
according to the circumstances. xxx [T]he
spouses will be considered as living together,
although
driven
by
the
stress
of
circumstances or pecuniary difficulties to
separate, if there is no intention on the part
of either to sever their marital relations
permanently.
But for the purpose of the law, only
the tangible & material aspect of cohabitation
can be taken into account.
The law is
powerless to impose that intimacy of life w/c
is the basis of conjugal peace & happiness.
Sexual Relations.-- Although a husband is
entitled to sexual relations w/ his wife, & it is
not rape to force the wife to have sexual
relations against her will, this right is not
absolute. The right involves only normal
intercourse.
Legal
Sanction
for
Cohabitation.-Cohabitation by the parties must be
spontaneous & cannot be imposed by the law
or the courts. The only possible sanction is
patrimonial in nature. If the husband refuses
to live w/ the wife, he can be compelled to
pay her a pension, & indemnity for damages;
& if the wife refuses to live w/ the husband,
he can refuse to support her.
Use of Force.-- The husband cannot by the
use of force, even of public authority, compel
the wife to return home. Such remedy would
be a violation of personal dignity & security.
xxx Modern law abhors imprisonment for
debt, & coercive measures to compel the wife
to live w/ the husband would be worse than
imprisonment for debt.
Remedies for Interference.--Any person
who interferes w/ the right of the spouses to
cohabitation may be held liable for damages
under Art. 26, FC.
Mutual Fidelity.-- This fidelity is the loyalty
w/c each should observe toward the other,
the wife having nothing to do w/ another
man, nor the husband w/ another woman.
Mutual Help.-- Mutual help involves care
during sickness, & bearing the inconvenience
caused by such sickness, of the other spouse.

The
however,
assistance
extends to
assistance,

obligation of mutual help,


is not limited to material
& care during sickness.
It
everything that involves moral
& mutual affection & regard.

There are positive legal provisions


w/c reveal the scope of this duty &
implement the general rule laid down in
the present article. Among them are: (1)
the legitimacy of defense of a spouse (Art.
11, RPC); (2) the increase in penalty in a
crime by one spouse against the person of
the other (Art. 246, id.); (3) the incapacity
of one spouse to testify against the other
(R123, Sec. 26, ROC); (4) the right of one
spouse to object to adoption of or by the
other (Arts. 185 & 188); & (5)
the
prohibition of donations between them (Art.
87.)
Legal Sanction.-- The only aspect of the
obligation of mutual help for w/c there is a
legal sanction is the duty to support. This
can be enforced by court action. But the
law cannot penetrate to the intimate
relations in the home in order to enforce
the mutual obligations of care, of moral
assistance, & of mutual affection & regard.
Position of Spouses in the Family.-The perfect parity of rights & duties of H &
W has to be reconciled w/ the need for
unity of direction in the family. Since the
power of direction cannot be vested at the
same time in 2 persons, the existence of a
head of the family becomes imperative; &
both nature & tradition have given this
prerogative to the husband
This power of the H as head of the
family, however, is not composed of rights
&
prerogatives,
but
of
duties
&
responsibilities, bec. the H does not use it
for his personal benefit but for the greater
& higher interests of the family.
Chastisement of Wife.-- Chastisement
is unlawful, & it has been held that the H
should not be permitted to inflict personal
chastisement upon his wife, even for the
grossest outrage.
The only possible
exception to this rule under our law is that
given in Art. 247 of the RPC, w/c provides
that:
Art. 247. Any legally married person
who, having surprised his spouse in the act
of committing sexual intercourse w/
another person, shall kill any of them or
both of them in the act or immediately
thereafter, or shall inflict upon them any
serious physical injury, shall suffer the
penalty of destierro. If he shall inflict upon
them physical injuries of any other kind, he
shall be exempt fr. punishment.
81

Love Between Spouses.-Mutual love


cannot be compelled or imposed by court
action.
Art. 69. The husband & wife shall fix the
family domicile. In case of disagreement, the
court shall decide.
The court may exempt one spouse fr.
living w/ the other if the latter should live
abroad or there are other valid & compelling
reasons for the exemption. However, such
exemption shall not apply if the same is not
compatible w/ the solidarity of the family.
BALANE: The power to fix residence is joint.
Whatever residence is fixed should bind both
parties.
TOLENTINO: The right to fix family domicile
includes the right to change it, so long as the
spouses agree to the transfer.
Separate Residence.-- It can be said that
any of the grounds for LS would be sufficient
for a spouse to have a separate domicile, if
he or she prefers that to LS.
Art. 70. The spouses are jointly
responsible for the support of the family. The
expenses for such support & other conjugal
obligations shall be paid fr. the community
property &, in the absence thereof, fr. the
income of or fruits of their separate
properties. In case of insufficiency or absence
of said income or fruits, such obligations shall
be satisfied fr. their separate properties.

BALANE:
Art. 70 is an implementation of the third duty
of the spouses, that of support. Correlate this
w/ Art. 194.
Where to get the funds? There are three
sources in the order of priority:
1. From the common property
2. From the income or fruits of the separate
property
* Note: Numbers 1 & 2 are different
sources only if the property relationship is
ACP. In CPG, numbers 1 & 2 will be the same.
3. From the separate property themselves.

Art. 71. The management of the


household shall be the right & duty of both
spouses.
The
expenses
for
such
management shall be paid in accordance
w/ the provisions of Article 70.

TOLENTINO:
What Properties Answerable.-- The
order of liability for family support of the
different properties of the marriage is:
first, the community prop., then the income
of the spouses or fruits of their separate
properties,
&
finally,
the
separate
properties of the spouses. The liability of
the spouses for the support of the family
being joint, this may mean that they
contribute equally, regardless of the value
of the respective properties of the spouses.
However, this would not be equitable. The
better rule seems to be that the
contribution should be proportionate to the
properties of the spouses.
Management of Household.-- In view of
the silence of the law on how the
disagreement bet. the spouses in the
management of the household shall be
settled, the custom should be observed, &
the wife's position should be given priority.
Art. 72.
When one of the spouses
neglects his or her duties to the conjugal
union or commits acts w/c tend to bring
danger, dishonor or injury to the other or to
the family, the aggrieved party may apply
to the court for relief.

Tolentino:
What Relief May Be Granted.-- Under the
NCC, when one party applies for relief bec.
of the acts or negligence of the other
spouse, "the court may counsel the
offender to comply w/ his or her duties, &
take such measures as may be proper."
Notw/standing this omission in the FC, we
believe that the court has full freedom to
determine the kind of relief that may be
given. The relief, however, must be lawful.

Art. 73.
Either spouse may exercise
any legitimate profession, occupation,
business or activity w/o the consent of the
other. The latter may object only on valid,
serious, & moral grounds.
82

In case of disagreement, the court shall


decide whether or not:
(1) The objection is proper, &
(2) Benefit has accrued to the family prior
to the objection or thereafter. If the benefit
accrued prior to the objection, the resulting
obligation shall be enforced against the
community property. If the benefit accrued
thereafter, such obligation shall be enforced
against the separate property of the spouse
who has not obtained consent.
The foregoing provisions shall not
prejudice the rights of creditors who acted in
good faith. (words in italics were omitted in
the text that Malacaang released.)

TOLENTINO:
Disposition of Products of Activity.-May the husband or wife engaged in a
profession or business freely dispose of the
products of such activity?
A distinction
should be observed.
If the disposition is in the course of
the professional or commercial activity, the
spouse should be free to dispose of the
products of such activity. xxx But if the
funds will be used to buy real estate, then the
spouse should act jointly, if the property
regime of the marriage is absolute
community or conjugal partnership of gains,
bec. such funds are common prop. of the
marriage.
B.
OBLIGATION
TOGETHER

TO

LIVE

ARROYO VS. ARROYO [42 P 54 (1921)]


Facts: In 1920, Dolores Arroyo left the
conjugal home. After Marianos unsuccessful
efforts to induce her to resume marital
relations, he initiated this action to compel
her to return to the matrimonial home & live
w/ him as a dutiful wife. The wife admitted
the fact of marriage & that she had left w/o
her husbands consent, but averred as a
defense that she had been compelled to
leave by her husbands cruel treatment of
her.
Issue: WON court can compel cohabitation

Held: Youre kidding, right? It is not w/in


the province of the courts to compel one of
the spouses to cohabit w/ & render
conjugal rights to the other. Where the
property rights a spouse are invaded, an
action for restitution of such rights can be
maintained. But SC is disinclined to
sanction the doctrine that an order,
enforceable by process of contempt, may
be entered to compel the restitution of the
purely personal rights of consortium. At
best, an order can be effective to compel
the spouses to live under the same roof;
however, the experience of countries
where courts compelled the cohabitation of
married people shows that the policy of the
practice is extremely questionable.
As
such, the only remedy the husband is
entitled to is a judicial declaration that his
wife has absented herself w/o sufficient
cause. She is admonished that it is her
duty to return.
PEREZ VS. PEREZ [109 P 656 (1960)]
Facts: Antonio Perez, on his own behalf &
as guardian ad litem of his adoptive son,
Benigno, filed a civil case against Angela
Tuason de Perez, his wife & Benigno's
mother founded on 3 causes of action. The
1st & 2nd causes alleged that Angela was
squandering her estate, & the CPG,
respectively on Jose Boloix, & that she
should be placed under guardianship due
to her prodigality. In the 3rd COA, Antonio
asked for P185th in damages bec. the wife
kept threatening to have a child by another
man just so she could put Antonio in an
embarrassing position. Angela filed a MTD.
Trial court dismissed the case on the
ground that it lacked jurisdiction over the
subject matter bec. only the Domestic
Relations Court had jurisdiction over COA's
falling under Art. 116CC.
Issue: WON injury as used in Art. 116 CC
(now Art. 72 FC) refers to economic
damage
Held: No. "Material injury" as used in Art.
116 (now Art. 72 FC) does not refer to
patrimonial (economic) injury or damage,
but to personal (i.e., physical or moral)
injury to one of the spouses, since Art. 116
lies in the chapter concerning personal
relations between husband & wife.
However, TC was correct: this COA is
primarily predicated on the grant of
83

guardianship due to the alleged prodigality of


the wife, since that allegation is reiterated &
the remedy of injunction sought against
further or future acts of disposition (no
annulment of her past transactions is
demanded) must be based on the wife's
being subject to guardianship.
Thus, all
COA's in Antonios complaint were exclusively
cognizable by the Domestic Relations Court
at that time.
V.
PROPERTY
RELATIONS
BETWEEN HUSBAND AND WIFE
A. IN GENERAL

Art. 74. The property relations between


husband & wife shall be governed in the
following order:
(1) By marriage settlements executed
before the marriage;
(2) By the provisions of this Code; &
(3) By the local customs.
Tolentino:
A marriage settlement is a contract executed
before the marriage, between the intended
husband & wife, by w/c the enjoyment or
devolution of property is regulated. It is also
called an ante-nuptial contract.
Balane:
The husband & wife can agree on anything
they want.
This follows the principle of
autonomy of contract. Note the order given
in Art 74: (1) the marriage settlement; (2)
the provisions of the Family Code; (3) local
custom.
In the absence of a marriage
settlement,
or
when
such
marriage
settlement is void, the ACP regime governs.
An exception to the immediately
preceding rule is when the 1st marriage is
dissolved by reason of death, & the 2nd
marriage was entered into before the
liquidation of the 1st....the Code requires a
mandatory separation of property (130(3))
All modifications to the marriage
settlement must be made before the
marriage is celebrated, except: Art. 66, 67,
128, 135 & 136.

General
rule:
once
marriage
is
celebrated, there is already a property
regime & this cannot be changed:
Except:
legal separation (ACP/CPG is dissolved)
revival of former property regime upon
reconciliation
petition of one spouse for separation in
case of abandonment or failure to
comply w/ marital obligations
judicial dissolution of regime: joint petition
or petition by one spouse for cause.
(Art 135/136)
Art. 75. The future spouses may, in the
marriage settlements, agree upon the
regime of absolute community, conjugal
partnership of gains, complete separation
of property, or any other regime. In the
absence of marriage settlements, or when
the regime agreed upon is void, the system
of absolute community of property as
established in this Code shall govern.
Property regimes w/c may govern:
1.Absolute Community of Property
2.Conjugal Partnership of Gains
3.Separattion of Property
4.If that agreed upon is void, or if none
agreed on, then ACP
Art. 76. In order that any modification
in the marriage settlements may be valid,
it must be made before the celebration of
the marriage, subject to the provisions of
Articles 66, 67, 128, 135 & 136.
Art. 66. The reconciliation referred to in
the preceding Article shall have the
following consequences:
(1) The legal separation proceedings, if
still pending, shall thereby be terminated at
whatever stage; &
(2) The final decree of legal separation
shall be set aside, but the separation of
property & any forfeiture of the share of
the guilty spouse already effected shall
subsist, unless the spouses agree to revive
their former property regime.

84

The court order containing the foregoing


shall be recorded in the proper civil registries.
Art. 67. The agreement to revive the
former property regime referred to in the
preceding Article shall be executed under
oath & shall specify:
(1) The properties to be contributed anew
to the restored regime;
(2) Those to be retained as separated
properties of each spouse; &
(3) The names of all their known
creditors, their addresses & the amounts
owing to each.
The agreement of revival & the motion for
its approval shall be filed w/ the court in the
same proceeding for legal separation, w/
copies of both furnished to the creditors
named therein. After due hearing, the court
shall, in its order, take measures to protect
the interest of creditors & such order shall be
recorded in the proper registries of
properties.
The recording of the order in the
registries of property shall not prejudice any
creditor not listed or not notified, unless the
debtor-spouse
has
sufficient
separate
properties to satisfy the creditor's claim.
Art. 128. If a spouse w/o just cause
abandons the other or fails to comply w/ his
or her obligations to the family, the aggrieved
spouse
may
petition
the
court
for
receivership, for judicial separation of
property, or for authority to be the sole
administrator of the conjugal partnership
property, subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned in
the preceding paragraph refer to marital,
parental or property relations.
A spouse is deemed to have abandoned
the other when he or she has left the
conjugal dwelling w/o intention of returning.
The spouse who has left the conjugal dwelling
for a period of three months or has failed w/in
the same period to give any information as to
his or her whereabouts shall be prima facie
presumed to have no intention of returning to
the conjugal dwelling.

Art. 135. Any of the following shall be


considered sufficient cause for judicial
separation of property:
(1) That the spouse of the petitioner
has been sentenced to a penalty w/c
carries w/ it civil interdiction;
(2) That the spouse of the petitioner
has been judicially declared an absentee;
(3) That the loss of parental authority of
the spouse of the petitioner has been
decreed by the court;
(4) That the spouse of the petitioner
has abandoned the latter or failed to
comply w/ his or her obligations to the
family as provided for in Article 101.
(5) That the spouse granted the power
of
administration
in
the
marriage
settlements has abused that power; &
(6) That at the time of the petition, the
spouses have been separated in fact for at
least one year & reconciliation is highly
improbable.
In the cases provided for in Numbers
(1), (2) & (3), the presentation of the final
judgment against the guilty or absent
spouse shall be enough basis for the grant
of the decree of judicial separation of
property.
Art. 136. The spouses may jointly file a
verified petition w/ the court for the
voluntary dissolution of the absolute
community or the conjugal partnership of
gains, & for the separation of their common
properties.
All creditors of the absolute community
or of the conjugal partnership of gains, as
well as the personal creditors of the
spouse, shall be listed in the petition
notified of the filing thereof. The court shall
take measures to protect the creditors &
other persons w/ pecuniary interest.

Tolentino:
Rule:
Whatever regime of property
relation that the spouses may adopt is
unchangeable & cannot be altered, once
the marriage has been celebrated. Spouses
cannot even abandon the agreement made
in the marriage settlement & substitute the
regime of ACP bec. such is only suppletory
in character, to be applied when there is no
agreement in a marriage settlement.
85

Exception: In the case of judicial separation


during the marriage.
Art. 77. The marriage settlements & any
modification thereof shall be in writing,
signed by the parties & executed before the
celebration of the marriage. They shall not
prejudice third persons unless they are
registered in the local civil registry where the
marriage contract is recorded as well as in
the proper registries of property.
Baviera:
Marriage
settlement/
modification
1. in writing
2. signed by the parties
3. executed before the marriage
4. not prejudice 3Ps unless registered

affidavit, if one is executed instead, shall


be attached to said applications.

Re: Title IX (Parental Authority)


Balane:
The rule here remains unchanged
by R.A. 6809...a minor between 18-21 can
enter into a marriage settlement but the
parents or guardians must sign (not
enough that they simply give their consent;
signing indispensable).
A creditor is entitled to assume that
the property regime is ACP if the marriage
settlement is not recorded...except where
the creditor had actual knowledge.
Tolentino:

Balane:

Persons who must sign (in order)-

Formal
requirement
of
a
marriage
settlement:
in writing
in a public or private instrument
to bind third persons, it must be
recorded in the registry of
property.

1. Father
2. Mother
3. Surviving Parent or Guardian
4. Person w/ legal charge of them

Art. 78. A minor who according to law


may contract marriage may also enter into
marriage settlements, but they shall be valid
only if the persons designated in Article 14 to
give consent to the marriage are made
parties to the agreement, subject to the
provisions of Title IX of this Code.
Art. 14. In case either or both of the
contracting parties, not having been
emancipated by a previous marriage, are
between the ages of 18 & 21, they shall, 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. Such consent shall be
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 & attested before any official
authorized by law to administer oaths. The
personal manifestation shall be recorded in
both applications for marriage license, & the

Art. 79.
For the validity of any
marriage settlements executed by a person
upon whom a sentence of civil interdiction
has been pronounced or who is subject to
any
other
disability,
it
shall
be
indispensable for the guardian appointed
by a competent court to be made a party
thereto.
Art. 80. In the absence of a contrary
stipulation in a marriage settlements, the
property relations of the spouses shall be
governed by Philippine laws, regardless of
the place of the celebration of the marriage
& their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity
of contracts affecting property not situated
in the Philippines & executed in the country
where the property is located; &;
(LEX SITUS- contract - abroad - property
- abroad)
(3) With respect to the extrinsic validity
of contracts entered into in the Philippines
86

but affecting property situated in a foreign


country whose laws require different
formalities for their extrinsic validity.

Art. 81...Void
Art. 86...revocable
If the marriage is not celebrated,
the DPN should be void.
Donation Propter Nuptias (requisites)

Balane:
Does this article imply that the couple can
validly stipulate that a foreign law shall
govern their relation?

made before marriage


in consideration of marriage -consideration
must be understood in layman's terms,
i.e. what motivates one to make the
donation.
in favor of one or both of the betrothed.

Art. 80(3) seems inconsistent w/ Art. 17 (1)


NCC....Balane believes that this article (80(3))
should be suppressed.

Recipient may be one or both of the


betrothed
Donor can be anybody.

Tolentino:

Tolentino:

When the spouses are both Filipinos, or when


one is a Filipino & the other is a foreigner,
their property relations shall be governed by:

The marriage settlement is an accessory


contract dependent for its existence upon
the marriage; thus, if the marriage does
not exist, the terms of the marriage
settlement cannot subsist.

Their marriage settlement where they


may stipulate what laws shall
govern their property relations;
If there is no such stipulation, the laws
of the Philippines
shall apply
regardless of where they live &
where the marriage is celebrated.
However, the laws of the Philippines
will not apply w/ respect to property located
in a foreign country, whether the marriage
settlement is entered into in the Philippines
or in the country where the property is
located. Art. 16, NCC: real property as well
as personal property is subject to the law of
the country where it is stipulated.
Art. 81. Everything stipulated in the
settlements or contracts referred to in the
preceding articles in consideration of a future
marriage, including donations between the
prospective spouses made therein, shall be
rendered void if the marriage does not take
place.
However, stipulations that do not depend
upon the celebration of the marriage shall be
valid.

B.
CAPACITY
TO
EXECUTE
MARRIAGE SETTLEMENT
MINOR

Art. 78. A minor who according to law


may contract marriage may also enter into
marriage settlements, but they shall be
valid only if the persons designated in
Article 14 to give consent to the marriage
are made parties to the agreement, subject
to the provisions of Title IX of this Code.

Baviera:
Art. 14 - father, mother, surviving
parent or guardian, or persons having
legal charge of them, in the order
mentioned.
Title IX - Parental authority

CIVIL INTERDICTION
Balane:
This article is inconsistent w/ Art. 86(1)
Suppose that donation propter nuptias
are made but the marriage is not
celebrated...what happens to the donations?

Art. 79.
For the validity of any
marriage settlements executed by a person
upon whom a sentence of civil interdiction
has been pronounced or who is subject to
any
other
disability,
it
shall
be
87

indispensable for the guardian appointed by


a competent court to be made a party thereto.

C. FORMALITY

F. DONATIONS BY REASON OF
MARRIAGE

Art. 76. In order that any modification in


the marriage settlements may be valid, it
must be made before the celebration of the
marriage, subject to the provisions of Articles
66, 67, 128, 135, & 136.
Art. 77. The marriage settlements & any
modification thereof shall be in writing,
signed by the parties, & executed before the
celebration of the marriage. They shall not
prejudice third persons unless they are
registered in the local civil registry where the
marriage contract is recorded as well as in
the proper registries of property.

D. CONFLICT OF LAW

1. Before the celebration of marriage


2. In consideration of marriage
3. In favor of one or both of the future
spouses
1. NATURE
Art. 82. Donations by reason of
marriage are those w/c are made before its
celebration, in consideration of the same, &
in favor of one or both of the future
spouses.
Tolentino:

Art. 80. In the absence if a contrary


stipulation in a marriage settlement, the
property relations of the spouses shall be
governed by Philippine laws, regardless of the
place of the celebration of the marriage &
their residence.

The marriage is the very reason for


the existence of the donation; it is the
purpose & determining cause w/o w/c there
is no donation.
This article pertains to donation propter
nuptias, w/c excludes:
1. donations made in favor of the spouses
after the celebration of the marriage

This rule shall not apply:


(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of
contracts affecting property not situated in
the Philippines & executed in the country
where the property is located; &
(3) With respect to the extrinsic validity of
contracts entered into in the Philippines but
affecting properties situated in a foreign
country whose laws require different
formalities for their extrinsic validity.
E. EFFECT OF MARRIAGE
TAKING PLACE

rendered void if the marriage does not take


place. However, stipulations that do not
depend upon the celebration of the
marriage shall be valid.

NOT

Art. 81.
Everything stipulated in the
settlements or contracts referred to in the
preceding articles in consideration of a future
marriage, including donations between the
prospective spouses made therein, shall be

2. donations in favor of future spouses,


made before the celebration of the
marriage, but not in consideration of the
marriage
3. donations made in favor of persons other
than the spouses, even though they may
be founded on the marriage.
Such donations are governed by the
provisions on ordinary donations.
Donations in consideration of marriage
may be given:
1.by the spouses to each other
2.by the parents to one or both of the
spouses
3. by third persons to either or both of the
spouses

88

2. FORM
SERRANO V. SOLOMON
Facts: Before the marriage, the future
husband, Melchor Solomon, executed a purported donation propter nuptias w/c provides
that (1) he donates all his properties to his
future children, if any; or (2) if there are none
& he dies before his wife, one-half of his
properties & those acquired during the
marriage shall go to his brothers & sisters; or
(3) if there are no children & his wife dies
before him, one half of all his properties &
those acquired during the marriage shall go
TO THOSE WHO REARED HIS WIFE (plaintiff).
His wife, Alejandra, predeceased him, dying
w/o issue.
Estanislao Serrano, who had
reared Alejandra, filed an action to enforce
the donation. CFI declared the donation null
& void.
Issue: WoN this was a donation proper
nuptias & if so, WoN it was a valid donation
Held: There is no valid donation propter
nuptias. While the donation was made before
the marriage, it was not made in consideration of marriage, bec. marriage was not the
only consideration for the donation since
other conditions were imposed. The marriage
would have to be childless & one of the
spouses would have to die before the other
before the donation would operate. And even
if in consideration of the marriage, it was not
in favor of one or both of the spouses, but IN
FAVOR OF 3rd PERSONS or persons other
than the spouses.

Art. 83. These donations are governed


by the rules on ordinary donations
established in Title III of Book III of the Civil
Code, insofar as they are not modified by
the following articles.

Tolentino:
The principal modifications under the
Family Code of the general rules on
donations are:
Donations propter nuptias do not require
express acceptance by the donee.
If made by minors (below 21), they must
be w/ the consent of those required to give
consent to the marriage.
They cannot exceed 1/5 of the present
property of the donor, when made by the
future spouses to each other.
They can include future property.
They are not revoked by the subsequent
birth or appearance of children.
They are revoked by the non-performance
of the marriage & other causes under Art.
86, FC.
Art. 84.
If the future spouses agree
upon a regime other than the absolute
community of property, they cannot donate
to each other in their marriage settlements
more than one-fifth (1/5) of their present
property. Any excess shall be considered
void.

It is not a valid donation inter vivos


bec. it was not accepted by the donee in the
same or a different instrument. It is not a
donation mortis causa bec. it did not comply
w/ the formalities of wills. Hence, the
donation is void.

Donations of future property shall be


governed
by
the
provisions
on
testamentary succession & the formalities
of wills.

Art. 85. Donations by reason of marriage


of property subject to encumbrances shall be
valid. In case of foreclosure of the
encumbrance & the property is sold for less
than the total amount of the obligation
secured, the donee shall not be liable for the
deficiency. If the property is sold for more
than the total amount of said obligation, the
donee shall be entitled to the excess.

An
oral
donation
requires
the
simultaneous delivery of the thing or of the
document representing the right donated.

Art. 748. The donation of a movable


may be made orally or in writing.

If the value of the personal property


donated exceeds five thousand pesos
(P5,000), the donation & the acceptance
shall be made in writing. Otherwise, the
donation shall be void. (Civil Code.)
Art. 749. In order that the donation of
an immovable may be valid, it must be
89

made in a public document, specifying


therein the property donated & the value of
the charges w/c the donee must satisfy.
The acceptance may be made in the
same deed of donation or in a separate public
document, but it shall not take effect unless it
is done during the lifetime of the donor.
If the acceptance is made in a separate
instrument, the donor shall be notified
thereof in an authentic form, & this step shall
be noted in both instruments.

Balane:
This article applies only if the
regime agreed upon is one other than the
ACP. If the regime is ACP, there is really no
sense in making DPN's to each other, bec.
DPN's made between the two become
community property. In a CPG & a regime of
Absolute Separation, DPN's made are not
communalized.
The ordinary limitations to donations apply.
i.e. one cannot donate all of his/her property,
leaving nothing to him/herself.
With regard to future property, a donation
may be made only by will, & only as to the
disposable portion.
3.

DISTINGUISHED
INTER VIVOS
A.

FR.

DONATIONS

CONSIDERATION & DONEE

Art. 87. Every donation or grant of


gratuitous advantage, direct or indirect,
between the spouses during the marriage
shall be void, except moderate gifts w/c the
spouses may give each other on the occasion
of any family rejoicing. The prohibition shall
also apply to persons living together as
husband & wife w/o a valid marriage.

Balane:
This article does not refer to
donation propter nuptias.
Tolentino:
The basis of this provision is the
principle of unity of personality of the
spouses during the marriage, & is intended to
avoid possible transfer of property fr. one
spouse to the other due to passion or avarice.
It also applies to the parties in what
are called common law marriages;
otherwise, the condition of those who

incurred guilt would turn out to be better


than those in legal union.
Rule: Donations made by one spouse to
the other during the marriage are patent
nullity.
Exception: Gifts of moderate value.
To determine this, consider the social
position of the family, its usages or
customs, & other circumstances of the
parties.
Art. 82. Donations by reason of
marriage are those w/c are made before its
celebration, in consideration of the same, &
in favor of one or both of the future
spouses.

NAZARENO V. BIROG
Facts: Juan Abeno was married to Andrea
Rodriguez. They had a daughter, Alberia,
the mother of Bonifacio. When Juan died,
Andrea married Cirilo Braganza. they did
not have any children but their grandson
Bonifacio lived w/ them.
Braganza
executed a deed of donation of a parcel of
land in favor of Bonifacio, who was then a
minor.
Donation was accepted by his
parents.
However, Cirilo remained in
possession of the land, & later sold
different portions to Ariola & Birog.
Bonifacio filed an action to recover said
property.
Issue:
Won Bonifacio has a cause of
action against them
Held.
NONE.
A donation made to a
grandchild of a wife by a previous marriage
falls under the prohibition Article 133 of the
Civil Code (Art. 87, FC). Said prohibition
applies notw/standing the fact that the
provision mentions only legitimate children.
(9 Manresa 236).
MATABUENA V. CERVANTES
Facts: Felix Matabuena & Petronila
Cervantes lived as common law spouses
During said relationship, Matabuena made
a donation inter vivos of a parcel of land in
favor of Cervantes. Six years later, they
were legally married. Matabuena died. His
sister, Cornelia, filed an action to recover
the land, claiming the donation made in
90

favor of Cervantes was void under Art. 133 of


the NCC, w/c prohibits donations made
between the spouses during the marriage,
except donations mortis causa & moderate
gifts. LC for Cervantes.
Issue: WoN the prohibition against donation
inter vivos between the spouses during the
marriage
applies
to
common
law
relationships?
Held: YES. Art. 133 of the Civil Code (Art. 87
FC) considers as void a "donation between
the spouses during the marriage". Policy
considerations of the most exigent character
as well as the dictates of morality require that
the same prohibition should apply to a
common-law
relationship.
Citing
Buenaventura v. Bautista, if the policy of the
law is to prohibit donations in favor of the
other consort & his descendants bec. of fear
of undue & improper pressure & influence
upon the donor, a prejudice deeply rooted in
our ancient law, then there is every reason to
apply the same prohibitive policy to persons
living together as husband & wife w/o the
benefit of nuptials. For it is not to be doubted
that assent to such irregular connection for
thirty years bespeaks greater influence of
one party over the other, so that the danger
that the law seeks to avoid is correspondingly
increased. Moreover, it would not be just that
such donation should subsist, lest the
condition of those who incurred guilt should
turn out to be better. So long as marriage
remains the cornerstone of our family law,
reason & morality alike demand that the
disabilities attached to marriage should
likewise attach to concubinage.
B.

REVOCATION

Art. 765.
The donation may also be
revoked at the instance of the donor, by
reason of ingratitude in the following cases:
(1) If the donee should commit some
offense against the person, honor or the
property of the donor, or of his wife or
children under his parental authority;
(2) If the donee imputes to the donor any
criminal offense, or any act involving moral
turpitude, even though he should prove it,
unless the crime or the act has been
committed against the donee himself, his
wife or children under his authority;

(3) If he unduly refuses to give him


support when the donee is legally or
morally bound to give support to the donor.
Balane: For acts of ingratitude, refer to
Art. 765 of the NCC.
Art. 760.
Every donation inter vivos,
made by a person having no children or
descendants, legitimate or legitimated by
subsequent marriage, or illegitimate, may
be revoked or reduced as provided in the
next article, by the happening of any of
these events:
(1) If the donor, after the donation,
should have legitimate or legitimated or
illegitimate children, even though they be
posthumous;
(2) If the child of the donor, whom the
latter believed to be dead when he made
the donation, should turn out to be living;
(3) If the donor should subsequently
adopt a minor child. (Civil Code.)
Art. 86.
A donation by reason of
marriage may be revoked by the donor in
the following cases:
(1) If the marriage is not celebrated or
judicially declared void ab initio except
donations
made
in
the
marriage
settlements, w/c shall be governed by
Article 81;
Art. 81. Everything stipulated in the
settlements or contracts referred to in the
preceding articles in consideration of a
future
marriage,
including
donations
between the prospective spouses made
therein, shall be rendered void if the
marriage does not take place. However,
stipulations that do not depend upon the
celebration of the marriage shall be valid.
(2) When the marriage takes place w/o
the consent of the parents or guardian as
required by law;
(3) When the marriage is annulled, &
the donee acted in bad faith;
(4) Upon legal separation, the donee
being the guilty spouse;
(5) If it is w/ a resolutory condition &
the condition is complied w/;
(6) When the donee has committed an
act of ingratitude as specified by the
91

provisions of the Civil Code on donations in


general.
Art. 43. The termination of the
subsequent marriage referred to in the
preceding Article (Marriage after declaration
of presumptive death of absent spouse) shall
produce the following effects:
xxx
(3) Donations by reason of marriage shall
remain valid, except that if the donee
contracted the marriage in bad faith, such
donations made to said donee are revoked by
operation of law.
Art. 50.
The effects provided for by
paragraphs (2), (3), (4), & (5) of Article 43, &
44 shall also apply in the proper cases to
marriages w/c are declared void ab initio or
annulled by final judgment under Articles 40
& 45.
The final judgment in such cases shall
provide for the liquidation, partition & distribution of the properties of the spouses, the
custody & support of the common children, &
the delivery of their presumptive legitimes,
unless such matters had been adjudicated in
previous judicial proceedings.
All creditors of the spouses as well as
of the absolute community or the conjugal
partnership shall be notified of the
proceedings for liquidation.
In the partition, the conjugal dwelling
& the lot on w/c it is situated, shall be
adjudicated in accordance w/ the provisions
of Articles 102 & 129.

Baviera: Art. 86 FC compared to Art. 43


FC
Even if marriage does not take place,
can be revoked
Need for action to revoke bec. the law
says "may"
If in bad faith, no need for action to
revoke, Art. 60 FC, by operation o law.

SOLIS V. BARROSO
Facts:
Juan Lambino & Maxima Barroso
made a donation propter nuptias of some
lands in favor of their son Alejo Lambino &
Fortunata Solis, in a private document, in
consideration of their marriage. One of the
conditions is that in case of death of one of

the donees, 1/2 of those lands would revert


to the doors while the surviving donee
would retain the other half.
The two
eventually got married, & the donors
delivered the possession of the land to
them. Later, Alejo died. In the same year,
Juan died, after w/c Maxima recovered
possession of the donated lands. Solis filed
an action against Barroso, demanding that
she execute the proper deed of donation &
transfer 1/2 of the property. LC for plaintiff.
Issue: Can Fortunata compel the execution
of the said deed?
Held: NO. A donation propter nuptias of
lands in a private instrument is not valid
bec. the law requires donations of real
property to be made in a public instrument.
A donation propter nuptias is not onerous &
thus must necessarily be contained in a
public instrument. While the marriage is
indeed its consideration it is not so in the
sense of being necessary to give birth to
the obligation. In fact, a donation propter
nuptias remains valid even if the marriage
does not take place, provided it is not
revoked w/in the period allowed by law. The
marriage in donation propter nuptias is
rather a resolutory condition w/c, as such,
presupposes the existence of the birth of
the obligation.
The only exceptions to the rule
requiring the donation to be contained in a
public document are:
1) onerous &
remuneratory donations insofar as they do
not exceed the value of the charge
imposed, & 2) those w/c are to take effect
upon the donors death, w/c are governed
by the rules on testamentary succession.
C.

EXTENT

OF

PROPERTY DONATED

Art. 752. The provisions of article 750


notw/standing, no person may give or
receive, by way of donation, more than he
may give or receive by will.
The donation shall be inofficious in all
that it may exceed this limitation. (Civil
Code.)

Baviera:
92

as to spouses, not > 1/5 of present


property
as to 3Ps, not limit provided not
officious (Art. 750 CC)
donee beware that donation revocable!

Art. 750. The donation may comprehend


all the present property of the donor, or part
thereof, provided he reserves, in full
ownership or in usufruct, sufficient means for
the support of himself, & of all relatives who,
at the time of the acceptance of the
donation, are by law entitled to be supported
by the donor. Without such reservation, the
donation shall be reduced on petition of any
person affected.
Art. 751. Donations cannot comprehend
future property.
By future property is understood anything
w/c the donor cannot dispose of at the time
of the donation.
Art. 1070. Wedding gifts by parents &
ascendants consisting of jewelry, clothing, &
outfit, shall not be reduced as inofficious
except insofar as they may exceed one-tenth
of the sum w/c is disposable by will.
Art. 84. If the future spouses agree upon a
regime other than the absolute community of
property, they cannot donate to each other in
their marriage settlements more than onefifth of their present property. Any excess
shall be considered void.
Donations of future property shall be
governed by the provisions on testamentary
succession & the formalities of wills.

MATEO V. LAGUA
Facts: Souses Cipriano & Alejandra Lagua
donated 2 lots to their son Alejandro in
consideration of the latters marriage to
Bonifacia Mateo. Alejandra later died, &
Bonifacia lived w/ her in-laws, who cultivated
said lots. Bonifacia was given the owners
share of the harvest until 1956. Said lots
were later sold by Cipriano to his younger son
Gervacio. Bonifacia sued the spouses. LC
declared the sale null & void. Cipriano &
Gervacio also filed suit for the annulment of

the donation on the ground that it


prejudiced the legitime of Gervacio. LC
dismissed the suit on the ground of
prescription. CA reversed, but merely
reduced the donation.
Issue: WoN the donation propter nuptias
may be reduced for being inofficious/
Held: YES. A donation propter nuptias
may be revoked for being inofficious. It is
wrong to say that a donation propter
nuptias has an onerous consideration, the
marriage in this case being merely the
occasion or motive, not the causa. Being
liberalities,
they remain
subject to
reduction for being inofficious upon the donor's death if it infringes on the legitime of
any of the donor's heirs. The donation in
this case was not annulled in its entirety,
but only to the extent that it infringed on
the legitime of the donor's heir.
Note that under Art 43(3), a
donation is revoked by operation of law,
under the circumstances therein provided.
However, Art. 86(1) provides that any
revocation in elective, not automatic.
G. ABSOLUTE COMMUNITY
Tolentino:
Under this regime, the husband & the
wife are joint owners of all the
properties of the marriage.
The
properties w/c each spouse brings
into the marriage, & those w/c they
acquire during the marriage, all form
a
common
mass,
w/c,
after
dissolution of the marriage or of the
community, is divided between the
spouses, or their respective heirs,
equally or in proportion the parties
have establish4ed, irrespective of the
value each one may have originally
owned.
When commences
Art. 88. The absolute community of
property between spouses shall commence
at the precise moment that the marriage is
celebrated. Any stipulation, express or
implied, for the commencement of the
93

community regime at any other time shall be


void.

Balane:
There is ACP when:
-there is no marriage settlement
-there is a marriage settlement & the
parties agree on ACP
-the marriage settlement is void.
Importance: see Art. 92 (1)
Tolentino:
The property regime of the
spouses commences at the precise moment
(not the date) the marriage is celebrated.
Waiver not allowed
Art. 89. No waiver of rights, interests,
shares & effects of the absolute community
of property during the marriage can be made
except in case of judicial separation of
property.
When the waiver takes place upon a
judicial separation of property, or after the
marriage has been dissolved or annulled, the
same shall appear in a public instrument &
shall be recorded as provided in Article 77.
Art. 77. The marriage settlements & any
modification thereof shall be in writing,
signed by the parties & executed before the
celebration of the marriage. They shall not
prejudice third persons unless they are
registered in the local civil registry where the
marriage contract is recorded as well as in
the proper registries of property.
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.

Tolentino:
The article limits itself to prohibiting the
waiver of the benefits of such community.
Such waiver may be made by a spouse in
favor of a particular person, in w/c case there
is an assignment of rights; or it may be made
in general terms, in w/c case the share
renounced accrues to the other spouse or his
heirs. The renunciation, however, does not
deprive the spouse renouncing of his right to
his separate property or capital, nor does it
relieve him of personal obligations.

Co-ownership
Art. 90. The provisions on co-ownership
shall apply to the absolute community of
property between the spouses in all
matters not provided for in this Chapter.

What Constitutes Community Property


Art. 91. Unless otherwise provided in
this
Chapter
or
in
the
marriage
settlements, the community property shall
consist of all the property owned by the
spouses at the time of the celebration of
the marriage or acquired thereafter.

Tolentino:
The patrimony of either spouse
existing at the time of the marriage is
automatically
converted
into
common property, w/o the necessity
of any juridical act transmitting
ownership of the individual objects.
Exceptions
Art. 92. The following shall be excluded
fr. the community property:
(1) Property acquired during the
marriage by gratuitous title by either
spouse, & the fruits as well as the income
thereof, if any, unless it is expressly
provided by the donor, testator or grantor
that they shall form part of the community
property;
(2) Property, for personal & exclusive
use of either spouse. However, jewelry
shall form part of the community property;
(3) Property acquired before the
marriage by either spouse who has
legitimate descendants [under CC children
only,
but
JBL
loved
his
grandchildren] by a former marriage, & the
fruits as well as the income, if any, of such
property.

Baviera: Relate to Art. 51 & 53

94

Balane:
Suppose A & B married under the Family
Code. A inherited fr. his father before the
marriage & this becomes community
property. If A inherits fr. his mother during the
marriage, this becomes paraphernal property.
The fruits of separate property remain
separate under the ACP but become
community property under the CPG.
The following example illustrates an instance
where the CPG regime is stricter:
A marries B (ACP). They bring nothing
into the marriage. All that they inherit, they
get during the marriage. The property thus
inherited is separate, & the fruits thereof are
likewise separate.
Given the same set of facts, except
that the governing regime is CPG, what the
spouses inherit during the marriage is
separate, but the fruits are communalized. It
is in this sense that the CPG regime is stricter.
Tolentino: The properties mentioned under
this article are known as reserved property.
Absent any agreement excluding certain
properties, all the patrimony of the spouses
are reserved.
Presumption
Art. 93. Property acquired during the
marriage is presumed to belong to the
community, unless it is proved that it is one
of those excluded therefr.

Charges Upon & Obligations


Absolute Community
Art. 94. The absolute
property shall be liable for:

of

the

community of

(1) The support of the spouses, their


common children, & legitimate children of
either spouse; however, the support of
illegitimate children shall be governed by the
provisions of this Code on Support;
(2) All debts & obligations contracted
during the marriage by the designated
administrator- spouse for the benefit of the
community, or by both spouses, or by one
spouse w/ the consent of the other;
(3) Debts & obligations contracted by
either spouse w/o the consent of the other to
the extent that the family may have been
benefited;

(4) All taxes, liens, charges & expenses,


including major or minor repairs, upon the
community property;
(5) All taxes & expenses for mere
preservation made during marriage upon
the separate property of either spouse
used by the family;
(6) Expenses to enable either spouse to
commence or complete a professional or
vocational course, or other activity for selfimprovement;
(7) Ante-nuptial debts of either spouse
insofar as they have redounded to the
benefit of the family;
(8) The value of what is donated or
promised by both spouses in favor of their
common legitimate children for the
exclusive purpose of commencing or
completing a professional or vocational
course
or
other
activity
for
selfimprovement;
(9) Antenuptial debts of either spouse
other than those falling under paragraph
(7) of this Article, the support of illegitimate
children of either spouse, & liabilities
incurred by either spouse by reason of a
crime or a quasi-delict, in case of absence
or insufficiency of the exclusive property of
the debtor-spouse, the payment of w/c
shall be considered as advances to be
deducted fr. the share of the debtor-spouse
upon liquidation of the community; &
(10) Expenses of litigation between the
spouses unless the suit is found to be
groundless.
If the community property is insufficient
to cover the foregoing liabilities, except
those falling under paragraph (9), the
spouses shall be solidarily liable for the
unpaid
balance
w/
their
separate
properties.

Balane:
Liabilities of the ACP.
94.1 in case of illegitimate children of
either spouse, the community is only
subsidiarily liable.
94.2 all that is required in this case is a
determination of the purpose of the
obligation contracted
Tolentino:
The ACP is liable for the
support of the spouses, their common
children, & legitimate children of either
spouse in a previous marriage.
95

LUZON SURETY V. DE GARCIA


Held: Any debt contracted by the husbandadministrator w/ the intention of binding the
community property, must redound to the
community property's benefit. Any obligation
incurred by the husband to be chargeable
against the community property, must be
incurred in the legitimate pursuit of his
career, profession, business, & w/ an honest
belief that he is doing right for the benefit of
the family.
GELANO V. C.A.
Held: It was an error for the court to hold the
spouses liable jointly & severally on an
obligation that redounded to the benefit of
the community. The community partnership,
as a single & separate entity, should be liable
for the obligation.
G-TRACTORS V. C.A.
Held: The
obligation
incurred
here
redounded to the benefit of the community
partnership, & thus was a partnership
obligation.
The land where the logging
concession was located belonged to the
family & not to the husband exclusively.
Furthermore, the obligation was incurred to
enhance
productivity for the logging
business, a commercial enterprise for gain,
w/c the husband, as administrator had every
right to enter into on behalf of the community
partnership. The realization of actual profits
& benefit on the part of the partnership is not
required, it being sufficient to show that the
transaction normally benefits the partnership.
Gambling
Art. 95. Whatever may be lost during the
marriage in any game of chance, betting,
sweepstakes, or any other kind of gambling,
whether permitted or prohibited by law, shall
be borne by the loser & shall not be charged
to the community but any winnings therefr.
shall form part of the community property.

Ownership, Administration, Enjoyment


&
Disposition
of
the
Community
Property

Art.
96.
The
administration
&
enjoyment of the community property shall
belong to both spouses jointly. In case of
disagreement, the husband's decision shall
prevail, subject to recourse to the court by
the wife for proper remedy, w/c must be
availed of w/in five years fr. the date of the
contract implementing such decision.
In the event that one spouse is
incapacitated or otherwise unable to
participate in the administration of the
common properties, the other spouse may
assume sole powers of administration.
These powers do not include the powers of
disposition or encumbrance w/c must have
the authority of the court or the written
consent of the other spouse. In the
absence of such authority or consent, the
disposition or encumbrance shall be void.
However,
the
transaction
shall
be
construed as a continuing offer on the part
of the consenting spouse & the third
person, & may be perfected as a binding
contract upon the acceptance by the other
spouse or authorization by the court before
the offer is w/drawn by either or both
offerors.

Baviera:
ratified
weird

Better: unenforceable until


void tapos = continuing offer -

Balane:
Ownership, administration, enjoyment &
disposition of Community property-all
joint responsibility & right of both
spouses.
In case of a spouse's
unjustified refusal to give his/her
consent, the other may go to court.
There is no provision on alienation &
encumbrance but it is understood that
the same is included.
Art. 97. Either spouse may dispose by
will of his or her interest in the community
property.
Art. 98.
Neither spouse may donate
any community property w/o the consent of
the other. However, either spouse may, w/o
the consent of the other, make moderate
donations fr. the community property for
charity or on occasions of family rejoicing
or family distress.
96

Balane: All donations must be made jointly,


except moderate donations.
Dissolution of Absolute Comm Regime
Art. 99.
terminates:

The

absolute

community

(1) Upon the death of either spouse;


(2) When there is a decree of legal
separation;
(3) When the marriage is annulled or
declared void; or
(4) In case of judicial separation of
property during the marriage under Articles
134 to 138.
Art. 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.
Art. 135. Any of the following shall be
considered sufficient cause for judicial
separation of property:
(1) That the spouse of the petitioner has
been sentenced to a penalty w/c carries w/ it
civil interdiction;
(2) That the spouse of the petitioner has
been judicially declared an absentee;
(3) That loss of parental authority of the
spouse of petitioner has been decreed by the
court;
(4) That the spouse of the petitioner has
abandoned the latter or failed to comply w/
his or her obligations to the family as
provided for in Article 101;
Art. 101. If a spouse w/o just cause
abandons the other or fails to comply w/ his
or her obligations to the family, the aggrieved
spouse may petition the court for receivership, for judicial separation of property or for
authority to be the sole administrator of the
absolute community, subject to such
precautionary conditions as the court may
impose.
The obligations to the family mentioned in
the preceding paragraph refer to marital,
parental or property relations.

A spouse is deemed to have abandoned


the other when he or she has left the
conjugal
dwelling
w/o
intention
of
returning. The spouse who has left the
conjugal dwelling for a period of three
months or has failed w/in the same period
to give any information as to his or her
whereabouts
shall be prima facie
presumed to have no intention of returning
to the conjugal dwelling.
(5) That the spouse granted the power
of
administration
in
the
marriage
settlements has abused that power; &
(6) That at the time of the petition, the
spouses have been separated in fact for at
least one year & reconciliation is highly
improbable.
In the cases provided for in Numbers
(1), (2) & (3), the presentation of the final
judgment against the guilty or absent
spouse shall be enough basis for the grant
of the decree of judicial separation of
property.
Art. 136. The spouses may jointly file a
verified petition w/ the court for the
voluntary dissolution of the absolute
community or the conjugal partnership of
gains, & for the separation of their common
properties.
All creditors of the absolute community
or of the conjugal partnership of gains, as
well as the personal creditors of the
spouse, shall be listed in the petition
notified of the filing thereof. The court shall
take measures to protect the creditors &
other persons w/ pecuniary interest.
Art. 137. Once the separation of
property has been decreed, the absolute
community or the conjugal partnership of
gains shall be liquidated in conformity of
this Code.
During
the
pendency
of
the
proceedings for separation of property, the
absolute community or the conjugal
partnership shall pay for the support of the
spouses & their children.
Art. 138.
After dissolution of the
absolute community or of the conjugal

97

partnership, the provisions on


separation property shall apply.

complete

Balane:
Note that dissolution of the ACP is not
synonymous w/ dissolution of the marriage.
In cases involving 99.2 & 99.4, there is
dissolution of the ACP although the marriage
is not dissolved.
But dissolution of the marriage
automatically results in dissolution of the ACP.
Note that when a marriage is declared
as a nullity, there is no ACP to dissolve. The
dissolution in this case is governed by the
rules on co-ownership.
In case of liquidation, the following provisions
apply:
(1) dissolution under 99.1...Art 103 governs
liquidation
(2) dissolution under 99.2...Art 63 & 64 apply
(3) dissolution under 99.3...Art 50-52 apply
(4) dissolution under 99.4...Art 134-137 apply
Effect of separation in fact
Art. 100. The separation in fact between
husband & wife shall not affect the regime of
absolute community except that:
(1) The spouse who leaves the conjugal
home or refuses to live therein, w/o just
cause, shall not have the right to be
supported;
(2) When the consent of one spouse to
any transaction of the other is required by
law, judicial authorization shall be obtained in
a summary proceeding;
(added in FC)
(3) In the absence of sufficient community
property, the separate property of both
spouses shall be solidarily liable for the
support of the family. The spouse present
shall, upon proper petition in a summary
proceeding, be given judicial authority to
administer or encumber any specific
separate property of the other spouse & use
the fruits or proceeds thereof to satisfy the
latter's share.

Tolentino:
Separation in fact refers to the actual
definite separation of the
persons of
husband & wife, thereby terminating
cohabitation or common life under the
same roof, w/o judicial order. As a rule, the
ACP is not affected by such separation,
except as provided in this article. The
spouse who leaves the conjugal home w/o
justification, & refuses to return thereto,
loses his right to be supported by the other
spouse; but his obligation to support the
other is not extinguished. If there is no
one at fault, the obligation to support each
other & the common children continues.
Art. 101. If a spouse w/o just cause
abandons the other or fails to comply w/
his or her obligations to the family, the
aggrieved spouse may petition the court
for receivership, for judicial separation of
property or for authority to be the sole
administrator of the absolute community,
subject to such precautionary conditions as
the court may impose.
The obligations to the family mentioned
in the preceding paragraph refer to marital,
parental or property relations.
A spouse is deemed to have abandoned
the other when he or she has left the
conjugal
dwelling
w/o
intention
of
returning. The spouse who has left the
conjugal dwelling for a period of three
months or has failed w/in the same period
to give any information as to his or her
whereabouts shall be prima facie presumed
to have no intention of returning to the
conjugal dwelling.

Baviera: This applies even if husband


gives support.

Tolentino:
Abandonment implies a departure w/ the
avowed intent never to return, followed by
prolonged absence w/o just cause, & w/o in
the meantime providing in the least for
ones family although able to do so. There
must be absolute cessation of marital
relations, duties & rights, w/ the intention
of perpetual separation.

(note: need for judicial authority)


98

Liquidation of the Absolute Community


Assets & Liabilities
How liquidated
Art. 102. Upon dissolution of the absolute
community regime, the following procedure
shall apply:
(1) An inventory shall be prepared, listing
separately all the properties of the absolute
community & the exclusive properties of each
spouse.
(2) The debts & obligations of the
absolute community shall be paid out of its
assets. In case of insufficiency of said assets,
the spouses shall be solidarily liable for the
unpaid balance w/ their separate properties
in accordance w/ the provisions of the second
paragraph of Article 94.
(Forfeiture of net profits)
Art. 94. The absolute
property shall be liable for:

community of

(1) The support of the spouses, their


common children, & legitimate children of
either spouse; however, the support of
illegitimate children shall be governed by the
provisions of this Code on Support;
(2) All debts & obligations contracted
during the marriage by the designated
administrator-spouse for the benefit of the
community, or by both spouses, or by one
spouse w/ the consent of the other;
(3) Debts & obligations contracted by
either spouse w/o the consent of the other to
the extent that the family may have been
benefited;
(4) All taxes, liens, charges & expenses,
including major or minor repairs, upon the
community property;
(5) All taxes & expenses for mere
preservation made during marriage upon the
separate property of either spouse used by
the family;
(6) Expenses to enable either spouse to
commence or complete a professional or
vocational course, or other activity for selfimprovement;
(7) Antenuptial debts of either spouse
insofar as they have redounded to the benefit
of the family;
(8) The value of what is donated or
promised by both spouses in favor of their

common legitimate children for the


exclusive purpose of commencing or
completing a professional or vocational
course
or
other
activity
for
selfimprovement;
(9) Antenuptial debts of either spouse
other than those falling under paragraph
(7) of this Article, the support of illegitimate
children of either spouse, & liabilities
incurred by either spouse by reason of a
crime of a quasi-delict, in case of absence
or insufficiency of the exclusive property of
the debtor-spouse, the payment of w/c
shall be considered as advances to be
deducted fr. the share of the debtor-spouse
upon liquidation of the community; &
(10) Expenses of litigation between the
spouses unless the suit is found to be
groundless.
If the community property is insufficient
to cover the foregoing liabilities, except
those falling under paragraph (9), the
spouses shall be solidarily liable for the
unpaid
balance
w/
their
separate
properties.)
(3) Whatever remains of the exclusive
properties of the spouses shall thereafter
be delivered to each of them.
(4) The net remainder of the properties
of the absolute community shall constitute
its net assets, w/c shall be divided equally
between husband & wife, unless a different
proportion or division was agreed upon in
the marriage settlements, or unless there
has been a voluntary waiver of such share
as provided in this Code. For purposes of
computing the net profits subject to
forfeiture in accordance w/ Articles 43, No.
(2) & 63, No. (2), the said profits shall be
the increase in value between the market
value of the community property at the
time of the celebration of the marriage &
the market value at the time of its
dissolution.
Art. 43. The termination of the
subsequent marriage referred to in the
preceding Article shall produce the
following effects:
xxx
(2) The absolute community of property
or the conjugal partnership, as the case
may be, shall be dissolved & liquidated, but
if either spouse contracted said marriage in
99

bad faith, his or her share of the net profits of


the
community
property
or
conjugal
partnership property shall be forfeited in
favor of the common children or if there are
none, the children of the guilty spouse by a
previous marriage or, in default of children,
the innocent spouse.
Art. 63. The decree of legal separation
shall have the following effects:
xxx
(2) The absolute community or the
conjugal partnership shall be dissolved &
liquidated but the offending spouse shall
have no right to any share of the net profits
earned by the absolute community or the
conjugal partnership, w/c shall be forfeited in
accordance w/ the provisions of Article 43 (2).
xxx
(5) The presumptive legitimes of the
common children shall be delivered upon
partition, in accordance w/ Article 51.
Art. 51. In said partition, the value of the
presumptive legitimes of all common
children, computed as of the date of the final
judgment of the trial court, shall be delivered
in cash, property or sound securities, unless
the parties, by mutual agreement judicially
approved, had already provided for such
matters.
The children or their guardian, or the
trustee of their property may ask for the
enforcement of the judgment.
The delivery of the presumptive legitimes
herein prescribed shall in no way prejudice
the ultimate successional rights of the
children accruing upon the death of either or
both of the parents; but the value of the
properties already received under the decree
of annulment or absolute nullity shall be
considered as advances on their legitime.)
(6) Unless otherwise agreed upon by the
parties, in the partition of the properties, the
conjugal dwelling & the lot on w/c it is
situated shall be adjudicated to the spouse w/
whom the majority of the common children
choose to remain. Children below the age of
seven years are deemed to have chosen the
mother, unless the court has decided
otherwise. In case there is no such majority,
the
court
shall
decide,
taking
into
consideration the best interests of said
children.

Balane:
Basic steps in liquidation:
1) inventory (Art. 102) -3 sets: community
property
list of separate property of wife
list of separate property of husband
2) payment of community debts - pay out
of community assets first...if not enough,
then pay out of separate property...the
husband & the wife shall be solidarily liable
3) deliver to each spouse his or her
respective share
4) division of the net community assets
-note the special rule w/ regard to the
family home...also take note that even
after death, the family home remains
undivided.
5) delivery of presumptive legitimes
The presumptive legitimes are given in the
following cases:
reappearance of former spouse (102.5;
43.2) w/c terminates the second
marriage
annulment, not the declaration of nullity, of
the marriage
legal separation (102.5;63.2)
other cases of dissolution of the ACP/CPG
Effect of death
Art. 103. Upon the termination of the
marriage by death, the community
property shall be liquidated in the same
proceeding for the settlement of the estate
of the deceased.
If no judicial settlement proceeding is
instituted, the surviving spouse shall
liquidate the community property either
judicially or extra-judicially w/in one year fr.
the death of the deceased spouse. If upon
the lapse of the said period, no liquidation
is made, any disposition or encumbrance
involving the community property of the
terminated marriage shall be void.

Should the surviving spouse contract a


subsequent marriage w/o compliance w/
100

the foregoing requirements, a mandatory


regime of complete separation of property
shall govern the property relations of the
subsequent marriage.

Balane:
Liquidation of the ACP may be done in the
settlement proceedings of the deceased
spouse's estate. Liquidation in such a case
(death) may likewise be done judicially or
extrajudicially.
The
law
requires
that
liquidation be done w/in one(1) year fr.
death...if
not:
any
disposition
or
encumbrance is VOID (103.2) & the
subsequent marriage shall be made subject
to a mandatory regime of separation of
property...the 2nd marriage shall be valid, but
subject to mandatory absolute separation of
property.
Art. 104. Whenever the liquidation of the
community properties of two or more
marriages contracted by the same person
before the effectivity of this Code is carried
out simultaneously, the respective capital,
fruits & income of each community shall be
determined upon such proof as may be
considered according to the rules of
evidence.
In case of doubt as to w/c
community the existing properties belong,
the same shall be divided between the
different communities in proportion to the
capital & duration of each.

Baviera: No actual case yet

Balane:
The application of this article is possible only
for marriages contracted before 3 August
1988. e.g., In 1955 A married B. A died.
ACP/CPG was not liquidated. In 1965,
B
remarried to C. 1995 C died. B wants to
liquidate both marriages. He will then have
to apply Art. 104. For property whose origin
he is unsure of, the ratio/proportion;
peso/years formula may be used.
x = no. of years of marriage 1
y = capital of marriage 1
A = duration of marriage 2
B = capital of marriage 2
x = 8 years
y = P2 M
A = 30
B = P3 M

formula:
xy
x value of the property
marriage 1
xy + AB

= share of

AB
x value of the property
marriage 2
xy = AB

= share of

Note that in cases of marriages under the


Family Code made subject to mandatory
absolute separation, Art. 104 will never
apply.
H. CONJUGAL PARTNERSHIP OF
GAINS
Tolentino:
This is a partnership formed by the
marriage of the husband & wife, by virtue
of w/c, they place in a common fund the
fruits of their separate properties & of their
work or industry & divide in equal parts,
upon the dissolution of the union, the
profits & benefits indiscriminately obtained
by either of the spouses during the
marriage. It is formed by the husband &
the wife, each of whom has his or her own
property & debts. the legislator did not
intend to effect a mixture of the debts or
properties between the spouses. The law
establishes
complete
separation
of
capitals--a complete independence of the
capital account fr. the account of benefits
pertaining to the conjugal partnership.
This
constitutes
an
insurmountable
obstacle to the presumption of solidarity
between the spouses.
General Provisions
Art. 105. In case the future spouses
agree in the marriage settlements that the
regime of conjugal partnership of gains
shall govern their property relations during
the marriage, the provisions in this Chapter
shall be of supplementary application.
The provisions of this Chapter shall
also apply to conjugal partnerships of gains
already established between spouses
before the effectivity of this Code, w/o
prejudice to vested rights already acquired
101

in accordance w/ the Civil Code or other laws,


as provided in Article 256.

contract is recorded as well as in the proper


registries of property.

Art. 256. This Code shall have retroactive


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

Tolentino:

Art. 106. Under the regime of conjugal


partnership of gains, the husband & wife
place in a common fund the proceeds,
products, fruits & income fr. their separate
properties & those acquired by either or both
spouses through their efforts or by chance, &
upon dissolution of the marriage or of the
partnership, the net gains or benefits
obtained by either or both spouses shall be
divided equally between them, unless
otherwise
agreed
in
the
marriage
settlements.

Balane:
Note that at the start of the
marriage, the common fund is at 0 balance.

There is no co-ownership between the


spouses in the properties of the CPG.
Hence, neither spouse can alienate in favor
of another his/her interest in the
partnership or in any property belonging to
it; neither spouse can ask for a partition of
the properties before the partnership is
legally dissolved.

Art. 108. The conjugal partnership shall


be governed by the rules on the contract of
partnership in all that is not in conflict w/
what is expressly determined in this
Chapter or by the spouses in their marriage
settlements.

ANSALDO V. SHERIFF
Art. 107. The rules provided in Articles 88
& 89 shall also apply to conjugal partnership
of gains.
Art. 88.
The absolute community of
property between spouses shall commence
at the precise moment that the marriage is
celebrated. Any stipulation, express or
implied, for the commencement of the
community regime at any other time shall be
void.
Art. 89. No waiver of rights, interests,
shares & effects of the absolute community
of property, or after the marriage has been
dissolved or annulled, the same shall appear
in a public instrument & shall be recorded as
provided in Article 77. The creditors 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.
Art. 77. The marriage settlements & any
modification thereof shall be in writing,
signed by the parties & executed before the
celebration of the marriage. They shall not
prejudice third persons unless registered in
the local civil registry where the marriage

Held: The bank accounts garnished herein


were conjugal property & the same may
not be levied upon to pay for personal
obligations.
The money in the bank
accounts were earned as fruits derived fr.
paraphernal property.
As such, they
became assets of the conjugal partnership.
No proof was shown here that the
obligations were contracted for the benefit
of the partnership. Furthermore, the sheriff
may not levy on 1/2 of the amount in these
accounts as the supposed share of the
husband. A spouse's share in the conjugal
assets is merely inchoate & cannot be
determined until after dissolution of the
partnership.
1. EXCLUSIVE PROPERTY
SPOUSE

OF

EACH

Art. 109. The following shall be the


exclusive property of each spouse:
(1) That w/c is brought to the marriage
as his or her own; [PLATA V. YATCO]
(2) That w/c each acquires during the
marriage by gratuitous title;
(3) That w/c is acquired by right of
redemption, by barter or by exchange w/
102

property belonging to only one of the


spouses; &
(4) That w/c is purchased w/ exclusive
money of the wife or of the husband.
Tolentino: All property already owned by a
spouse prior to the marriage, & brought to
the marriage, is considered his or her
separate property.
Balane:
Although the terms are used interchangeably,
the technical definitions of the following
terms are as follows:
1. paraphernal property: exclusive property of
the wife
2. capital: exclusive property of the husband.
The owner has absolute dominion over his
separate property.
With regard to separate property, the owner
spouse may sue alone. With regard to
the fruits of such separate property, since
the same belongs to the partnership, both
spouses must join in initiating suit.
e.g. In a case where the separate
property is being leased out...the owner
spouse may sue alone for eviction, but must
be joined by the other spouse in a suit over
rentals.
Art. 110. The spouses retain ownership,
possession, administration & enjoyment of
their exclusive properties.
Either spouse may, during the marriage,
transfer the administration of his or her
exclusive property to the other by means of a
public instrument, w/c shall be recorded in
the registry of property of the place where
the property is located.

ONG V. CA
Held: The mere use of the surname of the
husband in the tax declaration of the subject
property is not sufficient proof that said
property was acquired during the marriage &
is therefore conjugal. It is undisputed that
the subject parcel of land was declared solely
in the wife's name, although the house built
thereon was declared in the name of the
spouses.
Under such circumstances, the
Court held that the subject lot was the
paraphernal property of the wife & thus liable
for her personal debts.

Art. 111.
A spouse of age may
mortgage, encumber, alienate or otherwise
dispose of his or her exclusive property,
w/o the consent of the other spouse, &
appear alone in court to litigate w/ regard
to the same.

Balane: The proceeds of the loan pertain


to the borrower. The borrower in this case
was the partnership, regardless of the fact
that the separate property of the wife was
used as a security in obtaining the loan.
PALANCA V. SMITH BELL
Held: When a loan is negotiated by a
husband upon property belonging to his
wife, w/ the consent of the latter, the
money becomes conjugal property, & if the
funds are later invested in the construction
of a house, the building is likewise conjugal
property & is liable for debts of the
husband. The property in question was a
parcel of land belonging to the wife w/c
was given by the husband as a guaranty
for a loan contracted by him. The money
obtained through the loan was later used
for the construction of the house.

Art. 112.
The alienation of any
exclusive
property
of
a
spouse
administered by the other automatically
terminates the administration over such
property & the proceeds of the alienation
shall be turned over to the owner-spouse.
Art. 113. Property donated or left by
will to the spouses, jointly & w/ designation
of determinate shares, shall pertain to the
donee-spouse as his or her own exclusive
property, & in the absence of designation,
share & share alike, w/o prejudice to the
right of accretion when proper.
Art. 753. When a donation is made to
several persons jointly, it is understood to
be in equal shares, & there shall be no right
of accretion among them, unless the donor
has otherwise provided.
The preceding paragraph shall not be
applicable to donations made to the
husband & wife jointly, between whom
there shall be a right of accretion, if the
contrary has not been provided by the
donor. (Civil Code.)
103

Accretion - The right of heirs or legatees to


unite or aggregate w/ their shares or portions
of the estate the portion of any co-heir or
legatee who refuses to accept it, fails to
comply
w/
a
condition,
becomes
incapacitated to inherit, or dies before, the
testator. (Black's Law Dictionary, p. 19)

married to each other. The prior marriage


to Begosa to someone else does not
necessarily exclude the possibility of a valid
subsequent marriage to Plata. However,
Villanueva could not ignore the paraphernal
character of the property in question, w/c
had been acquired by Plata while still
single.

Tolentino: When property is donated or left


by will, to the spouses jointly w/ express
designation of shares, the designated share
of each spouse is his or her own separate
property. If there is no designation of shares,
they share equally.

It is true that Begosa signed the


mortgage as a co-mortgagor, but by itself
alone that circumstance would not suffice
to convert the land into conjugal property,
considering it was paraphernal in origin.

Art. 114. If the donations are onerous, the


amount of the charges shall be borne by the
exclusive property of the donee-spouse,
whenever they have been advanced by the
conjugal partnership of gains.
Art. 115. Retirement, benefits, pensions,
pensions, annuities, gratuities, usufructs &
similar benefits shall be governed by the
rules on gratuitous or onerous acquisitions as
may be proper in each case.
PLATA VS. YATCO
FACTS: Amalia Plata purchased a parcel of
land in Caloocan for w/c the Provincial
Register of Deeds issued a TCT in Platas
name. She sold the property to Saldana who
obtained a TCT. 7 months afterwards, Saldana
resold the same property to Plata married to
Begosa & a new title issued to Plata.
Plata, in consideration of a loan of
P3,000, mortgaged to Villanueva married to
Leano, the identical property of w/c the
mortgagor Plata declares to be hers as
absolute owner. For failure to pay the
mortgage, the same was extrajudicially
foreclosed & sold to the mortgagee
Villanueva as the highest bidder. Villanueva,
sued Begosa alone for illegal detainer &
obtained judgment vs. him. A WOE was duly
issued, but Plata resisted all efforts to eject
her fr. the property & she claimed a 3rd party
claim averring ownership of the property.
ISSUE: WON P Plata is bound by the detainer
judgment vs. Begosa in civil case
HELD: NO. There may be a well-known
presumption that persons openly living
together as husband & wife are legally

Since the property was paraphernal,


& the creditors & purchasers were aware of
it, the fact being clearly spread on the land
records, it is plain that Platas possession,
therefore was not derived fr. Begosa. The
illegal detainer judgment vs. the husband
alone cannot bind or affect the wifes
possession of her paraphernal, w/c by law
she holds & administers independently, &
w/c she may even encumber or alienate
w/o his knowledge or consent. (Art. 136,
137, 140 CC)
A. PROPERTY ACQUIRED BY RIGHT OF
REDEMPTION OR EXCHANGE

ROSETE V. PROVINCIAL SHERIFF


Facts:
Rosetes husband, Fularon was
convicted of murder & sentenced to
indemnify the heirs of the victim. A writ of
execution was issued & four parcels of land
belonging to the CPG were levied upon.
Wife later redeemed said properties using
money obtained fr. her father. An alias
writ of execution was issued to satisfy the
balance of the indemnity & 2 parcels of
land were levied upon.
Sale was
conducted. Wife asked that the sale be
declared null & void.
Issue:
WoN the properties redeemed by
P w/ funds obtained fr. her father has
become paraphernal property & as such
beyond the reach of further execution
Held: YES. Sale is null & void. The
properties were part of the paraphernal
property of the wife & as such beyond the
reach of further execution. A PROPERTY IS
CONSIDERED TO BELONG EXCLUSIVELY TO
THE WIFE WHEN ACQUIRED BY HER BY
104

RIGHT OF REDEMPTION, AND WITH MONEY


BELONGING EXCLUSIVELY TO HER.
The interest w/c a wife has in conjugal
partnership property in this jurisdiction may
be likened to that of a wife in a homestead in
American jurisdiction. That interest in known
as inchoate right of dower or contingent
interest. By virtue of this inchoate right, a
wife has a right of redemption of a
homestead as successor in interest of her
husband.
Notes:
The right of redemption belongs to the
conjugal partnership
Successor in interest-right to succeed to the
interest of the debtor by operation of law
2. CONJUGAL PARTNERSHIP PROPERTY

Art. 116. All property acquired during the


marriage, whether the acquisition appears to
have been made, contracted or registered in
the name of one or both spouses, is
presumed to be conjugal unless the contrary
is proved.
TORELA V. TORELA
Held: While it is true that all property
acquired during the marriage is presumed to
be conjugal, as above stated, nonetheless,
the party who invokes the presumption must
first prove that the property was acquired
during the marriage. This proof is a condition
sine qua non for the application of the
presumption.
MENDOZA V. REYES
Held: The presumption of conjugality is a
strong one.
Proof of acquisition of the
property in dispute during the marriage suffices to render the statutory presumption
operative.
MAGALLON V. MONTEJO
Held: The presumption of conjugality does
not apply in a case where there is no proof of
marriage between the spouses.

Art. 117.
The following are conjugal
partnership properties:

(1) Those acquired by onerous title


during the marriage at the expense of the
common fund, whether the acquisition be
for the partnership, or for only one of the
spouses;
(2) Those obtained fr. the labor,
industry, work or profession of either or
both of the spouses;
(3) The fruits, natural, industrial, or
civil, due or received during the marriage
fr. the common property, as well as the net
fruits fr. the exclusive property of each
spouse;
(4) The share of either spouse in the
hidden treasure w/c the law awards to the
finder or owner of the property where the
treasure is found;
(5) Those acquired through occupation
such as fishing or hunting;
(6) Livestock existing upon the
dissolution of the partnership in excess of
the number of each kind brought to the
marriage by either spouse; &
(7) Those w/c are acquired by chance,
such as winnings fr. gambling or betting.
However, losses therefr. shall be borne
exclusively by the loser-spouse.

CASTILLO V. PASCO
Facts: Marcelo Castillo married Macaria
Pasco, a widow who survived 2 husbands. C
later died & P married a fourth time. During
the marriage of C & P, the spouses
Gonzales sold the litigated fishpond to
them. for P6T, to be paid in 3 installments:
P1T upon execution of the deed; P2T on
1/25/33, & P3T w/in a year after. Upon Cs
death, the loan was still unpaid.
P
consigned P12,300 & P752.43 as down
payment. Petitioner heirs of C claim it
should be considered conjugal property for
having been acquired during the marriage.
CA ruled it was paraphernal as it was
bought w/ the exclusive funds of the wife.
It said wifey was a woman of means, while
C died w/o enough assets to pay his debts.
Issue: to whom does the fishpond belong?
Held: The fishpond is 1/6 paraphernal &
5/6 conjugal. The first P1000 was paid out
of the paraphernal property of the wife. Of
this amount, P600 was a debt owed to the
wife by the vendor. It is presumed that this
105

debt could bind only the wife since there was


no showing that the husband authorized the
wife to contract this debt. The P400 was paid
out of proceeds fr. the sale of the wife's
paraphernal property.
The rest of the
purchase price was paid out of partnership
funds. The fact that the loan entered into to
pay this purchase price was secured by
mortgages
over
paraphernal
property
belonging to the wife did not make these
obligations (loans) paraphernal.
The
mortgage
was
merely
an
accessory
obligation. The principal obligation w/c is the
loan pertained to the conjugal partnership.
Under the applicable law, the Spanish
Civil Code, the property acquired for onerous
consideration during the marriage was
deemed conjugal or separate property
depending on the source of funds employed
for its acquisition.
ZULUETA V. PAN AM
Facts: Spouses Z & their daughter were
passengers aboard the plane. Mr. Z was late.
He was ordered by the captain to have their
baggage examined, & he refused so they
were refused passage. Upon arrival, he filed
this suit to recover damages. The spouses
separated & the wife agreed to a compromise
w/ Pan-Am for P50,000. Because of such,
she moved to have the case dismissed
insofar as she is concerned. P hubby argues
that the wife cannot bind the CPG w/o the
husbands consent except in cases provided
by law.
Issue; Can the wife bind the CPG w/o her
husbands consent?
Held: NO. The payment is effective insofar
as it is deductible fr. the award & bec. it is
due fr. the defendant Pan Am, w/ or w/o the
compromise agreement.
However, the
compromise agreement is ineffective insofar
as the CPG is concerned.
The damages involved belong to the
CPG bec. they arose fr. a breach of K of
carriage for w/c the plaintiffs paid their fare
using funds presumably belonging to the
CPG. The said damages fall under 153 (1),
the right thereto having been acquired by
onerous title during marriage.
Thus,
damages belong to the CPG.

Notes:
No conjugal partnership as the contract of
carriage is personal to the passenger
spouse
Actual damages are conjugal property bec.
the ticket is presumed to have been
bought using common funds.
What about moral damages? Not conjugal.
Arose out of the personal anguish of the
spouse (of being late for take-off when
he had to take a shit at the beach).
Balane:
Rule: Under 117.1, where conjugal funds
were spent, then the property acquired
belongs to the partnership
Except: 109.3 (pacto de retro acquisition
where the right to redemption belongs to
one spouse)
CHEESMAN V. IAC
Held: Even if the wife used conjugal funds
to purchase the lot in question, petitioner,
who is an alien, cannot recover or hold the
lot so acquired in view of the constitutional
prohibition
against
aliens
acquiring
residential lots other than by hereditary
succession.
He
therefore
had
no
personality to question the subsequent sale
of the same property by his wife on the
theory that in so doing, he is merely
exercising the prerogative of a husband in
respect to conjugal property. To sustain
such a theory would permit indirect
controversion
of
the
constitutional
prohibition.
A.

BOUGHT

ON INSTALLMENTS

Art. 118.
Property bought on
installments paid partly fr. exclusive funds
of either or both spouses & partly fr.
conjugal funds belongs to the buyer or
buyers if full ownership was vested before
the marriage. In either case, any amount
advanced by the partnership or by either or
both spouses shall be reimbursed by the
owner or owners upon liquidation of the
partnership.

Baviera: In case of property bought on


installment,
partly
fr.
exclusive
106

property & partly fr. conjugal funds, the


test to determine ownership is to look
at when ownership vested. If ownership
vested before marriage, then the
property is exclusive. If ownership
vested after marriage, then property is
conjugal.

e.g.
1985 - A buys property fr. BF payable in
installments...A
pays
installments
w/
exclusive property
1990 - A marries B.
The subsequent
amortizations on the property are then paid
w/ conjugal funds.
Test: when title was vested.
if title was vested before 1990, then the
property is exclusive.
if title was vested only after full payment of
amortizations, then the property is
conjugal.
JOVELLANOS V. CA
Facts:
Daniel married Leonor in 1955.
During this marriage, Daniel entered into a
contract of lease & conditional sale w/
Philam. In 1959, Leonor died. In 1967,
Daniel married Annette. In 1975, the full
amount of the lease was paid. Thus Philam
executed in favor of Daniel
a deed of
absolute sale. Daniel died in 1985. Annette
claims that the property is part of the CPG.
of her marriage to Daniel .
Petitioner
children of the first marriage claim that said
property is CPG of the first marriage.
Issue: WoN the property in dispute belongs
to the 2nd marriage?
Held;
YES..
Under the agreement, the
lessee had only the right of possession over
the prop, as well as the temporary use &
enjoyment of the same. The conditional sale
was thus in the nature of a contract to sell
whereby ownership is not transferred upon
delivery but only upon full payment of the
purchase price. The right of Daniel over the
contract was merely an inchoate & expectant
right. Full ownership was vested only upon
the execution of the absolute deed of sale in
1975.
Historical Background

PLATA V. YATCO, SUPRA


ALVAREZ V. ESPIRITU
Facts: The Director of Lands issued in favor
of Consolacion Evangelista sales certificate
involving friar lands administered under Act
No. 1120. The same was payable in 18
annual installment , the first on July 1,
1910. In 1923, she married Pedro Espiritu.
During their marriage, the installments
were paid w/ conjugal funds, & 1927
completed payments.
Evangelista later
assigned the sales certificate in her favor
to Espiritu. Later, spouses sold 1/2 of the
property to Martin, w/ a right to redeem in
12 years.
Evangelista died w/ a will,
bequeathing her 1/2 interest in the unsold
portion of the land to her husband. Her
husband & collateral relatives survived her.
Meanwhile, Espiritu completed payments
for the redemption of the property fr.
Martin. Thus, a deed of resale issued in his
favor.
Plaintiff collateral heirs of
Evangelista filed suit, claiming the lot was
the paraphernal property of Evangelista
w/c she brought into the marriage.
Husband claims the lot was conjugal. TC
ruled Espiritu owned the entire lot (both
halves)
since
the
payments
were
completed during their marriage. This
appeal.
Issue: WoN the lot was the paraphernal
property of Evangelista or the property of
her conjugal partnership w/ Espiritu
Held: Paraphernal. Ownership of the lot
vested in Evangelista upon the issuance to
her in 1910 of a sales certificate, resulting
in the lot becoming her property long
before her marriage in 1923. The equitable
& beneficial title to the land passes to the
purchaser the moment the first installment
is paid & a certificate of sale is issued.
Friar lands bought by a woman before her
marriage were her paraphernal properties,
although some of the installment were paid
for w/ conjugal funds during the marriage.
The conjugal partnership would only be
entitled
to
reimbursement
for
the
expenses.
Assignment of the sales certificate
to Espiritu was null & void as it falls under
the prohibition against donations between
the spouses during the marriage.
107

The lot being the paraphernal


property of Evangelista before the sale, its
redemption must be deemed as having
revested ownership in her heirs.
What
Espiritu had for the portion redeemed by him
is a lien for the amount he paid.

Art. 119. Whenever an amount or credit


payable w/in a period of time belongs to one
of the spouses, the sums w/c may be
collected during the marriage in partial
payments or by installments on the principal
shall be the exclusive property of the spouse.
However, interests falling due during the
marriage on the principal shall belong to the
conjugal partnership.

Balane:
Test is when is payment due.
Suppose:
A lent P1M to B
in the promissory note, it is stipulated that
payment shall be on 100 equal monthly
installments & that interest shall be at
20% p.a.
payments start on Oct 1985
A marries B in August 1986
all installments due before August 1986 are
paraphernal
for installments due after August 1986:
principal is exclusive property
interest during the marriage pertain to
the partnership...already civil fruits.
B. IMPROVEMENTS AT EXPENSE OF
CONJUGAL FUNDS OR THROUGH WORK
OR INDUSTRY OF A SPOUSE

Art.
120.
The
ownership
of
improvements,
whether
for
utility
or
adornment, made on the separate property
of the spouses at the expense of the
partnership or through the acts or efforts of
either or both spouses shall pertain to the
conjugal partnership, or to the original ownerspouse, subject to the following rules:
When the cost of the improvement made
by the conjugal partnership & any resulting
increase in value are more than the value of
the property at the time of the improvement,
the entire property of one of the spouses

shall belong to the conjugal partnership,


subject to reimbursement of the value of
the property of the owner-spouse at the
time of the improvement; otherwise, said
property shall be retained in ownership by
the owner-spouse, likewise subject to
reimbursement of the cost of the
improvement.
In either case, the ownership of the
entire property shall be vested upon the
reimbursement, w/c shall be made at the
time of the liquidation of the conjugal
partnership.

HISTORICAL BACKGROUND
VITUG V. MONTEMAYOR [93 P 939
(1953)]
Facts: Clodualdo Vitug begot 3 children
during his first marriage, one of them is
herein Pet., Florencia Vitug. After his first
wife died, Clodualdo married Donata,
herein Respondent. During their marriage,
R inherited land fr. her parents valued at
P9,000 w/c was converted by the joint
industry & efforts of the spouses into a
fishpond & sold at profit (P116,000). The
proceeds of w/c were used to buy 30
parcels of land. The deed of sale & the TCT
were executed in the name of Donata.
When Clodualdo died, R did not include in
the inventory of his property said 30
parcels of land. P opposed, claiming the
lots are conjugal, thus they have a share fr.
their fathers half.
Held: The 30 parcels of land are conjugal.
Upon the failure to prove by concrete
evidence that the conversion of the
agricultural lands were done using the
exclusive funds of R, the PRESUMPTION IS
THAT THE EXPENSE WAS CONJUGAL. Also,
since the conversion was done w/ the
industry & efforts of both spouses & that
the value of the improvements on the
paraphernal property of the wife exceeded
its original value, the entire property
became conjugal property subject to
reimbursement of the value of the
agricultural land at the time of liquidation
of the conjugal partnership. The name in
the deed of sale & the TCT are of no
moment.
108

MARAMBA V. LOZANO [20 S 474 (1967)]


Facts: In an action by Pltf Maramba vs.
Defendant (D) Spouses Lozano, jmt was
rendered ordering D to pay P3,500. A WOE
was issued & the land titled in the name of D
was levied upon. D opposed contending that
the land was her paraphernal property & the
obligation is joint. The lower court ruled that
the liability of D & her husband was joint, so
D is liable only to 1/2 of the jmt debt. Pltf
contends that the land levied upon, even if
originally paraphernal became conjugal by
virtue of the construction of a house thereon
at the expense of the CPG, hence it may be
made to answer for the entire indebtedness.
Held: Since there is no showing that the
property was acquired during the marriage,
the fact that the title is in the wife's name
determines that it is paraphernal property.
The construction of a house built fr. conjugal
funds on the exclusive property of one of the
spouses does not automatically make it
conjugal. It is true that in the meantime, the
conjugal partnership may use both the land &
the building, but it does so not as an owner
but in the sense of the right of usufruct. The
ownership of the land remains the same until
the value thereof is paid & payment can only
be demanded upon the liquidation of the CPG
(w/c is not shown in the CAB). Consequently,
the property being paraphernal, it cannot be
levied upon to answer for the liability of the
deceased husband.
The land belonging to one of the
spouses upon w/c the spouses have built a
house becomes conjugal property only when
the conjugal partnership is LIQUIDATED & the
INDEMNITY PAID to the owner of the land.
However, see CANULLAS V. FORTUN
CALTEX V. FELIAS [108 P 873 (1960)]
Facts: Felias spouses donated to their
daughter a parcel of land, making it her
paraphernal property. When she got married
a jmt was rendered against her husband &
the lot she inherited & the house thereon
were levied upon.
Held: While it is true that bldg. constructed
at the expense of the partnership on the land
belonging to one of the spouse would
automatically make the lot conjugal subject

to reimbursement, said rule will not apply


in the case at bar. The CA found that at the
time the bldg. was constructed on the lot,
said property still belonged to the parents /
Felias spouses bec. the donation was not
made to their daughter until March 1928,
whereas the bldg. was constructed in 1927.
The rule applicable w/ respect to the
building constructed thereon before the
donation is that of accessory following the
principal. The donation transmitted to her
the rights of a landowner over a building
constructed on it. Thus, being paraphernal,
the lot & the building are not answerable
for the obligations of the husband.
DOMINADO V. DERAYUNAN [49 S 452
(1926)]
Facts: Domingo, the late husband of petr
Elisa, was the exclusive owner of the land
in question. Using conjugal funds, almost
1,500 coconut trees were planted on it.
When Domingo died, the probate court
adjudicated to his widow 1/2 of the
expenses incurred in sowing said trees.
Widow objected, claiming that she should
receive not 1/2 of the expenses incurred
but 1/2 of all the coconut trees.
Held: Untenable. To the owner of realty
also belongs, by right of accession, the
improvements made thereon. Buildings,
crops & other improvements upon the land
belong to the owner of the realty. To this
rule there is an exception in case of
married persons. Par. 2 of Art. 1404 CC
(now Art. 120, FC) provides that buildings
constructed during the marriage, on land
belonging to one of the spouses, are
conjugal property, but the owner of the
realty shall be entitled to credit for the
value of the land. This exception, however,
is limited to buildings & does not apply to
crops & other improvements, w/ respect to
w/c the general rule applies. Expenses
incurred in making such crops &
improvements are conjugal expenses, for
w/c the conjugal property must be
reimbursed. [Tabotabo v. Molero, 22 P 418]
CAB, widow is entitled only to be
reimbursed for the expenses.
Case rule: ART. 120 only refers to
"BUILDINGS" not crops, however, see NOTE
below.

109

NOTE: Under the FC, there is a uniform rule,


that is, whether or not the improvement
consists of a bldg., trees or other ornaments,
one rule would apply, ART. 120.
CANULLAS
(1984)]

V.

FORTUN

[129

675

Facts: The Canullas family lived in a house


owned by the husband's father. When the
latter died, the husband inherited the land,
but later abandoned his family to live w/ a
concubine to whom he sold the land. Upon
the husband's death, the concubine filed an
action to quiet title, w/c the wife opposed on
the ground that the house & coconut trees
planted on the land came fr. conjugal funds &
therefore became conjugal property.
Held: SC annulled the sale to the concubine,
considering that the construction of the
house on the exclusive property of the
husband IPSO FACTO made the land conjugal
property, w/ the conjugal partnership liable to
the husband for the value of the land, to be
reimbursed at the liquidation of the CPG.
The better rule than Maramba v.
Lozano, is Padilla v. Paterno, w/c held that the
conversion of the paraphernal properties to
conjugal assets should be deemed to retroact
to the time the conjugal buildings were first
constructed thereon or at the very least, to
the time immediately before the death of the
owner spouse that ended the conjugal
partnership. They can not be considered to
have become conjugal property only as of the
time their values were paid to the estate of
the deceased spouse bec. by that time the
conjugal partnership no longer existed & it
could not acquire the ownership of said
properties. The acquisition by the partnership
of these properties was subject to the
suspensive condition that their values would
be reimbursed to the owner spouse at the
liquidation of the conjugal partnership; once
paid, the effects of the fulfillment of the
condition should be deemed to retroact to the
date the obligation was constituted. [Art.
1187, NCC].
NOTES: This cannot be applied bec. there is
no conjugal partnership of the first marriage
w/c has been dissolved, nor has there been a
reimbursement yet. But the SC made a
somersault to do justice & remove the land fr.
the hands of the concubine. The cited
decision in Padilla was taken out of context
since it was not even the ratio but a mere
statement of JBL Reyes.

BALANE REVIEWER
A. Cases
PADILLA V. PADILLA
The mere construction of a building
fr. common funds does not automatically
convey the ownership of the wife's land
(paraphernal) to the conjugal partnership.
The ownership of the land is retained by
the wife until she is paid the value of the
lot as a result of the liquidation of the
conjugal partnership.
The partnership
maintains a usufructuary right over the
said property during the marriage & until
liquidation.
PADILLA V. PATERNO
The separate properties in this case
never became conjugal bec. the conjugal
improvements constructed thereon were
destroyed before the value of the
paraphernal
land
on
w/c
these
improvements were erected was paid to
the spouse who owned the paraphernal
land. As held in Padilla v. Padilla, payment
of such value occurs only at final
liquidation.
B. Notes
'Plus
value'
refers
to
what
the
improvement contributes to the increase in
the value of the whole thing.
Suppose:
land P3M
irrigation ditches P2M
but bec. of the irrigation ditches, the value
of the land increases to P4.8M
the plus value in this case is P1.8M
the net value of the improvement is P3.8 M
in this case, the entire property becomes
conjugal.
Under the Family Code, the value to be
paid as reimbursement shall be such value
at the time of improvement...in this sense,
the Family Code departs fr. the Padilla
ruling
Whether or not the FC modifies the
Padilla ruling insofar as it held that
ownership shall vest only after full payment
at the time of liquidation...Balane is unsure.
Art. 120 applies only on the assumption
that the improvement exists at the time of
liquidation...if the property is destroyed
before liquidation, then 120 does not apply.
If prior to dissolution, the property &
the improvement thereon is sold--then the
110

right of the CPG under 120 follows the


property...the right of the CPG under 120 is
inchoate.
Notes:
The following are the steps to be followed in
liquidating the CPG:
1. inventory of CP assets
2. restitution of advances made to each
spouse e.g. Art. 122.3
3. payment of debts to each spouse e.g. Art.
120
4. payment of obligations to 3rd parties
5. delivery of exclusive properties
6. payment of losses & deterioration of
movables belonging to each spouse (reason:
CPG is a mere usufructuary of separate
properties...not true for ACP)
7. division
8. delivery of presumptive legitimes
3. OBLIGATIONS & CHARGES
CONJUGAL PARTNERSHIP

OF

Art. 121 The conjugal partnership shall be


liable for:
(1) The support of the spouses, their
common children, & the legitimate children of
either spouse; however, the support of
illegitimate children shall be governed by the
provisions of this Code on Support;
(2) All debts & obligations contracted
during the marriage by the designated
administrator- spouse for the benefit of the
conjugal partnership of gains, or by both
spouses or by one of them w/ the consent of
the other;
(3) Debts & obligations contracted by
either spouse w/o the consent of the other to
the extent that the family may have been
benefited;
(4) All taxes, liens, charges & expenses,
including major or minor repairs upon the
conjugal partnership property;
(5) All taxes & expenses for mere
preservation made during the marriage upon
the separate property of either spouse;
(6) Expenses to enable either spouse to
commence or complete a professional,
vocational, or other activity for selfimprovement;
(7) Antenuptial debts of either spouse
insofar as they have redounded to the benefit
of the family;

(8) The value of what is donated or


promised by both spouses in favor of their
common legitimate children for the
exclusive purpose of commencing or
completing a professional or vocational
course
or
other
activity
for
selfimprovement; &
(9) Expenses of litigation between the
spouses unless the suit is found to be
groundless.
If the conjugal partnership is insufficient
to cover the
foregoing liabilities, the
spouses shall be solidarily liable for the
unpaid
balance
w/
their
separate
properties.
Art. 123. Whatever may be lost during
the marriage in any game of chance, or in
betting, sweepstakes, or any other kind of
gambling whether permitted or prohibited
by law, shall be borne by the loser & shall
not be charged to the conjugal partnership
but any winnings therefr. shall form part of
the conjugal partnership property.
A.
CONTRACTUAL
OBLIGATIONS
ASSUMED BY EITHER SPOUSE

Art. 122. The payment of personal


debts contracted by the husband or the
wife before or during the marriage shall not
be charged to the conjugal partnership
except insofar as they redounded to the
benefit of the family.
Neither shall the fines & pecuniary
indemnities imposed upon them be
charged to the partnership.
However, the payment of personal
debts contracted by either spouse before
the marriage, that of fines & indemnities
imposed upon them, as well as the support
of illegitimate children of either spouse,
may be enforced against the partnership
assets after the responsibilities enumerated in the preceding Article have been
covered, if the exclusive property or if it
should have no exclusive property or if it
should be insufficient; but at the time of
the liquidation of the partnership, such
spouse shall be charged for what has been
paid for the purposes above-mentioned.

111

CUATICO
(1964)]

V.

MORALES

[61

O.G.

869

Facts: Cuatico filed a collection case against


the Morales spouses. A money jmt was
rendered
against
the
husband,
who
contracted the loan, signing the promissory
note alone. A WOE was issued & a writ of
garnishment was issued against the salary of
the husband. Husband opposed contending
that the salaries of spouses are conjugal &
therefore, may not be liable for personal
obligations of one of the spouses absent
proof of benefit to the family.
Held: The salaries of the spouses constitute
part of the conjugal partnership w/c may
answer only for charges upon & liabilities of
the conjugal partnership. In order to make
the conjugal partnership liable for the
personal obligations of the spouses, it must
be shown that the debt was contracted
during the marriage by the husband for the
benefit of the conjugal partnership. Under the
New Civil Code, there is NO PRESUMPTION
that debts & obligations contracted during
the marriage by the husband are conjugal.
(De la Cruz v. De Gula).
On the contention that at least 1/2 of
the CPG belongs to the husband & thus,
could be validly levied upon, it must be said
that as long as the conjugal partnership
subsists, there can be no one-half share of
the husband or wife. Only when the conjugal
partnership is liquidated, & there is a net
remainder, may the same be divided equally
between husband & wife. The interest of each
in the conjugal partnership property is
inchoate & is a mere expectancy. Any levy on
the conjugal partnership property to satisfy
the money judgment against the husband is
null & void. (Ansaldo v. Sheriff of Manila)
LUZON SURETY V. DE GARCIA [30 S 111
(1969)]
Facts: Husband Vicente Garcia acted as a
guarantor on a surety bond. Principal debtor
defaulted & the surety was sued. A jmt was
rendered against the husband & a writ of
garnishment was issued against the sugar
quedans belonging to the Garcia spouses.
Held: The conjugal partnership is not liable
on an indemnity agreement executed by the
husband to accommodate a third party in
favor of a surety company in the absence of

proof of any
partnership.

benefit to

the

conjugal

PEREZ V. LANTIN [23 S 367 (1968)]


Facts: Petr, Damaso Perez purchased shoe
leather in connection w/ his business, & for
failure to pay the same, a collection suit
was filed against him. Judgment was held
for the creditor & the shares of stocks
owned by the husband were attached for
the satisfaction of the judgment debt. Wife
of Perez opposed, alleging that the said
shares were conjugal assets w/c could not
be made to answer for the liability of Petr.
Held: Untenable. All properties of the
marriage are presumed to belong to the
conjugal partnership unless it is proved
otherwise. The party who invokes this
presumption must first prove that the
property was acquired during the marriage.
Hence, proof of acquisition during the
coverture is a condition sine qua non for
the operation of the presumption. In this
case, there is no evidence as to when the
shares of stocks were acquired, the fact
that they are registered in the name of the
husband alone is an indication that the
shares belong exclusively to him.
Also, the contention of P that the
debt was personal is devoid of merit. The
obligation was contracted for use in Ps
business. It is well-settled that debts
contracted by the husband for & in the
exercise of the industry & profession by w/c
he contributes to the support of the family
cannot be deemed to be his exclusive &
private debts. (In short, it was presumed
that the debts by H redounded to the
familys benefit.)
B.

CHARGES
PARTNERSHIP

UPON

CONJUGAL

Art. 122, par. 3. However, the payment


of personal debts contracted by either
spouse before the marriage, that of fines &
indemnities imposed upon them, as well as
the support of illegitimate children of either
spouse, may be enforced against the
partnership assets after the responsibilities
enumerated in the preceding Article have
been covered, if the spouse who is bound
112

should have no exclusive property or if it


should insufficient; but at the time of the
liquidation of the partnership, such spouse
shall be charged for what has been paid for
the purposes above-mentioned.

ALVAREZ V. LIM [61 O.G. 1529 (1964)]


Facts: Pltf filed an action for support of 4
minor illegitimate children begotten by her w/
defendant. TC ordered D to pay pltf monthly
support. D appealed contending that his
income fr. business, being conjugal is not
liable for his illegitimate children.
Held: The illegitimate children of the
husband should be supported fr. his exclusive
property. In the absence of exclusive property
of the husband or in case of its insufficiency,
the support of said illegitimate children may
be imposed against the partnership assets
after the responsibilities enumerated in Art.
161 CC (Art. 121 FC) have been covered,
provided that at the time of the liquidation of
the partnership the husband shall be charged
for what has been paid for the purpose.
PEOPLE V. LAGRIMAS [29 S 153 (1969)]
Facts: Husband was convicted of murder. A
WOE was issued & conjugal properties were
levied upon to enforce his civil liability. On
appeal by the wife, the judge declared the
attachment null & void on the ground that
fines & indemnities imposed against either
spouses may be imposed only after the
charges enumerated under Art. 161 have
been covered. Hence, there must first be a
liquidation of the CPG.
Held: Reversed. Fines & indemnities imposed
upon either husband or wife may be enforced
against
partnership
assets
after
the
responsibilities imposed in Art. 161 CC (Art.
121 FC) have been covered, if the spouse
who is bound should have no exclusive
property or if it should be insufficient. The
reason is that if they were allowed to be
enforced only after liquidation, the effect
would be to exempt the accused fr. civil
liability & the heirs of the offended party
would be made to suffer still further.

4. ADMINISTRATION
PARTNERSHIP

OF

CONJUGAL

Art. 124.
The administration &
enjoyment of the conjugal partnership
property shall belong to both spouses
jointly. In case of disagreement, the
husband's decision shall prevail, subject to
recourse to the court by the wife for proper
remedy, w/c must be availed w/in five
years fr. the date of the contract
implementing such decision.
In the event that one spouse is
incapacitated or otherwise unable to
participate in the administration of the
conjugal properties, the other spouse may
assume sole powers of administration.
These powers do not include the powers of
disposition or encumbrance w/c must have
the authority of the court or the written
consent of the other spouse. In the
absence of such authority or consent, the
disposition shall be void. However, the
transaction shall be construed as a
continuing offer on the part of the
consenting spouse & the third person, &
may be perfected as a binding contract
upon the acceptance by the other spouse
or authorization by the court before the
offer is w/drawn by either or both offerors.
Art. 125. Neither spouse may donate
any conjugal partnership property w/o the
consent of the other. However, either
spouse may, w/o the consent of the other,
make moderate donations fr. the conjugal
partnership property for charity or on
occasions of family rejoicing or family
distress.

5. DISSOLUTION
Art. 126. The conjugal partnership
terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal
separation;
(3) When the marriage is annulled or
decreed void;
(4) In case of judicial separation of
property during the marriage under Articles
134 to 138.
113

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.
Art. 135. Any of the following shall be
considered sufficient cause for judicial
separation of property:
(1) That the spouse of the petitioner has
been sentenced to a penalty w/c carries w/ it
civil interdiction;
(2) That the spouse of the petitioner has
been judicially declared an absentee;
(3) That loss of parental authority of the
spouse of petitioner has been decreed by the
court;
(4) That the spouse of the petitioner has
abandoned the latter or failed to comply w/
his or her obligations to the family as
provided for in Article 101;
(5) That the spouse granted the power of
administration in the marriage settlements
has abused that power; &
(6) That at the time of the petition, the
spouses have been separated in fact for at
least one year & reconciliation is highly
improbable.
In the cases provided for in Numbers (1),
(2), (3), the presentation of the final
judgment against the guilty or absent spouse
shall be enough basis for the grant of the
decree of judicial separation of property.
Art. 136. The spouses may jointly file a
verified petition w/ the court for the voluntary
dissolution of the absolute community or the
conjugal partnership of gains, & for the separation of their common properties.
All creditors of the absolute community or
of the conjugal partnership of gains, as well
as the personal creditors of the spouse, shall
be listed in the petition notified of the filing
thereof. The court shall take measures to
protect the creditors & other persons w/
pecuniary interest.
Art. 137. Once the separation of property
has been decreed, the absolute community
or the conjugal partnership of gains shall be
liquidated in conformity w/ this Code.

During
the
pendency
of
the
proceedings for separation of property, the
absolute community or the conjugal
partnership shall pay for the support of the
spouses & their children.
Art. 138. After dissolution of the
absolute community or of the conjugal
partnership, the provisions on complete
separation of property shall apply.
Art. 127. The separation in fact
between husband & wife shall not affect
the regime of conjugal partnership, except
that:
(1) The spouse who leaves the conjugal
home or refuses to live therein, w/o just
cause, shall not have the right to be
supported;
(2) When the consent of one spouse to
any transaction of the other is required by
law, judicial authorization shall be obtained
in a summary proceeding;
(3) In the absence of sufficient conjugal
partnership property, the separate property
of both spouses shall be solidarily liable for
the support of the family. The spouse
present shall, upon petition in a summary
proceeding, be given judicial authority to
administer or encumber any specific
separate property of the other spouse &
use the fruits or proceeds thereof to satisfy
the latter's share.
Art. 128. If a spouse w/o just cause
abandons the other or fails to comply w/
his or her obligations to the family, the
aggrieved spouse may petition the court
for receivership, for judicial separation of
property, or for authority to be the sole
administrator of the conjugal partnership
property, subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned
in the preceding paragraph refer to marital
parental or property relations.
A spouse is deemed to have abandoned
the other when he or she has left the
conjugal
dwelling
w/o
intention
of
returning. The spouse who has left the
conjugal dwelling for a period of 3 months
or has failed w/in the same period to give
any information as to his or her
whereabouts shall be prima facie presumed
114

to have no intention of returning to the


conjugal dwelling.

6. LIQUIDATION OF THE CONJUGAL


PARTNERSHIP ASSETS & LIABILITIES
Art. 129. Upon the dissolution of the
conjugal partnership regime, the following
procedure shall apply:
(1) An inventory shall be prepared, listing
separately all the properties of the conjugal
partnership & the exclusive properties of
each spouse.
(2) Amounts advanced by the conjugal
partnership in payment of personal debts &
obligations of either spouse shall be credited
to the conjugal partnership as an asset
thereof.
(3) Each spouse shall be reimbursed for
the use of his or her exclusive funds in the
acquisition of property or for the value of his
or her exclusive property, the ownership of
w/c has been vested by law in the conjugal
partnership.
(4) The debts & obligations of the
conjugal partnership shall be paid out of the
conjugal assets. In case of insufficiency of
said assets, the spouses shall be solidarily
liable for the unpaid balance w/ their
separate properties, in accordance w/ the
provisions of paragraph (2) of Article 121.
Art. 121. xxx
If
the
conjugal
partnership
is
insufficient to cover the foregoing liabilities,
the spouses shall be solidarily liable for the
unpaid balance w/ their separate properties.)
(5) Whatever remains of the exclusive
properties of the spouses shall thereafter be
delivered to each of them.
(6) Unless the owner had been
indemnified fr. whatever source, the loss or
deterioration of movables used for the
benefit of the family, belonging to either
spouse, even due to fortuitous event, shall be
paid to said spouse fr. the conjugal funds, if
any. ( e.g. car, even if lost due to FE, unlike
in ordinary usufruct)
(7) The net remainder of the conjugal
partnership properties shall constitute the
profits, w/c shall be divided equally between
husband & wife, unless a different proportion
or division was agreed upon in the marriage
settlements or unless there has been a

voluntary waiver or forfeiture of such share


as provided in this Code.
(8) The presumptive legitimes of the
common children shall be delivered upon
partition in accordance w/ Article 51.
Art. 51. In said partition, the value of
the presumptive legitimes of all common
children, computed as of the date of the
final judgment of the trial court, shall be
delivered in cash, property or sound
securities, unless the parties, by mutual
agreement judicially approved, had already
provided for such matters.
The children or their guardian, or the
trustee of their property, may ask for the
enforcement of the judgment.
The delivery of the presumptive
legitimes herein prescribed shall in no way
prejudice the ultimate successional rights
of the children accruing upon the death of
either or both of the parents; but the value
of the properties already received under
the decree of annulment or absolute nullity
shall be considered as advances on their
legitime.

NOTES: Presumptive only; collationable,


considered as donations bec. of collation
- actual computation at the time of death of
the parent; legitime at the time of death
can even be less than the presumptive
legitimes.)
(9) In the partition of the properties, the
conjugal dwelling & the lot on w/c it is
situated shall, unless otherwise agreed
upon by the parties, be adjudicated to the
spouse w/ whom the majority of the
common children choose to remain.
Children below the age of seven years are
deemed to have chosen the mother, unless
the court has decided otherwise. In case
there is no such majority, the court shall
decide, taking into consideration the best
interests of said children.
Art. 130. Upon the termination of the
marriage
by
death,
the
conjugal
partnership property shall be liquidated in
the same proceeding for the settlement of
the estate of the deceased.

115

If no judicial settlement proceeding is


instituted, the surviving spouse shall liquidate
the conjugal partnership property either
judicially or extra-judicially w/in one year fr.
the death of the deceased spouse. If upon
the lapse of the said period no liquidation is
made, any disposition or encumbrance
involving the conjugal partnership property of
the terminated marriage shall be void.
Should the surviving spouse contract a
subsequent marriage w/o compliance w/ the
foregoing requirements, a mandatory regime
of complete separation of property shall
govern the property relations of the
subsequent marriage.
Art. 131. Whenever the liquidation of the
conjugal partnership properties of two or
more marriages contracted by the same
person before the effectivity of this Code is
carried out simultaneously, the respective
capital, fruits & income of each partnership
shall be determined upon such proof as may
be considered according to the rules of
evidence. In case of doubt as to w/c
partnership the existing properties belong,
the same shall be divided between & among
the different partnerships in proportion to the
capital & duration of each.
Art. 132. The Rules of Court on the
administration of estates of deceased
persons shall be observed in the appraisal &
sale of property of the conjugal partnership,
& other matters w/c are not expressly
determined in this Chapter.
Art. 133. From the common mass of
property support shall be given to the
surviving spouse & to the children during the
liquidation of the inventoried property & until
what belongs to them is delivered; but fr. this
shall be deducted that amount received for
support w/c exceeds the fruits or rents
pertaining to them.

E. SEPARATION

OF

PROPERTY

1. DURING MARRIAGE
Art. 134. In the absence of an express
declaration in the marriage settlements, the
separation of property between the 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.

TODA V. COURT OF APPEALS


The separation of property is not affected
by the mere execution of the contract or
agreement of the parties but by the decree
of the court approving the same. The
conjugal partnership is dissolved only upon
the issuance of a decree of separation of
property.
Balane: A petition may be filed for the
dissolution of the AC or the CP by:
both
spouses:
voluntary
dissolution
(134/136)
petition for sufficient cause (135)
cannot dissolve extrajudicially
subsistence of marriage

during

Art. 135. Any of the following shall be


considered sufficient cause for judicial
separation of property:
(1) That the spouse of the petitioner
has been sentenced to a penalty w/c
carries w/ it civil interdiction;
(2) That the spouse of the petitioner
has been judicially declared an absentee;
(3) That loss of parental authority of the
spouse of petitioner has been declared by
the court;
(4) That the spouse of the petitioner
has abandoned the latter or failed to
comply w/ his or her obligations to the
family as provided for in Article 101;
Art. 101. If a spouse w/o just cause
abandons the other or fails to comply w/
his or her obligations to the family, the
aggrieved spouse may petition the court
for receivership, for judicial separation of
property or for authority to be the sole
administrator of the absolute community,
subject to such precautionary conditions as
the court may impose.
The obligations to the family mentioned
in the preceding paragraph refer to marital,
parental or property relations.
A spouse is deemed to have abandoned
the other when he or she has left the
conjugal
dwelling
w/o
intention
of
116

returning. The spouse who has left the


conjugal dwelling for a period of three
months or has failed w/in the same period to
give any information as to his or her
whereabouts shall be prima facie presumed
to have no intention of returning to the
conjugal dwelling.
(5) That the spouse granted the power of
administration in the marriage settlements
has abused that power; &
(6) That at the time of the petition, the
spouses have been separated in fact for at
least one year & reconciliation is highly
improbable.
In the cases provided for in Numbers (1),
(2) & (3), the presentation of the final judgment against the guilty or absent spouse
shall be enough basis for the grant of the
decree of judicial separation of property.
Balane: Under Art. 135.4, Balane believes
that Art. 128 should be included here.
Art. 136. The spouses may jointly file a
verified petition w/ the court for the voluntary
dissolution of the absolute community or the
conjugal partnership of gains, & for the
separation of their common properties.
All creditors of the absolute community or
of the conjugal partnership of gains, as well
as the personal creditors of the spouse, shall
be listed in the petition notified of the filing
thereof. The court shall take measures to
protect the creditors & other persons w/
pecuniary interest.
Art. 137. Once the separation of property
has been decreed, the absolute community
or the conjugal partnership of gains shall be
liquidated in conformity w/ this Code.
During the pendency of the proceedings
for separation of property, the absolute
community or the conjugal partnership shall
pay for the support of the spouses & their
children.
Art. 138. After dissolution of the absolute
community or of the conjugal partnership,
the provisions on complete separation of
property shall apply.

Art. 139. The petition for separation of


property & the final judgment granting the
same shall be recorded in the proper local
civil registries & registries of property.
Art. 140. The separation of property
shall not prejudice the rights previously
acquired by creditors.
Art. 141. The spouses may, in the same
proceedings where separation of property
was decreed, file a motion in court for a
decree reviving the property regime that
existed
between
them
before
the
separation of property in any of the
following instances:
(1)
When
the
civil
interdiction
terminates;
(2) When the absentee spouse
reappears;
(3) When the court, being satisfied that
the spouse granted the power of
administration in the marriage settlements
will not again abuse that power, authorizes
the resumption of said administration;
(4) When the spouse who has left the
conjugal home w/o a decree of legal
separation resumes common life w/ the
other;
(5) When the parental authority is
judicially restored to the spouse previously
deprived thereof;
(6) When the spouses who have
separated in fact for at least one year,
reconcile & resume common life; or
(7) When after voluntary dissolution of
the absolute community of property or
conjugal partnership has been judicially
decreed upon the joint petition of the
spouses, they agreed to the revival of the
former property regime. No voluntary
separation of property may thereafter be
granted.
The revival of the former property
regime shall be governed by Article 67.
Art. 67. The agreement to revive the
former property regime referred to in the
preceding Article shall be executed under
oath & shall specify:
(1) The properties to be contributed
anew to the restored regime;
(2) Those to be retained as separated
properties of each spouse; &

117

(3) The names of all their known


creditors, their addresses & the amounts
owing to each.
The agreement of revival & the motion for
its approval shall be filed w/ the court in the
same proceeding for legal separation, w/
copies of both furnished to the creditors
named therein. After due hearing, the court
shall, in its order, take measures to protect
the interest of creditors & such order shall be
recorded in the proper registries of
properties.
The recording of the order in the registries
of property shall not prejudice any creditor
not listed or not notified, unless the debtorspouse has sufficient separate properties to
satisfy the creditor's claim.
Art. 142. The administration of all classes
of exclusive property of either spouse may be
transferred by the court to the other spouse:
(1) When one spouse becomes the
guardian of the other;
(2) When one spouse is judicially declared
an absentee;
(3) When one spouse is sentenced to a
penalty w/c carries w/ it civil interdiction; or
(4) When one spouse becomes a fugitive
fr. justice or is in hiding as an accused in a
criminal case.
If the other spouse is not qualified by
reason of incompetence, conflict of interest,
or any other just cause, the court shall
appoint a suitable person to be the
administrator.

3.
REGIME
PROPERTY

OF

SEPARATION

OF

Art. 143. Should the future spouses agree


in the marriage settlements that their
property relations during the marriage shall
be governed by the regime of separation of
property, the provisions of this Chapter shall
be of suppletory application.
Art. 144. Separation of property may
refer to present or future property or both. It
may be total or partial. In the latter case, the

property not agreed upon as separate shall


pertain to the absolute community.
Art. 145.
Each spouse shall own,
dispose of, possess, administer & enjoy his
or her own separate estate, w/o need of
the consent of the other. To each spouse
shall belong all earnings fr. his or her
profession, business or industry & all fruits,
natural, industrial or civil, due or received
during the marriage fr. his or her separate
property.
Art. 146. Both spouses shall bear the
family expenses in proportion to their
income, or, in case of insufficiency or
default thereof, to the current market value
of their separate properties.
The liability of the spouses of creditors
for family expenses shall, however, be
solidary.

VII. UNION

W/O MARRIAGE

Art. 147. When a man & a woman who


are capacitated to marry each other, live
exclusively w/ each other as husband &
wife w/o the benefit of marriage or under a
void marriage, their wages & salaries shall
be owned by them in equal shares & the
property acquired by both of them through
their work or industry shall be governed by
the rules on co-ownership.
[no provision in OCC, judicial decisions
only; only in NCC; Baviera says the use of
the words "capacitated" & "void marriage"
is malabo; jigsaw puzzle provision]
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, & 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 & maintenance
of the family & of the household.

118

[basis: MAXEY V. CA - H & W, equality of


the sexes]
Neither party can encumber or dispose by
acts inter vivos of his or her share in the
property acquired during cohabitation &
owned in common, w/o the consent of the
other, until after the termination of their
cohabitation.
[Baviera - so that it won't be better than
legal relationships]
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.
[Baviera
there
is
a
right
of
representation even by the grandchildren]
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 &
corresponding shares are presumed to be
equal. The same rule & presumption shall
apply to joint deposits of money & evidences
of credit.
If one of the parties is validly married to
another, his or her share in the co-ownership
shall accrue to the absolute community or
conjugal partnership existing in such valid
marriage. If the party who acted in bad faith
is not validly married to another, his or her
share shall be forfeited in the manner
provided in the last paragraph of the
preceding Article.
The foregoing rules on forfeiture shall
likewise apply even if both parties are in bad
faith.

Baviera: If no common children, no


surviving descendant, kanino ngayon?
apply exclusive property

YAPTINCHAY V. HON. TORRES &


VIRGINIA YAPTINCHAY [28 S 489
(1969)]
Facts: Isidro Yaptinchay had 3 children by
his legal wife, Josefina; one of w/c is the
respondent in this case. However, he lived
w/ his paramour Teresita (petr) for 19
years. When Isidro died intestate, Teresita
was appointed as admntrix of the
properties incl. a North Forbes house where
Isidro & Teresita lived in for years. But the
appointment was opposed by the first wife.
CFI sustained the opposition & appointed
Virginia (the daughter) to be the admntrix
& ordered T to deliver possession of the
North Forbes house to V.
Held: Where a married man & his mistress
lived together for 19 years, & the mistress
seeks to repossess their love nest in Forbes
Park,
she
must
show
her
actual
contribution in the construction of the
house during the cohabitation in order for
the rules on co-ownership to apply. Her
unsupported assertions cannot override the
prima facie presumption that the house,
having been constructed on the lot of the
man during his marriage to his legitimate
wife constitutes conjugal property.
JUANIZA V. JOSE [89 S 306 (1979)]
Facts:
Eugenio Jose is the registered
owner of a jeepney w/c was involved in an
accident & was held liable for damages. He
was married to Socorro Ramos but had
been cohabiting w/ defendant-appellant
Rosalia Arroyo for 16 years. CFI ordered
both Euguenio & Rosalia to pay damages,
jointly & severally, based on Art. 144 CC.
Arroyo opposed this ruling & asked the
Court to absolve her fr. liability.
Held: His common-law wife cannot claim
co- ownership over the jeepney bec. Art.
144 CC (Art. 147 FC) applies only when the
parties are not incapacitated to marry.
Hence, the jeepney belongs to the conjugal
partnership w/ the lawful wife. Also, the
common-law wife not being the registered
owner cannot be held liable for damages
caused by its operation.
119

Baviera disagrees, it is not necessary


that there be no impediment to marry
bec. Art. 147 FC covers even void
marriages.

MAXEY V. CA [129 S 187 (1984)]


Facts: Melbourne Maxey & Regina Morales
started living together as husband & wife in
1903. During this period, Maxey acquired
several parcels of land. They were married
only in 1919, after w/c Regina died. Maxey
then married Julia, & using a power of atty.,
sold the lands to Defs- spouses Macayra.
Plaintiffs are the children of Maxey & Regina
who prayed for the annulment of the sale
alleging that the lots were common
properties of their parents & the sale was w/o
their consent. CFI applied Art. 144 CC w/c
provides that a state of co-ownership governs
relationships w/o the benefit of marriage or
even in void marriages. The CA reversed on
the ground that there was no evidence that
the lots were acquired through joint efforts,
Melbourne being the one who was employed
& Regina was not. Also, Art.144 should not be
applied retroactively.
Held: Under Art. 144 CC (Art. 147 FC), coownership arises even if a common-law wife
does not work or is not gainfully employed.
The Filipino woman traditionally runs the
household & holds the family purse even if
she does not contribute thereto.
The wedding in 1903 was not valid. In
this case, the couple got married only in 1919
after living as common-law spouses before
that. But considerations of justice dictate that
Art. 144 be retroactively applied. Prior to the
NCC, the formation of an informal civil
partnership between a man & a woman not
legally married & their corresponding right to
an equal share in properties acquired through
their joint efforts during cohabitation was
recognized through judicial decisions. Art.
144 of the NCC, codified these judicial
precedents w/ some modifications; coownership arises even if the common-law
wife is not gainfully employed, or does not
work.. Art. 144 recognizes that it would be
unjust & abnormal if a woman who is a wife
in all aspects except for the req. of a valid
marriage, must abandon the home & her
children & go to earn a living or engage in

business before the rules on co-ownership


would apply.
Balane:
As in the case of Maxey, a common-law
wife who is not gainfully employed
contributes to the co-ownership as a
homemaker.
the law in this case provides for a special
kind of co- ownership...w/c cannot be
terminated, & wherein the share may
not be encumbered or disposed of w/o
the consent of the other.
VII. THE FAMILY
A. AS

AN INSTITUTION

ART. 149. The family, being the


foundation of the nation, is a basic social
institution w/c public policy cherishes &
protects. Consequently, family relations are
governed by law & no custom, practice or
agreement destructive of the family shall
be recognized or given effect.
ART. 150.
Family relations include
those:
(1) Between husband & wife;
(2) Between parents & children;
(3) Among other ascendants &
descendants; &
(4) Among brothers & sisters, whether
of the full or half-blood.

BALANE: The enumeration under 150 of


who is a member of a family is exclusive for
the purpose stated in Art. 151
ART. 151. No suit between members of
the same family shall prosper unless it
should appear fr. 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.
This rule shall not apply to cases w/c
may not be the subject of compromise
under the Civil Code.
120

BALANE: If on either side of the litigation, a


third party is present in addition to the family
member, then Art. 151 does not apply.
ALAVADO V. CITY GOV'T
HELD: Persons dwelling together in apparent
matrimony are presumed, in the absence of
any counter-presumption or evidence special
to the case, to be in fact married. The reason
is that such is the common order of society, &
if the parties were not what they thus hold
themselves out as being, they would be living
in the constant violation of decency & of law.
B. FAMILY HOME

ART. 152. The family home, constituted


jointly by the husband & the wife or by an
unmarried head of a family, is the dwelling
house where they & their family reside, & the
land on w/c it is situated.

BALANE: An unmarried head of a family


may constitute a family home.
ART. 153. The family home is deemed
constituted on a house & lot fr. the time it is
occupied as a family residence. From the time
of its constitution & so long as any of its
beneficiaries actually resides therein, the
family home continues to be such & is
exempt fr. execution, forced sale or
attachment except as hereinafter provided &
to the extent of the value allowed by law.
ART. 154. The beneficiaries of a family
home are:
(1) The husband & wife, or an unmarried
person who is the head of a family; &
(2)
Their
parents,
ascendants,
descendants, brothers & sisters, whether the
relationship be legitimate or illegitimate, who
are living in the family home & who depend
upon the head of the family for legal support.
ART. 155. The family home shall be
exempt fr. execution, forced sale or
attachment except:
(1) For non-payment of taxes;

(2) For debts incurred prior to the


constitution of the family home;
(3) For debts secured by mortgages on
the premises before or after such
constitution;
(4) For debts due to laborers,
mechanics,
architects,
builders,
materialsmen & others who have rendered
service or furnished material for the
construction of the building.
ART. 156. 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
w/ the latter's consent. It may also be
constituted by an unmarried head of a
family on his or her own property.
Nevertheless, property that is the
subject of a conditional sale on installments
where ownership is reserved by the vendor
only to guarantee payment of the purchase
price may be constituted as a family home.
ART. 157.
The actual value of the
family home shall not exceed, at the time
of its constitution, the amount of three
hundred thousand (P300,000) in urban
areas & two hundred thousand (P200,000)
in rural areas, or such amounts as may
hereafter be fixed by law.
In any event, if the value of the
currency changes after the adoption of this
Code, the value most favorable for the
constitution of a family home shall be the
basis of evaluation.
For purposes of this Article, urban areas
are deemed to include chartered cities &
municipalities whose annual income at
least equals that legally required for
chartered cities. All others are deemed to
be rural areas.

BALANE: Under the NCC, there was no


provision for adjustment of the value of the
family home. The ceiling was pegged at
P30,000. Under the FC, this ceiling was
increased. The FC further provided for a
flexibility clause under Art. 157.2 "value
most favorable for the constitution of a
family home shall be the basis..."
ART. 158. The family home may be
sold, alienated, donated, assigned or
encumbered by the owner or owners
121

thereof w/ the written consent of the person


constituting the same, the latter's spouse, &
a majority of the beneficiaries of legal age. In
case of conflict, the court shall decide.

BALANE: Although this article states that


the consent of the head & a majority of the
beneficiaries
is
required
before
alienation/encumbrance of the family home,
the law is not clear as to the consequences of
not obtaining such consent. Under 1403, it
would seem as if the contract shall be
unenforceable.
ART. 159. The family home shall continue
despite the death of one or both spouses or
of the unmarried head of the family for a
period of ten years or for as long as there is a
minor beneficiary, & the heirs cannot
partition the same unless the court finds
compelling reasons therefor. This rule shall
apply regardless of whoever owns the
property or constituted the family home.
ART. 160. When a creditor whose claim is
not among those mentioned in Article 155
obtains a judgment in his favor, & he has
reasonable grounds to believe that the family
home is actually worth more than the
maximum amount fixed in Article 157, he
may apply to the court w/c rendered the
judgment for an order directing the sale of
the property under execution. The court shall
so order if it finds that the actual value of the
family home exceeds the maximum amount
allowed by law as of the time of its
constitution. If the increased actual value
exceeds the maximum allowed in Article 157
&
results
fr.
subsequent
voluntary
improvements introduced by the person or
persons constituting the family home, by the
owner or owners of the property, or by any of
the beneficiaries, the same rule & procedure
shall apply.
At the execution sale, no bid below the
value allowed for a family home shall be
considered. The proceeds shall be applied
first to the amount mentioned in Article 157,
& then to the liabilities under the judgment &
the costs. The excess, if any, shall be
delivered to the judgment debtor.
ART. 161. For 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 family home.

ART. 162.
The provisions in this
Chapter shall also govern existing family
residences insofar as said provisions are
applicable.

NOTES:
The main change fr. the
provisions of the NCC is that under the FC,
there is de facto or automatic constitution
of the family home
The rationale behind this is to
protect
the
family
fr.
the
tragic
consequence of losing the dwelling to
creditors.
Baviera cases:
MODEQUILLO V. BREVA [185 S 766
(1990)]
FACTS: A judgment was rendered against
Modequillo as a result of w/c certain goods
& chattels belonging to him were levied
upon. M filed a motion to set aside levy of
execution on the ground that the levied
residential land is where the family home is
built. As such, he contended that this land
is exempt fr. execution under Arts. 152 &
153 of the FC.
HELD: Under the Family Code, a family
home is deemed constituted on a house &
lot fr. the time it is occupied as a family
residence. There is NO NEED to constitute
the same judicially or extrajudicially as
required in the Civil Code. If the family
actually resides in the premises, it is,
therefore, a family home as contemplated
by law. Thus, the creditors should take the
necessary precautions to protect their
interest before extending credit to the
spouses or head of the family who owns
the home.
Art. 162 FC simply means that all
existing family residences at the time of
the effectivity of the Family Code (AUGUST
3, 1988), are considered family homes &
are prospectively entitled to the benefits
accorded to a family home under the
Family Code. Art. 162 FC does not state
that the provisions of Chapter 2, Title V
have a retroactive effect.
GAYON V. GAYON
122

HELD: Art. 222 of the CC (Art. 151 NCC) is an


exception to the general rule & should thus
be construed strictly. Inasmuch as a sister-inlaw, nephew, niece are not included in the
enumeration contained in Art. 217, then it
follows that this case does not fall w/in Art.
222. Failure to seek a compromise before the
filing of the complaint does not bar the
action.
WAINRIGHT V. VERSOZA
HELD: Compromise on future support is
proscribed. An attempt to compromise future
support is not a condition precedent to the
filing of a suit therefor & it need not be
alleged in the complaint. A showing of
previous efforts to compromise future support
would be superfluous.
MANACOP VS. CA [215 SCRA 773]
HELD: It does not mean that Articles 152 &
153 FC have a retroactive effect such that all
existing family residences are deemed to
have been constituted as family homes at the
time of their occupation prior to the
effectivity of the FC & are exempt fr.
execution for the payment of obligations
incurred before the effectivity of the FC.
Art. 162 simply means that all existing
family residences at the time of the
effectivity of the FC, are considered family
homes & are prospectively entitled to the
benefits accorded to a family home under the
FC.
Art. 162 does not state that the
provisions of Chapter 2, Title V have a
retroactive effect.

that the same have failed" in his pleadings


in order to comply w/ the requirement.
O'LAO V. CO CHO CHIT
HELD: Earnest
efforts
towards
a
compromise is a condition precedent to
filing of suits between members of the
same family, non-compliance of w/c, the
complaint is assailable at any stage of the
proceedings for lack of cause of action.

ART. 2035. No compromise upon the


following questions shall be valid:
(1) The civil status of persons;
(2) The validity of marriage or a legal
separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime. (Civil Code.)
ART. 215.
No descendant shall be
compelled, in a criminal case, to testify
against his parents & grandparents, except
when such testimony is indispensable in a
crime against the descendant or by one
parent against the other.

BALANE: Art. 160 provides the remedy of


the creditor where the value of the family
home is in excess of the ceiling
The family home will be sold (but
replacement should exist). The value for
such replacement should be set aside. Any
excess shall accrue to the creditor.

MAGBALETA V. GONONG
HELD: Where one of the parties to a civil
litigation is not a member of the family while
some of the family members are adverse
parties to the said suit, lack of earnest efforts
to reach a compromise should not be
considered a jurisdictional requisite to the
maintenance of an action.
DE GUZMAN V. GENATO
HELD: Substantial
compliance
of
the
requirement of earnest efforts towards a
compromise is enough. It is not necessary
that the plaintiff should expressly use the
terms of the statute, i.e. "that earnest efforts
towards a compromise have been made, but

IX. PATERNITY & FILIATION


Paternity - includes maternity; means the
relationship or status of a person w/
respect to his or her child.
Filiation - means the status of a person
w/ respect to his or her parents.
Note that under the Family Code, there are
no more sub-distinctions under the
classification of illegitimate children.
Art. 163. The filiation of children may
be by nature or by adoption. Natural
filiation may be legitimate or illegitimate.
123

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 w/ the sperm of the
husband or that of a donor or both are
likewise legitimate children of the husband &
his wife, provided, that both of them
authorized or ratified such insemination in a
written instrument executed & signed by
them before the birth of the child. The
instrument shall be recorded in the civil
registry together w/ the birth certificate of the
child.

BALANE:
Legitimate - conceived or born during the
marriage; the presumption is always in favor
of legitimacy.
Artificial insemination: 3 ways permissible:
artificial insemination husband (AIH)--using
the sperm of the husband--homologous
artificial
insemination
donor
(AID)
-heterologous
artificial insemination combined (AIC)

Requirements:
authorization/ratification of both spouses;
written instrument;
the document should be executed & signed
before the child's birth;
registration in the Civil Registry is not a
requirement for validity.
Presumption
of
Legitimacy.
The
presumption of legitimacy is an example of a
quasi-conclusive
presumption.
This
presumption may be rebutted only on the
grounds provided in Art. 166.
To impugn legitimacy, show that
during the 1st 120 days of the 300 days
preceding the birth, there was physical
impossibility of access between husband &
wife.
Physical impossibility of access may be
shown by preponderance of evidence:
may show impotence;
that the spouses were living separately &
sexual intercourse was not possible; or
serious illness making sexual intercourse
impossible.
Art. 166.1 has no application when the
conception is by artificial insemination.

Suppose the consent or ratification was


obtained through the means mentioned in
166 (3) but the semen used was that of
the husband...will this rebut the quasiconclusive presumption?
Art. 165. Children conceived & born
outside a valid marriage are illegitimate,
unless otherwise provided in this Code.

BAVIERA: The clause unless otherwise


provided in this Code refers to Art.
54.

Art. 166. Legitimacy of a child may be


impugned only on the following grounds:
(1) That it was physically impossible for
the husband to have sexual intercourse w/
his wife w/in the first 120 days of the 300
days w/c immediately preceded the birth of
the child bec. of:
(a) the physical incapacity of the
husband to have sexual intercourse w/ his
wife;
(b) the fact that the husband & wife
were living separately in such a way that
sexual intercourse was not possible; or
(c) serious illness of the husband, w/c
absolutely prevented sexual intercourse;
(2) That it is proved that for biological
or other scientific reasons, the child could
not have been that of the husband, except
in the instance provided in the second
paragraph
of
Article
164
(artificial
insemination); or
(3) That in case of children conceived
through artificial insemination, the written
authorization or ratification of either parent
was obtained through mistake, fraud,
violence, intimidation, or undue influence.

ANDAL V. MACARAIG [100 SCRA 73]


Facts: The H died on 1/1/43. The boy
whose legitimacy is in question was born
on 6/17/43.
If the boy is deemed
legitimate, then he is entitled to inherit the
land in question. Lower court declared the
boy as the legitimate child of the H &
owner of the land.
124

HELD:
The boy is presumed to be the
legitimate son of said H & his W, he having
been born w/in 300 days following the
dissolution of the marriage. The presumption
can only be rebutted by proof that it was
physically impossible for the H to have access
to her W during the first 120 days of the 300
days next preceding the birth of the child.
The fact that the wife has committed adultery
cannot overcome this presumption. Although
the H was suffering fr. serious tuberculosis,
yet there is no evidence of impotence nor
does it prevent carnal intercourse.
MACADANGDANG V. CA [100 SCRA 73]
HELD: The child Rolando is presumed to be
the legitimate son of resp. & her spouse. This
presumption becomes conclusive in the
absence of proof that there was physical
impossibility of access between the spouses
in the first 120 days of the 300 days w/c
preceded the birth of the child.

Art. 167. The children shall be considered


legitimate although the mother may have
declared against its legitimacy or may have
been sentenced as an adulteress.

BAVIERA: If W, who is married to H, is a


victim of rape, the child conceived shall
not be acknowledged by the rapist.
REASON: It is possible that the child is
the husbands.

CHUA KENG GIAP V. IAC [158 SCRA 18]


HELD: In the case of Sy Kao v. CA, Sy Kao
flatly & unequivocably declared that she was
not the petitioner's mother.
xxx
Who better than Sy Kao herself would
know if Chua Keng Giap was really her son?
More than any one else, it was Sy Kao who
could say-- as indeed she has said these
many years-- that Chua Keng Giap was not
begotten of her womb.
Art. 168. If the marriage is terminated &
the mother contracted another marriage w/in
three hundred days after such termination of

the former marriage, these rules shall


govern in the absence of proof to the
contrary:
(1) A child born before one hundred
eighty days after the solemnization of the
subsequent marriage is considered to have
been
conceived
during
the
former
marriage, provided it be born w/in three
hundred days after the termination of the
former marriage;
(2) A child born after one hundred
eighty days following the celebration of the
subsequent marriage is considered to have
been conceived during such marriage,
even though it be born w/in the three
hundred days after the termination of the
former marriage.
Art. 169. The legitimacy or illegitimacy
of a child born after three hundred days
following the termination of the marriage
shall be proved by whoever alleges such
legitimacy or illegitimacy.
Art. 170. The action to impugn the
legitimacy of the child shall be brought w/in
one year fr. the knowledge of the birth or
its recording in the civil register, if the
husband or, in a proper case, any of his
heirs, should reside in the city or
municipality where the birth took place or
was recorded.
If the husband or, in his default, all of
his heirs do not reside at the place of birth
as defined in the first paragraph or where it
was recorded, the period shall be two years
if they should reside in the Philippines; &
three years if abroad. If the birth of the
child has been concealed fr. or was
unknown to the husband or his heirs, the
period shall be counted fr. the discovery or
knowledge of the birth of the child or of the
fact of registration of said birth, w/cever is
earlier.

LIM

VS.

IAC [166 SCRA 451]

HELD: The finding of the trial court & the


CA that Violeta Cabatbat was not born of
Esperanza Cabatbat is a factual finding
based on the evidence presented at the
trial, & hence, it is conclusive upon Us.

125

Petitioner's recourse to Art. 263, NCC,


now Art. 170, FC is not well-taken. This legal
provision refers to an action to impugn
legitimacy. It is inapplicable to this case bec.
this is not an action to impugn the legitimacy
of a child, but an action of the prvt resps. to
claim their inheritance as legal heirs of their
childless deceased aunt. They do not claim
that petitioner Violeta Cabatbat Lim is an
illegitimate child of the deceased, but that
she is not the decedent's child at all. Being
neither a legally adopted child, nor an
acknowledged natural child, nor a child by
legal fiction of Esperanza, Violeta is not a
legal heir of the deceased.

Art. 171. The heirs of the husband may


impugn the filiation of the child w/in the
period prescribed in the preceding article
only in the following cases:
(1) If the husband should die before the
expiration of the period fixed for bringing his
action;
(2) If he should die after the filing of the
complaint, w/o having desisted therefr.; or
(3) If the child was born after the death of
the husband.

BALANE: Art. 170-171 .Anent who can


impugn the legitimacy of a child--the period
for such must be reckoned fr. knowledge of
either the birth or the recording of such
birth...choice of reckoning point...except
when birth is concealed, then the reckoning
period is fr. discovery or knowledge of birth or
discovery or knowledge of recording, w/cever
is earlier.
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 & signed by the parent
concerned.
In the absence of the foregoing evidence,
the legitimate filiation shall be proved by:
(1) The open & continuous possession of
the status of a legitimate child; or
(2) Any other means allowed by the Rules
of Court & special laws.

BAVIERA:
Under the NCC:
Recognition
Filiation other than legitimate

of

Voluntary Recognition
Putative father acknowledges child as
his in the record of birth under oath &
signed by him.
Acknowledgment is contained in a last
will & testament.
Acknowledges child before a court of
record.
Acknowledgment is contained in an
authentic document, e.g., ITR, SSS
Application.
Compulsory Recognition
To compel the father to acknowledge
the child, e.g., the rapist is compelled
to acknowledge child begotten thru
rape.
Proof: Open & continuous possession
of status as child not secret; known
to the community.
Proof: Where there is cohabitation,
that the conception coincided w/ the
period of cohabitation.
Proof: In an authentic handwriting of
the father handwritten instrument
signed by him.
HOWEVER, the child has to bring
action during lifetime of putative
parent. EXCEPTION: Putative parent
dies during minority of the child.

BALANE:
With regard to open &
continuous possession of the status of a
legitimate child...the possession in this
case of such status must not be sporadic or
intermittent possession of such status for
an appreciable time is sufficient...it need
not be for the lifetime of the child.
DIAZ

VS.

CA [129 SCRA 621]

HELD: Absence of maternal surname of the


decedent in his certificate of admission to
126

the Phil. Bar does not disprove legitimacy, as


dropping of maternal surname in documents
is commonplace.

child during the lifetime of the putative


parent is abated by the death of such
parent.

Although the last will & testament


cannot prove pedigree, it is not considered as
independent evidence but collectively w/
other evidence on record to prove decedent's
legitimacy.

Art. 174. Legitimate children shall have


the right:
(1) To bear the surnames of the father
& the mother, in conformity w/ the
provisions of the Civil Code on Surnames;
(2) To receive support fr. their parents,
their ascendants, & in proper cases, their
brothers & sisters, in conformity w/ the
provisions of this Code on Support;
(3) To be entitled to the legitime &
other successional rights granted to them
by the Civil Code.

Art. 173. The action to claim legitimacy


may be brought by the child during his or her
lifetime & shall be transmitted to the heirs
should the child die during minority or in a
state of insanity. In these cases, the heirs
shall have a period of five years w/in w/c to
institute the action.
The action already commenced by the
child shall survive notw/standing the death of
either or both of the parties.

Art. 175. Illegitimate children may


establish their illegitimate filiation in the
same way & on the same evidence as
legitimate children.

BAVIERA:
Unless it falls under the 2
exceptions,
(1) child dies during minority
(2) child is in a state of insanity
the right to file this action is not
transmissible to heirs.

BALANE: The action in this case is generally


intransmissible except when the child dies
during minority, or the child dies in a state of
insanity or the child dies pendente lite
MARQUINO VS. IAC [233 SCRA 348]
HELD: Under Art. 285 (Civil Code), the right
of action for the acknowledgment of natural
children can never be transmitted -- her
death tolled the action. In an action for
compulsory recognition, the party in best
position to oppose the same is the putative
parent himself. (However, Art. 285 was
already superseded by Art. 173, FC, Child can
now bring the action during his lifetime even
after the death of parents. But Art. 173
cannot be given retroactive effect bec. it will
prejudice the vested rights of the heirs of the
putative parent transmitted to them after the
latter's death.
DLC:
The action for compulsory
recognition commenced by the illegitimate

BAVIERA: The action must [MAY - typo


error corrected by Baviera]
be
brought
w/in
the
same
period
specified in Article 173, except when
the action is based on the second
paragraph of Article 172, in w/c case
the action may [MUST - Baviera] be
brought during the lifetime of the
alleged parent.

Balane:
The FC rules were meant to
liberalize the rules of the NCC on
illegitimacy...there is no more need for
recognition (w/c was required under the
NCC) proof of illegitimacy is now sufficient.
JAO VS. CA [152 SCRA 359]
HELD: Blood grouping tests are conclusive
as to non-paternity but not as to paternity.
The fact that the blood type of the child is a
possible product of the mother & the
alleged father does not inconclusively
prove that the child is born by such
parents; but if the blood type of the child is
not the possible blood type when the blood
of the mother & the alleged father are
crossmatched, then the child cannot
possibly be that of the alleged father.
127

The cohabitation between the mother


& the supposed father cannot be a ground for
compulsory recognition if such cohabitation
could not have produced the conception of
the child.
This would be the case, for
instance, if the cohabitation took place
outside of the period of conception of the
child. Likewise, if it can be proved by blood
tests that the child & the supposed father
belong to different blood groups, the
cohabitation by itself cannot be a ground for
recognition.
UYGUANGCO VS. CA

[178 SCRA 684]

HELD: Case cites Art. 172 (2nd par.): when


the action is based on second par. of Art.172,
the action may be brought during the lifetime
of the alleged parent. 2nd par of 172: In the
absence of the foregoing evidence, the
legitimate filiation shall be proved by: a) open
& continuous possession, b) other means
allowed by the Rules of Court.
While PR admits that he has none of
the documents mentioned in par.1, he insists
that he has nevertheless been in "open &
continuous possession of the status of a
legitimate child." The problem of PR is that
since he seeks to prove his filiation under par.
2, he is now barred bec. of his alleged
father's death in 1975. The putative father's
death in 1975, made the Civil Code
applicable to him & not the Family Code.
Thus, PR cannot prove his illegitimate filiation
bec. of his father's death.

MENDOZA VS. CA

[201 SCRA 675]

HELD: To establish "the open & continuous


possession of the status of an illegitimate
child," it is necessary to comply w/ certain
jurisprudential requirements. "Continuous"
does not mean that the concession of status
shall continue forever but only that it shall
not be of an intermittent character while it
continues. The possession of such status
means that the father has treated the child
as his own, directly & not through others,
spontaneously & w/o concealment though
w/o
publicity
(since
the
relation
is
illegitimate.)
There must a showing of
permanent intention of the suppose father to
consider the child as his own, by continuous
& clear manifestation of affection & care.

Art. 176. Illegitimate children shall use


the surname & shall be under the parental
authority of their mother, & shall be
entitled to support in conformity w/ this
Code. The legitime of each illegitimate
child shall consist of one half of the
legitime of a legitimate child.

BALANE: Anent the right of an illegitimate


child
in
compulsory
&
intestate
succession...the illegitimate child shall be
entitled to 1/2 of the share of the legitimate
child.
Art. 177. Only children conceived &
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.

BALANE: Anent legitimated children...the


parents of the child must not be
disqualified fr. marrying one another at the
point of conception.
So if the parents of the child, at the latter's
conception, were 16 & 15 years old, the
child may not be legitimated.
Art. 178. Legitimation shall take place
by a subsequent valid marriage between
parents. The annulment of a voidable
marriage shall not affect the legitimation.
Art. 179. Legitimated children shall
enjoy the same rights as legitimate
children.
Art. 180. The effects of legitimation
shall retroact to the time of the child's
birth.
Art. 181. The legitimation of children
who died before the celebration of the
marriage shall benefit their descendants.
Art.
182.
Legitimation
may
be
impugned only by those who are
prejudiced in their rights, w/in five years fr.
the time their cause of action accrues.

Baviera Cases:
128

TAYAG V. CA 209 S 588 (1992)]


FACTS:
E. Cuyugan, in her capacity as
mother & guardian of minor Chad, filed a
Claim for Inheritance against the admin of
the estate of Tayag. E contended that she
had an amorous relationship w/ & that as a
consequence thereof, she gave birth to C. E
presented as evidence several letters fr. T w/c
provide, inter alia, I have vowed to recognize
him & be my heir. After all, we love each
other & Chad is the product of our love
HELD: An action to compel recognition & an
action to claim inheritance may be joined in
one complaint.
There is no absolute
necessity requiring that the action to compel
acknowledgment should have been instituted
& prosecuted to a successful conclusion prior
to the action in w/c the same plaintiff seeks
additional relief in the character of heir.
Under Art. 285 of the Civil Code, if the
mother or father died during minority, an
action for recognition of natural based on oral
proof may be brought by the child before the
expiration of four years fr. attainment of
majority.
However, under Art. 175 of the Family
Code, if the action is based on oral proof, it
must be filed during the lifetime of the
parent. The Family Code cannot be given
retroactive effect bec. it will impair vested
rights. The right of action of the child has
already vested by the filing of the case under
the Civil Code, before the enactment of the
Family Code . Such right can no longer be
prejudiced or impaired by the enactment of a
new law.
BENITEZ V. CA [229 S 468 (1994)]
FACTS: The spouses Benitez owned several
properties. During their lifetime, they raised
since childhood one Marissa-Benitez Badua.
Upon their death (H & W), the collateral
relatives of the H prayed for the issuance of
letters of admin in their favor alleging that M
is not related to the spouses by blood, nor is
she legally adopted. As such, M should not
be considered a legal heir.
HELD: The claim for inheritance of a child
who is not the biological or adopted child of
deceased was denied, on the ground that
Articles 164, 166, 170, & 171 of the Family
Code do not contemplate a situation where a

child is alleged not to be the child by


nature or biological child of a certain
couple. Rather, these articles govern a
situation where the husband or his heirs
denies as his own a child of his wife.
RODRIGUEZ VS., CA [245 SCRA 150]
FACTS: A. Agbulos brought an action for
recognition & support against Rodriguez.
During the trial, A presented his mother as
a witness. When she was asked to reveal
the identity of As father, Rs lawyer raised
a timely objection.. R contends that the
mother should not be allowed to reveal the
name of As father since it is prohibited by
Art. 280, NCC.
HELD: Art. 280 provides that when the
father or the mother makes the recognition
separately. He or she shall not reveal the
name of the person w/ whom she had the
child; neither shall he or she state any
circumstance whereby the other party may
be identified.
This prohibition merely refers to
VOLUNTARY RECOGNITION & not to a
compulsory one. It merely refers to the act
of recognition & does not prevent inquiry
into the identity of the other party in case
an action is brought in court to contest
recognition.
NOTE:
Arts. 276-280 have been
repealed by the FC. Maam says that
although the mothers testimony is
admissible, its probative value is
insignificant.
BAVIERA: Under the NCC, the family
home is constituted either:
Judicially all creditors are notified.
FH is exempt EXCEPT as to taxes &
encumbrances.
Extrajudicially

mere
sworn
statement registered w/ the Registry
of Deeds. Exempts only as regards
debts contracted AFTER constitution.
Exceptions: taxes, encumbrances.

X. ADOPTION

129

WHAT IS ADOPTION?
A fiction created by law to give (establish) a
relation of people where none previously
existed.

such that the decree made is binding on all


persons, whether personally notified or
merely through constructive notice.

A juridical act, proceeding in rem, w/c creates


between two persons a relationship similar to
that w/c results of legitimate paternity &
filiation.

Consequently, no court may entertain a


petition for adoption unless it has
jurisdiction, not only over the subject
matter of the case & over the parties, but
also, over the res - i.e., the personal status
of both the person to be adopted & person
adopting.

Adoption, in modern trends, is deemed not


merely an act to establish the relation of
paternity & filiation but one w/c gives the
child a legitimate status.

Testamentary & extrajudicial adoptions


practiced in some countries are not
recognized in this jurisdiction.

It is in this sense that adoption is now defined


as a "juridical act w/c creates between two
persons a relationship similar to that w/c
results fr. legitimate paternity & filiation.
Since adoption establishes the relationship of
paternity & filiation, it must as a consequence
involve two perspectives - fr. that of the
adopting parent & fr. that of the adopted
child.
As used in the family law the relationship of
paternity & filiation is that w/c exists between
parents & their children. This tie or
relationship may arise only either fr. nature,
when a child is born, or by legal fiction, as
when a child is legally adopted.
Paternity is the state or condition of being a
father, whereas "filiation" is the descent of
son or daughter, w/ regard to his or her
father, mother, & their ancestors.
Under family law, "paternity" generally
includes "maternity" w/c is the status of
being a mother.
PURPOSE OF ADOPTION
To provide homes, parental care & education
for unfortunate, needy or orphaned children
& give them the protection of society &
family in the person of the adopter, & at the
same time, allow childless couples or persons
to experience the joys of parenthood & give
them legally a child in the person of the
adopted for the manifestation of their natural
parental instincts

WHO MAY ADOPT

Art. 183.
A person of age & in
possession of full civil capacity & legal
rights may adopt, provided he is in a
position to support & care for his children,
legitimate or illegitimate, in keeping w/ the
means of the family.
Only minors may be adopted, except in
the cases where the adoption of a person
of majority age is allowed in this Title
In addition, the adopter must be at
least sixteen years older than the person to
be adopted, unless the adopter is the
parent by nature of the adopted, or is the
spouse of the legitimate parent of the
person to be adopted.

BALANE: This article gives the basic rule:


the adopter need not be married & need
not be childless...the adopter may still
adopt so long as he is able to support his
legitimate or illegitimate children.
Art. 185. Husband & wife must jointly
adopt, except in the following cases:

Promotion of the best interest & welfare of


the child

(1) When one spouse seeks to adopt his


own illegitimate child; or
(2) When one spouse seeks to adopt
the legitimate child of the other.

NATURE OF ADOPTION PROCEEDING

REPUBLIC V. CA [227 SCRA 401]

Adoption as a juridical act is a proceeding in


rem.
Proceedings in rem are court actions where
the whole world is a party, whether w/in or
w/o the territorial jurisdiction of the forum,

FACTS: Hughes, a natural born US citizen


married Mabunay, a Filipina. Subsequently,
M was naturalized as a US citizen. The

130

spouses filed a petition for adoption of the


three minor niece & nephews of M.
ISSUE: WON the couple is allowed by law to
adopt said minors.
HELD:
In cases where the spouses are
required to jointly adopt, both of them must
be qualified to adopt.
While H, a natural born US citizen, is
not permitted to adopt under any of the
exceptional cases enumerated in par. 3 of
Art. 184, M, however, can qualify pursuant to
par. 3 (a) of the same Art. The problem in her
case lies, however, w/ Art. 185 w/c requires H
& W to adopt jointly, a condition that must be
read along together w/ Art. 184. The spouses
who are required by law to adopt jointly must
both be qualified to so adopt. In this case,
while M is qualified, H is not. Hence, they
cannot adopt.

Art. 186. In case husband & wife jointly


adopt or one spouse adopts the legitimate
child of the other, joint parental authority
shall be exercised by the spouses in
accordance w/ this Code.

WHO MAY NOT ADOPT


Art. 184. The following persons may not
adopt:
(1) the guardian w/ respect to the ward
prior to the approval of the final accounts
rendered upon the termination of their
guardianship relation;
(2) Any person who has been convicted of
a crime involving moral turpitude;
(3) An alien, except:
(a) A former Filipino citizen who seeks
to adopt a relative by consanguinity;
(b) One who seeks to adopt the
legitimate child of his or her Filipino spouse;
or
(c) One who is married to a Filipino
citizen & seeks to adopt jointly w/ his or her
spouse a relative by consanguinity of the
latter.
Aliens not included in the foregoing
exceptions may adopt Filipino children in
accordance w/ the rules on inter-country
adoption as may be provided by law.

BALANE: Anent the disqualification of an


alien fr. adopting, RA 8043 provides for
inter-country adoption. The Implementing
Rules & Regulations have already been
approved (Dec.26, 1995)...even if alien is
not in the Philippines, he may now adopt
under ICAL
Q: Suppose A is a foreigner & B is a former
Filipina. B has a nephew C. Can A & B
adopt C?
A: No. B can adopt X under Art. 184.3. But
under Art. 185, B cannot adopt X w/o
joining her husband (Republic v. Toledano)
Art. 184 should be read together w/ Art.
185.
REPUBLIC V. TOLEDANO [233 SCRA 9]
HELD:
In case the husband & wife are
required by law to adopt jointly, both of
them must be qualified to & not
disqualified to adopt.
There can be no question that Alvin
Clouse (a natural born US citizen) is not
qualified to adopt under any of the
exceptions found in Art. 184. In the first
place, he is not a former Filipino citizen. In
the second place, Solomon is neither his
relative by consanguinity nor the legitimate
child of his spouse.
Evelyn, on the other hand, appears
to qualify pursuant to par. 3 (a) of Art. 184.
She was a former Filipino citizen who seeks
to adopt a brother.
Unfortunately, the
petition for adoption cannot be granted in
her favor alone w/o violating Art. 185 w/c
mandates that H & W should adopt jointly.
Art. 185 requires a joint adoption by the H
& W, a condition that must be read along
w/ Art. 184.
WHO MAY BE ADOPTED
General Rule:
adopted.

Only a minor may be

Exception: Art. 182 3rd paragraph... & the


case where prior to adoption, the child had
already been de facto adopted.
WHO MAY NOT BE ADOPTED
131

Art. 187. The following may not be


adopted:
(1) A person of legal age, unless he or she
is a child by nature of the adopter or his or
her spouse, or prior to the adoption, said
person had been consistently considered &
treated by the adopter as his or her own child
during minority.
(2) An alien w/ whose government the
Republic of the Philippines has no diplomatic
relations; &
(3) A person who has already been
adopted unless such adoption has been
previously revoked or rescinded.

BALANE:
Suppose a child has been
previously adopted, but is to be adopted now
by the spouse of the previous adopter.
Applying Art. 187.3 literally, the spouse may
not adopt. There is a need to reconcile the
apparent conflict between Art. 185 & Art.
187.3
WHERE FILED
Sec. 1, Rule 99. Venue. A person desiring
to adopt another or have the custody of a
minor shall present his petition to the CFI of
the province, or the municipal or justice of
the peace court of the city or municipality in
w/c he resides.
In the City of Manila, the proceedings
shall be instituted in the JDRC.
PROCEDURE
Sec. 2, Rule 99. Contents of petition. The
petition for adoption shall contain the same
allegations required in a petition for
guardianship, to wit:
(a) The jurisdictional facts;
(b) The qualifications of the adopter;
(c) That the adopter is not disqualified
by law;
(d) The name, age, & residence of the
person to be adopted & of his relatives or of
the persons who have him under their care;
(e) The probable value & character of
the estate of the person to be adopted.
Sec. 3, Rule 99. Consent to adoption. There shall be filed w/ the petition a written
consent to the adoption signed by the child, if
fourteen years of age or over & not
incompetent, & by the child's spouse, if any,
& by each of its known living parents who is

not insane or hopelessly intemperate, or


has not abandoned such child, or if there
are no such parents by the general
guardian or guardian ad litem of the child,
or if the child is in the custody of an orphan
asylum, children's home, or benevolent
society or person, by the proper officer or
officers of such asylum, home, or society or
by such person; but if the child is
illegitimate & has not been recognized, the
consent of the father to the adoption shall
not be required.
If the person to be
adopted is of age, only his or her consent &
that of the spouse, if any, shall be required.
Art. 188. The written consent of the
following to the adoption shall be
necessary:
(1)The person to be adopted, if ten
years of age or over;
(2) The parents by nature of the child,
the legal guardian, or the proper
governmental instrumentality;
(3) The legitimate & adopted children,
ten years of age or over, of the adopting
parent or parents;
(4) The illegitimate children, ten years
of age or over, of the adopting parent, if
living w/ said parent & the latter's spouse,
if any; &
(5) The spouse, if any, of the person
adopting or to be adopted.

BALANE: 188.2 will not apply to the


father of an illegitimate child...who has no
parental authority over the child.
Sec. 4, Rule 99. Order for hearing. - If
the petition & consent filed are sufficient in
form & substance, the court, by an order
reciting the purpose of the petition, shall fix
a date & place for the hearing thereof, w/c
date shall not be more than six (6) months
after the entry of the order, & shall direct
that a copy of the order be published
before the hearing at least once a week for
three (3) successive weeks in some
newspaper of general circulation published
in the province, as the court shall deem
best.
Sec. 5, Rule 99. Hearing & judgment. Upon satisfactory proof in open court on
the date fixed in the order that such order
has been published as directed, that the
allegations of the petition are true, & that it
132

is a proper case for adoption & the petitioner


or petitioners are able to bring up & educate
the child properly, the court shall adjudge
that thenceforth the child is freed fr. all legal
obligations of obedience & maintenance w/
respect to its natural parents, except the
mother when the child is adopted by her
husband, & is, to all legal intents & purposes,
the child of the petitioner or petitioners, &
that its surname is changed to that of the
petitioner or petitioners.
The adopted person or child shall
thereupon become the legal heir of his
parents by adoption & shall also remain the
legal heir of his parents.
In case of death of the adopted person or
child, his parents & relatives by nature, & not
by adoption, shall be his legal heir.
Sec. 6, Rule 99. Proceedings as to child
whose parents are separated. Appeal. - When
husband & wife are divorced or living
separately & apart fr. each other, & the
question as to the care, custody, & control of
a child or children of their marriage is brought
before a CFI by petition or as an incident to
any other proceeding, the court, upon
hearing the testimony as may be pertinent,
shall award the care, custody, & control of
each such child as will be for its best interest,
permitting the child to choose w/c parent it
prefers to live w/ if it be over ten years of
age, unless the parent so chosen be unfit to
take charge of the child by reason of moral
depravity, habitual drunkenness, incapacity,
or poverty.
If, upon such hearing, it appears that both
parents are improper persons to have the
care, custody, & control of the child, the court
may either designate the paternal or
maternal grandparent of the child, or his
oldest brother or sister, or some reputable &
discreet person to take charge of such child,
or commit it to any suitable asylum,
children's home, or benevolent society.
The court may in conformity w/ the
provisions of the Civil Code order either or
both parents to support or help support said
child, irrespective of who may be its
custodian, & may make any order that is just
& reasonable permitting the parent who is
deprived of its care & custody to visit the
child or have temporary custody thereof.

Either parent may appeal fr. an order


made in accordance w/ the provisions of
this section.
No child under five (5) years of age
shall be separated fr. its mother, unless the
court finds there are compelling reasons
therefor. (as amended by PD 603)
Sec. 7, Rule 99. Proceedings as to
vagrant or abused child. - When the
parents of any minor child are dead or by
reason of long absence or legal or physical
disability have abandoned it, or cannot
support it through vagrancy, negligence, or
misconduct, or neglect or refuse to support
it, or treat it w/ excessive harshness or give
it corrupting orders, counsels, or examples,
or cause or allow it to engage in begging,
or to commit offenses against the law, the
proper CFI, upon petition filed by some
reputable resident of the province setting
forth the facts, may issue an order
requiring such parents to show cause, or, if
the parents are dead or cannot be found,
requiring the fiscal of the province to show
cause, at a time & place fixed in the order,
why the child should not be taken fr. its
parents, if living; & if upon the hearing it
appears that the allegations of the petition
are true, & that it is for the best interest of
the child, the court may make an order
taking it fr. its parents, if living; &
committing it to any suitable orphan
asylum, children's home, or benevolent
society or person to ultimately placed, by
adoption or otherwise, in a home found for
it by such asylum, children's home, society,
or person.
Art. 162, PD 603. Adoption of
Dependent or Abandoned or Neglected
Child. - Upon the filing of an application by
any person to adopt a dependent,
abandoned or neglected child in the
custody of any institution or individual
mentioned in Article 156, it shall be the
duty of the provincial or city fiscal, any
recognized legal association, or any
appointed de officio counsel upon being
informed of such fact, to represent the
DSWD in the proceedings. The costs of
such proceedings shall be de officio.
dependent child - one who is w/o a
parent, guardian or custodian; or one
133

whose parents, guardian or other custodian


for good cause desires to be relieved of his
care & custody; & is dependent upon the
public for support.
abandoned child - one who has no proper
parental care or guardianship, or whose
parents or guardians have deserted him for a
period of at least six continuous months.
Neglected child - one whose basic needs
have been deliberately unattended or
inadequately attended. Neglect may occur in
two ways:
a) physical neglect - when the child is
malnourished, ill clad & w/o proper shelter.
A child is unattended when left by himself
w/o provisions for his needs &/or w/o proper
supervision.
b) emotional neglect - when children are
maltreated, raped or seduced; when children
are exploited, overworked or made to work
under conditions not conducive to good
health; or are made to beg in the streets or
public places, or when children are in moral
danger, or exposed to gambling, prostitution
& other vices.
Art. 156, PD 603. Legal Custody. - When
any child shall have been committed in
accordance w/ the preceding article & such
child shall have been accepted by the DSWD
or any duly licensed child placement agency
or individual, the rights of his natural parents,
guardian, or other custodian to exercise
parental authority over him shall cease.
Such agency or individual shall be
entitled to the custody & control of such child
during his minority, & shall have authority to
care for, educate, train & place him out
temporarily or for custody & care in a duly
licensed child placement agency.
Such agency or individual may intervene
in adoption proceedings in such manner as
shall best inure to the child's welfare.
Sec. 8, Rule 99. Service of judgment. Final orders or judgments under this rule shall
be served by the clerk upon the civil registrar
of the city or municipality wherein the court
issuing the same is situated.
EFFECTS OF ADOPTION

Art. 189.
Adoption shall have the
following effects:
(1) For civil purposes, the adopted child
shall be deemed to be a legitimate child of
the adopters & both shall acquire the
reciprocal rights & obligations arising fr. the
relationship of parent & child, including the
right of the adopted to use the surname of
the adopters;
(2) The parental authority of the
parents by nature over the adopted shall
terminate & be vested in the adopters,
except that if the adopter is the spouse of
the parent by nature of the adopted,
parental authority over the adopted shall
be exercised jointly by both spouses;
(3) The adopted shall remain an
intestate heir of his parents & other blood
relatives.

LAZATIN VS. CAMPOS [92 SCRA 440]


HELD:
Adoption is a juridical act, a
proceeding in rem, w/c creates between
two persons a relationship similar to that
w/c results fr. legitimate paternity &
filiation. Only an adoption made through
the court, or in pursuance w/ the procedure
laid down under Rule 99, RC is valid in this
jurisdiction. It is not of natural law at all,
but is wholly & entirely artificial.
To
establish the relation, the statutory
requirements must be carried out,
otherwise, the adoption is an absolute
nullity.
The fact of adoption is never
presumed, but must be affirmatively
proved by the person claiming its
existence. On the contrary, the absence of
a record of adoption raises the presumption
of its non-existence. Secondary evidence is
admissible only after establishing the prior
existence of the instrument lost or
destroyed. Declarations of the deceased,
made in his lifetime, of any intention to
adopt is not sufficient to establish the fact
of adoption.
(Note: Records of a court order granting
adoption even if not registered w/ the civil
registry, proves such adoption, & cannot be
collaterally attacked in an intestate
proceeding.)
134

Art. 190. Legal or intestate succession to


the estate of the adopted shall be governed
by the following rules:
(1) Legitimate & illegitimate children &
descendants & the surviving spouse of the
adopted shall inherit fr. the adopted, in
accordance w/ the ordinary rules of legal or
intestate succession;
(2) When the parent, legitimate or
illegitimate, or the legitimate ascendants of
the adopted concur w/ the adopters, they
shall divide the entire estate, one-half to be
inherited by the parents or ascendants & the
other half, by the adopters;
(3) When the surviving spouse or the
illegitimate children of the adopted concur w/
the adopters, they shall divide the entire
estate in equal shares, one-half to be
inherited by the spouse or the illegitimate
children of the adopted & the other half, by
the adopters.
(4) When the adopters concur w/ the
illegitimate children & the surviving spouse of
the adopted, they shall divide the entire
estate in equal shares, one-third to be
inherited by the illegitimate children, onethird by the surviving spouse, & one-third by
the adopters;
(5) When only the adopters survive, they
shall inherit the entire estate; &
(6) When only collateral blood relatives of
the adopted survive, then the ordinary rules
of legal or intestate succession shall apply.

BALANE:
This provision is defectively
drafted. It only gives rules w/ regard to
intestate succession...it does not give rules
on legitimes...who are the adopted's
compulsory heirs & how much are their
legitimes.

WHO
MAY
FILE
PETITION
RESCISSION OR REVOCATION?
A

FOR

minor or other incapacitated person,


through a guardian or guardian ad litem

Grounds: for the same causes that authorize


deprivation of parental authority

Grounds:
If the adopted person has attempted
against the life of the adopter;
When the adopted minor has abandoned
the home of the adopter for more than
three (3) years;
When by other acts the adopted person
has repudiated the adoption.
(Sec.
1, Rule 100)
Art. 191. If the adopted is a minor or
otherwise incapacitated, the adoption may
be judicially rescinded upon petition of any
person authorized by the court or proper
government instrumentality acting on his
behalf, on the same grounds prescribed for
loss or suspension of parental authority. If
the adopted is at least eighteen years of
age, he may petition for judicial rescission
of the adoption on the same grounds
prescribed for disinheriting an ascendant.
Art. 192. The adopters may petition
the court for the judicial rescission of the
adoption in any of the following cases:
(1) If the adopted has committed any
act constituting a ground for disinheriting a
descendant; or
(2) When the adopted has abandoned
the home of the adopters during minority
for at least one year, or, by some other
acts, has definitely repudiated the
adoption.
PROCEDURE
Sec. 2, Rule 100. Order to answer. - The
court in w/c the petition is filed shall issue
an order requiring the adverse party to
answer the petition w/in fifteen (15) days fr.
receipt of a copy thereof.
The order & copy of the petition
shall be served on the adverse party in
such manner as the court may direct.
Sec. 3, Rule 99. Judgment. - If upon
trial, on the day set therefor, the court
finds that the allegations of the petition are
true, it shall render judgment ordering the
rescission or revocation of the adoption, w/
or w/o costs, as justice requires.

The adopter
135

Sec. 4, Rule 100. Service of judgment. - A


certified copy of the judgment rendered in
accordance w/ the next preceding section
shall be served upon the civil registrar
concerned, w/in thirty (30) days fr. rendition
thereof, who shall forthw/ enter the action
taken by the court in the register.
Sec. 5, Rule 100. Time w/in w/c to file
petition.- A minor or other incapacitated
person must file the petition for rescission or
revocation of adoption w/in the five (5) years
following his majority, or if he was
incompetent at the time of the adoption, w/in
five (5) years following the recovery fr. such
incompetency.
The adopter must also file the petition to
set aside the adoption w/in five (5) years fr.
the time the cause or causes giving rise to
the rescission or revocation of the same took
place.
EFFECTS
Art. 193. If the adopted minor has not
reached the age of majority at the time of the
judicial rescission of the adoption, the court
in the same proceeding shall reinstate the
parental authority of the parents by nature,
unless the latter are disqualified or
incapacitated, in w/c case the court shall
appoint a guardian over the person &
property of the minor.
If the adopted person is physically or
mentally handicapped, the court shall appoint
in the same proceeding a guardian over his
person or property or both.
Judicial rescission of the adoption shall
extinguish all reciprocal rights & obligations
between the adopters & the adopted arising
fr. the relationship of parent & child. The
adopted shall likewise lose the right to use
the surnames of the adopters & shall resume
his or her surname prior to the adoption.
The court shall accordingly order the
amendment of the records in the proper
registries.

INTERCOUNTRY ADOPTION ACT


BAR Q:
1980 H & W were Filipinos. In
1986, they became naturalized US citizens. 3
years later, they seek to adopt a relative w/in

the 4th degree of consanguinity. Can they


do so?
A: YES. Under RA 8552, as former Filipino
citizens, they are allowed to adopt said
relative.
BAVIERA: RA 8552
TESTAMENTARY:
Adopted
is
a
compulsory heir of adopter but the adopter
is NOT necessarily a compulsory heir of
adopted. Neither is the biological parent a
compulsory heir of the adopted.
Basis: RA 8552 Sec. 17. Compared w/ the
FC, there is no reciprocal rights &
obligations between adopter & adopted.
INTESTATE:
Adopter & adopted have
reciprocal rights & obligations. They are
therefore legal heir of each other.
EXCLUDED: Parents by nature who are not
the adopters. (unlike the FC)
C. Sec. 18 Last sentence is confusing.

XI. SUPPORT
BAVIERA: Judgment of support never
becomes final.
Reason:
always
subject to modification.
RA 6809 Under Art. 2180 of the NCC,
the liability of parents for tortuous
acts of their children BELOW 21 still
exists. (In other words, even if the
age of majority is lowered to 18, for
purposes of Art. 2180, children below
21 are still considered minorsFritzie)

Art. 194. Support comprises everything


indispensable for sustenance, dwelling,
clothing, medical attendance, education &
transportation, in keeping w/ the financial
capacity of the family.
The education of the person entitled to
be supported referred to in the preceding
paragraph shall include his schooling or
training for some profession, trade or
vocation, even beyond the age of majority.
Transportation shall include expenses in
going to & fr. school, or to & fr. place of
work.
136

Art. 195. Subject to the provisions of the


succeeding articles, the following are obliged
to support each other to the whole extent set
forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants & descendants;
(3) Parents & their legitimate children &
the legitimate & illegitimate children of the
latter;
(4) Parents & their illegitimate children &
the legitimate & illegitimate children of the
latter; &
(5) Legitimate brothers & sisters, whether
of the full or half-blood.

BAVIERA: Under the NCC, the illegitimate


children of legitimate children, in other
words illegit grandchild, under (3) & (4)
are not included.

Art. 196. Brothers & sisters not


legitimately related, whether of the full or
half-blood, are likewise bound to support
each other to the full extent set forth in
Article 194, except only when the need for
support of the brother or sister, being of age,
is due to a cause imputable to the claimant's
fault or negligence.
Art. 197. For the support of legitimate
ascendants, descendants, whether legitimate
or illegitimate, & brothers & sisters, whether
legitimately or illegitimately related, only the
separate property of the person obliged to
give support shall be answerable provided
that in case the obligor has no separate
property, the absolute community or the
conjugal partnership, if financially capable,
shall advance the support, w/c shall be
deducted fr. the share of the spouse obliged
upon the liquidation of the absolute
community or of the conjugal partnership.

BALANE:
Support of a legitimate child
should come fr. community property...this
article speaks of legitimate descendants
other than legitimate children
Art. 198. During the proceedings for legal
separation or for annulment of marriage, &
for declaration of nullity of marriage, the
spouses & their children shall be supported fr.

the properties of the absolute community


or the conjugal partnership. After final
judgment granting the petition the
obligation of mutual support between the
spouses ceases. However, in case of legal
separation, the court may order that the
guilty spouse shall give support to the
innocent one, specifying the terms of such
order.

LERMA V. CA [61 SCRA 440]


HELD:- Adultery is a good defense against
a petition for support. TA petition in bad
faith, such as that filed by one who is
himself or herself guilty of an act w/c
constitutes the ground for legal separation,
can't be considered as w/in the intendment
of the law granting separate support.
Under Art. 303, the obligation to give
support shall cease when the recipient, be
he a forced heir or not, has committed
some act w/c gives rise to disinheritance; &
under Art. 291, one of the causes for
disinheriting a spouse is when the spouse
has given cause for legal separation. The
right to separate support or maintenance,
even fr. the conjugal partnership property
presupposes the existence of a justifiable
cause for the spouse claiming such right to
live separately.
REYES V. INES-LUCIANO [88 SCRA 803]
HELD: While it is true that the adultery of
the wife is a defense in an action for
support, the alleged adultery must be
established by competent evidence. Mere
allegation that the wife has committed
adultery will not bar her fr. the right to
receive support pendente lite. During the
hearing of the application for support
pendente lite, adultery must be properly
proved to defeat the action for support.
(Note: But if both spouses are guilty of
infidelity or if there has been consent or
condonation of the acts constituting
infidelity, the right to support remains.)

Art.
persons
liability
persons

199. Whenever two or more


are obliged to give support, the
shall devolve upon the following
in the order herein provided:
137

(1) The spouse;


(2) The descendants in the nearest
degree;
(3) The ascendants in the nearest degree;
(4) The brothers & sisters.

BALANE: It is important to remember the


order of preference given in this article.
Art. 200. When the obligation to give
support falls upon two or more persons, the
payment of the same shall be divided
between them in proportion to the resources
of each.

Art. 203. The obligation to give support


shall be demandable fr. the time the person
who has a right to receive the same needs
it for maintenance, but it shall not be paid
except fr. the date of judicial or extrajudicial demand.
Support pendente lite (See Rule 61)
may be claimed in accordance w/ the Rules
of Court.
Payment shall be made w/in the first
five days of each corresponding month.
When the recipient dies, his heirs shall not
be obliged to return what he has received
in advance.

However, in case of urgent need & by


special circumstances, the judge may order
only one of them to furnish the support
provisionally, w/o prejudice to his right to
claim fr. the other obligors the share due fr.
them.

BALANE: There are two basic rules w/


regard to support: (1) demandable when
needed & (2) payable when demanded

When two or more recipients at the same


time claim support fr. one & the same person
legally obliged to give it, should the latter not
have sufficient means to satisfy all claims,
the order established in the preceding article
shall be followed, unless the concurrent
obligees should be the spouse & a child
subject to parental authority, in w/c case the
child shall be preferred.

Q: X needed support fr. his father Y fr. 1


Jan 1996. However, X called his father to
demand support only on 1 April 1996. On 1
June 1996, he filed a suit against the father
for support The Court orders support to be
given. From what date should the amount
of support be computed?

BALANE: Art. 200 establishes the order for


recipients of support
Q: X is being asked for support by different
people who are entitled to it. What are the
things to remember?
A:
satisfy all if possible
if he does not have enough to satisfy all, then
he should go by the order under Art. 200.
Art. 201. The amount of support, in the
cases referred to in Articles 195 to 196, shall
be in proportion to the resources or means of
the giver & to the necessities of the recipient.
Art. 202. Support in the cases referred to
in the preceding article shall be reduced or
increased proportionately, according to the
reduction or increase of the necessities of the
recipient & the resources or means of the
person obliged to furnish the same.

Demand for support may either be judicial


or extrajudicial.

A:
The entitlement for support shall
retroact to 1 April 1996, the date when
extra-judicial demand was made.
Q: Suppose no extra-judicial demand was
made?
A: Then the reckoning date shall be the
date when the suit is filed..(judicial
demand).
Q:
Suppose demand is made but
subsequently the claimant is able to
support himself?
A: Then he is entitled to support during
such time that he was unable to support
himself...even if payment for such support
is made after he had already recovered &
been able to support himself.
Support in arrears...being an ordinary civil
action, may be renounced...however, the
right to receive future support may not be
renounced. Any renunciation that effect
shall be void.
Art. 204. The person obliged to give
support shall have the option to fulfill the
obligation either by paying the allowance
138

fixed, or by receiving & maintaining in the


family dwelling the person who has a right to
receive support. The latter alternative cannot
be availed of in case there is a moral or legal
obstacle thereto.
Art. 205. The right to receive support
under this Title as well as any money or
property obtained as such support shall not
be levied upon an attachment or execution.
Art. 206. When, w/o the knowledge of the
person obliged to give support, it is given by
a stranger, the latter shall have a right to
claim the same fr. the former, unless it
appears that he gave it w/o intention of being
reimbursed.
Art. 207. When the person obliged to
support another unjustly refuses or fails to
give support when urgently needed by the
latter, any third person may furnish support
to the needy individual, w/ right of
reimbursement fr. the person obliged to give
support. This Article shall apply particularly
when the father or mother of a child under
the age of majority unjustly refuses to
support or fails to give support to the child
when urgently needed.
Art. 208. In case of contractual support or
that given by will, the excess in amount
beyond that required for legal support shall
be subject to levy on attachment or
execution.
Furthermore, contractual support shall be
subject to adjustment whenever modification
is necessary due to changes in circumstances
manifestly beyond the contemplation of the
parties.
SUPPORT PENDENTE LITE

party who shall have three (3) days to


answer, unless a different period of time is
fixed by the court.
Rule 61, Sec. 3. Answer. - The answer
shall be in writing & accompanied by
affidavits, depositions or other authentic
documents supporting the same.
Rule 61, Sec. 4. Hearing. - After the
answer is filed, or after the expiration of
the time for its filing, a day will be set for
hearing. The facts in issue shall be proved
in the same manner as is provided in
connection w/ motions.
Rule 61, Sec. 5, Order. - The court shall
determine provisionally the pertinent facts,
& shall render such order as equity &
justice may require, having due regard to
the necessities of the applicant, the means
of the adverse party, the probable outcome
of the case, & such other circumstances as
may aid in the proper elucidation of the
question involved. If the application is
granted, the court shall fix the amount of
money to be provisionally paid, & the terms
of payment. If the application is denied, the
trial of the principal case on its merits shall
be held as early as possible.
Rule 61, Sec. 5. Enforcement of order. If defendant fails to comply w/ an order
granting support pendente lite, he must be
ordered to show cause why he should not
be punished for contempt. Should the
defendant appear to have means to pay
support & refuses to pay, either an order of
execution may be issued or a penalty for
contempt may be imposed, or both.

XII. PARENTAL AUTHORITY

Rule 61, Sec. 1. Application. - The plaintiff,


at the commencement of the proper action,
or at any time afterwards but prior to final
judgment, may file an application for support
pendente lite, stating the grounds for the
claim & the financial conditions of both
parties, & shall be accompanied by affidavits,
depositions or other authentic documents in
support thereof.

Art. 209. Pursuant to the natural right &


duty of parents over the person & property
of their unemancipated children, parental
authority & responsibility shall include the
caring for & rearing of such children for
civic consciousness & efficiency & the
development of their moral, mental &
physical character & well-being.

Rule 61, Sec. 2. Notice. - Notice of the


application shall be served upon the adverse

MEDINA V. MAKABILI [27 SCRA 502]


139

HELD: While the law recognizes the right of


a parent to the custody of his/her child,
courts must not lose sight of the basis
principle that in all question on the care,
custody, education & property of the children,
the latter's welfare shall be paramount, &
that for compelling reasons, even a child
under seven may be ordered separated fr.
the mother.
Patria potestas has been transformed
fr. "jus vitae ac necis (the right of life &
death) of the Roman Law, under w/c the
offspring was virtually a chattel of his parents
into a radically different institution.
The
obligational aspect of parents to rear & care
for their children is now supreme. The right
of parents to the company & custody of their
children is but ancillary to the proper
discharge of parental duties to provide the
children w/ adequate support, education,
moral, intellectual & civic training &
development.
The best interest of the minor can
override the right of parents to the custody of
their children the parent/s is/are proved to be
remiss in these sacred duties.
UNSON V. NAVARRO [101 SCRA 183]
HELD: Mother of child is having an affair w/
brother-in-law. With this premise in view, it is
in the best interest of the child to be freed fr.
the obviously unwholesome, not to say
immoral influence that the mother has placed
herself. The situation might affect the moral
& social outlook of the child who is in her
formative years & most impressionable stage
in her life.

Art.
210.
Parental
authority
&
responsibility may not be renounced or
transferred except in the cases authorized by
law.

SANTOS

VS.

CA [242 SCRA 407]

HELD: The right of custody accorded to


parents springs fr. the exercise of parental
authority.
Parental authority or patria
potestas in Roman Law is the juridical
institution whereby parents rightfully assume
control & protection of their unemancipated
children to the extent required by the latter's

needs. It is a mass of rights & obligations


w/c the law grants to parents for the
purpose
of
the
children's
physical
preservation & dev't, as well as the
cultivation of their intellect & the education
of their hearts & senses.
As regards
parental authority, "there is no power, but
a task; no complex of rights, but a sum of
duties; no sovereignty but a sacred trust
for the welfare of the minor.
Parental authority & responsibility
are inalienable & may not be transferred or
renounced except in cases authorized by
law.
The right attached to parental
authority, being purely personal, the law
allows a waiver of parental authority only in
cases
of
adoption,
guardianship
&
surrender to a children's home or an
orphan institution. When a parent entrusts
the custody of a minor to another, such as
a friend or godfather, even in a document,
what is given is merely temporary custody
& it does not constitute a renunciation of
parental
authority.
Even if a definite renunciation is
manifested, the law still disallows the
same.
The father & mother, being the natural
guardians of unemancipated children, are
duty-bound & entitled to keep them in their
custody & company
Only in
absence
parental
surviving

cases of the parent's death,


or unsuitability may substitute
authority be exercised by the
grandparent.

Art. 211. The father & the mother shall


jointly exercise parental authority over the
persons of their common children. In case
of disagreement, the father's decision shall
prevail, unless there is a judicial order to
the contrary.
Children shall always observe respect &
reverence toward their parents & are
obliged to obey them as long as the
children are under parental authority.
Art. 212. In case of absence or death of
either parent, the parent present shall
continue exercising parental authority. The
remarriage of the surviving parent shall not
affect the parental authority over children,
unless the court appoints another person to
140

be the guardian of the person or property of


the children.
Art. 213. In case of separation of the
parents, parental authority shall be exercised
by the parent designated by the Court. The
Court shall take into account all relevant
considerations, especially the choice of the
child over seven years of age, unless the
parent chosen is unfit.
No child under seven years of age shall
be separated fr. the mother, unless the court
finds compelling reasons to order otherwise.

ESPIRITU V. CA [242 SCRA 362]


HELD:
Whether a child is under or over
seven years of age, the paramount criterion
must always be the child's interest.
Discretion is always given to the court to
decide who can best assure the welfare of the
child, & award the custody on the basis of
that consideration.

Art. 214. In case of death, absence or


unsuitability of the parents, substitute
parental authority shall be exercised by the
surviving grandparent. In case several
survive, the one designated by the court,
taking into account the same consideration
mentioned in the preceding article, shall
exercise the authority.
Art. 215.
No descendant shall be
compelled, in a criminal case to testify
against his parents & grandparents, except
when such testimony is indispensable in a
crime against the descendant or by one
parent against the other.

Substitute & Special Parental Authority


Art. 216. In default of parents or a
judicially appointed guardian, the following
persons shall exercise substitute parental
authority
over the child in the order
indicated:
(1) The surviving grandparent, as
provided in Art. 214;
(2) The oldest brother or sister, over
twenty one years of age, unless fit or
disqualified; &

(3) The child's actual custodian, over


twenty one years of age, unless unfit or
disqualified.
Whenever the appointment of a judicial
guardian over the property of the child
becomes necessary, the same order of
preference shall be observed.
Art. 217. In case of foundlings,
abandoned, neglected or abused children &
other children similarly situated, parental
authority shall be entrusted in summary
judicial proceedings to heads of children's
homed, orphanages & similar institutions
duly accredited by the proper government
agency.
Art. 218. The school, its administrators
& teachers, or the individual, entity or
institution engaged in child care shall have
special parental authority & responsibility
over the minor child while under their
supervision, instruction or custody.
Authority & responsibility shall apply to
all authorized activities whether inside or
outside the premises of the school, entity
or institution.

EXCONDE V. CAPUNO

[101 P 843]

FACTS: Capuno, a student & a Boy Scout,


attended a Rizal Day parade. He drove a
jeep recklessly resulting in the death of two
passengers. Father was held solidarily
liable for damages.
HELD: SC, in an obiter, exculpated the
school (not a party to the case) on the
ground that it was not a school of arts &
trades. Justice JBL Reyes, w/ whom Padilla
concurred, dissented arguing that it was
the school authorities who should be held
liable. Liability under this rule, he said, was
imposed on (1) teachers in general; & 2)
heads of schools of arts & trades in
particular.
The modifying clause "of
establishment of arts & trades should apply
only to "heads" & not to "teachers".
MERCADO V. CA [109 P 414]
FACTS: A student cut a classmate w/ a
razor blade. Parents of victim sued the
culprit's parents for damages.
141

HELD: SC held in an obiter again (school not


a party again) that the school was not liable;
it's not an establishment of arts & trades.
Custody requirement had not been proved as
this "contemplates a situation where the
student lives & boards w/ the teacher, such
that the control, direction & influence on the
pupil supersedes those of the parents.

PALISOC V. BRILLANTES [41 SCRA 548]


FACTS:
(supersedes obiter in Exconde &
Mercado) A 16 year old student was killed by
classmate w/ fist blows in the school
laboratory.
HELD: Although wrongdoer was already of
age & was not boarding w/ the school, head
& teacher were held solidarily liable w/ him.
The phrase "so long as (the students) remain
in their custody" means the protective &
supervisory custody that the school & its
heads exercise over the pupils & students for
as long as they are at attendance in the
school, including recess time.
There is
nothing in the law that requires that for such
liability to attach, the pupil or student who
commits the tortuous act must live & board in
the school as erroneously held by the lower
court, & the dicta in Mercado (as well as in
Exconde on w/c it relied) must now be
deemed to have been set aside.
Note: (By JBL) Even students already of age
were covered by the provision since they
were equally in the custody of the school &
subject to its discipline.
AMADORA V. CA [160 SCRA 315]
FACTS: Amadora's son was shot to death by
Daffon, a classmate at school auditorium.
The son was in school to submit physics
project.
The school contends that the
semester had already ended.
HELD: It is immaterial whether the semester
has already ended for students were there for
a legitimate purpose. He was still in the
custody of the school authorities. Even the
mere savoring of the company of his friends
in the school premises is a legitimate purpose
w/c would also bring him in the custody of
the school. The school principal & dean are

not liable bec. they are not teachers-incharge, but are merely exercising general
authority, not direct control & influence.
But even the teacher-in-charge is not liable
bec. there is no showing that the teacher
was negligent in enforcing discipline upon
Daffon nor had he waived observance of
school rules & regulations. His absence
when the tragedy happened cannot be
considered against him bec. he was not
supposed or required to report to school on
that day.
So who is liable here? It's
probably the dean of the boys. He had
earlier confiscated an unlicensed gun fr.
one of the students & returned it to the
latter w/o taking disciplinary action or
reporting the matter to higher authorities.
But while he was clearly negligent, it does
not necessarily link him to the shooting
since it was not shown that the gun was
the one used to kill petitioner's son. Who is
really liable here? Nobody, since none of
them was found to have been charged w/
the custody of the offending student, or
has been remiss in the discharge of his
duties. While the court deeply sympathizes
w/ the petitioners, the court cannot extend
material relief as a balm to their grief.
PASCO V. CFI

[160 SCRA 784]

HELD: Art. 2180, NCC w/c refers to liability


of teachers or heads of establishments of
arts & trades for damages caused by
students who are in their custody, does not
apply to the school or the university itself
or to educational institutions w/c are not
schools of arts & trades. The provision
concerned speaks only of "teachers or
heads."
YLARDE V. AQUINO [163 SCRA 697]
HELD: As regards the principal, We hold
that he cannot be made responsible for the
death of child Ylarde, he being the head of
an academic school & not a school of arts
& trades. Under Art. 2180, it is only the
teacher & not the head of an academic
school who should be answerable for torts
committed by their students. This Court
went on to say that in a school of arts &
trades, it is only the head of the school who
can be held liable.
Where the school is academic
rather than technical or vocational in
nature,
responsibility
for
the
tort
142

committed by the student will attach to the


teacher in charge of such student following
the first par. of the provision. This is the gen.
rule. In the case of establishments of arts &
trades, it is the head thereof, & only he, who
shall be held liable as an exception to the
gen. rule. In other words, teachers in general
shall be liable for the acts of their students
except where the school is technical in
nature, in w/c case it is the head thereof who
shall be answerable.

The rules are not limited to schools of arts


& trade...now "all schools".

SALVOSA V. IAC [166 SCRA 274]

Scope of liability of school extends only to


damage caused by the child in the
course of an authorized school activity.

HELD: Under the penultimate par. of Art.


2180, teachers or heads of establishments of
arts & trades are liable for "damages caused
by their pupils & students or apprentices, so
long as they remain in their custody." The
rationale of such liability is that so long as the
student remains in the custody of a teacher,
the latter "stands, to a certain extent, in loco
parentis (as to the student) & (is) called upon
to exercise reasonable supervision over the
conduct of the (student.)
Likewise, "the
phrase used in (Art. 2180)-- so long as the
(students) remain in their custody' means
that the protective & supervisory custody
that the school & its heads & teachers
exercise over the pupils & students for as
long as they are at attendance in the school,
including recess time.

Authority & responsibility apply to activities


inside & outside...provided the activity
is an authorized one.
The liability of the school administrators
&/or teachers is solidary & primary...the
liability of the parents is subsidiary.
Negligence is presumed...the burden is on
the school/teacher to prove diligence.

Q: Suppose the injuries were inflicted on


the student by persons other than fellow
students.
A: Then do not apply 219 nor 2180NCC.
The school is liable in such a case based on
culpa contractual (PSBA v. CA)...school is
liable for injury caused by elements coming
fr. outside of the school.
Liability for injuries caused by students:
A. Below 18 (RA 6809)
school admi/ teachers are principally &
solidarily liable. Negligence is prima
facie presumed.
parents/guardian is subsidiarily liable.

Art. 219. Those given the authority &


responsibility under the preceding Article
shall be principally & solidarily liable for
damages caused by the acts or omissions of
the unemancipated minor. The parents,
judicial guardians or the persons exercising
substitute parental authority over said minor
shall be subsidiarily liable.
The respective liabilities of those referred
to in the preceding paragraph shall not apply
if it is proved that they exercised the proper
diligence required under the particular
circumstances.
All other cases not covered by this & the
preceding articles shall be governed by the
provisions of the Civil Code on quasi-delicts.

BALANE: Arts. 218 & 219


Five (5) points to remember:

B. 18 & above
(Art 2180 NCC continues to apply)
applies to academic
institutions.

&

non-academic

academic institutions: liability attaches to


teacher.
non-academic institutions: liability attaches
to head of establishment.
Effect of Parental Authority Upon the
Persons of the Children

Art. 220. The parents & those


exercising parental authority shall have w/
respect to their unemancipated children or
wars the following rights & duties:
(1) To keep them in their company, to
support, educate & instruct them by right
143

precept & good example, & to provide for


their upbringing in keeping w/ their means;
(2) To give them love & affection, advice
& counsel, companionship & understanding;
(3) To provide them w/ moral & spiritual
guidance, inculcate in them honesty,
integrity, self-discipline, self-reliance, industry
& thrift, stimulate their interest in civic
affairs, & inspire in them compliance w/ the
duties of citizenship;
(4) To enhance, protect, preserve &
maintain their physical & mental health at all
times;
(5) To furnish them w/ good & wholesome
educational
materials,
supervise
their
activities, recreation & association w/ others,
protect them fr. bad company, & prevent
them fr. acquiring habits detrimental to their
health, studies & morals;
(6) To represent them in all matters
affecting their interests;
(7) To demand fr. them respect &
obedience;
(8) To impose discipline on them as may
be required under the circumstances; &
(9) To perform such other duties as are
imposed by law upon parents & guardians.

LUNA V. IAC [137 SCRA 7]


HELD: The manifestation of the child Shirley
that she would kill herself or run away fr.
home if she should be taken away fr. the
petitioners (grandparents) & forced to live w/
her natural parents is a circumstance that
would make the execution of the judgment in
the special proc. inequitable, unfair, unjust, if
not illegal. The threat may be proven empty,
but Shirley has a right to a wholesome family
life that will provide her w/ love, care &
understanding, guidance & counseling, &
moral & material security. But what if the
threat is for real. Besides, in her letters to
the members of the court, Shirley depicted
her biological parents as selfish & cruel &
who beat her often; & that they do not lover
her. To return her to the custody of the
private resps. would be traumatic & cause
irreparable damage to the child.

Art. 221. Parents & other persons


exercising parental authority shall be civilly
liable for the injuries & damages caused by
the acts or omissions of their unemancipated
children living in their company & under their

parental
authority
subject
to
appropriate defenses provided by law.

the

Art. 222. The courts may appoint a


guardian of the child's property, or a
guardian ad litem when the best interests
of the child so require.
Art. 223. The parents or, in their
absence or incapacity, the individual, entity
or institution exercising parental authority,
may petition the proper court of the place
where the child resides, for an order
providing for disciplinary measures over
the child. The child shall be entitled to the
assistance of counsel, either of his choice
or appointed by the court, & a summary
hearing shall be conducted wherein the
petitioner & the child shall be heard.
However, if in the same proceeding the
court finds the petitioner at fault,
irrespective of the merits of the petition, or
when the circumstances so warrant, the
court may also order the deprivation or
suspension of parental authority or adopt
such other measures as it may deem just &
proper.
Art. 224. The measures referred to in
the preceding article may include the
commitment of the child for not more than
thirty days in entities or institutions
engaged in child care or in children's
homes duly accredited by the proper
government agency.
The parent exercising parental authority
shall not interfere w/ the care of the child
whenever committed but shall provide for
his support. Upon proper petition or at its
own instance, the court may terminate the
commitment of the child whenever just &
proper.

Effect of Parental Authority Upon the


Property of the Children

Art. 225. The father & the mother shall,


jointly exercise legal guardianship over the
property of their unemancipated common
144

child w/o the necessity of a court


appointment. In case of disagreement, the
father's decision shall prevail, unless there is
a judicial order to the contrary.
Where the market value of the property
or the annual income of the child exceeds
P50,000, the parent concerned shall be
required to furnish a bond in such amount as
the court may determine, but not less than
10% of the value of the property or annual
income, to guarantee the performance of the
obligations prescribed for general guardians.
A verified petition for approval of the
bond shall be filed in the proper court of the
place where the child resides, or, if the child
resides in a foreign country, in the proper
court of the place where the property or any
part thereof is situated.

The petition shall be docketed as a


summary special proceeding in w/c all
incidents & issues regarding the performance
of the obligations referred to in the second
paragraph of this Article shall be heard &
resolved.
The ordinary rules on guardianship should
be merely suppletory except when the child
is under substitute parental authority, or the
guardian is a stranger, or a parent has
remarried, in w/c case the ordinary rules on
guardianship shall apply.

PINEDA V. CA [226 SCRA 754]


HELD: It is clear fr. Art. 225 that regardless
of the value of the unemancipated common
child's property, the father & mother ipso jure
become the legal guardian of the child's
property. However, if the market value of the
prop. or the annual income of the child
exceeds P50,000, a bond has to be posted by
the parents concerned to guarantee the
performance of the obligations of a general
guardian. It must, however, be noted that
the 2nd par. of Art. 225 speaks of the market
value of the property or the annual income of
the child," w/c means, therefore, the
aggregate of the child's prop. or annual
income; if this exceeds P50T, a bond is
required. There is no evidence that the share
of each of the minors in the proceeds of the

group policy in question is the minor's only


property. W/o such evidence, it would not
be safe to conclude that, indeed, that is his
only property.

Art. 226. The property of the


unemancipated child earned or acquired w/
his work or industry or by onerous or
gratuitous title shall belong to the child in
ownership & shall be devoted exclusively to
the latter's support & education, unless the
title or transfer provides otherwise.
The right of the parents over the
fruits & income of the child's property shall
be limited primarily to the child's support &
secondarily to the collective daily needs of
the family.
Art. 227. If the parents entrust the
management or administration of any of
their properties to an unemancipated child,
the net proceeds of such property shall
belong to the owner. The child shall be
given a reasonable monthly allowance in
an amount not less than that w/c the owner
would have paid if the administrator were a
stranger, unless the owner, grants the
entire proceeds to the child. In any case,
the proceeds thus given in whole or in part
shall not be charged to the child's legitime.

BALANE:
This
article
refers
to
profectitious property owned by the
parents & given to the child for administration
The child is entitled to reasonable
allowance...not less than what a 3rd person
would get if management was entrusted to
such 3rd person, administration belongs to
the child.
Suspension or Termination of Parental
Authority

Art. 228. Parental authority terminates


permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child;
(3) Upon emancipation of the child.
Art. 229. Unless subsequently revived
by a final judgment, parental authority also
terminates:
145

(1) Upon adoption of the child;


(2) Upon appointment of a general
guardian;
(3)
Upon
judicial
declaration
of
abandonment of the child in a case filed for
the purpose;
(4) Upon final judgment of a competent
court divesting the party concerned of
parental authority; or
(5) Upon judicial declaration of absence or
incapacity of the person exercising parental
authority.
Art. 230. Parental authority is suspended
upon conviction of the parent or the person
exercising the same of a crime w/c carries w/
it the penalty of civil interdiction. The
authority is automatically reinstated upon
service of the penalty or upon pardon or
amnesty of the offender.
Art. 231. The court in an action filed for
the purpose or in a related case may also
suspend parental authority if the parent or
the person exercising the same:
(1) Treats the child w/ excessive
harshness or cruelty;
(2) Gives the child corrupting orders,
counsel or example;
(3) Compels the child to beg, or
(4) Subject the child or allows him to be
subjected to acts of lasciviousness.
The grounds enumerated above are
deemed to include cases w/c have resulted fr.
culpable negligence of the parent or the
person exercising parental authority.
If the degree of seriousness so warrants,
or the welfare of the child so demands, the
court shall deprive the guilty party of parental
authority or adopt such other measures as
may be proper under the circumstances.
The suspension or deprivation may be
revoked & the parental authority revived in a
case filed for the purpose or in the same
proceeding if the court finds that the cause
therefor has ceased & will not be repeated.

CHUA V. CABANGBANG [27 SCRA 792]


HELD: Abandonment is one of the grounds
for depriving parents of parental authority
over their children.

Petitioner surrendered the custody


of her child to the Cabangbangs in 1958.
She waited until 1963, or after the lapse of
a period of 5 long years, before she
brought action to recover custody. Her
claim that she did not take any step to
recover her child bec. the Cabangbangs
were powerful & influential, does not
deserve any modicum of credence.
For 5 long yrs. & thereafter, she did
not once move to recover the child. She
continuously shunned the natural & legal
obligations w/c she owed to the child;
completely w/held her presence, her love,
her care, & the opportunity to display
maternal affection; & totally denied her
support & maintenance. Her silence &
inaction have been prolonged to such a
point that her abandonment of the child &
her total relinquishment of parental claim
over her, can & should be inferred as a
matter of law.

Art. 232. If the person exercising


parental authority has subjected the child
or allowed him to be subjected to sexual
abuse, such person shall be permanently
deprived by the court of such authority.
Art. 233. The person exercising
substitute parental authority shall have the
same authority over the person of the child
as the parents.
In
no
case
shall
the
school
administrator,
teacher
or
individual
engaged in child care exercising special
parental
authority,
inflict
corporal
punishment upon the child.

XII. EMANCIPATION AND AGE


OF MAJORITY

RA No. 6809 - An Act lowering the age


of majority fr. 21 to 18 years
Sec. 1. Art. 234 of the FC is hereby
amended to read as follows:
Art. 234. Emancipation takes place
by the attainment of majority. Unless
otherwise provided, majority commences
at the age of eighteen years.
146

Sec. 2. Arts 235 & 237 of the FC are also


amended to read as follows:
Art. 236. Emancipation shall terminate
parental authority over the person & property
of the child who shall then be qualified &
responsible for all acts of civil life, save the
exceptions established by existing laws in
special cases.
Contracting marriage shall require
parental consent until the age of twenty-one.
Nothing in this Code shall be
construed to derogate fr. the duty or
responsibility of parents & guardians for
children & wards below 21 years of age
mentioned in the 2nd & 3rd pars. Of Art. 2180
NCC.
Sec. 4. Upon the effectivity of this Act,
existing wills, bequests, donations, grants,
insurance policies & similar instruments
containing references & provisions favorable
to minors will not retroact to their prejudice.
Sec. 5. This Act shall take effect upon
completion of its publication in at least 2
newspapers of general circulation.
Approved, Dec. 13, 1989.

TOLENTINO:
RA 6809 provides that its
effectivity on existing wills, bequests,
donations, grants, insurance policies &
similar instruments containing references &
provisions favorable to minors will not
retroact to their prejudice.
Art. 235. (Repealed by RA 6809)
Art. 236. Emancipation shall terminate
parental authority over the person & property
of the child who shall then be qualified &
responsible for all acts of civil life, save the
exceptions established by existing laws in
special cases.
Contracting
marriage
shall
parental consent until the age of 21.

require

Nothing in this Code shall be construed to


derogate fr. the duty or responsibility of
parents & guardians for children & wards
below 21 years of age mentioned in the
second & third paragraphs of Article 2180 of
the Civil Code (as amended by RA 6809)

TOLENTINO:
Requisites of Marriage.-- A marriage of a
person bet. 18 & 21 years will still require
parental consent, w/o w/c the marriage will
be voidable.
This is an anomalous
situation. An emancipated person, who
can enter into any contract & qualified for
all acts of civil life, is still required to have
parental consent for marriage.
The
provisions on marriage should have been
adjusted.
Quasi-delicts of Children.
Art. 2180. xxx The father &, in case of
his death or incapacity, the mother, are
responsible for the damages caused by the
minor children who live in their company.
Guardians are liable for damages
caused by the minors or incapacitated
persons who are under their authority &
live in their company. (Civil Code.)

TOLENTINO: The last par. of Art. 236 is


even more anomalous. Upon emancipation
of a child after reaching 18 years, parental
authority ceases, & yet responsibility for
his torts continues until he reaches 21
years of age.
This is a case of
responsibility w/o authority.
BALANE: Under the present law, there are
2 classifications of emancipation:
Perfect
emancipation
where
the
emancipated is qualified for all acts of
civil life.
Perfect emancipation is
attained upon reaching the age of 21
yrs. old.
Imperfect Emancipation.
An 18 yr.-old,
although emancipated needs parental
consent for marriage.
Parents or
guardians continue to be liable under
Art. 2180 until he reaches the age of 21
yrs. old.
BALIWAG TRANSIT V. CA [169 S 849]
HELD: Since the suit is one for breach of
contract of carriage, the Release of Claims
executed by the victim, as the injured
party, discharging Fortune Insurance &
Baliwag fr. any & all liability is valid. He
was then of legal age, a graduating student
147

of Agricultural Engineering, & had the


capacity to do acts w/ legal effect (Art. 37 in
relation to Art. 402.) Thus, he could sue & be
sued even w/o the assistance of his parents.

Art. 237. (Repealed by RA 6809)

XIV.
SUMMARY
JUDICIAL
PROCEEDINGS IN THE FAMILY
LAW
Scope of Application

Art. 238. Until modified by the Supreme


Court, the procedural rules in this Title shall
apply in all cases provided for in this Code
requiring summary court proceedings. Such
cases shall be decided in an expeditious
manner w/o regard to technical rules.
Separation in Fact Between Husband &
Wife
Art. 239. When a husband & wife are
separated in fact, or one has abandoned the
other & one of them seeks judicial
authorization for a transaction where the
consent of the other spouse is required by
law but such consent is w/held or cannot be
obtained, a verified petition may be filed in
court alleging the foregoing facts.
The petition shall attach the proposed
deed, if any, embodying the transaction, &, if
none, shall describe in detail the said
transaction & 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 & approved
by the court.
Art. 240. Claims for damages by either
spouse, except costs of the proceedings, may
be litigated only in a separate action.
Art. 241. 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. 242. 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.
The
notice
shall
be
accompanied by a copy of the petition &
shall be served at the last known address
of the spouse concerned.
Art. 243. A preliminary conference shall
be conducted by the judge personally w/o
the parties being assisted by counsel. After
the initial conference, if the court deems it
useful, the parties may be assisted by
counsel at the succeeding conferences &
hearings.
Art. 244. In case of non-appearance of
the spouse whose consent is sought, the
court shall inquire into the reasons for his
failure to appear, & shall require such
appearance, if possible.
Art. 245. If, despite all efforts, the
attendance of the non-consenting spouse is
not secured, the court may proceed ex
parte & render judgment as the facts &
circumstances may warrant. In any case,
the judge shall endeavor to protect the
interests of the non-appearing spouse.
Art. 246. If the petition is not resolved
at the initial conference, said petition shall
be decided in a summary hearing on the
basis of affidavits, documentary evidence
or oral testimonies at the sound discretion
of the court. If testimony is needed, the
court shall specify the witnesses to be
heard & the subject matter of their
testimonies, directing the parties to
present said witnesses.
Art. 247. The judgment of the court
shall be immediately final & executory.
Art. 248. The petition for judicial
authority to administer or encumber
specific
separate
property
of
the
abandoning spouse & to use the fruits or
proceeds thereof for the support of the
family shall also be governed by these
rules.
Incidents involving Parental Authority
148

Art. 249. Petitions filed under Articles


223, 225 & 235 of this Code involving
parental authority shall be verified.
Art. 223. The parents or, in their absence
or incapacity, the individual, entity or
institution exercising parental authority, may
petition the proper court of the place where
the child resides, for an order providing for
disciplinary measures over the child. The
child shall be entitled to the assistance of
counsel, either of his choice or appointed by
the court, & a summary hearing shall be
conducted wherein the petitioner & the child
shall be heard. However, if in the same
proceeding the court finds the petitioner at
fault, irrespective of the merits of the
petition, or when the circumstances so
warrant, the court may also order the
deprivation or suspension of parental
authority or adopt such other measures as it
may deem just & proper.
Art. 225. The father & mother shall, jointly
exercise legal guardianship over the property
of their unemancipated common child w/o
the necessity of a court appointment. In case
of disagreement, the father's decision shall
prevail, unless there is a judicial order to the
contrary.
Where the market value of the property
or the annual income of the child exceeds
P50,000, the parent concerned shall be
required to furnish a bond in such amount as
the court may determine, but not less than
10% of the value of the property or annual
income, to guarantee the performance of the
obligations prescribed for general guardians.
A verified petition for approval of the
bond shall be filed in the proper court of the
place where the child resides, or, if the child
resides in a foreign country, in the proper
court of the place where the property or any
part thereof is situated.
The petition shall be docketed as a
summary special proceeding in w/c all
incidents & issue regarding the performance
of the obligations referred to in the second
paragraph of this Article shall be heard &
resolved.
The ordinary rules on guardianship shall
be merely suppletory except when the child

is under substitute parental authority, or


the guardian is stranger, or a parent has
remarried, in w/c case the ordinary rules on
guardianship shall apply.
Art. 235. (Repealed by RA 6809)
Art. 250. Such petitions shall be filed in
the proper court of the place where the
child resides.
Art. 251. 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. 252. The rules in Chapter 2 hereof
shall also govern summary proceedings
under this Chapter insofar as they are
applicable.
Other Matters Subject to Summary
Proceedings
Art. 253. The foregoing rules in
Chapters 2 & 3 hereof shall likewise govern
summary proceedings filed under Article
41, 51, 69, 73, 96, 124 & 217, insofar as
they applicable.
Art. 41. A marriage contracted by any
person during the subsistence of a previous
marriage shall be null & void, unless before
the
celebration
of
the
subsequent
marriage, the prior spouse had been
absent for four consecutive years & the
spouse present had a well-founded belief
that the absent spouse was already dead.
In case of disappearance where there is
danger of death under the circumstances
set forth in the provisions of Article 391 of
the Civil Code, an absence of only two
years shall be sufficient.
For the purpose of contracting the
subsequent marriage under the preceding
paragraph, the spouse present must
institute a summary proceeding as
provided in this Code for the declaration of
presumptive death of the absentee, w/o
prejudice to the effect of reappearance of
the absent spouse.
Art. 51. In said partition, the value of
the presumptive legitimes of all common
children, computed as of the date of the
149

final judgment of the trial court, shall be


delivered in cash, property or sound
securities, unless the parties, by mutual
agreement judicially approved, had already
provided for such matters.
The children or their guardian, or the
trustee of their property, may ask for the
enforcement of the judgment.
The delivery of the presumptive legitimes
herein prescribed shall in no way prejudice
the ultimate successional rights of the
children accruing upon the death of either or
both of the parents; but the value of the
properties already received under the decree
of annulment or absolute nullity shall be
considered as advances on their legitime.
Art. 69. The husband & wide shall fix the
family domicile. In case of disagreement, the
court shall decide.
The court may exempt one spouse fr.
living w/ the other if the latter should live
abroad or there are other valid & compelling
reasons for the exemption. However, such
exemption shall not apply if the same is not
compatible w/ the solidarity of the family.
Art. 73. Either spouse may exercise any
legitimate profession, occupation, business or
activity w/o the consent of the other. The
latter may object only on valid, serious, &
moral grounds.
In case of disagreement, the court shall
decide whether or not:
(1) The objection is proper, &
(2) Benefit has accrued to the family prior
to the objection or thereafter. If the benefit
accrued prior to the objection, the resulting
obligation shall be enforced against the
separate property of the spouse who has not
obtained consent.
The foregoing provisions shall not
prejudice the rights of creditors who acted in
good faith.
Art. 96. The administration & enjoyment
of the community property shall belong to
both spouses jointly. In case of disagreement,
the husband's decision shall prevail, subject
to recourse to the court by the wife for proper
remedy, w/c must be availed of w/in five

years fr. the date of the


implementing such decision.

contract

In the event that one spouse is


incapacitated or otherwise unable to
participate in the administration of the
common properties, the other spouse may
assume sole powers of administration.
These powers do not include the powers of
disposition or encumbrance w/c must have
the authority of the court or the written
consent of the other spouse. In the
absence of such authority or consent, the
disposition or encumbrance shall be void.
However,
the
transaction
shall
be
construed as a continuing offer on the part
of the consenting spouse & the third
person, & may be perfected as a binding
contract upon the acceptance by the other
spouse or authorization by the court before
the offer is w/drawn by either or both
offerors.
Art.
124.
The
administration
&
enjoyment of the conjugal partnership
property shall belong to both spouses
jointly. In case of disagreement, the
husband's decision shall prevail, subject to
recourse to the court by the wife for proper
remedy, w/c must be availed of w/in five
years fr. the date of the contract
implementing such decision.
In the event that one spouse is
incapacitated or otherwise unable to
participate in the administration of the
conjugal properties, the other spouse may
assume sole powers of administration.
These powers do not include the powers of
disposition or encumbrance w/c must have
the authority of the court or the written
consent of the other spouse. In the
absence of such authority or consent, the
disposition or encumbrance shall be void.
However,
the
transaction
shall
be
construed as a continuing offer on the part
of the consenting spouse & the third
person, & may be perfected as a binding
contract upon the acceptance by the other
spouse or authorization by the court before
the offer is w/drawn by either or both
offerors.
Art. 217. In case of foundlings,
abandoned, neglected or abused children &
other children similarly situated, parental
authority shall be entrusted in summary
150

judicial proceedings to heads of children's


homes, orphanages & similar institutions duly
accredited by the proper government agency.
XV. FINAL PROVISIONS
Art. 254. If any provision of this Code is
held invalid, all the other provisions not
affected thereby shall remain valid.
Art. 255. This Code shall have retroactive
effect insofar as it does not prejudice or
impair vested or acquired rights in
accordance w/ the Civil Code or other laws.
Art. 256. Effectivity (August 3, 1988)
XVI. CARE AND EDUCATION OF CHILDREN
Art. 363. In all questions on the care,
custody, education & property of children, the
latter's welfare shall be paramount. No
mother shall be separated fr. her child under
seven years of age, unless the court finds
compelling reasons for such measure.

Baviera Cases:
FLORES V. ESTEBAN [51 O.G. 9, P. 4525
(1955)]
FACTS: Flores (father) filed a petition for
habeas corpus in order to get the custody of
his legitimate son who is living w/ Fs mother
in law. However, it was shown that it was not
the father who was claiming custody but the
paternal grandfather.
HELD: As against the paternal grandparent,
the maternal grandparent may be given
substitute parental authority if it will be for
the best interest & welfare of the child. It
should be considered that the maternal
grandmother is almost a mother to the child
since he was 20 days old, & there exists
mutual love between the grandmother & the
child. This is w/o prejudice to the obligation of
the father to contribute to his maintenance.
LUNA V. IAC [137 S 7 (1985)]
FACTS: Luna is married to Hizon, the latter
having an illegitimate child, Santos. Santos

got married to Salumbides & they had a


child, Shirley, the subject of this child
custody case.
Several months after Shirleys birth,
her parents gave her to the Luna couple.
However, when the Lunas returned fr. their
trip to the US, they learned that Shirleys
natural parents took her & refused to
return her to the Lunas. The SC ruled that
Shirleys natural parents are entitled to the
childs custody.
Said judgment had
become final & executory.
HELD: In child custody cases, an execution
of final judgment of appellate courts
awarding child custody to the child's
biological parents may be stayed where
during hearings on execution the child
manifests that she will kill herself & escape
if given to custody of her biological parents.
In child custody cases, the child's welfare &
future is paramount & execution of a final
judgment, w/c may run contrary thereto,
may be set aside. The best interest of the
minor can override procedural rules & even
the rights of parents to custody of their
child.
SANTOS V. CA [242 S 407]
FACTS: Santos (father) was married to
Bedia. They had a child, Leoul, who had
been in the custody of his maternal
grandparents since birth. When the child
turned 3, S abducted the boy. The Bedias
then filed a Petition for Custody of the boy.
HELD: Since the Bedias failed to show that
S is an unfit & unsuitable father, S is
entitled to the custody of his son.
Parental authority is inalienable &
may not be transferred or renounced
except in cases of adoption, guardianship &
surrender to a childrens home or an
orphan institution. When a parent entrusts
the custody of a minor to another, such as
a friend, even in a document, what is given
is merely TEMPORARY CUSTODY & it does
not constitute a renunciation of parental
authority.
Further, only in case of the parents
death, absence or unsuitability may
substitute parental authority be exercised
by the surviving grandparent.
151

XVII. FUNERALS

Art. 305. The duty & the right to make


arrangements for the funeral of a relative
shall be in accordance w/ the order
established for support, under Art. 294. In
case of descendants of the same degree, or
of brothers & sisters, the oldest shall be
preferred.
In case of ascendants, the
paternal shall have a better right.
Art. 306.
Every funeral shall be in
keeping w/ the social position of the
deceased.
Art. 307.
The funeral shall be in
accordance w/ the expressed wishes of the
deceased. In the absence of such expression,
his religious beliefs or affiliation shall
determine the funeral rites. 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. 308. No human remains shall be
retained, interred, disposed of or exhumed
w/o the consent of the persons mentioned in
Articles 294 & 305.
Art. 309.
Any person who shows
disrespect to the dead, or wrongfully
interferes w/ a funeral shall be liable to the
family of the deceased for damages, material
& moral.
Art. 310.
The construction of a
tombstone or mausoleum shall be deemed a
part of the funeral expenses, & shall be
chargeable to the conjugal partnership
property, if the deceased is one of the
spouses.

XVIII. USE OF SURNAMES


TOLENTINO:
Concept of Name.-- A name is a word or
combination of words by w/c a person is
known & identified, & distinguished fr. others,
for the convenience of the world at large in
addressing him, or in speaking of or dealing
w/ him. (Balane quotes Tolentino on this.)

Characteristics of Name.
It is absolute, intended to protect the
individual fr. being confused w/ others;
it is obligatory in certain respects, for
nobody can be w/o a name;
it is fixed, unchangeable, or immutable, at
least at the start, & may be changed
only for good cause & by judicial
proceedings;
it is outside the commerce of man, &,
therefore, inalienable & intransmissible,
by act inter vivos or mortis causa;
it is imprescriptible.
BALANE:
Surname.-- A surname is that w/c identifies
the family fr. w/c a person belongs & is
passed fr. parent to child.
Basic Principles:
A person's real name is that w/c appears in
the Civil Registry.
If you want to change your real name, you
have
to
go
through
judicial
proceedings, a petition for change of
name.
However, a person can use other names
w/c are authorized by CA 142 as
amended by RA 6085 (re: use of
pseudonym.)
Some guidelines regarding change of
name
In a petition for change of name, courts are
generally strict.
You have to show
sufficient cause;
However, in a petition for injunction or in a
criminal case for violation of CA 142,
courts will generally be more liberal
(Legamia v. IAC, infra. Tolentino v. CA,
infra.) provided it does not cause
confusion, there is no fraud or BF;
In case of adoption where the woman
adopts alone, it is the maiden name
that should be given the child.
(Johnston v. Republic, infra.)
Art. 364.
Legitimate & legitimated
children shall principally use the surname
of the father.

152

REPUBLIC V. MARCOS [182 S 223]


HELD: (1) The trial court did not acquire
jurisdiction over the subject of the
proceedings, i.e., the various names & aliases
of the petitioner w/c she wished to change to
"Mary Pang De la Cruz/" The omission of her
other alias-- "Mary Pang"-- in the captions of
the court's order & of the petition defeats the
purpose of the publication. For a publication
of a petition for a change of name to be valid,
the title thereof should include, first, his real
name, & second, his aliases, if any." (Jesus Ng
Yao Sing v. Republic, 16 S 483.) [T]he reason
for the rule requiring the inclusion of the
name sought to be adopted & the other
names or aliases of the applicant in the title
of the petition or in the caption of the
published order is that the ordinary reader
only glances fleetingly at the caption of the
published order or the title of the petition in a
spec. proc. for a change of name. Only if the
caption or the title strikes him bec. one or all
of the names mentioned are familiar to him,
does he proceed to read the contents of the
order.
(2) The court erred in granting a change of
name. The reasons offered for changing the
name of petitioner's daughter are: (1) that
"her daughter in law grew up w/, & learned to
love & recognize Alfredo De la Cruz as her
own father"; (2) to afford her daughter a
feeling of security; & (3) that Alfredo de la
Cruz agrees to this petition.
Clearly, these are not valid reasons for
a change of name. The general rule is that a
change of name should not be permitted if it
will give a false impression of family
relationship to another where none actually
exists. [O]ur laws do not authorize legitimate
children to adopt the surname of a person not
their father, for to allows them to adopt the
surname of their mother's husband, who is
not their father, can result in confusion of
their paternity.
Another reason for disallowing the
petition for change of name is that it was not
filed by the proper party. The petition must
be filed by the person desiring to change
his/her name, even if it may be signed &
verified by some other person in his behalf.
In this case, however, the petition was filed
by Pang Cha Quen not by May Sia.

Hence, only May Sia herself, alias


Manman Huang, alias Mary Pang, when she
shall have reached the age of majority,
may file the petition to change her name.
The decision to change her name, the
reason for the change, & the choice of a
new name & surname shall be hers alone
to make. It must be her personal choice.

Art. 365. An adopted child shall bear


the surname of the adopter.

JOHNSTON V. REPUBLIC [7 S 1040]


HELD: The provision of law (341, par. 2)
w/c entitles the adopted minor to the use
of the adopter's surname, refers to the
adopter's own surname & not to her
surname acquired by virtue of marriage.
Petitioner-appellant's real surname is
Valdes & not Johnston, & as she made the
adoption singly w/o the concurrence of her
H, & not as a married woman, her name as
adopter was her maiden name.
The
adoption created a personal relationship
bet. the adopter & the adopted, & the
consent of Isabel Valdes' H, to the adoption
by her individually, did not have the effect
of making him an adopting father, so as to
entitle the child to the use of Johnston's
own surname.
Since adoption gives the person
adopted the same rights & duties as if he
were a legitimate child of the adopter (341,
par. 1, NCC), much confusion would indeed
result, if the minor child herein were
allowed to use the surname of the spouse
who did not join in the adoption.

Art. 366. 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.

TOLENTINO:
This rule applies even when the recognition
was made first by the mother & later by
the father, bec. no distinction is made in
the law.
It applies to all illegitimate
children.
153

Art. 367. Natural children by legal fiction


shall principally employ the surname of the
father.
Art. 368. Illegitimate children referred to
in article 287 shall bear the surname of the
mother.
Art. 369. Children conceived before the
decree annulling a voidable marriage shall
principally use the surname of the father.
Art. 370. A married woman may use:
(1) Her maiden first name & surname &
add her husband's surname;
(2)
Her maiden first name & her
husband's surname; or
(3) Her husband's full name, but prefixing
a word indicating that she is his wife, such as
"Mrs."

As the title of the petition in this


case & the order setting it for hearing were
deficient, the lower court did not acquire
jurisdiction over the proc.
(2)
A married woman may use her
husband's surname. It is axiomatic that if
she desires judicial authorization to change
the spelling of his surname, her H should
initiate the proceeding. In the instant case,
the anomaly is that the H did not ask for
judicial authority to change the spelling of
his surname. It was his wife who filed the
petition. The irregularity in the petition is
obvious.
It is true that the wife submitted to
the court her H's affidavit of conformity to
the change in the spelling of his surname.
But that would not prevent him & their
children fr. using the old spelling. And in
that event, confusion & error might arise.
TOLENTINO V. CA [162 S 66]

TOLENTINO:
Husband's Surname Optional.-- The word
"may" is used, indicating that the use of the
husband's surname by the wife is permissive
rather than obligatory.
Right of Wife not Exclusive.-The wife
cannot claim an exclusive right to use the
husband's surname.
She cannot be
prevented fr. using it; but neither can she
restrain others fr. using it.
TELMO V. REPUBLIC [73 S 29]
HELD: (1) A change of name is a proc. in
rem. Jurisdiction to hear & determine the
petition for change of name is acquired after
due publication of the order containing
certain data, among w/c is the name sought
to be adopted, w/c should be indicated in the
title of the petition
The reason for the rule is that the
ordinary reader "glances fleetingly at the
captions of the published orders or the titles
of the petitions. Only if the caption or the
title strikes him does the reader proceed to
read on. And the probability is great that the
reader does not at all notice the other names
&/or aliases or the applicant if these are
mentioned only in the body of the order or
petition.

HELD: A divorced woman may continue


using the surname of her former husband..
There is no merit in the petitioner's claim
that to sustain the private resp.'s stand is
to contradict Articles 370 & 371 of the NCC.
It is significant to note that Sen. Tolentino
himself in his commentary on Art. 370
states that "the wife cannot claim an
exclusive right to use the husband's
surname. She cannot be prevented fr. using
it; but neither can she restrain others fr.
using it."
Art. 371 is not applicable to the
case at bar bec. Art. 371 speaks of
annulment while the case before us refers
to absolute divorce where there is a
severance of valid marriage ties.
The
effect of divorce is more akin to the death
of the spouse where the deceased woman
continues to be referred to as the Mrs. of
her H even if the latter has remarried
rather than to annulment since in the latter
case, it is as if there had been no marriage
at all.
The pvt. resp. has established that
to grant the injunction to the petitioner
would be an act of serious dislocation to
her. She has given proof that she entered
into contracts w/ 3rd persons, acquired
prop. & entered into other legal relations
using the surname Tolentino.
The
154

petitioner, on the other hand, has failed to


show that she would suffer any legal injury or
deprivation of legal rights inasmuch as she
can use her H's surname & be fully protected
in case the resp. uses the surname Tolentino
for illegal purposes.
There
is no usurpation of the
petitioner's name & surname in this case so
that the mere use of the surname Tol. by pvt.
resp cannot be said to have injured the
petitioner's rights. The usurpation of name
implies some injury to the interests of the
owner of the name.
It consists in the
possibility of confusion of identity bet. the
owner & the usurper. It exists when a person
designates himself by another name.
The following are the elements of
usurpation of a name: (1) there is an actual
use of another's name by def.; (2) the use is
unauthorized; & (3) the use of another's
name is to designate personality or identify a
person. None of these elements exists in the
case at bar & neither is there a claim by
petitioner that the pvt resp. impersonated
her.

Art. 371.
In case of annulment of
marriage, & the wife is the guilty party, she
shall resume her maiden name & surname. If
she is the innocent spouse, she may resume
her maiden name & surname. However, she
may choose to continue employing her
former husband's surname, unless:
(1) The court decrees otherwise; or
(2) She or the former husband is married
again to another person.
Art. 372. When legal separation has been
granted, the wife shall continue using her
name & surname employed before the legal
separation.

TOLENTINO: This is so bec. her married


status is not affected by the separation, there
being no severance of the vinculum.
Art. 373. A widow may use the deceased
husband's surname as though he were still
living, in accordance w/ article 370.

TOLENTINO: Inasmuch as there is no more


vinculum actually existing w/ the deceased

husband, & considering that the widow has


her own independent personality, the use
of the former husband's surname is
optional, & not obligatory, for her.
Art. 374. In case of identity of names &
surnames, the younger person shall be
obliged to use such additional name or
surname as will avoid confusion.
Art. 375. In case of identity of names &
surnames
between
ascendants
&
descendants, the word "Junior" can be used
only by a son. Grandsons & other direct
male descendants shall either:
(1) Add a middle name or the mother's
surname; or
(2) Add the Roman numerals II, III, & so
on.
Art. 376. No person can change his
name or surname w/o judicial authority.

TOLENTINO:
Sufficient Cause Necessary.-- Examples of
sufficient causes are:
when the name is ridiculous, or tainted w/
dishonor, or extremely difficult to write
or pronounce;
when the right to a new name is a
consequence of a change of status,
such as when a natural child is
acknowledged or legitimated;
when the change is necessary to avoid
confusion;
having continuously used & been known
since childhood by a Filipino name,
unaware of his alien parentage;
A sincere desire to adopt a Filipino name to
erase signs of a former alien nationality
w/c unduly hamper social & business
life. (Republic v. Marcos, supra.)
The imposition in a will or donation of the
condition that the beneficiary change
his name is not sufficient cause.
Effect of Change on Children.-- When a
father changes his name, this will not affect
the names of his children. The children
who are of age are independent of the
father, & their names can be changed only
upon their own petition. The names of the
minor children, however, may be changed
on petition of the father, if the same
justification exists w/ respect to them.
For legal purposes, the true or
official name of a person is that w/c is
recorded in the civil register.
155

REPUBLIC V. AVILA [122 S 483]


HELD: A change of name is a mere privilege
& not a matter of right. It should not be
abused nor allowed for trivial & flimsy
reasons. To justify a change of name, there
must exist a proper & reasonable cause or
compelling reason.
The grant of change of name of resps.
would not eliminate but enhance confusion
as they would be having not only 2 names
but 3, including the names they are seeking.
Pvt. resps. do not only want to legalize their
use of American names, by w/c they claim
they are usually known, but also a new family
name (Yap Tan) w/c includes that of their
mother but w/c they never used before. It
becomes more confusing considering that the
pvt. resps. are not using the family name of
their father (Lim), but that of the first
husband of their mother who was surnamed
Tan.
The supposed ugly meaning of the
name of resp. Tan Ay Gho is not enough
reason to justify change of name. The alleged
offensive-sounding name, being a given
name, was chosen for her, & not one
imposed by law as in the case of a family
name.

Laws), the use of the H's surname during


the marriage, after annulment of the
marriage & after the death of the H is
permissive & not obligatory except in case
of legal separation.
When a woman marries a man, she
need not apply &/or seek judicial authority
to use her H's name by prefixing the word
"Mrs." before her H's full name or by
adding her H's surname to her maiden first
name.
The law grants her such right.
Similarly, when the marriage ties or
vinculum no longer exists as in the case of
death of the H or divorce, the widow or
divorcee
need
not
seek
judicial
confirmation of the change in her civil
status in order to revert to her maiden
name as the use of her former husband's
name is optional & not obligatory for her.

Art. 377.
Usurpation of a name &
surname may be the object of an action for
damages & other relief.

TOLENTINO:
The usurpation of name implies some
injury to the interests of the owner of the
name.
It consists in the possibility of
confusion of identity, or the appearance of
some family relations between the owner &
the usurper.

YASIN V. SHARIA 7 [241 S 606]


HELD: The true & real name of a person is
that given to him & entered in the civil
register. While it is true that under Art. 376
of the NCC, no person can change his name
or
surname
w/o
judicial
authority,
nonetheless, the only name that may be
changed is the true & official name recorded
in the Civil Register.
Petitioner's registered name is Hatima
Centi y Saul.
In the instant petition,
petitioner does not seek to change her
registered maiden name but instead, prays
that she be allowed to resume the use of her
maiden name in view of the dissolution of her
marriage to Hadji Idris Yasin, by virtue of a
decree of divorce granted in accordance w/
Muslim Law.

Elements of Usurpation.
that there is an actual use of another's
name by the defendant;
that the use is unauthorized; &
the use of another's name is to designate
personality or identity of a person.
Art. 378. The unauthorized or unlawful
use of another person's surname gives a
right of action to the latter.

TOLENTINO: This article would seem to


cover cases where one's name is used by
another, but not for the purpose of
designating personality or identifying a
person.

Even under the NCC (w/c applies


suppletorily to the Code of Muslim Personal
156

Art. 379. The employment of pen names


or stage names is permitted, provided it is
done in good faith & there is no injury to third
persons. Pen names & stage names cannot
be usurped.

some of them probably had their own


Corazons.

TOLENTINO

REPUBLIC V. CA 209 S 191

Pseudonym - conventional fictitious name


freely chosen by a person to disguise his
personality.
It designates a person in a
particular activity, & his reputation & the
value of his work are reflected in such
designation.

FACTS:
Wong (formerly Alcala, Jr.), a
Muslim Filipino, was adopted by a Chinese
couple. Upon reaching the age of 22, he
filed a petition to change his name fr. Wong
to Alcala.
Reason:
His surname
embarrassed & isolated him fr. his relatives
& friends since his name suggests a
Chinese ancestry.

Bec. a pseudonym is intended only to


be used in connection w/ a particular
activity-literary, artistic, scientific or
professional-- it should not be employed in
any other sphere of activity. It can never be
used in relations w/ the State.
When Entitled to Protection.-- A pen or stage
name is protected only when it is well known
as the designation of a particular writer or
artist, such that it can be considered as
practically indicating his person in the field of
activity where it is used.
Art. 380.
Except as provided in the
preceding article, no person shall use
different names & surnames.

TOLENTINO: It is the duty of a person in


dealing w/ the govt. & its agents, to use his
true name. In private relations, however, this
is not obligatory, provided there is no
wrongful or unlawful purpose.
Alias Names in Business.-- The law permits
the use of assumed or alias names for
business purposes, provided that such names
are duly registered.
LEGAMIA V. IAC [131 S 479]
HELD: In the case at bar, C had been living
w/ E for almost 20 yrs. He introduced her to
the public as his wife & she assumed that role
& his name w/o any sinister purpose or
personal material gain in mind. She applied
for benefits upon his death not for herself but
for Michael who as a boy of tender years was
under her guardianship.
Surely, the
lawmakers could not have meant to
criminalize what C had done especially bec.

Baviera cases:

HELD: A persons name is the designation


by w/c he/she is known. It is defined as the
word or combination of words by w/c a
person is distinguished fr. other individuals
&, also, as the label or appellation w/c
he/she bears for the convenience of the
world at large addressing him, or in
speaking of or dealing w/ him.
A name has the ff. characteristics:
It is absolute, intended to protect the
individual fr. being confused w/ others;
it is obligatory in certain respects, for
nobody can be w/o a name;
it is fixed, unchangeable, or immutable, at
least at the start, & may be changed
only for good cause & by judicial
proceedings;
it is outside the commerce of man, &,
therefore, inalienable & intransmissible,
by act inter vivos or mortis causa;
it is imprescriptible.
The state has an interest in the names
borne by individuals. A change of name is
not a matter of right but of sound judicial
discretion. Among the grounds w/c have
been held valid for a change of name are:
When the name is ridiculous, dishonorable
or extremely difficult to write or
pronounce;
when the change results as a legal
consequence, as in legitimation;
when the change will avoid confusion;
having continuously used & been known
since childhood by a Fil. Name, unaware
of their alien parentage;
157

sincere desire to adopt a Fil. Name to erase


signs of former alienage, all in good faith
& w/o prejudicing anybody;
when the surname causes embarrassment &
there is no showing that the desired
change of name was for a fraudulent
purpose or that the change of name
would prejudice the public.

about 4 yrs. later Anatacia had relations w/


another man out of w/c Teresita was born.
Shortly after Teresita's (T) birth, Atanacia
(A) brought her to Mla. where all of them
lived w/ A's mother-in-law, Victoria vda. de
Ferrer. T was raised in the household of the
Ferrers, using the surname of Ferrer in all
her dealings & throughout her schooling.

Although the law prescribes the


surname that a person may employ, it does
not go so far as to unqualifiedly prohibit the
use of any other surname provided there is
judicial sanction.

When she was about 20 yrs. old,


she applied for a copy of her birth cert. in
Irosin, Sorsogon, where she was born, as
she was required to present it in connection
w/ a scholarship granted to her. It was
then that she discovered that her
registered surname is Llaneta-- not Ferrer-& that she is the illegitimate child of A & an
unknown father.

An adopted child shall bear the


surname of the adopter. However, it must
nevertheless be borne in mind that the
change of surname of adopted child is more
an incident rather than the object of
adoption. There is therefore no prohibition
against reversion. Further, his adoptive
parents have permitted him to use his former
name.
MOORE V. REPUBLIC 62 OG NO. 34, P.
6100 (1963)
FACTS: Elaine, a US citizen, was formerly
married to Velarde, also a US citizen, out of
whose wedlock a child named William Velarde
was born. The couple got divorced & Elaine
married Moore. The minor William lived w/
the spouses. In view of the harmonious
relationship between the stepdad & stepson,
E filed a petition to change her sons name to
William Velarde Moore.
HELD: Not allowed. If a child born out of
wedlock be allowed to bear the surname of
the 2nd husband of the mother, should the 1st
husband die or be separated by divorce,
there may result a confusion as to the sons
real paternity. In the long run, the change
may redound to the prejudice of the child in
the community.
Besides, the child is still a minor.
When he reaches the age of majority, he may
decide the matter for himself.
For the
present, Es action is premature.
LLANETA V. AGRAVA [57 S 29]
FACTS: Teresita's mother, Anatacia Llaneta,
was once married to Serafin Ferrer w/ whom
she had but 1 child. In 1942 Serafin F. died &

On the ground that her use


thenceforth of the surname of Llaneta,
instead of Ferrer, w/c she had been using
since she acquired reason ,would cause
untold difficulties & confusion, T petitioned
the court below for change of name. After
trial, resp. Judge, denied her petition.
Hence, the present recourse.
HELD:
The petition is granted.
The
petitioner has established that she has
been using the surname Ferrer for as long
as she can remember; that all her records
in school & elsewhere, put her name down
as T. Ferrer; that her friends & associates
know her only as T. Ferrer; & that even the
late Serafin F.'s nearest of kin have
tolerated & still approve of her use of the
surname Ferrer. Indeed, a sudden shift at
this time by the petitioner to the name of T
Llaneta (in order to conform to that
appearing in the birth cert.) would result in
confusion among the persons & entities
she deals w/ & entail endless & vexatious
explanations of the circumstances of her
new name. The petitioner has established
that she has been using the surname Ferrer
for as long as she can remember; that all
her records in school & elsewhere, put her
name down as T. Ferrer; that her friends &
associates know her only as T. Ferrer; &
that even the late Serafin F.'s nearest of kin
have tolerated & still approve of her use of
the surname Ferrer.
The resp. court places reliance on
the decisions of this court w/c disallowed
such change of name as would give the
false impression of family relationship. The
158

principle remains valid but only to the extent


that the proposed change of name would in
great probability cause prejudice or future
mischief to the family whose surname it is
that is involved or to the community in
general.
SILVA V. PERALTA 110 P 57 (1960)
FACTS: Silva, a US citizen & an officer of the
US Army, is married to an Australian. When S
met Peralta, he made her believe that he is
still single. As such, P accepted his marriage
proposal.
The two, according to P, we
married in 1945. However, no documents of
marriage were prepared bec. there were no
available printed forms. The two then started
to live together & fr. such marriage, a son
was born.
S was wounded & was brought to the
US for operation.
During this time, he
divorced his Australian wife. Upon his return
to the Phil., S married Elenita.
ISSUE: WON P is allowed by law to use the
surname of S.
HELD: NO. The alleged marriage between P
& S never took place. No evidence was
presented other than the testimonies of P &
her counsel to prove such alleged marriage.
Further, S vigorously denied that he was
married to P. In view of the non-existence of
Ps marriage w/ S, & the latters marriage w/
E, it is not proper for P to continue
representing herself as Ss wife.
Art. 370 CC authorizes a married
woman to used the surname of her husband;
impliedly, it also excludes others fr. doing
likewise.
BAVIERA:
The remedy to prevent
someone fr. using ones surname is
injunction.

CALDERON V. REPUBLIC 19 S 721 (1967)


FACTS: Gertrudes is an illegitimate child, the
result of a bigamous marriage between del
Prado (M) & Adolfo (F). C alleges that using
the surname del Prado carries w/ it the
stigma of legitimacy.
Calderon is the
surname of her foster father & she, through
her mother, filed this petition in order to be
allowed to use said surname.

HELD: GRANTED. A petition to change


name is granted only where to do so is
clearly for the best interest of the child.
While the NCC provides that a natural child
by legal fiction may use the surname of the
father, this does not mean that such child
cannot adopt anothers surname w/ the
latters consent & for justifiable reasons. If
a legitimate child may secure a change o f
name through judicial proceedings, there is
no reason why an illegitimate child cannot.
Further, a change of name does not alter
family relations, rights or duties, legal
capacity, civil status or citizenship. What is
altered is only the label or appellation by
w/c a person is known.
NALDOZA V. REPUBLIC [112 S 568]
FACTS: Zosima Naldoza was married to
Dionesio Divinagracia on 5/30/70. They
begot 2 children named Dionesio, Jr. &
Bombi Roberto. Zosima's husband left her
after she confronted him w/ his previous
marriage w/ another woman. He never
returned to the conjugal abode.
He
allegedly swindled Cong. Maglana in the
sum of P50, 000, & other persons. The
classmates of Dionesio, Jr. & Bombi
allegedly teased them about their father
being a swindler. Two criminal cases for
estafa were filed in court against the father.
Desirous
of
obliterating
any
connection bet. her 2 minor children & their
scapegrace father, Zosima, on 8/10/78,
filed in CFI-Bohol a petition wherein she
prayed that the surname of their 2 children
be changed fr. Divinagracia to Naldoza, her
surname. After due publication & hearing,
the trial court dismissed the petition.
ISSUE: W/n two minors should be allowed
to discontinue using their father's surname
& should use only their mother's surname.
HELD: No. We hold that the trial court did
not err in denying the petition for change of
name. The 2 minors, who are presumably
legitimate, are supposed to bear principally
the surname Divinagracia, their father's
surname (Art. 364.)
To allow them, at their mother's
behest, to bear only their mother's
surname & to discard altogether their
159

father's surname, thus removing the prima


facie evidence of their paternal provenance
or ancestry, is a serious matter in w/c,
ordinarily, the minors & their father should be
consulted. The mother's desire should not be
the sole consideration.

according to circumstances. (Articles 390396.)


(a)
ordinary presumptive
death
(b)
qualified presumptive
death

The change of name is allowed only


when there are proper & reasonable causes
for such change. Where, as in this case, the
petitioners are minors, the courts should take
into account whether the change of name
would redound (to) their welfare or would
prejudice them.

PROVISIONAL MEASURES IN CASE OF


ABSENCE

To allow the change of surname would


cause confusion as to the minors' parentage
& might create the impression that the
minors are illegitimate since they would carry
the maternal surname only. That would be
inconsistent w/ their legitimate status as
indicated in their birth records.
XVIII. ABSENCE
Tolentino:
Concept of Absence.-Juridically, the
absence referred to in the Code, is that
special legal status of one who is not in his
domicile, his whereabouts being unknown, &
it is uncertain whether he is dead or alive.
(Balane quotes Tolentino on this.)
Where the absentee disappeared
under normal circumstances & w/o apparent
danger, there is ordinary absence; but where
the disappearance was under extraordinary
circumstances, or w/ apparent danger, it is
called qualified absence.
Balane (quoting Castan): Absence has legal
consequences w/c vary according to the
degree or stage of absence.
Stages of Absence:
(1) Temporary or provisional absence w/c
happens as soon as a person disappears fr.
his domicile & his whereabouts are unknown,
leaving no administrator of his prop. (Articles
381-383);
(2) Normal or declared absence w/c is one
juridically declared after 2 yrs. since the last
news was heard fr. him, or 5 yrs. if he left an
administrator (Articles 384-389);
(3) Definite or presumptive death w/c takes
place when after the period provided by law,
a person is presumed dead; the period varies

Art. 381. When a person disappears fr.


his domicile, his whereabouts being
unknown, & w/o 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.

Balane:
Requisites for Provisional
Absence:
Absence for an appreciable period w/c
depends upon the circumstances;
Immediate necessity for his representation
in some specific urgent matter;
Absentee left no agent or the agency has
expired
Art. 382. The appointment referred to in
the preceding article having been made,
the judge shall take the necessary
measures to safeguard the rights &
interests of the absentee & shall specify
the powers, obligations & remuneration of
his representatives, 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.

Tolentino: Appointment Necessary.-Unless the wife has been appointed an


administratrix or trustee of the properties
of her absent husband, she has no capacity
to maintain an action to recover possession
of such properties.
160

DECLARATION OF ABSENCE

Art. 384. Two years having elapsed w/o


any news about the absentee or since the
receipt of the last news, & five years in case
the absentee has left a person in charge of
the administration of his property, his
absence may be declared.
Tolentino: Computation of Period.-- If
there has been no news of or fr. the absentee
since his disappearance, the period must be
computed fr. the date of disappearance. But
if there has been news fr. or about him, the
period should be counted fr. the time referred
to by the news, or the time when the news
was sent.
Balane: The declaration of absence is has
for its sole purpose to enable the taking of
necessary precautions for the administration
of the prop. (of the absentee.) (quoting Jones
v. Hortiguela, 64 P 179.)
A general power of administration is
granted w/c is broader than that granted for a
mere provisional absence. Notice that in
provisional
absence,
the
power
of
administration is for a specific matter.
REYES V. ALEJANDRO [141 S 65]
Facts: In a petition filed on 10/25/69, Erlinda
Reynoso prayed for the declaration of the
absence of her husband Roberto L. Reyes
alleging that her H had been absent fr. their
conjugal dwelling since 4/62 & since then had
not been heard fr. & his whereabouts
unknown. The petition further alleged that
her H left no will or any prop. in his name nor
any debts.
After hearing,
dismissed the petition
since Roberto Reyes left
necessity to declare
absentee.

the court a quo


on the ground that
no prop there was no
him judicially an

HELD: The need to have a person judicially


declared an absentee is when he has
properties w/c have to be taken cared of or

administered
by
a
representative
appointed by the Court (384) ; the spouse
of the absentee is asking for separation of
prop (191, NCC) or his wife is asking the
court that the administration of all classes
of prop. in the marriage be transferred to
her (196, NCC.) The petition to declare the
husband an absentee & the petition to
place the management of the conjugal
properties in the hands of the wife may be
combined & adjudicated in the same
proceedings.
EASTERN SHIPPING V. LUCERO [124 S
425] Facts:
On 2/16/80, the petitioner co.
received 3 radio messages fr. Capt. Lucero
on board M/V Eastern Minicon, the last of
w/c, received at 9:50 P.M. of that day, was
a call for immediate assistance in view of
the existing "danger;" "sea water was
entering the hatch;" the vessel "was listing
50 to 60 degrees port," & they were
"preparing to abandon the ship any time."
After this message, nothing more has been
heard fr. the vessel or its crew until the
present time.
On 7/16/80, Mrs. Lucero filed a
complaint w/ the National Seamen Board
for payment of her accrued monthly
allotment w/c the Co. had stopped since
3/80 & for continued payment of said
allotments until M/V Minicon shall have
returned to the port of Mla.
On 5/19/81, the Board rendered
judgement in favor of Mrs. L & held that the
presumption of death could not be applied
bec. the 4-yr period [Art. 391(1)] had not
yet expired. On appeal, the NLRC affirmed
said decision.
HELD: We are unable to agree w/ the
reasoning of the resp. NLRC.
There is enough evidence to show
the circumstances attending the loss &
disappearance of the M/V Eastern Minicon
& its crew.
The foregoing facts, quite
logically, are sufficient to lead us to a moral
certainty that the vessel had sunk & that
the persons aboard had perished w/ it.
Upon this premise, the rule on presumption
of death under Art. 391(1) must yield to the
rule of preponderance of evidence. Where
there are facts, known or knowable, fr. w/c
161

a rational conclusion can be made, the


presumption does not step in, & the rule of
preponderance of evidence controls. (Joaquin
v. Navarro, 93 P 257.)
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. 386. The judicial declaration of
absence shall not take effect until six months
after its publication in a newspaper of general
circulation.
Art. 387. An administrator of the
absentee's property shall be appointed in
accordance w/ article 383.
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,
w/o 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 & 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, & the
property shall be at the disposal of those who
may have a right thereto.

express purpose of securing a judicial


declaration that a person is presumptively
dead, except for purposes of re-marriage
under the Family Code.
Balane: Under the NCC, no action was
allowed for the declaration of presumptive
death bec. it becomes res judicata w/c is
illogical when the person declared dead
turns out to be alive. But this is no longer
true under the FC w/c requires a
declaration of presumptive death for
purposes of remarriage. (see Art. 41.)
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.
Tolentino: For Re-Marriage of Spouse
Present.-- Under the FC (41), if a spouse
has been absent for 4 yrs. & the spouse
present has a well-founded belief that the
spouse is already dead, the former can ask
for the declaration of presumptive death of
the latter, in a summary proceeding.
Balane: Q: When Does Presumptive
Death Set In?
A: It depends on the age of the
person.
In normal presumptive death (the
absentee was 75 or below), 7 years is
required for all purposes except for
succession, e.g., for insurance, suspensive
condition, retirement benefits, etc. & 10
years for purposes of succession.
In qualified presumptive death (the
absentee is over 75), one single period of 5
yrs. for all purposes. Notice 390 states that
only 5 yrs. of absence is required in order
that succession may be opened. But what
if succession is not involved? If only 5 yrs.
is required in cases involving succession,
w/ more reason should 5 yrs. only be
required if succession is not involved.

PRESUMPTION OF DEATH
Tolentino:
Judicial Declaration Not
Necessary.-- The presumption of death is
created by law, & arises w/o any necessity of
a judicial declaration. The presumption can
be availed of in any action or proc.; but there
can be no independent proceeding for the

Art. 391. The following shall be


presumed dead for all purposes, including
the division of the estate among the heirs;

162

(1) A person on board a vessel lost during


a sea voyage, or an aeroplane w/c 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, & has been missing for four
years;
(3) A person who has been in danger of
death under other circumstances & his
existence has not been known for four years.

Tolentino:
Modification under the FC.-- For purposes
of securing a decl of presumptive death
under these circumstances, under the FC for
purposes of remarriage of a spouse present,
an absence of 2 yrs. of the absent spouse
will be enough.
Presumptive Death of Missing Persons.-The persons presumed dead under this
article cannot be considered as merely
absentees; they are more properly called
missing persons. xxx [T]he
presumptive date of death is fixed on the
very day of the occurrence of the event fr.
w/c the death is presumed; & if such date
cannot be fixed, the court determines the
middle of the period in w/c the event could
have happened.
Loss of Vessel or Aeroplane.-These
terms must be understood in their broad
meanings. Vessels will include all watercraft,
& aeroplanes will include all aircraft.
The loss of the vessel must be during
a sea voyage w/c include not only voyages in
the open sea but also passage along the
mouth or river, canals, etc. in the course of
such voyage. However, trips w/c are only
inland waters are not included.
Missing in War.-The term "war" is
construed generally; it is not limited to war as
understood in international law, but includes
all military operations or undertakings in
armed fighting. The presumption in case of
persons missing in war, applies not only to
soldiers, but also to those who are employed
by or render services to the armed forces
(such as nurses, doctors, etc.), those who
render voluntary service (such as guides &
guerrillas), & those who follow or stay w/ the
armed
forces
(such
as
reporters,
photographers, etc.) It is however, necessary
that such disappearance be during military
operations.
In Danger of Death.-- The death should be
considered to have taken place on the day of
the danger. xxx If the danger continues for
several days, xxx the more logical view
seems to be that the period should be
computed fr. the last day of such danger; in
cases of expeditions or similar ventures of

w/c nothing is heard after it has started,


the date when it should have been
completed, if favorably concluded, is to be
taken into account.
Art. 392. If the absentee appears or
w/o appearing his existence is proved, he
shall recover his property in the condition
in w/c it may be found, & the price of any
property that may have been alienated or
the property acquired therew/; but he
cannot claim either fruits or rents.

Tolentino: The rights of the possessors of


the absentee's prop. are dependent upon
the presumed death of the latter; hence, if
he reappears, those rights cease. For this
reason, the possession is conditional &
cannot be the basis of prescription. Neither
will the action of the absentee to recover
his prop. prescribe.
EFFECT OF
CONTINGENT
ABSENTEE

ABSENCE
RIGHTS

UPON
OF

THE
THE

Art. 393. Whoever claims a right


pertaining to a person whose existence is
not recognized must prove that he was
living at the time his existence was
necessary in order to acquire said right.
Tolentino: For the acquisition of rights by
an absentee, life is not presumed before
the date of presumptive death.
Art. 394. Without prejudice to the
provision of the preceding article, upon the
opening of a succession to w/c an absentee
is called, his share shall accrue to his coheirs, unless he has heirs, assigns, or a
representative. They shall all, as the case
may be, make an inventory of the property.
Art. 395. The provisions of the
preceding article are understood to be w/o
prejudice to the action or petition for
inheritance or other rights w/c are vested in
the absentee, his representative or
successors in interest. These rights shall
not be extinguished save by lapse of time
fixed for prescription. In the record that is
made in the Registry of the real estate w/c
accrues to the co-heirs, the circumstance
163

of its being subject to the provisions of this


article shall be stated.
Art. 396. Those who may have entered
upon the inheritance shall appropriate the
fruits received in good faith so long as the
absentee does not appear, or while his
representatives or successors in interest do
not bring the proper actions.
Art. 43. If there is doubt, as between two
or more persons who are called to succeed
each other, as to w/c 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 & there shall be no transmission of
rights fr. one to the other.
Rule 107, Rules of Court - ABSENTEES
Sec. 1. Appointment of representative. When a person disappears fr. his domicile, his
whereabouts being unknown, & w/o having
left an agent to administer his property, or
the power conferred upon the agent has
expired, any interested party, relative or
friend, may petition the Court of First
Instance of the place where the absentee
resided before his disappearance, for the
appointment of a person to represent him
provisionally in all that may be necessary. In
the City of Manila, the petition shall be filed in
the Juvenile Domestic Relations Court.
Sec. 2. Declaration of absence; who may
petition. - After the lapse of two (2) years fr.
his disappearance & w/o any news about the
absentee or since the receipt of the last
news, or of five (5) years in case the
absentee has left a person in charge of the
administration of his property, the declaration
of his absence & appointment of a trustee or
administrator may be applied for by any of
the following:
(a) The spouse present;
(b) The heirs instituted in a will, who may
present an authentic copy of the same;
(c) The relatives who would succeed by
the law of intestacy; &
(d) Those who have over the property of
the absentee some right subordinated to the
condition of his death.
Sec. 3. Contents of petition. - The petition
for the appointment of a representative, or

for the declaration of absence & the


appointment
of
a
trustee
or
an
administrator, must show the following:
(a) The jurisdictional facts;
(b) The names, ages, & residences of
the heirs instituted in the will, copy of w/c
shall be presented, & of the relatives who
would succeed by the law of intestacy,
(c) The names & residences of creditors
& others who may have any adverse
interest over the property of the absentee;
(d) The probable value, location &
character of the property belonging to the
absentee.
Sec. 4.
Time of hearing; notice &
publication thereof. - When a petition for
the appointment of a representative, or for
the declaration of absence & the
appointment of a trustee or administrator,
is filed, the court shall fix a date & place for
the hearing thereof where all concerned
may appear to contest the petition.
Copies of the notice of the time & place
fixed for the hearing shall be served upon
the known heirs, legatees, devisees,
creditors & other interested persons, at
least ten (10) days before the day of the
hearing, & shall be published once a week
for three (3) consecutive weeks prior to the
time designated for the hearing, in a
newspaper of general circulation in the
province or city where the absentee
resides, as the court shall deem best.
Sec. 5. Opposition. - Anyone appearing
to contest the petition shall state in writing
his grounds therefor, & serve a copy
thereof on the petitioner & other interested
parties on or before the date designated for
the hearing.
Sec. 6. Proof at hearing; order. - At the
hearing, compliance w/ the provisions of
section 4 of this rule must first be shown.
Upon satisfactory proof of the allegations in
the petition, the court shall issue an order
granting the same & appointing the
representative, trustee or administrator for
the absentee. The judge shall take the
necessary measures to safeguard the
rights & interests of the absentee & shall
specify
the
powers,
obligations
&
remuneration of his representative, trustee

164

or administrator, regulating them by the rules


concerning guardians.

deceased; (2) to avoid dangers to the


health of the living; & (3) to allow scientific
investigation & study.

In case of declaration of absence, the


same shall not take effect until six (6) months
after its publication in a newspaper of general
circulation designated by the court & in the
Official Gazette.

Right to the Corpse.-- The corpse is


outside the commerce of man. A contract
for valuable consideration disposing of the
corpse, except when expressly permitted
by law, would be void as contrary to
morals.

Sec. 7. Who may be appointed. - 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 or
otherwise incompetent, any competent
person may be appointed by the court.

xxx There is, however, a certain


right to the possession of the corpse, for
the purpose of decent burial, & for the
exclusion of intrusion by third persons who
have no legitimate interest in it.

In case of declaration of absence, the


trustee or administrator of the absentee's
property shall be appointed in accordance w/
the preceding paragraph.
Sec. 8. Termination of administration. The trusteeship or administration of the
property of the absentee shall cease upon
order of the court in any of the following
cases:
(a)
When
the
absentee
appears
personally or by means of an agent;
(b) When the death of the absentee is
proved & his testate or intestate heirs
appear;
(c) 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
trustee
or
administrator shall cease in the performance
of his office, & the property shall be placed at
the disposal of those who may have a right
thereto.

XIX. FUNERALS
Tolentino:
Juridical Nature of Corpse.-- The corpse
cannot be the subject of rights, bec. juridical
personality is extinguished by death.
Evidently, it is an object or a thing, but it is
not prop.; it is not susceptible of
appropriation.
Purposes of Legal Protection: (1) to
protect the feelings of those related to the

Any person charged by law w/ the


duty of burying the body of a deceased
person is entitled to the custody of such
body for the purpose of burying it, except
when an inquest is required by law for the
purpose of determining the cause of death;
&, in case of death due to or accompanied
by a dangerous communicable disease,
such body shall until buried remain in the
custody of the local board of health or local
health officer, or if there be no such, then
in the custody of the municipal council.
(Sec. 1104, Revised Admin. Code.)
Art. 305. The duty & the right to make
arrangements for the funeral of a relative
shall be in accordance w/ the order
established for support, under Art. 199 of
the Family Code. In case of descendants of
the same degree, or of brothers & sisters,
the oldest shall be preferred. In case of
ascendants, the paternal shall have a
better right.
Art.
persons
liability
persons

199.
Whenever two or more
are obliged to give support, the
shall devolve upon the following
in the order herein provided:

(1) The spouse;


(2) The descendants in the nearest
degree;
(3)
The ascendants in the nearest
degree;
(4) The brothers & sisters.
(Family
Code.)

Tolentino:
Right to make funeral
arrangements.-- If there are no persons
who are bound to support the deceased, or
if there are but they are w/o means to
defray the funeral expenses, the duty of
burial shall devolve upon the municipal
authorities.
165

Same; Subject to waiver.-- The persons


who are preferred in the right may waive this
right expressly or impliedly, in w/c case the
right & duty immediately descend to the
person next in the order prescribed by law.
Extent of Right.-- Under our law, it seems
that the person entitled to the custody of the
corpse cannot exclude the friends & other
relatives of the deceased; such exclusion,
w/o just cause, would be an abuse of right
prohibited by Art. 19, NCC, or an act contrary
to good customs under Art. 21.
The
members of the family of the deceased, of
course, cannot be excluded, bec. they would
have an inherent right to witness the
interment.
BALANE CASE:
EUGENIO V. VELEZ
HELD: We hold that the provisions of the
NCC unless expressly providing to the
contrary as in Art. 144, when referring to a
"spouse" contemplate a lawfully wedded
spouse. Philippine Law does not recognize
common law marriage. Petitioner vis--vis
Vitaliana was not a lawfully-wedded spouse
to her; in fact, he was not legally capacitated
to marry her in her lifetime (being himself
legally married to another woman.)
Custody of the dead body of Vitaliana
was correctly awarded to her surviving
brothers & sisters. Sec. 1103 (b) of the Rev.
Admin. Code provides:
"If the deceased was an unmarried
man or woman, or a child, & left any kin, the
duty of burial shall devolve upon the nearest
of kin of the deceased, if they be adults &
w/in the Phils. & in the possession of
sufficient means to defray the necessary
expenses."

Art. 306.
Every funeral shall be in
keeping w/ the social position of the
deceased.

deceased.
In the absence of such
expression, his religious beliefs or affiliation
shall determine the funeral rites. 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 w/ the other members of the
family.
Art. 308. No human remains shall be
retained, interred, disposed of or exhumed
w/o the consent of the persons mentioned
in Art. 199 of the Family Code & 305 (of the
Civil Code.)

Tolentino: Exhumation of Corpse For


Evidential Purposes.-Although the
present art. prohibits exhumation w/o the
consent of the persons obliged to support
the deceased in life, the right of such
persons must yield to public interests when
the exhumation appears to be absolutely
essential to the administration of justice
such as where there is no other way to
prove a material fact except by exhumation
of a body w/c has been interred.
Disposition of Corpse by Deceased.-Although a person cannot dispose of his
corpse by act inter vivos or mortis causa as
prop., he may provide the manner in w/c it
shall be disposed of by those called upon to
do so.
RA 349 recognizes the validity of an
authorization given by a person to use
parts of his corpse for medical, surgical, &
scientific purposes.
Corpses w/c are to be buried at
public expense may also be used for
scientific
purposes,
under
certain
conditions.
Performance of Autopsies.-An
autopsy may either be private or official. If
it is private, it cannot be performed w/o the
consent of the persons having a right to
the corpse. On the other hand, in the
higher interests of the State, official
autopsies may be performed regardless of
the wishes of the persons entitled to the
corpse.

Tolentino: This article does not provide for a


sanction for its enforcement. However, the
sanctions may be found in other provisions of
the law.

Art. 309.
Any person who shows
disrespect to the dead, or wrongfully
interferes w/ a funeral, shall be liable to the
family of the deceased for damages,
material & moral.

Art. 307.
The funeral shall be in
accordance w/ the expressed wishes of the

Art. 310.
The construction of a
tombstone or mausoleum shall be deemed
166

a part of the funeral expenses, & shall be


chargeable to the conjugal partnership
property, if the deceased is one of the
spouses.

XX. CIVIL REGISTER

Art. 407. Acts, events & judicial decrees


concerning the civil status of persons shall be
recorded in the civil register.

Balane: Correlate Art. 407 w/ Art. 7, PD 603.


Sec. 7. Non-disclosure of Birth Records. The records of a person's birth shall be kept
strictly confidential & no information relating
thereto shall be issued except on the request
of any of the following:
(1) The person himself, or any person
authorized by him;
(2) His spouse, his parent or parents, his
direct descendants, or the guardian or
institution legally-in-charge of him if he is a
minor;
(3) The court or proper public official
whenever
absolutely
necessary
in
administrative, judicial or other official
proceedings to determine the identity of the
child's parents or other circumstances
surrounding his birth; &
(4) In case of the person's death, the
nearest of kin.
Any person violating the prohibition
shall suffer the penalty of imprisonment of at
least two months or a fine in an amount not
exceeding five hundred pesos, or both, in the
discretion of the court. (P.D. 603, The Child &
Youth Welfare Code.)
Art. 408. The following shall be entered in
the civil register:
(1) Births;
(2) marriages;
(3) deaths;
(4) legal separations;
(5) annulments of marriages;
(6) judgments declaring marriages void fr.
the beginning;
(7) legitimations;
(8) adoptions;

(9) acknowledgements 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;
&
(16) change of name.
Art. 409. In cases of legal separation,
adoption, naturalization & other judicial
orders mentioned in the preceding article,
it shall be the duty of the clerk of the court
w/c issued the decree to ascertain whether
the same has been registered, & 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.
Art. 410. The books making up the civil
register & all documents relating thereto
shall be considered public documents &
shall be prima facie evidence of the facts
therein contained.

BALANE CASE:
SERMONIA V. CA
HELD: (1) The rule on constructive notice
cannot apply in the crime of bigamy
notw/standing the possibility of its being
more favorable to the accused. As the CA
succinctly explains-xxx [T]he principle of constructive
notice should not be applied in regard to
the crime of bigamy as judicial notice may
be taken of the fact that a bigamous
marriage is generally entered into by the
offender in secrecy fr. the spouse of the
previous subsisting marriage.
Also, a
bigamous marriage is generally entered
into in a place where the offender is not
known to be still a married person, in order
to conceal his legal impediment to contract
another marriage.
xxx [T]he criminal cases cited by
the petitioner wherein constructive notice
was applied involved
land or prop.
disputes & certainly, marriage is not prop.
The non-application to the crime of
bigamy of the prin. of constructive notice is
not contrary to the policy that penal laws
167

should be construed liberally in favor of the


accused. To compute the prescriptive period
for the offense of bigamy fr. registration
thereof would amount to almost absolving
offenders thereof for liab. therefor. xxx
(2) The rule on constructive notice will make
de rigueur the routinary inspection or
verification of the marriages listed in the
National Census Office & in various local civil
registries all over the country to make certain
that no subsequent marriage has been
contracted w/o the knowledge of the
legitimate spouse.
(3) More importantly, while Sec. 52 of PD
1529 (Prop. Reg. Dec.) provides for
constructive notice to all persons of every
conveyance, mortgage, lease, lien, etc.
affecting registered land filed or entered in
the office of the Register of Deeds for the
province or city where the land to w/c it
relates lies fr. the time of such registration,
there is no counterpart provision either in Act
3753 (Act to Establish a Civil Register) or in
Arts. 407 to 413, NCC, w/c leads to the
conclusion that there is no legal basis for
applying the constructive notice rule to
documents registered in the Civil Register.

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 fr. such
liability if he proves that he has taken every
reasonable precaution to prevent the
unlawful alteration.
Art. 412. No entry in a civil register shall
be changed or corrected, w/o judicial order.

Tolentino: Changes or corrections in entries


in the Civil Registry may be sought by 2
different procedures:
(1)
summary
procedure for the correction of clerical errors,
& (2) adversary, litigious, or contentious
procedure for changes of a substantial
character.
Corrections to be made in the civil
register may be either clerical or substantial.
The proceeding under Art. 412 & Rule 108 of
the Rules of Court may either be summary or
adversary in nature. Even substantial or
material errors in the civil register may be
corrected provided the appropriate remedy is
availed of.

RULE 108 - CANCELLATION OR


CORRECTION OF ENTRIES IN THE CIVIL
REGISTRY
Sec. 1, Who may file petition. - Any
person interested in any act, event, order
or decree concerning the civil status of
persons w/c has been recorded in the civil
register, may file a verified petition for the
cancellation or correction of any entry
relating thereto, w/ the Court of First
Instance of the province where the
corresponding civil registry is located.
Sec. 2. Entries subject to cancellation or
correction. - Upon good & valid grounds,
the following entries in the civil register
may be cancelled or corrected;
(a) births;
(b) marriage;
(c) deaths;
(d) legal separations;
(e) judgments of annulments of
marriage;
(f) judgments declaring marriages void
fr. 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,
&
(o) changes of name.
Sec. 3. Parties. - When cancellation or
correction of an entry in the civil register is
sought, the civil registrar & all persons who
have or claim any interest w/c would be
affected thereby shall be made parties to
the proceeding.
Sec. 4. Notice & publication. - Upon the
filing of the petition, the court shall, by an
order, fix the time & place for the hearing
of the same, & 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
168

newspaper of general circulation in the


province.
Sec. 5. Opposition. - The civil registrar &
any person having or claiming any interest
under the entry whose cancellation or
correction is sought may, w/in fifteen (15)
days fr. notice of the petition, or fr. the last
date of publication of such notice, file his
opposition thereto.
Sec. 6. Expediting proceedings. - The
court in w/c the proceeding is brought may
make orders expediting the proceedings, &
may also grant preliminary injunction for the
preservation of the rights of the parties
pending such proceedings.
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.

Balane: Recapitulate.-- An error in an


entry in the Civil Register can only be
corrected by court order. The proper action
to file depends on whether the error is merely
clerical or substantive. If merely clerical,
summary proceeding for correction is
enough; if substantive, adversary proceeding
is required.
REPUBLIC V. VALENCIA
[141 S 462
(1986)]

involving nationality or citizenship, w/c is


indisputably
substantial
as well
as
controversial, affirmative relief cannot be
granted in a proceeding summary in
nature. However, it is also true that a right
in law may be enforced & a wrong may be
remedied as long as the appropriate
remedy is used. This court adheres to the
principle that even substantial errors in a
civil registry may be corrected & the true
facts established provided the parties
aggrieved by the error avail themselves of
the appropriate adversary proceeding.
xxx
What is meant by appropriate
adversary proceeding?
Black's Law
Dictionary defines "adversary proceeding"
as follows:
"One having opposing parties;
contested, as distinguished fr. an ex parte
application, one of w/c the party seeking
relief has given legal warning to the other
party, & afforded the latter an opportunity
to contest it. xxx"
Provided that the trial court has
conducted proceedings where all relevant
facts have been fully & properly developed,
where opposing counsel have been given
opportunity to demolish the opposite
party's case, & where the evidence has
been thoroughly weighed & considered, the
suit or proceeding is "appropriate."

Facts: Resp. Leonor Valencia, for & in behalf


of her minor children, Bernardo Go & Jessica
Go filed w/ the CFI-Cebu a petition for the
cancellation &/or correction of entries of birth
of her 2 minor children in the Civil Registry of
Cebu. The petition seeks to change the
nationality or citizenship of Bernardo Go &
Jessica Go fr. "Chinese" to "Filipino" & their
status fr. "Legitimate" to "Illegitimate," &
changing also the status of the mother fr.
"married" to "single."
The Local Civil
Registrar of Cebu filed a motion to dismiss on
the ground that the corrections sought are
not merely clerical but substantial. The lower
court denied the motion to dismiss. From the
decision of the lower court, oppositorappellant Republic appealed.

[T]he persons who must be made


parties to a proceeding concerning the
cancellation or correction of an entry in the
civil register are-- (1) the civil registrar, &
(2) all persons who have or claim any
interest w/c would be affected thereby.
Upon the filing of the petition, it becomes
the duty of the court to-- (1) issue an
order fixing the time & place for the
hearing of the petition, & (2) cause the
order for hearing to be published once a wk
for 3 consecutive weeks in a newspaper of
gen. circ. in the province. The following are
likewise entitled to oppose the petition-(1) the civil registrar, & (2) any person
having or claiming any interest under the
entry whose cancellation or correction is
sought.

HELD: [I]f the subject matter of a petition is


not for the correction of clerical errors of a
harmless & innocuous nature, but one

If all these procedural requirements


have been followed, a petition for
correction &/ or cancellation of entries in
169

the record of birth even if filed & conducted


under R 108, ROC can no longer be described
as "summary." There can be no doubt that
when an opposition to the petition is filed
either by the Civil Registrar or any person
having or claiming any interest in the interest
in the entries sought to be cancelled &/ or
corrected & the opposition is actively
prosecuted, the proceedings thereon become
adversary proceedings.
In this case, the court took note of the
fact that all the procedural requirements
have been followed & hence the recorded
proceedings that actually took place could
very well be regarded as that proper suit or
appropriate action.
In the instant case, a pet. for
cancellation &/or correction of entries of birth
of Bernardo Go & Jessica Go in the Civ. Reg.Cebu City was filed by resp. L. Valencia on
1/27/70, & pursuant to the order of the trial
court dated 2/4/70, the said pet. was
published once a wk for 3 consecutive wks. in
the Cebu Advocate, a newspaper of gen. circ.
in the City of Cebu. Notice thereof was duly
served on the Sol-Gen., the Local Civ.
Registrar & Go Eng. The order likewise set
the case for hearing & directed the local civ.
registrar & the other resps. or any person
claiming any interest under the entries whose
corrections were sought, to file their
opposition to the said pet. An opposition to
the pet. was consequently filed by the Rep.
on 2/26/70. Thereafter, a full blown trial
followed w/ resp. L. Valencia testifying &
presenting her documentary evid. in support
of her pet. The Rep. on the other hand,
cross-examined resp. L.V.

BALANE CASES:
BARRETO
MANILA

V.

CIVIL

REGISTRAR

OF

ISSUE: W/n the supposed erroneous entry


as to the sex of Rosario B., as indicated in the
birth record, is a clerical error that may be
changed by means of a petition for correction
filed by one Domingo B. who claims to be the
same person as Rosario B.
HELD: We hold that the petition is not
warranted bec. under the facts of this case,
the alleged error is not clerical in nature. If

the name in the record of birth were


Domingo B. & his sex was indicated therein
as female, it might be argued that the error
would be clerical. But that is not the fact in
the case.
The situation is more
complicated. A person named Domingo B.
claims he is Rosario B. & that the word
"female" in the latter's birth record is a
mistake.
It is settled that the summary proc.
for correction of entries in the civil registry
under Art. 412, NCC & R 108, ROC is
confined to "innocuous or clerical errors,
such as misspellings & the like, errors that
are visible to the eyes or obvious to the
understanding" or corrections that are not
controversial
&
are
supported
by
indubitable evidence.
A clerical error is one made by a
clerk in transcribing or otherwise, &, of
course, must be apparent on the face of
the record, & capable of being corrected by
reference to the record only.
The alleged error in this case cannot
be determined by reference to the record.
There is a need to determine w/n Rosario B.
& Domingo B. are one & the same person &
to ascertain why Domingo was registered
in the record of birth as Rosario.
REPUBLIC V. FLOJO
HELD: The contention is w/o merit. While
the Court has, indeed previously ruled that
changes or corrections authorized under
Art. 412, w/c envisions a summary proc.,
relate only to harmless & innocuous
alterations, such as misspellings or errors
that are visible to the eyes or obvious to
the understanding & that changes in the
citizenship of a person or his civil status are
substantial as well as controversial, w/c can
only
be
established
in
appropriate
adversary proc., the rule has been relaxed
in the case of Rep. v. Valencia.
In the instant case, there is no
doubt that the proc. conducted in the lower
court
was
an
adversary
proc.
&
"appropriate" in that "all relevant facts
have been fully & properly developed,
where the opposing counsel have been
given the opportunity to demolish the
opposite party's case, & where the
evidence has been thoroughly weighed &
considered." The questioned order states
in part:
After the required publ. of the order
of Notice of hrng. dated 8/22/78 in the
Cagayan Valley Weekly Journal, has been
complied w/ & notice to the Sol-Gen,
petitioner adduced evidence on 10/17/78.
No written opposition was interposed by
resp. but at the hrng. , Asst. Prov. Fiscal
170

Gonzales appeared for & in behalf of the SolGen.


REPUBLIC V. BAUTISTA
HELD:
We are constrained to deny the
instant pet. for review. The issue now bef. us
has been resolved in the case of Rep. v .
Valencia wherein the court held that the
proceedings under Art. 412 & Rule 108, ROC
may either be summary or adversary in
nature. If the correction sought to be made
in the civ. reg. is clerical, then the procedure
to be adopted is summary. If the rectification
affects the civil status, citizenship or
nationality of a party, it is deemed
substantial, & the procedure to be adopted is
adversary.
In Rep. v. Valencia, we postulated that
the appropriate remedy may well be a pet.
filed by way of SP for the cancellation &/or
correction of substantial entries in the civ.
reg. w/ the requisite parties, notices,
publications & the proceedings to be taken
thereafter pursuant to Secs. 3, 4 & 5 of R108
bec. then the proc. will be adversary in
character.
In the present case, the records show
that the Pasay City Local Civ. Reg. & the SolGen. were made parties to the pet. The
proper notice was published once a wk for 3
consecutive wks. in the Rizal Weekly Bulletin,
a newspaper of gen. circ. The Rep. appeared
thru a trial atty. of the Office of the Sol-Gen.
who was present & did not object to the
presentation of evidence, xxx.
REPUBLIC V. CARRIAGA
HELD: In the case at bar, not only have the
procedural requirements been complied w/
but a trial was duly conducted wherein the
pvt. resp. was given the chance to present
his evidence while the fiscal was likewise
given every opportunity to present his
opposition.
The safeguards in Rep. v.
Valencia were followed.
True, the City Fiscal decided not to
submit any evidence in opposition to the
averments in the petition, but the pvt. resps
submitted satisfactory evidence to prove his
case.
REPUBLIC V. CFI
HELD: In the instant case, we hold that an
appropriate adversary proc. has taken place.
xxx
The controverted order dated 3/31/73,
by itself, indicates sufficient compliance w/
the requirements of an appropriate adversary
proc.
The publ. requirement has been
complied w/. In the hrng., the pvt. resp.
presented his evidence. Opposition by the
petitioner thereto was received by the court.

And fr. this proc., it was conclusively


established that no marriage bet. pvt. resp.
& Dolores D. Balance, mother of the child,
took place on 1/7/69; that the pvt. resp.
hardly knew Dolores & never had any
extramarital relations w/ her; & that he is
very much a married man & his wife is still
living. The record of the case does not
show any rebuttal of the evidence of the
pvt. resp.
ZAPANTA V. CIVIL REGISTRAR
HELD: The records show that the publ.
requirement has already been complied w/.
The next step would thus be for the court a
quo to consider the pet. before it to be, in
substance, an adversary proc. & to allow
petitioner & all adverse & interested
parties their day in court.
Art. 413. All other matters pertaining to
the registration of civil status shall be
governed by special laws. (See Act No.
3613, as amended)

II. Right of Accession


A. REAL PROPERTY
1. NATURAL INCREMENT.

Art. 441. To the owner belongs:


The natural fruits;
The industrial fruits;
The civil fruits;
Art. 442.
Natural fruits are the
spontaneous products of the soil, & the
young & other products of
animals.
Industrial fruits are those produced by
lands of any kind through
cultivation or
labor.
Civil fruits are the rentals of
buildings, the price of leases of lands &
other property & the amount of perpetual
or life annuities or other similar income.
Art. 443. He who receives the fruits has
the obligation to pay the expenses made
by a third person in their production,
gathering & preservation.
Art. 444. Only such as are manifest or
born are considered as natural or industrial
fruits. With respect to animals, it is
sufficient that they are in the womb of the
mother although unborn.
171

2. BUILDING, PLANTING,
SOWING.

Art. 445. Whatever is built, planted or


sown on the land of another & the
improvements or repairs made thereon,
belong to the owner of the land, subject to
the provisions of the following articles.
Art. 446. All works, sowing & planting are
presumed made by the owner at his expense,
unless the contrary is proved.
Art. 447. The owner of the land who
makes thereon personally or through
another, paintings, constructions or works w/
the materials of another, shall pay their
value; & if he acted in bad faith, he shall also
be obliged in the reparation of damages. The
owner of the materials shall have the right to
remove them only of he can do so w/o injury
to the work constructed, or w/o the plantings,
constructions or works being destroyed.
However, if the landowner acted in bad faith,
the owner of the materials may remove them
in any event, w/ a right to de indemnified for
damages.
Art. 448. The owner of the land on w/c
anything has been built, sown or planted in
good faith, shall have the right to appropriate
as his own the works, sowing or planting,
after payment of the indemnity provided for
in articles 546 & 548, or to oblige the one
who built or planted to pay the price of the
land, & the one who sowed, the proper rent.
However, the builder or planter cannot be
obliged to buy the land if its value is
considerably more than that of the buildings
or trees.
In such case, he shall pay
reasonable rent, if the owner of the land does
not choose to appropriate the buildings or
trees after the proper indemnity. The parties
shall agree upon the terms of the lease, & in
case of disagreement, the court shall fix the
terms thereof.
Art. 449. He who builds, plants or sows
in bad faith on the land of another, loses
what is built, planted or sown w/o right to
indemnity.
Art. 450. The owner of the land w/c
anything has been built, planted or sown in
bad faith may demand the demolition of the
work, or that the planting or sowing be

removed, in order to replace things in their


former condition at the expense of the
person who built, planted or sowed; or he
may compel the builder or planter to pay
the price of the land, & the sower the
proper rent.
Art. 451.
In the cases of the two
preceding articles, the landowner is
entitled to damages fr. the builder, planter
or sower.
Art. 452. The builder, planter or sower
in bad faith is entitled to reimbursement for
the necessary expenses of preservation of
the land.
Art. 453. If there was bad faith, not only
on the part of the person who built, planted
or sowed on the land of another but also on
the part of the owner of such land, the right
of one & the other shall be the same as
though both acted in good faith.
It is understood that there is bad
faith on the part of the landowner
whenever the act was done w/ his
knowledge & w/o opposition on his part.
Art. 454. When the landowner acted in
bad faith & the builder, planter or sower
proceeded in good faith, the provisions of
article 447 shall apply.
Art. 455. If the materials, plants or
seeds belong to a third person who has not
acted in bad faith, the owner of the land
shall answer subsidiarily for their value &
only in the event that the one who made
use of them has no property w/ w/c to pay.
This provision shall not apply if the
owner makes use of the right granted in
article 450. If the owner of the materials,
plants or seeds has been paid by the
builder, planter or sower, the latter may
demand fr. the landowner the value of the
materials & labor.
Art. 456. In the cases regulated in the
preceding articles, good faith does not
necessarily exclude negligence, w/c gives
right to damages under article 2176.

FILIPINAS COLLEGE INC. VS. TIMBANG


106 SCRA 247

172

Facts: There are three parties involved: the


Timbang spouses who own the lot; Blas who
built a school building on said lot; & Filipinas
Colleges Inc. who purchased the building fr.
Blas.
The CA declared that Filipinas
(Petitioners) has acquired the rights of the
Timbangs (Respondents) to the lot & had to
pay value of the land; that should Filipinas fail
to pay, it loses its right to the land & the
Timbangs will become the owners. Thus, the
Timbangs must exercise their option under
article 448 to appropriate the building or
compel Filipinas to acquire the land. Filipinas
was also ordered to pay Blas the value of the
buildings.
Filipinas failed to pay the amount, so
the Timbangs, in exercising their option under
art. 448 chose to compel Filipinas to acquire
the land. The Timbangs contend that since
builder in good faith has failed to pay the
price of the land after they failed to exercise
their option, the builder not only lost their
right of retention under Art. 456 but also that
they, as landowners automatically became
the owners of the land.
Issue: Is there merit in the contention of the
Timbangs?
Held: Without merit.
There is nothing in Art. 448 & Art. 546
w/c would justify the conclusion that upon
failure of the builder to pay the value of the
land, when such is demanded by the
landowner, the latter becomes automatically
the owner of the improvement under Art.
445. So what is the recourse left to the
parties in such an eventuality where the
builder fails to pay the value of the land?
While the Code is silent on this point,
guidance may be had fr. the previous
decisions of this Court:
(1) In Miranda v. Fadullon, the builder might
be made to pay rental only, leave things
as they are, & assume the relation of
lessor & lessee;
(2) In Ignacio v. Hilario, owner of the land
may have the improvement removed; or
(3) In Bernardo v. Bataclan, the land & the
improvement may be sold in a public
auction, applying the proceeds first to the
payments of the value of the land, & the

excess if any, to be delivered to the


owner of the house in payment thereof.
BAVIERA: If bldg. Is sold to pay for the
value of the land, then the builder
becomes part-owner of the land.)

CALAPAN LUMBER CO. V. COMMUNITY


SAWMILL CO. 11 SCRA 346
Facts:
Plaintiff Calapan Lumber Co.
undertook the completion & construction of
a provincial road in Calapan. By virtue of a
Provincial Board Resolution, P was granted
sole right to use the said road provided
that after 20 years, it shall donate the said
road to the province. It also provided that
other grantees of lumber concessions may
use said road only w/ Ps permission. Upon
the recommendation of the Director of
Public Works, on the ground that said road
is a public road, the Provincial Board
revoked the earlier resolution & issued a
new resolution declaring the said road a toll
road, proceeds of w/c are to be paid to P as
reimbursement of expenses it incurred in
finishing the road.
Notw/standing said resolution, P
brought action to prohibit Defendant Lao
Kee at al (other lumber concessionaires) fr.
using said road. The Lower Court ruled for
P, declaring that the questioned road is the
private property of P.
Issue: WON the road in question belongs
to Calapan as the latters private property.
Held: No. Decision reversed.
The fact that the completion of the
road was done at the expense of P does not
convert said road into a private one in the
absence of proof that said land (upon w/c
the road was constructed) was owned by P.
Indeed, P built the road in good faith & as
such it may be argued that P is entitled to
have possession of the road until after it
has been reimbursed of the expenses it has
incurred. However, provisions governing
the rights of builder in good faith on private
land cannot be applied here bec. public
interest is involved.

173

BAVIERA: Art. 448 does not apply bec. it


is public property. Remedy of Calapan is
reimbursement either fr. the toll fees
collection or payment of construction
expense w/ legal interest.

IGNACIO V. HILARIO, 76 PHIL. 605


Facts: The Lower Court declared Plaintiffs
Hilario & Dres the owners of the land in
question but conceded to Defendants
Ignacios the ownership of the houses &
granaries built by them on said lot w/ the
rights of possessor in GF. Thereafter, P filed a
motion praying that since they chose neither
to pay the building nor to sell the land, said
Ds defendants should be ordered to remove
the structures & restore P in the possession
of the lot. LC granted the motion.

There is no evidence that the first


survey was erroneous. Also, the difference
w/ the second survey is only 65 sq. m.
while the land Ps claiming is 87 sq. m.
Besides, said land of Ps is covered by a
Torrens title w/c is indefeasible. However,
CA correctly ruled that Ds constructed a
portion of their house on Ps land in good
faith. Thus, Ps have the option under Art.
448. E.g. (1) appropriate the land upon
payment of proper indemnity or (2) sell to
defendants said portion of land.

Issue: WON order of LC is in accord w/ the


law.

It is the opinion of the Court though


that it would be impractical for Ps to buy
that portion of the house standing on their
land, for that will render the whole building
useless. The more workable solution is for
Ps to sell to Ds that part of the land on w/c
was constructed a portion of Ds house. If
Ds are unwilling to buy, then they must
vacate the land & must pay rentals until
they do so.

Held: No. Decision reversed.

TAYAG V. YUSECO, 103 PHIL. 484

Owner has the option of paying the


value of the building or selling the land, He
cannot, as Ps here did, refuse to either to
pay or sell & compel the owner of the
building to remove it form the land where it is
erected. He is entitled to such remotion only
when, after having chosen to sell the land,
the other party fails to pay for the same.

Facts: As payment to defendant Atty.


Yusecos legal services, Maria offered him 2
parcels of land for D to build a house
thereon. A contract of lease was executed
covering
said
lots.
Thereafter,
D
constructed buildings thereon. Later, said
lands were sold by Maria to her daughter,
the Plaintiff Tayag. P asked D to remove the
house on said lots or pay monthly rentals.
D refused. In the action for ejectment, D
was declared a builder in GF & P was given
the option in Art. 448. P signified his
intention to appropriate the buildings so
proceedings continued to determine its
value. However, after determination of the
value of the buildings, P failed to pay.
However, P alleged that even if she had
already made a choice, she cannot be
compelled to pay the price fixed by the
court bec. of her inability to pay the same.

GRANA V. CA, 60 O.G. 1964


Facts: Plaintiffs Bongato & Sanchez filed an
action to recover 87 sq. m of land fr.
Defendants Grana & Torralba, on the ground
that Ds land originally surveyed to have 295
sq. m., on resurvey was found to have 230
sq. m., the difference being part of their (Ps)
land w/c is adjacent to PRs land. The Ds
have constructed in good faith a portion of
their house on the disputed piece of land.
The Lower Court ordered Ds to vacate
& deliver the said land to Ps & pay monthly
rentals of P10 fr. the time of the filing of the
complaint until they vacate the said land. CA
affirmed.

Issue: WON the owner can validly refuse


to pay for the improvements on his land
constr4ucted in GF?

Issue: WON LC decision is correct.

Once a party has made his choice,


& had duly informed the court of said
choice, & is accordingly ordered to comply
w/ the same by buying the building erected
on his land & pay the value thereof fixed by

Held: Yes. Affirmed.

Held: No.

174

the court, that duty is converted into a


money obligation w/c can be enforced by
execution, regardless of the unwillingness &
inability of the party concerned to pay the
amount.

BAVIERA: Rules on builder in GF not


applicable bec. builder must be in
concept of an owner. In CAB, it was in
the concept of a lessee or usufructuary
only)

FELICES V. IRIOLA, 50 O.G. 3123


Facts: Felices was the grantee of a
homestead over parcel of land. F sold said
land to Iriola w/ the condition that the deed of
absolute sale be executed later after 5 years
or as soon as allowed by law, pursuant to Art.
141. Two years, F tried to recover the land
but I refused unless he was paid the value of
the improvements thereon. Court found that
improvements were made only after he was
informed that P wanted to recover the land
thus in BF so not entitled to reimbursement.
Sale was declared null & void as it violated
the 5-year prohibitive period of sale under
the law. I contends that they both knew that
the sale was void so both are in BF, thus Art.
453 applies.
Issues: WON I should be reimbursed on the
basis of Is theory.
Held: No.
Art. 453 cannot be applied as the
improvements in question were made only
after F had tried to recover the land & even
during the pendency of the action in the LC.
After I refused to restore the land, F could no
longer be regarded as having impliedly
assented or conformed to the improvements
made thereafter. I continued to act in BF
when he made the improvements after he
was asked to restore possession of it to F.
(Note : Penalty for
improvements
w/o
reimbursement.)

bad faith: forfeit


any
right
to

IGNAO V. IAC, 193 SCRA 17

action for partition filed by the P, Lower


Court directed partition of the same,
allotting 2/8 thereof to PRs, & the rest to P.
No actual partition was effected. A few
years later, P brought action to recover
possession against PRs alleging that the
houses built thereon by PRs exceeded
their 2/8 portion. Lower Court held that
PRs were builders in GF & gave P the
option in Art. 448. But adopted Grana
ruling as to the workable solution. Thus, P
was ordered to sell part of the land
occupied by the houses of PRs
Issue: WON Art.448 is applicable to a
builder in GF on a property held in
common.
Held: Yes.
As a rule, Art. 448 cannot apply
where a co-owner builds, plants or sows on
the land owned in common for then he did
not build, plant or sow upon the land that
exclusively belongs to another, but of w/c
he is a co-owner. However, when the coownership is terminated by the partition &
it appears that the house of PRs overlaps
or occupies a portion of the land pertaining
to P w/c PRs obviously built in GF, then Art.
448 should apply.
BAR QUESTIONS.
Q: A owns land worth 500,000.
B built in a house on it worth 100,000 .
Both A & B are in GF.
A: A has the option to buy the house for
the same is a necessary & useful expense.
Q: If As lot increased to P550,000, how
much will A pay to B?
A: A will pay necessary & useful expenses.
Q: Assuming house is P900,000.
A: A can compel B to buy land. Does not
fall under the exception.
Q: In what situations may forced lease
arise?
A: If A chose that B buy the land, but the
value of the land is considerably more than
the value of the bldg.
3.

ALLUVION

Facts: Petitioner Ignao & his uncles, Private


Respondents Juan & Isidro Ignao were coowners of a parcel of land. Pursuant to an
175

Art. 457. To the owners of the lands


adjoining the banks of the rivers belong the
accretion w/c they gradually receive fr. the
effects of the current of the waters.

Tolentino:
takes place when the deposit of sediment
has reached a level higher than the
highest level of water during the year;
must be exclusive work of nature
Requisites:
(1) deposit be gradual & imperceptible
(2) made through the efforts of the current of
the water
(3) land where accretion takes place is
adjacent to the banks of the river
Banks of a River: refer to those lateral
strips or zones of its bed w/c are washed by
the stream only during such high floods as do
not cause inundation or to the point reached
by the river at high tide
Property Reviewer:
deposits made by human intervention are
not included
NB: But if owner constructs
purely defensive purposes
damaging action of the water,
deposits accumulate, the
deemed to be alluvion & will
riparian owner

works for the


against the
& bec. of this,
deposits are
belong to the

The owner of the riparian land does


not have to make an express act of
possession as the alluvion belongs to him fr.
the time that the deposit created by the
current of the water becomes manifest
Reasons for the rule:
(1) to compensate the owners for the losses
w/c they may suffer by erosion due to the
destructive forces of the waters
(2) to compensate them for the burdens of
legal easements w/c are imposed upon
them
(3) bec. it is the owner of the contiguous land
who can utilize the increment to the best
advantage
(4) bec. this is the only feasible solution since
the previous owner can no longer be
identified
(5) definition:
the gradual
deposit of
sediment by natural action of a current of
fresh water, not sea water, the original
identity of the deposit being lost
Art. 458. The owners of estates adjoining
ponds or lagoons do not acquire the land left
dry by the natural decrease of the waters, or

lose
that
inundated
extraordinary floods.

by

them

in

Tolentino:
only for ponds & lagoons
lagoons: a small lake, ordinarily of fresh
water, & not very deep, fed by floods,
the hollow bed of w/c is bound by
elevations of lands
REPUBLIC VS. CA 131 SCRA 532
Facts: Santos del Rio filed an application
for registration of a parcel of land situated
near the shore of Laguna de Bay. Director
of Lands opposed alleging that since a
portion of the land sought to be registered
is covered w/ water 4-5 months a year, the
same is part of the lake bed of Laguna or is
at least a foreshore land w/c brings it under
Art. 502, a property of public dominion and
hence, not subject of registration.
Issue: WON land should be registered in
favor of Santos del Rio
Held: Under A74 of the Law of Waters of
1866, lake bed is defined as the ground
covered by waters when at their highest
ordinary depth.
Meaning, the highest
depth of the water during the dry season,
such depth being the regular, common,
natural one w/c occurs most of the time of
the year. Although lakes are subject to the
same gravitational forces w/c cause
formation of tides in seas & oceans, such is
not a regular daily occurrence in lakes.
Thus, the alternation of high tides & low
tides could hardly account for the rise in
the water level of Laguna de Bay as
observed 4-5 months a year during the
rainy season. Rather, it is the rains w/c
bring about the inundation of a portion of
the land in question.
Water level w/c
causes the submersion of the land occurs
during a shorter period than the level of
water at w/c the land is completely dry.
The latter thus should be considered its
highest ordinary depth.
Neither can it be foreshore land, w/c
is a strip of land that lies between the high
& low water marks & is alternately wet &
dry according to the flow of the tide. The
submersion in water of a portion of the
176

land in question is due to the rains & not due


to the flux & reflux of tides.
IGNACIO VS. DIRECTOR OF LANDS 103
PHIL 335
Facts: Petitioner Ignacio filed an application
for registration of a parcel of mangrove land
in Navotas, alleging that he owned such by
right of accretion. Such land adjoins a parcel
owned by him w/c he acquired fr. the
government by virtue of a free patents title.
It was established that land was formed by
accretion & alluvial deposits caused by the
action of Manila Bay.
Director opposed,
contending that parcel is a foreshore land &
thus, part of the public domain.
Issue: WON the parcel of land is owned by
Ignacio by right of accretion
Held: NO. Land is part of the public domain.
A457 is not applicable since it refers to
deposits on the banks of the rivers , while
accretion in the case at bar was caused by
action of the Manila Bay. Applying the Law of
Waters w/c state that accretions caused by
action of the sea form part of the public
domain. A determination by the Government
that such land is no longer necessary for
purposes of public utility or for the
establishment of special industries or for the
coastguard service & a declaration that they
are part of the property of the owners of the
adjacent estates are required.
COMPANIA GEN. VS. VIDE 56 OG NO. 7,
P. 1418
Facts: Compania General owned a vast tract
of land bounded on the east & southeast by
the Cagayan River.
Vide was granted a
homestead patent & later on, an OCT over a
3 hectare property located east of
Companias land.
Santos filed a sales
application over a 3 hectare land located
south of Companias land. Petitioner sought
to recover said parcels of land fr. Vide &
Santos claiming that they were accretions
formed by the continuous action of the
Cagayan River.
Issue: WON land forms an island or are
accretions to Companias land
Held: Island. Accretion may be defined as
an addition to the riparian land gradually &
imperceptibly made by the water to w/c the

land is contiguous. Here, Compania failed


to show that the addition was gradual &
imperceptible. Also, in order to acquire
land by accretion, there should be a natural
& actual continuity of the accretion to the
land of the riparian owner. Here, there is a
natural depression between the hacienda &
the land w/c served as a natural dividing
line. This shows that at no time was the
disputed land part of the hacienda. The
accretion therefore could not have started
fr. Cs land.
The general rule is that
accretions belong to the land fr. w/c they
begin & in order to entitle the riparian
owner to alluvion, the accretion must begin
fr. his land & not fr. some other point so as
to finally reach his land.
Said land actually started as an
island & therefore part of the public
domain. Where the title to the bed of a
stream rests in the State, islands formed by
accretion to such bed belongs to the State
& not to the owner of either shore, & where
an island springs up in the midst of a
stream, it is an accretion to the soil of the
bed of the river & not to the land of the
riparian owner, although it afterwards
became united w/ the mainland.
YOROBE VS. SORETA 63 OG NO. 4, P.
1133
Facts: Yorobe owns land bounded on the
north by Pualino Galicia, east by Bula
Lake, south by a canal, & on the west by
the Bicol River. He brings this action to
exclude defendants fr. his land who entered
& occupied the northeastern portion
thereof. Defendants contend that Yorobe
bought only 6.7 hectares of land such that
he cannot expand said land by appending
to its eastern part about 30 hectares of
land left by when the water of Bula Lake
recedes after the rainy season, invoking
A458.
Issue: WON a lake is considered a pond or
lagoon & the law applicable is A458
Held: NO.
Lake is a body of water
surrounded by land, or not forming part of
the ocean, & occupying a depression below
the ordinary drainage level of the region.
Pond is a body of stagnant water; smaller
than a lake. And lagoon is a body of
shallow water at the mouth of the river or
177

connected w/ the sea. A pond or lagoon is


not considered as a lake.
What is applicable is A77 of the Law of
Waters w/c provides that lands covered by
the water of a lake only temporarily &
accidentally & for the shorter period of time
of the year are property of private ownership.
Even if the two parcels of land claimed by
appellants may be considered as accretions
gradually
deposited
by
accession
or
sediments fr. the water of Bula Lake, still
plaintiff should be considered as the owner of
the land bec. of A84 (Sorry guys, hindi sinabi
kung ano ang provision)
4. AVULSION
Art. 459. Whenever the current of a river,
creek or torrent segregates an estate on its
bank a known portion of land & transfers it to
another state, the owner of the land to w/c
the segregated portion belongs retains the
ownership of it, provided that he removes the
same w/in two years.
Tolentino:
portion of land must be such that it can
be identified as coming fr. a definite
tenement; must be a compact mass
may also be by other forces of nature, if
no provision on the matter is provided
if not removed, land is adjudicated to
owner of land to w/c it has been
transferred, even if removal is impossible
also applies where land is deposited on
the surface or on top of another
tenement; if known portion is broken or
soil loosens such that it mixes w/ that of
the tenement, there is no more known
portion--> the owner of the tenement w/
w/c the soil is merged becomes owner of
such soil
where known portion does not unite w/
another tenement, owner preserves the
right of ownership over said portion

Reasons for the 2-year restriction:


impractical to preserve w/o qualification
the ownership over the portion
owner of the tenement to w/c the
known portion was moved may be
deprived of the use of a portion of his
property
retention of ownership of known portion
may require the establishment of an
easement over the other tenement
there is a likelihood of cohesion
between the known portion of the land
& the tenement w/c has been
transferred
Effect of owners failure to remove land
w/in the 2-year period: adjudicated to
owner of the land to w/c it has been
transferred
Why? Because the transfer of land
creates a conflict of rights---right of
ownership of the original owner vs. the
right of accession of the owner of the
tenement to w/c it has been transferred.
Thus the remedies of the law are:
to preserve the right of the original
owner to recover & remove his property
to create a prescription in favor of the
person asserting accession if the 2-year
period is waived
Art. 460.
Trees uprooted & carried
away by the current of the waters belong
to the owner of the land upon w/c they may
be cast, if the owners do not claim them
w/in six months. If such owners claim
them, they shall pay the expenses incurred
in gathering them or putting them in a safe
place.

Property reviewer:
article refers to uprooted trees only;
even if the owner of the land upon w/c
the trees may have been cast
transplants them on his own to
preserve them, former owner still
preserves his ownership w/in 6 months

Property Reviewer:
Avulsion refers to the transfer of a
known portion of land fr. one tenement to
another by the force of the current
General Rule is that original owner
retains title to the land w/c has been
transferred to another tenement, except
when there is abandonment or upon
expiration of two years, whether the failure to
remove be voluntary or involuntary, &
irrespective of the area of the known portion
that has been transferred

REPUBLIC VS. CA 132 SCRA 514


Facts: Private
respondents
filed
an
application for the registration of three lots
adjacent to their fishpond property in
Meycauayan, Bulacan alleging that said
lots belong to them due to accretion. This
was opposed by the Republic, contending
that what actually happened was that Prs
merely transferred their dikes further down
the river bed such that whatever accretion
178

may have taken place was man-made & not


natural.
Issue: WON subject lands should
registered in favor of private respondents

be

Held: NO.
There is no accretion. The
requirement that the deposit should be due
to the effect of the current of the river is
indispensable. This excludes those caused
by human intervention. Alluvion must be the
exclusive work of nature. In CAB, evidence
showed that the alleged alluvial deposits
came into being not bec. of the sole effect of
the river current but as a result of the
transfer of the dike towards the river &
encroaching upon it. The land is not even
dry but under two meters of water. What the
respondents claim as accretion is really an
encroachment
of
a
portion
of
the
Meycauayan river by reclamation.
The
reason behind the law giving the riparian
owner the right to any land or aluvion
deposited by a river is to compensate him for
the danger of loss that he suffers bec. of the
location of his land.
Notes: Can a creek left dry be acquired?
NO, creek is actually an arm of a river so part
of the public property w/c can not be
acquired privately
5.ABANDONED RIVER BEDS

Art. 461. River beds w/c are abandoned


through the natural change in the course of
the waters ipso facto belong to the owners
whose lands are occupied by the new course
in proportion to the area lost. However, the
owners of the lands adjoining the old bed
shall have the right to acquire the same by
paying the value thereof, w/c value shall not
exceed the value of the area occupied by the
new bed.

Tolentino:
express act by new owners unnecessary;
automatic
must be a natural change in the course of a
stream; if through works constructed by
concessionaires
authorized
by
the
government, concession may grant it to
the former; if no grant, follow article w/o
prejudice to a superior right of 3rd
persons w/ sufficient title
if river bed dries up, continues to be property
of public dominion

Property Reviewer:
Requisites:
it must be sudden so the old river bed can
be identified (unless river disappears &
abandonment applies)
change must be permanent: rules do not
apply to temporary overflowing
Abandonment by the owner of the bed
- change of bed must be natural;
otherwise, becomes the subject of a state
grant
Art. 462. Whenever a river, changing
its course by natural causes, opens a new
bed through a private estate, this bed shall
become of public dominion.

Tolentino: natural bed of a river: ground


covered by its waters during ordinary
floods; of public ownership
Art. 58, PD 1067 (Water Code) When
the river or stream suddenly changes its
course to traverse private lands, the owner
of the affected lands may not compel the
government to restore the river in its
former bed; nor can they restrain the
government fr. taking steps to revert the
river or stream to its former course. The
owner of the land thus affected, are not
entitled to compensation for any damage
sustained thereby. However, the former
owners of the new bed shall be the owners
of the abandoned bed in proportion to the
area lost by each.
The owners of the affected lands may
undertake to return the river or stream to
its old bed at their own expense, provided
that permit is secured fr. the Secretary of
Public
Works,
Transportation
&
Communication & works pertaining thereto
are commenced w/in 2 years fr. the change
in the course of the river or stream.

HILARIO VS. CITY OF MANILA APRIL


27, 1967
Facts: The Hilario estate was bounded on
the west side by the San Mateo River, & on
the NW side, a bamboo & lumber post dike
or ditch was constructed, further fortified
179

by a stone wall built on the north side. A


great flood occurred & inundated the entire
place. The river destroyed the dike, left its
original bed & meandered into the Hilario
estate, segregating a lenticular piece of land
fr. the rest thereof. The disputed area is on
the eastern side of this strip w/c now stands
between the old river bed site & the new
course.
Issue: When a river, leaving its old bed,
changes its original course & opens a new
one through private property, would the new
riverbanks lining said course be of public
ownership also
Held: YES. Art. 73 of the Law of Waters
defines banks of a river as those lateral strips
or zones of its bed w/c are washed by the
stream only during such high floods as do not
cause inundations The intent of the law is
clear in considering the banks for all legal
purposes as part of the riverbed. Since,
undeniably, all riverbeds are part of public
ownership, it follows that the river banks, w/c
form part of them, are also of public
ownership.

PRESENTACION VS. EUGENIO 51 OG NO.


4, P. 1899
Facts: Plaintiff owns a parcel of land partially
bound on the southeast by the Pampanga
River. A portion of the river was closed by
constructing a fish trap. Consequently, its
bed dried up & the current eroded a portion
of the land lying south of the old bed, leaving
a certain portion of 10 has. This portion, w/c
is sandwiched by the old bed & the new river
became a veritable island & was used for
grazing purposes since 1916.
Defendant
claims that it is part of the land for w/c he
filed a homestead application, & w/c he
subsequently occupied.
Issue: WON the land to the south of the old
river bed belongs to plaintiff or is part of
public domain
Held: PART OF THE PUBLIC DOMAIN. Said
land is not an accession to pltffs property but
a part of the public domain. It cannot be
deemed an accession as there is no proof
that the same was formed subsequent to

pltffs land w/c is north of the Pampanga


River. Plaintiffs land & the land in question
must
have
co-existed
since
time
immemorial, otherwise the old Pampanga
river must have been as wide as a
kilometer or more, covering at this vicinity
as big as 10 hectares, more or less, w/c is
the area of the very land in dispute.
Def. is also not entitled to it. The
consequent abandonment of the bed of a
river, bec. of a change of its course, does
not ipso facto divest the public fr. its
ownership thereof, unless there is an
indication of an intention on the part of the
government to acquiesce in the change of
the course of the stream.
ISLANDS

IN

RIVERBEDS

Art. 463. Whenever the current of a


river divides itself into branches, leaving a
piece of land or a part thereof isolated, the
owner of the land retains his ownership.
He also retains it if a portion of land is
separated fr. the estate by the current.
Art. 464. Islands w/c may be formed on
the seas w/in the jurisdiction of the
Philippines, on lakes, & on navigable or
floatable rivers belong to the State.

Tolentino:
belong to patrimonial property of the State
w/c may sell them
navigable river: one w/c in its natural state
affords a channel for useful commerce
& not such as is only sufficient to float a
banca or canoe
Art. 465. Islands w/c through successive
accumulation of alluvial deposits are
formed in non-navigable & non-floatable
rivers, belong to the owners of the margins
or banks nearest to each of them, or to the
owners of both margins if the island is in
the middle of the river, in w/c case it shall
be divided longitudinally in halves. If a
single island that formed be more distant
fr. one margin than fr. the other, the owner
of the nearer margin shall be the sole
owner thereof.

Tolentino:
180

given to those nearest to the island since


they are in the best position to cultivate &
attend to the exploitation of such island
does not include:
those w/c are formed by the branching of a
river
those w/c are known portions of land fr. a
tenement & deposited in the middle of
the stream (to former owner)
all are effects of action of the water
( Alluvion, Avulsion, Change in River
Current, Formation of Island)
lahar is more of accretion than avulsion
accretion is not automatically covered by
Torrens system but owner has to apply
Notes:
Requisite: the island must have been formed
by deposits ( or the accumulation of
sediment) not identifiable
What are included:
islands formed in non-navigable & nonfloatable rivers because those formed in
navigable & floatable rivers belong to the
state
if equidistant fr. both banks --- goes to the
riparian owners, by halves
if nearer one margin or bank --- to the nearer
riparian owner
islands formed gradually by successive
accumulations of deposits by the waters
of the river, as in alluvion
new isles formed between an existing island
& the opposite river bank
islands formed by the sea
if w/in territorial waters --- belong to the state
if outside territorial waters --- belong to the
first occupant

Held: Eduave. CA has sufficient basis for


the finding that the property of PR actually
existed & was identified prior to the
branching-off or division of the river. Even
if that was not established, Prs are
nevertheless entitled to said land. Clearly,
the land in question is an island that
appears in a non-floatable & non-navigable
river. And it is not disputed that Prs are the
owners of the parcel of land along the
margin of the river & opposite the island.
Applying A465, the island belongs to the
owner of the parcel of land nearer the
margin. More accurately, bec. the island is
longer than the property of Prs, they are
deemed ipso jure to be the owners of that
portion w/c corresponds to the length of
their property along the margin of the river.
If however, the riparian owner fails to
assert his claim thereof, the same may
yield to the adverse possession of the third
parties, as indeed even accretion to land
titled under the Torrens system must itself
still be registered. Ps thus may acquire
said land by acquisitive prescription. But
here, Ps possession cannot be considered
to be in good faith, so 30 years of
possession is needed.
III. ACTION TO QUIET TITLE
ART. 476.

Whenever there is a cloud

on:
JAGUALING VS. COURT OF APPEALS 194
SCRA 607
Facts: Private respondents Eduave, et al are
the owners of land forming part of an island
in a non-navigable river. In 1964, said land
was eroded due to Typhoon Ineng, destroying
the bigger portion & improvements thereon.
Due to the movements of the river deposits
on the land that was not eroded, the area
was increased. Later, Eduave et al allowed
petitioners
to
introduce
improvements
thereon & live there as caretakers.
Petitioners however later denied PRs claim of
ownership so PR filed action to quiet title over
the property. RTC dismissed complaint. CA
reversed, ruling that the island was formed
by the branching off of the Tagalon River &
subsequent thereto, the accumulation of
alluvial deposits. Eduaves were declared as
the lawful & true owner of the land.

title to real property or


any interest therein,
by reason of any:
instrument,
record,
claim,
encumbrance or
proceeding
w/c is apparently valid or effective but
is in truth & in fact:
invalid,
ineffective,
voidable, or
unenforceable, &
may be prejudicial to said title,
an action may be brought to remove
such cloud or to quiet the title.
An action may also be brought to
prevent a cloud fr. being cast upon title to
real property or any interest therein.

Issue: Who has a better right to the island?


181

TOLENTINO:
cloud on title or matter complained of:
must have a prima facie appearance of
validity or legal efficacy
semblance of title appearing in some legal
form
but w/c is in fact unfounded.
invalidity
or
inoperativeness
of
instrument is
not apparent on its face, &
has to be proved by extrinsic evidence

the

illustrations of clouds removable by action:


title or lien w/c appears to have been
procured
by
fraud,
deceit,
or
misrepresentation
forged instrument
unauthorized or prohibited conveyances or
encumbrances by incapacitated persons
conveyance w/c is executed by one whose
title to the property had been divested
grant w/c is shown to have been subject to a
condition precedent, where it appears
that the condition has not been
performed
general rule: cloud w/c may be removed by
a suit to quiet title must be a written
assertion of ownership of or an interest in
property
qualification: a claim of right based on
acquisitive prescription or adverse possession
has been held to constitute a removable
cloud on title
the court has not only the:
power to remove an existing cloud, but also
the
power to prevent the casting of a cloud on
the title to property relief will be granted
if the threatened or anticipated cloud is
one w/c if it existed or completed, will
necessarily cast a cloud upon plaintiffs
title
ART. 477. The plaintiff must have:
legal or
equitable title to, or
interest in the real property
w/c is the subject-matter of the action.
He need not be in possession of said
property.

TOLENTINO:
general rule:
in order to
maintain an action to quiet title or remove a
cloud thereon, the plaintiff must have a legal
title to the property in question or some
interest therein

an action to quiet title or


remove a cloud therefr.
when the:
contract,
instrument or
other obligation
has been:
extinguished or has
terminated, or has been
barred by extinctive prescription.

TOLENTINO:
title & liens w/c have lost their force or
failed to enforce them ;
lien, interest, or title w/c has become
barred & unenforceable by reason of
delay & laches or the running of the
statute of limitations;
ex. mortgages w/c are unenforceable by
reason of the expiration of the period of
limitations;
ex. liens acquired by virtue of judgments
or levies of execution w/c have become
barred by limitations or by delay in
enforcing them;
have been held to be removable as clouds.
ART. 479. The plaintiff must return to
the defendant:
all benefits he may have received fr.
the latter, or
reimburse him for expenses that may
have redounded to the plaintiffs benefit.
ART. 480. The principles of the general
law on the quieting of title are hereby
adopted insofar as they are not in conflict
w/ this Code.

TOLENTINO:
In a suit to quiet title, defendant may set
up equitable as well as legal defenses:
acquisition of title by adverse possession
(however, when the property is in the
possession of the plaintiff, action to
quiet title thereto is imprescriptable)
prior adjudication of the question, under
the rule of res judicata
The court will decree such relief as is
necessary to completely & finally
dispose of the controversy.
In order to afford complete relief to the
parties, the court may determine
incidentally the status & ownership of
the legal title to the property, or the
right to the possession thereof.

ART. 478. There may also be:


182

ART. 481. The procedure for the quieting


of title or the removal of a cloud therefr. shall
be governed by such rules of court as the
Supreme Court shall promulgate.
1997 RULES OF COURT, RULE
Declaratory relief & similar remedies

63.

SECTION 1. Who may file petition. Any


person interested under a:
deed,
will,
contract or
other written instrument,
whose rights are affected by a:
statute,
executive order or
regulation,
ordinance, or
any other governmental regulation
may, before breach or violation thereof,
bring an action in the appropriate Regional
Trial Court:
to determine any question of construction
or validity arising, &
for a declaration of his rights or duties,
thereunder.

In 1947, the Villarin spouses executed a


deed of sale in favor of Josefina. Nicanora
then sought to obtain a separate title for
their portion of the land but Josefina
refused on the ground that the entire land
was still mortgaged w/ the PNB as
guarantee for a loan.
Nicanora continued enjoying possession
of their portion of the land, planting fruit
trees & receiving rentals fr. the buildings.
In 1953, w/ Josefinas consent, Nicanora
had the land resurveyed & subdivided
preparatory to their obtaining separate
titles thereto.
A fence was thereafter
erected to demarcate the division.
Nicanora continued to insist on obtaining a
separate title but Josefina refused.
Nicanora engaged the services of Atty.
Bonifacio Regalado, & then Atty. Aquilino
Pimentel, Jr. to intercede, but to no avail.
Hence, case in TC. TC rendered judgment
for Nicanora.

An action:
for the reformation of an instrument,
to quiet title to real property or remove
clouds therefr., or
to consolidate ownership under Art. 1607
of the Civil Code,
may be brought under this Rule.

On appeal, the CA reversed on the


ground that since Nicanoras right of action
is allegedly based on the receipt executed
in 1946, the same has prescribed pursuant
to Art. 1144 of the CC w/c must be brought
w/in 10 years fr. the time the right of action
accrues. When the complaint was filed, 22
years & 26 days had elapsed. Hence this
appeal.

BUCTON V. GABAR

ISSUE:
Whether or not the action of
Nicanora has prescribed. No!

FACTS: In 1946, Josefina bought a parcel of


land fr. the Villarin spouses, payable in
installments. Josefina, then entered into a
verbal agreement w/ Nicanora whereby the
latter would pay 1/2 of the price (P3,000.00)
& would then own 1/2 of the land.
Nicanora paid P1,000 in 1946 & P400 in
1948.
Both were evidenced by receipts
issued by Josefina.
After payment of the P1,000, Nicanora
took possession of the portion of the land
indicated to them by Josefina & built thereon
a nipa house. Subsequently, the nipa house
was demolished & replaced by a house of
strong materials, w/ 3 apartments for rental
purposes.

HELD:
The real & ultimate basis of
Nicanoras action is their ownership of 1/2
of the lot coupled w/ their possession
thereof, w/c entitles them to a conveyance
of the property.
In Sapto, et. al. vs.
Fabiana, the Court, through J.B.L. Reyes,
explained that under the circumstances, no
enforcement of the contract is needed,
since the delivery of the possession of the
land sold had consummated the sale &
transferred title to the purchaser, & that,
actually, the action for conveyance is one
to quiet title, i.e., to remove the cloud upon
Nicanoras ownership by the refusal of the
Josefina to recognize the sale made. We
held therein: The prevailing rule is that the
right of a plaintiff to have title to land
quieted, as against one who is asserting
183

some adverse claim of lien thereon is not


barred while the plaintiff or his grantors
remain in actual possession of the land,
claiming to be owners thereof. The reason for
this rule being that while the owner in fee
continues being liable to an action,
proceeding or suit upon the adverse claim, he
has a continuing right to the aid of a court of
equity to ascertain & determine the nature of
such claim & its effect on his title, or to assert
any superior equity in his favor. He may wait
until his possession is disturbed or his title is
attacked before taking steps to vindicate his
right.
But the rule that the Statute of
Limitations is not available as a defense to an
action to remove a cloud fr. title can only be
invoked by a complainant when he is in
possession. One who claims property w/c is
in possession of another must, it seems,
invoke his remedy w/in the statutory period.

BAVIERA NOTES: Even though the Civil


Code does not include an action to quiet
title as one of those actions w/c are
imprescriptable, the SC in this case held
that such action is imprescriptable.
BASIS of SC:
Art. 480, CC.
The
imprescriptability of an action to quiet
title is a general principle fr. American
jurisprudence.

GARCIA V.CA
FACTS: In 1918, a deed of sale over 2
parcels of land was executed in favor of 1 st
vendee. The deed w/c itself contains entries
showing that it was annotated on the back of
the OCT was presented for registration. But
for some reason, the deed of sale was not
annotated on the OCT so said title was not
canceled. As a result of registration, TCT was
issued to 1st vendee (but w/o the OCT being
canceled).
Subsequently, 1st vendee
constituted a mortgage on said land & made
transfers.
In 1962, TCT was issued to 2nd vendee
covering the same parcels of land. 2nd vendee
later mortgaged the land & sold a part of it
w/c the 3rd vendee also mortgaged. When
they defaulted, the banks foreclosed the
mortgages. When 1st vendee learned of the
acquisition by 2nd vendee of the land, he
registered an adverse claim over their titles.
1st vendee filed an action to quiet title against
2nd vendee.

ISSUE: Who has better title, 1 st vendee or


2nd vendee? 1st vendee!
HELD: 1st vendee was clearly an innocent
purchaser for value (IPV).
He validly
transmitted to his successors-in-interest his
indefeasible title over the disputed lots.
That title could not be nullified or defeated
by the issuance 43 years later to other
persons of another title over the same lots
due to the failure of the registry of deeds to
cancel the title preceding the title issued to
1st vendee. This must be so considering
that 1st vendee & his successors-in-interest
remained in possession of the disputed lots
& their rival claimants never possessed the
same. Where 2 certificates of title purport
to include the same land, the earlier in date
prevails.

BAVIERA NOTES: Action to quiet title is


appropriate where two seemingly
authentic TCTs are involved.

JALANDONI V. PNB
FACTS: On March 31, 1959, the CFI of
Manila
rendered
judgment
ordering
Jalandoni to pay PNB. Said order became
final & executory.
On March 9, 1964, w/in 5 years fr. the
entry of judgment, the sheriff levied upon a
lot w/ an area of 17 hectares, covered by a
TCT in the name of Jalandoni. The levy was
annotated on the title as a notice of
embargo. No effort was made to have the
land sold at public auction to satisfy the
judgment against Jalandoni.
On April 22, 1974, or more than ten
years after the levy was made, Jalandoni
filed w/ the CFI in a land registration
proceeding, a petition for the cancellation
of the levy on the ground of prescription.
The petition was opposed by the bank.
The lower court asked Jalandoni to ask
the Manila court to quash the writ of
execution on the ground of prescription &
thereafter to refile the petition w/ the lower
court.
for

Jalandoni filed an action to quiet title or


the cancellation of the notice of
184

embargo on the ground that more than 10


years have elapsed fr. the time the levy was
made, & no execution sale have been made.
Therefore, levy had become inefficacious &
was a cloud on his title.
ISSUE: Whether an action to quiet title can
be availed of to cancel a notice of embargo
on the title. Yes!
HELD: An action upon a judgment must be
brought w/in 10 years fr. the time the right of
action accrues (Art. 1144 CC). As clarified in
the Rules of Court, prescriptive period means
that a judgment may be executed on motion
w/in 5 years fr. the date of its entry or fr. the
date it becomes final & executory, & after the
lapse of such time, & before it is barred by
the Statute of Limitations, a judgment may
be enforced by action. In Ansaldo v. Fidelity
& Surety Co., it was held that properties
levied upon on execution must be sold in
public auction w/in the period of ten years
during w/c the judgment can be enforced by
action. The reason for this rule is that an
execution is enforced by levy & sale, not by
levy alone.
The employees of the bank were
negligent. They did not require the sheriff to
sell Jalandonis land at public auction. The
bank is bound by its employees negligence.
The law helps the vigilant & not those who
sleep on their rights. This may serve alike as
a punishment for those who do not look after
their own interests & as a source of
reassurance to those who may have rested in
the belief that their creditors have waived
their rights & also to insure economic stability
& certainty of rights.
The notice of embargo is no longer
enforceable & has become a cloud upon his
title. Following the rule in the Ansaldo case,
he & his heirs have a good cause of action
under Art. 476 of the Civil Code for the
removal of any encumbrance.
Art. 478
provides that there may also be an action to
quiet title or to remove a cloud therefr. when
the contract, instrument or other obligation
has been extinguished or has terminated or
has been barred by extinctive prescription.
A court of equity will remove a cloud cast
upon a title to property by lien, interest or
title w/c has become barred by reason of
laches. Liens w/c were acquired by virtue of
judgments or levies of execution & w/c has
become barred by limitations or delays in

enforcing them have been held removable


as clouds.
LAYNO V. CA
FACTS: In the inventory of the properties
of the deceased, his administrator included
a parcel of land w/ an area of 5,417 square
meters.
But in the title, the area
denominated was 8,752 sq. meters. Upon
survey of the land, administrator found that
the northwestern portion of 3,732 sq.
meters was occupied by a 3rd person. As
the 3rd person-occupant refused to vacate,
administrator filed action for recovery,
while
3rd
person-occupant
sought
reconveyance of the property.
ISSUE: Who has better title, deceased or
the 3rd person-occupant?
3rd personoccupant!
HELD:
Evidence discloses that said
portion was originally possessed openly,
continuously & uninterruptedly in the
concept of an owner by 3rd personoccupants deceased father.
Upon the
latters
death,
3rd
person-occupant
adjudicated said property to herself & paid
taxes thereon.
Tacking the previous
possession of his father, 3rd person had
been in possession for about 45 years. On
the other hand, the deceased, during his
lifetime, never took steps to possess or lay
adverse claim to the portion in question.
Prescription cannot be invoked against
3rd person-occupant for the reason that as
lawful possessor & owner of said portion,
her cause of action for reconveyance w/c,
in effect, seeks to quiet title to the
property, falls w/in settled jurisprudence
that an action to quiet title to property in
ones possession is imprescriptible. Her
undisturbed possession over a period of 52
years gave her a continuing right to seek
aid of a court of equity to determine the
nature of the adverse claim of a third party
& effect on her own title.
BAVIERA NOTES: This was originally an
action for reconveyance based on
implied trust.
In this case the
deceased & the 3rd person-occupant
were relatives. During the lifetime of
the deceased, the two had an
understanding that the 3rd personoccupant would reconvey the portion
185

belonging to the deceased upon the


latters getting title over the whole
property. This action prescribes in 10
years fr. issuance of title on ground of
breach of trust.
However, in the
present case, the action did not
prescribe bec. no repudiation was
made.
The deceased became the
registered owner but did not disturb
possession of the 3rd person-occupant,
who has been in possession since time
immemorial.
Even the administrator
recognized the possessors title.

TOLENTINO:

The SC, however, construed this


action as an action to quiet title w/c is
imprescriptable
as
long
as
in
possession, applying the holding in
BUCTON v. GABOR, applying American
jurisprudence.

alterations
have a more permanent result &
relate to the substance or form of
the thing

But Maam says this is wrong bec.


the title was quieted a long time ago,
the property being covered by an OCT.
IV. CO-OWNERSHIP

ART. 492. For the:


administration &
better enjoyment
of the thing owned in common,
the resolutions of the majority of the coowners shall be binding.
There shall be no majority unless the
resolution is approved by the co-owners who
represent the controlling interest in the object
of the co-ownership.
Should there be:
no majority, or should the
resolution of the majority be seriously
prejudicial to those interested in the property
owned in common,
the court, at the instance of an interested
party, shall order such measures as it may
deem proper, including the appointment of
an administrator.
Whenever a part of the thing belongs
exclusively to one of the co-owners, & the
remainder is owned in common, the
preceding provisions shall apply only to the
part owned in common.

administration & better enjoyment of the


common property contemplates acts or
decisions for the common benefit of all the
co-owners & not for the benefit of only one
or some of them
acts of administration:
refer to the enjoyment & preservation of
the thing
have transitory effects
even alterations w/c do not affect the
substance or form of the thing fall
under this article

query: can a mere majority of the coowners lease real or immovable property
for any length of time?
answer: special powers are required for
leases of real property by an administrator
in the following cases:
when the lease is to be recorded in
the Registry of Property
Art. 1648. Every lease of real property
may be recorded in the Registry of
Property. Unless a lease is recorded, it shall
not be binding upon 3rd persons.
Art. 1647. If a lease is to be recorded in
the Registry of Property, the following
persons cannot constitute the same w/o
proper authority: . . . the manager w/o
special
power.
(the lease ceases to be an act of
administration when it is to be recorded in
the Registry of Property)
Art. 1878 provides that a special power of
attorney shall be necessary to lease any
real property to another person for more
than one year.
Thus, in these two cases, a mere majority
of the co-owners cannot constitute the
lease
Who may manage the property?
The
management of community property lies,
in the first place, in the co-owners
themselves.
In this management, the majority of
interests control, & their decisions are
binding upon the minority. However, in
making decisions, the majority should
186

notify the minority, so that the latter can be


heard.
The majority will be justified in proceeding
w/o previous consultation w/ the minority,
only when the urgency of the case & the
difficulty of the meeting so require.
The administration may be delegated by the
co-owners to one or more persons, whether
co-owners or not.
The powers & duties of such administrators
are governed by the rules on agency. Thus,
the administrator cannot, w/o the unanimous
consent of all the co-owners, compromise on,
donate,
cede,
alienate,
mortgage
or
encumber in any manner the common
property.
When there is no majority, or when the
resolutions of the latter are seriously
prejudicial to the co-ownership, the court
may appoint an administrator, whose powers
& duties as are defined in his appointment
Examples of acts seriously prejudicial:
When the resolution calls for a
substantial change or alteration of
the common property or of the use
to w/c it has been dedicated by
agreement or by its nature
When the resolution goes beyond the
limits of mere administration, or
invades the proprietary rights of
the co-owners, in violation of Art.
491, w/c states, None of the coowners shall, w/o the consent of
the others (unanimous consent),
make alterations in the thing held
in common, even though benefits
for all would result therefr..
However, if the w/holding of
consent by one or more of the coowners is clearly prejudicial to the
common interest, the courts may
afford adequate relief.
When the majority authorize leases,
loans, or other contracts w/o
security, exposing the thing to
serous danger to the prejudice of
the other co-owners
When the resolution, if carried out,
would cause serious injury to the
thing itself, such as an agreement
not to borrow money under
reasonable terms when it is
necessary for urgent repairs for
preservation, or for the payment
of taxes.
ART. 494. No co-owner shall be obliged to
remain in the co-ownership. Each co-owner
may demand at any time the partition of the
thing owned in common, insofar as his share
is concerned.

Nevertheless, an agreement to keep


the thing undivided for a certain period of
time, not exceeding 10 years, shall be
valid. This term may be extended by a
new agreement.
A donor or testator may prohibit
partition for a period w/c shall not exceed
twenty years.
Neither shall there be any partition
when it is prohibited by law.
No prescription shall run in favor of a
co-owner or co-heir against his co-owners
or co-heirs so long as he expressly or
impliedly recognizes the co-ownership.

TOLENTINO:
The mere fact that the partition of the
property may affect the usefulness or
value of the whole is not a valid excuse
for a refusal to have it partitioned
among the co-owners. Such result is a
necessary incident of co-ownership.
Action for partition is imprescriptable, as
long as the co-ownership is recognized.
Gen. Rule: possession by one co-owner
will not be regarded as adverse to the
other co-owners, but in fact as
beneficial to all. Exception: If co-owner
holds the property in exclusive adverse
possession, asserting sole & exclusive
ownership, for the required prescriptive
period, he can acquire sole title to it as
against the co-owners.
It must be
shown by clear & convincing evidence
that he has repudiated the coownership, & that the other co-owners
have been apprised of his claim, before
the prescriptive period begins to run.
Exceptions: Partition can not be asked in
the following cases:
When the co-owners have agreed to
continue in the co-ownership for the
period permitted by law (period of
indivision cannot be more than ten
years; this period may be extended by
the co-owners, provided that each
extension does not exceed ten years;
where parties stipulate a definite period
of indivision exceeding the maximum
period allowed by law, the stipulation
would be void only as to the period
beyond such maximum)
When the co-ownership is imposed as a
condition in a donation or a will
When the partition will render the thing
unserviceable for the use & the purpose
for w/c it is intended, the co-ownership
may be terminated in accordance w/
Art. 498 (sale of the thing & distribution
of its proceeds)
187

SINGSON V. VELOSO

PHILIPPINE WATER CODE, PD 1067

FACTS:
The co-heirs, inherited a parcel of
land. Due to transfers among themselves.
One co-owner became majority owner. She
was also administratrix.
Later, she built
thereon a building & leased it. She credited
the co-ownership w/ rentals for the use of the
land. The rentals of the building, however,
she appropriated for herself since, she claims
that she alone defrayed the expenses for the
building.
The other co-heirs claim that
majority co-owner should account for all the
rentals including that of the building.

All waters belong to the State even


those located in private lands, & cannot be
acquired by prescription. Permit must be
obtained for water use, except for domestic
purposes. Only water collected in tanks &
pools belonging exclusively to the owner of
the land in w/c water is isolated may be
placed under the exclusive control &
disposal of such owner.

ISSUE: Whether or not majority co-owner


must account for all the rentals of the
property, irrespective of whether or not she
defrayed the costs of constructing the
building w/ her own money. Yes!

a. Continuous or intermittent waters


rising on
such
land;
Lakes & lagoons naturally occurring on
such lands;
Rain water falling on such lands;
Subterranean or ground waters; &
Waters in swamps & marshes.

HELD:
The construction of the building is a
definite alteration & should therefore have
the unanimous consent of all co-owners,
otherwise Art 491 would be violated . Even
assuming that it was a mere act of
administration & that as majority owner her
decision prevails, there is a requirement that
before such a decision is made, there should
be notice to the minority co-owners so that
they can be heard. The majority would be
justified in proceeding w/o consultation only
when the urgency of the case & the difficulty
of meeting w/ them render impracticable the
giving of such notice. In this case, the other
co-owners were never given notice. Also, the
term administration & better enjoyment of
property contemplates acts or decisions for
the common benefit of all the co-owners &
not the benefit of only one or some of them.
The construction of the building is for
the account & benefit of the co-ownership.
The majority co-owner should account to the
other co-owners for their shares in the rentals
of said building, deducting the cost of
construction.
BAVIERA NOTES: The co-owners should
share in the rentals but w/ the
obligation to pay their share of the
costs of the building.

ART. 6. The following waters found on


private lands also belong to the State:

The owner of the land where the


water is found may use the same for
domestic purposes w/o securing a permit,
provided that such use shall be registered,
when required by the Council (National
Water Resources Council). The Council,
however, may regulate such use when
there is wastage, or in times of emergency.
ART. 14. Subject to the provisions of this
Code concerning the control, protection,
conservation
&
regulation
of
the
appropriation & use of waters, any person
may appropriate or use natural bodies of
water w/o securing a water permit for any
of the following:
Appropriation of water by means of
hand-carried receptacles; &
Bathing or washing, watering or dipping
of domestic or farm animals, & navigation
of watercrafts or transportation of logs &
other objects by floatation.

VI. POSSESSION
A. RIGHT

TO FRUITS

V. WATERS
188

ART. 544. A possessor in good faith is


entitled to the fruits received before the
possession is legally interrupted.
Natural & industrial fruits are considered
received fr. the time they are gathered or
reserved.
Civil fruits are deemed to accrue daily &
belong to the possessor in good faith in that
proportion.
TOLENTINO:
When the owner or a possessor w/ a better
right comes along, & when he hears the
grounds in support of the adverse
contention, his good faith ceases.
The legal interruption of possession in good
faith, however, takes place when the
action is filed against him & he is served
w/ summons. Hence, all fruits that the
possessor may receive fr. the time that he
is summoned, or when he answers the
complaint, must be delivered or paid by
him to the owner or lawful possessor. If
the property bears no fruits, the
reasonable rents fr. such time should be
paid by the possessor, in the concept of
civil fruits.
Where it is proved, however, that the good
faith of the possessor ceased before the
legal interruption of the possession, then
he must restore the fruits received fr. the
time such good faith ceased.
ART. 545. 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, & to
a part of the net harvest,
both in proportion to the time of the
possession.
The charges shall be divided on the same
basis by the two possessors.
The owner of the thing may, should he so
desire, give the possessor in good faith the
right to finish the cultivation & gathering of
the growing fruits, as an indemnity for his
part of the expenses of cultivation & the net
proceeds; the possessor in good faith who for
any reason whatever should refuse to accept
this concession, shall lose the right to be
indemnified in any other manner.

ART. 549. The possessor in bad faith


shall:
reimburse the
fruits received &
those w/c the legitimate possessor
could have received, &
shall have a right only to the
expenses mentioned in paragraph 1 of
Article 546 (necessary expenses) &
in article 443 (expenses in the
production, gathering, & preservation of
the fruits, if the lawful owner or possessor
chooses to appropriate the fruits).
The expenses incurred in improvements
for

pure luxury or
mere pleasure
shall not be refunded to the possessor
in bad faith; but he may remove the
objects for w/c such expenses have been
incurred, provided that the:
thing suffers no injury thereby & that
the
lawful possessor does not prefer to
retain them by paying the value they may
have at the time he enters into possession.

TOLENTINO:
A possessor in bad faith has no right to
receive any fruits.
Those already
gathered & existing will have to be
returned; w/ respect to those lost,
consumed, or w/c could have been
received, he must pay the value. The
ungathered fruits will go to the lawful
possessor or owner.
The amount of the fruits that could have
been received is determined by the
personal circumstances of the lawful
possessor better facilities, resources,
industry, or skill.
The possessor in bad faith is entitled to
reimbursement for necessary expenses,
but he has no right of retention. As to
useful expenses, he has no right to
reimbursement, bec. the law says he is
entitled only to necessary expenses.
ART. 1123. Civil interruption is produced
by judicial summons to the possessor.
ART. 449. He who builds, plants or sows
in bad faith on the land of another, loses
what is built, planted or sown w/o right to
indemnity.

189

WARD V. DELFIN
FACTS:
Several days before the
occupation, owner brought his car to a friend
for safekeeping. During the occupation, car
owner, being an American, was interned in
UST.
In the meantime, one Major Orais,
succeeded in pressuring his wife to sign a
deed of sale of the car in his favor for P500 in
Mickey mouse money. After liberation, car
owner brought an action to recover said
properly fr. a Bautista to whom the car was
sold by Orais.
Bautista contends that
assuming arguendo that Maj. Orais obtained
the car against the wifes consent & that the
execution of the Deed of Sale was obtained
through improper pressure & compulsion, he
is, nonetheless a purchaser & consequently,
a possessor in good faith. He may be ordered
to return the car to the owner; but he must
be reimbursed necessary expenses (for repair
& improvement) he incurred; & he is entitled
to retain the car until payment. LC ordered
Bautista to pay P2,200 as value of the car &
P300 for damages.
Car owner appeals
alleging that he is entitled to the earnings of
the car while in possession of Bautista who
used it in transporting passengers.
ISSUE: What are the rights & obligations of
Bautista?
HELD: Bautista bought the car fr. the wife in
whose name the car was registered. There
was no evidence that he acted in bad faith.
Thus, since he was a bona fide possessor of
said car, he could therefore lawfully dedicate
it to business & reap its proceeds pursuant to
Art. 544, CC. The car owner has no right to
the earnings of such car while in the good
faith possession of Bautista.

BAVIERA NOTES:
Income fr. the car
lawfully belongs to the possessor in
good faith (PGF). From the time that
PGF was informed of the car owners
adverse claim, he became a PBF. He
was not ordered to account for the
proceeds of the car fr. the time he
became a PBF bec. he also made repair
& improvements in the car. SET-OFF.

MARFORI V. VELASCO
FACTS: Owner of the land filed an action
against the possessors of her land, claiming

that the latter occupied her lands w/o her


consent, & continue to occupy the lands &
to enjoy the fruits thereof despite her
demands for them to vacate.
Possessors, on the other hand, contend
that they occupied the lands pursuant to
the information given them by owners
husband who was then mayor, that they
may clear, occupy, & cultivate the lands, &
that after 10 years of occupation, titles of
ownership would be issued to them.
ISSUE:
Whether or not possessors are
PGF. Yes!
What are the rights & obligations of
such PGF?
HELD:
Inasmuch as PGF introduced
permanent improvements on the land in
good faith, that is, w/o being aware of any
flaw in their mode of acquisition, Art. 448
should apply in the determination of their
rights. Hence, the expenses they incurred
in clearing & improving the land should be
refunded to them.
However, PGF became PBF upon filing of
the complaint herein, for it was then that
they learned of the owners registered title
over the lands. From then on, they lost
their right to the fruits & should account for
those received by them thereafter,
according to Arts. 544 & 549, CC.

BAVIERA NOTES:
Fruits harvested
during possession in bad faith must
be accounted for, minus necessary
expenses during possession in good
faith & possession in bad faith.
B.
RIGHT
IMPROVEMENTS;
DETERIORATION

TO

EXPENSES
RISK

&
OF

Art. 546. Necessary expenses shall be


refunded to every possessor; but only the
possessor in good faith may retain the
thing until he has been reimbursed
therefor.
Useful expenses shall be refunded only
to the possessor in good faith w/ the same
right of retention, the person who has
defeated him in the possession having the
190

option of refunding the amount of the


expenses or of paying the increase in value
w/c the thing may have acquired by reason
thereof.
Art. 547. If the useful improvements can
be removed w/o damage to the principal
thing, the possessor in good faith may
remove them, unless the person who
recovers the possession exercises the option
under par.2 of the preceding article.
Art. 548. Expenses for pure luxury or
mere pleasure shall not be refunded to the
possessor in good faith; but he may remove
the ornaments w/ w/c he has embellished the
principal thing if it suffers no injury thereby, &
if his successor in the possession does not
prefer to refund the amount expended.
Art. 552. A possessor in good faith shall
not be liable for the deterioration or loss of
the thing possessed, except in cases in w/c it
is proved that he has acted w/ fraudulent
intent or negligence, after the judicial
summons.
A possessor in bad faith shall be liable for
deterioration or loss in every case, even if
caused by a fortuitous event.
Art. 450. The owner of the land on w/c
anything has been built, planted or sown in
bad faith may demand the demolition of the
work, or that the planting or sowing be
removed, in order to replace things in their
former condition at the expense of the person
who built, planted or sowed; or he may
compel the builder or planter to pay the price
of the land, & the sower the proper rent.
Art. 2121. Pledges created by operation
of law, such as those referred to in Articles
546, 1731 & 1994, are governed by the
foregoing articles on the possession, care &
sale of the thing as well as on the termination
of the pledge. However, after payment of the
debt & expenses, the remainder of the price
of the sale shall be delivered to the obligor.
ORTIZ V. KAYANAN
Facts: The lot in question was formerly
subject of a homestead application by Martin
Dolorico II, Ortizs ward. Upon Martins death,
Ortiz continued cultivation & possession of
said property w/o filing any application to

acquire title thereon.


Martins heirs
relinquished their rights over the property
in favor of the defendants. The latter filed
their respective sales application, w/c Ortiz
opposed.
The Secretary of Agriculture
dismissed such opposition. On appeal, the
CFI awarded a portion to defendants & the
other portion to be subject of auction sale.
And that should Ortiz not be declared a
successful bidder thereof, the defendants
be ordered to reimburse Ortiz for the
improvements he introduced therein, Ortiz
having the right to retain the property until
after he has been fully paid therefor.
Issue: WON Ortiz is entitled to retain for
his own exclusive benefit all the fruits of
the property?
Held: NO. From the time of the filing of
the action in court, possession in good faith
ceases & all the fruits that the possessor
may receive fr. that time must be delivered
& paid to the owner or lawful possessor.
However, even after GF ceases, the
possessor in fact can still retain the
property until he has been fully reimbursed
for all the necessary & useful expenses
made by him. This right of retention is
accessory to a principal obligation.
Considering that the right of the possessor
to receive the fruits terminates when his
good faith ceases, it is necessary, in order
that this right to retain may be useful, to
concede to the creditor the right to secure
reimbursement fr. the fruits of the property
by utilizing its proceeds for the payment of
the interest as well as the principal of the
debt while he remains in possession.
This right of retention is considered
not a coercive measure to oblige the
debtor to pay, depriving him temporarily of
the enjoyment of the fruits of his property,
but as a means of obtaining compensation
for the debt. The right of retention is
analogous to a contract of antichresis & it
can be considered as a means of
extinguishing the obligation, inasmuch as
the right to retain the thing lasts only for
the period necessary to enable the creditor
to be reimbursed fr. the fruits for the
necessary & useful expenses.
Note: In the contract of antichresis, the
creditor acquires the right to receive the
fruits of an immovable of his debtor w/ the
obligation to apply them to the payment of
191

the interest, if owing, & thereafter to the


principal of his credit. The debtor cannot
reacquire enjoyment of the immovable until
he has actually paid what he owes the
creditor.
CASE V. CRUZ
Facts:
Petitioner owned a truck w/c
disappeared during the Japanese occupation.
After liberation, inquiries revealed that the
defendant had registered in his name a truck
w/ the same motor number.
Petitioner
brought an action for replevin. The LC ruled
for petitioner & ordered defendant to return it
but ordered petitioner to pay defendant, as a
possessor in GF, the amount the latter spent
in rebuilding the engine.
Issue(s) WON Cruz was in bad faith? YES.
WON Cruz should be reimbursed for his
expenses? NO.
Held: Defendant is a possessor in bad faith.
Cruz was bound to suspect the illegal origins
of the motor & chassis, considering that this
was shortly after the Japanese occupation.
The fact that the motor was incomplete w/
several parts missing should have led Cruz to
question the certificate of registration shown
to him by the vendor. Further, necessary
expenses are those incurred for the
preservation of the thing.
In CAB, the
addition of parts to complete the engine &
place it in working condition were not merely
aimed at preserving the motor acquired fr.
further deterioration but for improving the
same.
The good faith of a possessor consists
in the absence of knowledge of a defect that
invalidates his title. It is a belief that the
person fr. whom he received the thing was
the owner thereof & could transmit the title
thereto & w/c belief must be well-founded or
reasonable.
CALANG V. SANTOS
Facts: Petitioners are co-owners of a parcel
of land w/c they sold to defendants w/ right to
repurchase w/in 10 years. Subsequently, the
petitioners sought to repurchase the land &
tendered the amount of P200 but defendants
refused. Petitioners deposited the amount in
court. The LC ruled in petitioners favor &
ordered defendants to convey the land to the
petitioners & to remove all improvements

made at their own expense. Defendants


appealed, claiming that the court erred in
not holding that they were entitled to the
value
of
the
necessary
&
useful
improvements on the property made in
good faith.
Issue: WON the improvements on the
land are necessary or useful, thus entitled
defendants to be paid their value? NO.
Held: Necessary expenses are those made
for the preservation of the thing & w/o w/c
it would be lost. A useful expense is one w/
w/c the thing better serves the purpose for
w/c it was intended & thus adds value to
the same. The improvements made in the
CAB, including the main road, the cutting of
trees & long grasses, removing fallen trees
fr. the area, leveling the sawmill site, etc.,
were useful only to a sawmill operator. The
land in question was intended by the owner
to be agricultural land & never as a
compound for a sawmill. Therefore, the
improvements were inconsistent w/ the
agricultural nature of the land. Therefore,
they cannot be deemed as useful
improvements for w/c they can be
reimbursed.
BAQUIRAN V BAQUIRAN
Facts: 6 parcels of land are held under coownership by plaints & defs. One of the
son of the co-owners, Maximo (P), built his
house on 2 of the 6 lots. In the action for
partition, the court ordered the lots to be
divided bet Ps & Ds exc Max & that the Ps
are entitled to acquire the house or to
compel him to pay them the price of the 2
lots on q/c the house was built. Should the
Ps choose to acquire the house, Max shall
have the rt. to retain the same until the
amount of the house is satisfied. Max is
ordered to pay the rentals until Ps have
acquired his house or until Max shall have
chosen to buy the 2 lots.
Issue: WON Max should be made to pay
rents.
Held: NO. Max cannot be made to pay
the rentals. Max's house falls w/in the
scope of the term useful expenses. Since
he built it in GF he has the rt. to retain it
pending reimbursement. This rt. extends
to the land itself bec the rt. to retain the
improvements while the indemnity is not
192

paid implies the tenancy or possession in fact


of the land on w/c they are built. Thus, the
owner of the land has no rt. to demand rents
for the occupation thereof by the builder in
GF pending the payment of the indemnity or
the sale of the land to the latter, w/cever is
the choice of the said owner.
MARCELINO V MIGUEL
Facts: A patent was issued in favor of def
Miguel over a lot by the Bureau of Lands.
The OCT was issued in his name. The plaint
Marcelino also has a pending applic over a lot
adjoining Mig's. This was also approved but
no patent has been issued. Both Mig & Marce
entered into possessions of their lots &
started cultivating the same. However, it
appears that Marce encroached upon the lot
covered by Mig's patent. Marce erroneously
believed that the portion belonged to them &
cultivated the same.
Marce filed action vs
Mig.
Issue:
WON Mig should be made to
reimburse
Marce
for
the
value
of
improvements (pilapil)
Held: NO Pilapil is not nec & its construction
depends upon the topographical condition of
the ground. It is an ordinary improvement
w/c does not affect the value of the land. Art
546 is not applic bec this refers to nec &
useful expenses. The presence of pilapils in a
rice field does not enhance nor increase the
value of the land itself; it is the production of
the mother soil w/c goes to the benefit of the
farmer or possessor.
CARBONELL V CA
Facts: JP owned a lot w/ improvements. He
mortgaged it to RSBank. RC & EI offered to
buy the lot. JP offered to sell the lot to RC.
RC was to assume the mortgage.
They
executed a private doc. w/c states that JP can
start living on the lot w/o rent & if after 1 yr.
he cld not find a place where to move his
house, he cld still continue occupying the site
but w/ rent. Later, RC went to JP to execute
the formal deed of sale, but JP said they cld
not continue w/ the sale bec he sold the lot to
EI. JP & EI executed a formal deed of sale. EI
took possession of the lot.
RC reg her
adverse claim. 4 days later EI reg her deed
of sale. A TCT w/ RC's adverse claim was
issued to EI.

Issue: Who has better rt. to the land?


Held: RC. If there is an inscription, prior
reg in GF is a pre-condition to superior title.
To merit the protection of A1544 (2), it is
essential that the buyer of realty must act
in GF in registering his deed of sale. RC's
prior purchase of the land was made in GF;
she was the only buyer at that time. Her
GF did not cease after JP told her of the 2nd
sale to EI. The recording of her adverse
claim is done in GF. EI's BF is emphasized
when she reg her deed 4 days later. Since
EI is in BF, their rts to the improvements
they introduced are governed by A546 &
547. Under 546(2), the possessor in GF
can retain the useful improvements unless
the person who defeated him in poss
refunds the useful expenses or pays him
the increased value of the land. Under
547, the possessor in GF also has the rt. to
remove the useful improvements if the
removal can be done w/o damage tot he
land, unless the person w/ the superior rt.
elects to pay for the useful improvements
or reimburse the expenses under 546.
These provisions seem to imply that the
possessor in BF has neither the rt. of
retention of useful improvements nor the
rt. to demand refund for useful expenses.
But if the lawful possessor can retain the
improvements introduced by the possessor
in BF for pure luxury or mere pleasure only
by paying its value at the time he enters
into possession under 549, as a matter of
equity, EI should be allowed to remove the
improvements, altho in BF, unless RC
chooses to pay for their value at the time
they were introduced. No reimbursement
for EI for the current value of the useful
improvements bec they have been
enjoying such for 2 decades w/o rents.

Baviera: This is wrong!!!


1. the 1st sale was made in a private
doc.
so constructive delivery shld
not be construed.
There was
tradicion constitutum possessorium
where owner retains poss in the
concept of a lessee. But the leas was
to take place 1 yr. later so prior this,
no delivery is made to the buyer. The
2nd sale was in a public doc so there
is constructive delivery.

193

2. The court deemed the adverse claim


as constructive notice. But the adverse
claim is not a reg of title under 1544.
Thus,
insofar
as
1st
vendee
is
concerned, there is no reg of title. The
recording of the 2nd sale shld be the
one recognized as reg but the court said
he was not in GF. When the 2nd buyer
bought the lot, he is presumed to be in
GF. So how can the court presume BF
by the mere fact of being neighbors?

1. COMPARE

A.

USUFRUCT

Art. 592. The usufructuary is obliged to


make the ordinary repairs needed by the
thing given in usufruct.
By ordinary repairs are understood such
as are required by the wear & tear due to
the natural use of the thing are
indispensable for its preservation. Should
the usufructuary fail to make them after
demand by the owner the latter may make
them at the expense of the usufructuary.

W/

FLOREZA V EVANGELISTA

TOLENTINO:

Facts: E was the owner of a lot. E borrowed


fr. F P100 as a result, E allowed F to occupy
the lot & build a house of light materials w/o
rents. E again borrowed fr. F. The loans were
in a private doc where it was stated that the
resid lot stands as security. F demolished the
house & constructed one of strong materials.
E sold the lot to F w/ rt. to repurchase w/in 6
yrs. 7 mos bef expiry of repurchase period, E
paid the full repurchase price. E sent F a
written demand to vacate the lot. F refused
until reimburse the value of the house. E
filed a complaint & prayed that she be
declared the owner of h & l w/o need to pay F
indemnity.

Two requisites for ORDINARY REPAIRS

Issue: WON F as builder is entitled to rts


prov in 448, 453 & 1616.

If the ordinary repairs are due to defects


caused by the FAULT of the usufructuary,
he cannot exempt himself fr. liability by
renouncing the usufruct.

Held: NO. 448 453 apply when BPS believes


he had the rt. to BPS bec he thinks he owns
the land or believes himself to have a claim
of title. 1616 is inapplic. F as vendee a retro
is not entitled to the rts under this prov. F did
not construct his house as vendee a retro.
Remember he built a house of light materials.
F incurred no useful expense after the sale.
The house was already there at the tolerance
of E in consideration of several loans
extended to them. Rts of F are more akin to
those of a usufructuary who, under A579 may
make on the property useful improvements
but w/ no rt. to be indemnified therefor. He
may remove such improvements if he could
do so w/o damage to the property.

The deteriorations or defects arise fr. the


NATURAL USE of the thing
The repairs are necessary for the
PRESERVATION of the thing
Deteriorations w/c are caused by time or
age (provided for in Art. 573) & the
destruction or consumption of the thing by
use (provided for in Art. 574) do not fall
w/in the concept of ordinary repairs.
Usufructuary is bound to pay only for the
repairs made during the existence of the
usufruct; not those made before he enters
upon the enjoyment of the thing w/c are
shouldered by the owner.

But if the defects are occasioned by the


ordinary use of the thing, the usufructuary
may exempt himself fr. making the repairs
by returning to the owner the fruits
received during the time that the defects
took place.
The expenses for repairs are a charge upon
the enjoyment of the prop; hence, if the
usufructuary keeps the fruit, s/he must
defray those expenses
Art. 593. Extraordinary repairs shall be
at the expense of the owner. The
usufructuary is obliged to notify the owner
when the need for such repairs is urgent.
194

Art. 594. If the owner should make the


extraordinary repairs, he shall have a right to
demand of the usufructuary the legal interest
on the amount expended for the time that
the usufruct lasts.
Should he not make them when they are
indispensable for the preservation of the
thing, the usufructuary may make them; but
he shall have a right to demand of the
owner, at the termination of the usufruct, the
increase in value w/c the immovable may
have acquired by reason of the repairs.

TOLENTINO:
Defect
or
deteriorations
requiring
extraordinary repairs are of two kinds:
Those
caused
by
EXCEPTIONAL
CIRCUMSTANCES, whether or not they are
necessary for the preservation of the
thing
Those caused by the NATURAL USE of the
thing, but are not necessary for its
preservation.
GENERAL
RULE:
The
expenses
for
extraordinary repairs are borne by the owner
Reason for the rule: The law does not
impose such repairs as an obli of the owner.
The usufructuary is not bound to make such
repairs if the owner chooses not to make
them.
If the need for repairs is urgent (those that
are required for preservation), the law
requires the usufructuary to give notice
thereof to the owner
If the owner does not make the extraordinary
repairs w/c are necessary for preservation,
the usufructuary may make them & he shall
be entitled to indemnity.
Also, the usufructuary is entitled to recover fr.
the owner the increase in the value w/c the
tenement acquired by reason of such works.
Art. 595. The owner may construct any
works & make any improvements of w/c the
immovable in usufruct is susceptible, or make
new plantings thereon if it be rural, provided
that such acts do not cause a diminution in
the value of the usufruct or prejudice the
right of the usufructuary.

TOLENTINO:
Any advantage or increase in the use of
enjoyment of the thing due to the
improvements or plantings introduced
by the owner will inure to the benefit of
the usufructuary.
But the usufructuary is not bound to pay
interest on the investment of the
owner, bec. the improvements have
been made voluntarily by the latter.
Art. 596. The payment of annual
charges & taxes & of those considered as a
lien on the fruits, shall be at the expense of
the usufructuary for all the time that the
usufruct lasts.

TOLENTINO:
Annual charges & taxes are considered by
Manresa as always chargeable against
the usufructuary bec. they are
considered by the law as imposed upon
the fruits.
The more logical view, however, seems to
be that of Sanchez Roman, who
believes that such annual charges &
taxes are to be paid by the
usufructuary only when they can be
considered as a lien on the fruits.
The annual charges & taxes for w/c the
usufructuary is liable cannot include
those levied upon the tenement itself,
but only those levied upon the persons
in possession or enjoyment thereof.
Art. 597. The taxes w/c, during the
usufruct, may be imposed directly on the
capital, shall be at the expense of the
owner.
If the latter has paid them, the
usufructuary shall pay him the proper
interest on the sums w/c may have been
paid in the character, &, if the said sums
have been advanced by the usufructuary,
he shall recover the amount thereof at the
termination of the usufruct.
Art. 579. The usufructuary may make
on the property held in usufruct such useful
improvements or expenses for mere
pleasure as he may deem proper, provided
he does not alter its form or substance; but
he shall have no right to be indemnified
therefor. He may, however, remove such
improvements, should it be possible to do
so w/o damage to the property.

195

TOLENTINO:
Whenever the usufructuary can remove the
improvements w/o injury to the prop. in
usufruct, he has a right to do so, & the
owner cannot prevent him fr. doing so
even upon payment of their value.
But
the
owner
cannot
compel
the
usufructuary
to
remove
the
improvements if he does not wish to
exercise it.
In the exercise of the right granted by this
article, the usufructuary may demolish or
destroy the improvement, such as a
building, provided he leaves the land as it
was before the construction of such
improvement.
The right of the usufructuary to remove
improvements can be enforced only
against the owner, but not against a
purchaser in GF to whom a clean title has
been issued.
Art. 580. The usufructuary may set off the
improvements he may have made on the
property against any damage to the same.

TOLENTINO:
This article refers to compensation of values,
& not of rights & obligations. It is
necessary that the improvements should
have increased the value of the prop. &
that the damages are imputable to the
usufructuary.
The increase in value & the amount of
damages are set off against each other; if
the damages exceed the increase in
value, the difference should be paid by
the usufructuary as indemnity.
B.

LEASE

Art. 1678. If the lessee makes, in good


faith, useful improvements w/c are suitable to
the use for w/c the lease is intended, w/o
altering the form or substance of the property
leased, the lessor upon the termination of the
lease shall pay the lessee one-half of the
value of the improvements at that time.
Should the lessor refuse to reimburse said
amount, the lessee may remove the
improvements, even though the principal
thing may suffer damage thereby. He shall
not, however, cause any more impairment
upon the property leased than is necessary.
With regard to ornamental expenses, the
lessee shall not be entitled to any

reimbursement, but he may remove the


ornamental objects, provided no damage is
caused to the principal thing, & the lessor
does not choose to retain them by paying
their value at the time the lease is
extinguished.

PARAS:
( 4A, i have no Baviera nor Tolentino notes
so Im putting in Peters favorite
commentator instead)
The first paragraph of the article is
intended to prevent the unjust
enrichment of the lessor. The lessor is
bound to pay only 1/2 of the value of
the improvements at the end of the
lease bec. the lessee has already
enjoyed the same.
Good Faith as used in Art. 1678 is NOT
the GF defined in the law of possession.
It refers to a case where the lessee
introduces
improvements
not
calculated to harm or destroy the
property leased.
Rule if the lessor refuses to reimburse: If
the lessee demands for reimbursement
for half the value & the lessor refuses,
the
lessee
CANNOT
insist
on
reimbursement.
BUT the lessee may remove the
improvements even if the leased
premises may suffer some damage.
C.

COMMODATUM

Art. 1941. The bailee is obliged to pay


for the ordinary expenses for the use &
preservation of the thing loaned.

TOLENTINO: Reason for the law: bec. of


the gratuitous use of the property
Art. 1949.The bailor shall refund the
extraordinary expenses during the contract
for the preservation of the thing loaned,
provided the bailee brings the same to the
knowledge of the bailor before incurring
them, except when they are so urgent that
the reply to the notification cannot be
awaited w/o danger.
If the extraordinary expenses arise on
the occasion of the actual use of the thing
by the bailee, even though he acted w/o
fault, they shall be borne equally by both
196

the bailor & the bailee, unless there is a


stipulation to the contrary.
D.

MORTGAGE

GARDNER VS. COURT OF APPEALS


FACTS: Gardner obtained petty cash
advances & a variety of consumer goods fr.
the de Castro spouses worth P7,000. In
consideration of said loans, G executed a
Deed of Sale w/ Rt. of Repurchase in favor
of the spouses, wherein he was given 10
years to pay P7,000 as repurchase price. G
borrowed some more until the total loan
amounted to P10,436.75.. When G tendered
this amount, the spouses refused to accept it
on the ground that the sum is grossly
inadequate
to
compensate
for
the
improvements introduced by them on the
land. G then consigned the sum w/ the court.
CFI ruled that the K was actually an equitable
mortgage & denied the claim of the spouses
for reimbursement of the improvements
introduced by them.
HELD: The Pacto de Retro Sale was actually
an equitable mortgage. As a general rule, the
mortgagee who is in possession
of the
mortgaged
property
&
introduces
improvements therein is not entitled to
reimbursement for the value thereof upon the
redemption of the mortgage since under Par.
2 of Art. 2125 of the NCC, the persons in
whose favor the law establishes a mortgage
have no other right than to demand
execution & the recording of the document in
w/c the mortgage is formalized.
If the mortgagee improves the land,
he does so at his risk. To hold otherwise
would render redemption oppressive &
onerous to the owner-redemptioner, if not
nugatory & inoperative for all that a
scheming mortgagee interested in owning
the land would do is to saddle the land w/ so
much improvements that the owner will find
himself financially incapable of redeeming
the mortgage.
E.

VENDEE

RETRO

returning to the vendee the price of the


sale, & in addition:
The expenses of the contract, & other
legitimate payments made by reason of
the sale;
The necessary & useful expenses made
of the thing sold.
Art. 1617.
If at the time of the
execution of the sale there should be on
the land, visible or growing fruits, there
shall be no reimbursement for or prorating
of those existing at the time of redemption,
if no indemnity was paid by the purchaser
when the sale was executed.
Should there have been no fruits at
the time of the sale & some exist at the
time of redemption, they shall be prorated
between the redemptioner & the vendee,
giving the latter the part corresponding to
the time he possessed the land in the last
year, counted fr. the anniversary of the
date of the sale.
Art 1618.
The vendor who recovers
the thing sold shall receive it free fr. all
charges or mortgages constituted by the
vendee, but he shall respect the lease w/c
the latter may have executed in good faith,
& in accordance w/ the custom of the place
where the land is situated.
Art. 1619.
Legal redemption is the
right to be subrogated, upon the same
terms & conditions stipulated in the
contract, in the place of one who acquires a
thing by purchase or dation in payment, or
by
any
other
transaction
whereby
ownership is transmitted by onerous title.
Art. 1620. A co-owner of a thing may
exercise the right of redemption in case the
shares of all the other co-owners or of any
of them are sold to a third person. If the
price of the alienation is grossly excessive,
the redemptioner shall pay only a
reasonable one.
Should two or more co-owners desire to
exercise the right of redemption, they may
only do so in proportion to the share they
may respectively have in the thing owned
in common.

Art. 1616.
The vendor cannot avail
himself of the right of repurchase w/o
197

CALAGAN V. CFI
FACTS: Calagan sold a portion of their lot to
Sandoval w/c was annotated on the title of C.
C offered to repurchase the land sold to w/c S
agreed on the condition that C reimburse the
value of the house S constructed on the Land.
HELD: As the Public Land Act does not
provide for the terms & conditions of
repurchase, resort may be had to Art 1616 of
the CC w/c states that a vendor a retro
cannot avail himself of the rt. of repurchase
w/o returning to the vendee the price of the
sale, the expenses of the contract & other
legitimate payments & the necessary &
useful expenses made on the thing sold. And
Art. 1616 should be construed w/ Art. 546 &
547, considering the purpose of the law on
homesteads is to conserve the ownership in
the hands of the homesteader & his family &
inasmuch as a vendee a retro is in good faith.
Applying said articles, the homesteader
desiring to repurchase should be given the
option to require the vendee a retro to
remove the useful improvements on the land
subject of the sale, w/c option is not granted
the vendor a retro in Art. 1616. To allow a
vendee a retro of a homestead, however, the
rt. of retention until payment of useful
expenses is made by the redemptioner would
be to render nugatory the right of repurchase
granted by law to a homesteader. Since C is
not opting to refund the expenses incurred by
S, S may remove her house, w/c can be done
w/o damaging the land.
A. LOST MOVABLE

Art. 559. The possession of movable


property acquired in good faith is equivalent
to a title. Nevertheless, one who has lost any
movable or has been unlawfully deprived
thereof, may recover it fr. the person in
possession of the same.
If the possessor of a movable lost or of
w/c the owner has been unlawfully deprived,
has acquired it in good faith at a public sale,
the owner cannot obtain its return w/o
reimbursing the price paid therefor.
Art. 1505. Subject to the provisions of
this Title, where goods are sold by a person

who is not the owner thereof, & who does


not sell them under authority or w/ the
consent of the owner, the buyer acquires
no better title to the goods than the seller
had unless the owner of the goods is by his
conduct precluded fr. denying the seller's
authority to sell.
Nothing in this Title, however, shall
affect:
1. The provisions of any factors' acts,
recording laws, or any other provision of
law enabling the apparent owner of goods
to dispose of them as if he were the true
owner thereof;
2. The validity of any contract of sale
under statutory power of sale or under the
order of a court of competent jurisdiction;
&
3.
Purchase made in a merchant's
store, or in fairs, or markets, in accordance
w/ the Code of Commerce & special laws.

Baviera: #2 is valid bec, the seller is


authorized by law or by the court. It
is valid if sale was made in
accordance w/ law.
Q:
What if the thing was merely
borrowed?
A:
The sale is not valid bec. the
judgment presupposes that the thing
belongs to you ( exception surety or
guaranty.)

Art.719. Whoever finds a movable, w/c


is not treasure, must return it to its
previous possessor.
If the latter is
unknown, the finder shall immediately
deposit it w/ the mayor of the city or
municipality where the finding has taken
place.
The finding shall be publicly announced
by the mayor for 2 consecutive weeks in
the way he deems best.
If the movable cannot be kept w/o
deterioration, or w/o expenses w/c
considerably diminish its value, it shall be
sold at public auction 8 days after the
publication.
Six months fr. publication having
elapsed w/o the owner having appeared,
198

the thing found, or its value, shall be awarded


to the finder. The finder & the owner shall be
obliged, as the case may be, to reimburse the
expenses.

Market one w/c is open for 7


consecutive days (sidewalk vendors &
garage sales are not included)

Baviera: The rule in Art. 559 is based on


the principle of caveat emptor.
Art.
1505 (1) is not applicable in the
Philippines bec. we do not have a
Factors' Act except a provision in
agency relating to property sold on
execution by lawful court order w/c
must belong to the judgment debtor &
not to another person. Otherwise, the
authority is not valid.

DE GARCIA V. CA

SUN BROTHERS V. VELASCO


FACTS:
(P) SB delivered to Lopez a
refrigerator
under
a
conditional
sale
agreement. It was stipulated that L shall not
sell it w/o consent of P & that ownership
remains w/ P until full paymt thereof. W/o Ps
knowledge, L sold the ref to V who owns JV
Trading (merchant store or market place ???).
Co bought the refrigerator in cash after
seeing it in display. In an action by P for
replevin, the TC ruled for defs. CA reversed.
HELD: The applicable rule is Art 1505 (3) &
as such, Co, who was an innocent purchaser
for value (IPV), is the absolute owner of the
ref.
Although L had no title to the ref & so
V, his transferee, acquired no better title,
there is no doubt that Co, is an IPV as he
purchased the ref fr. a merchant store. This
is a case of an imperfect or voidable title
ripening into a valid one, as a result of some
intervening causes.
Not even the remedy granted in Art.
559 to the owner of the movable to obtain its
return provided he reimburses the one ;in
possession thereof, is available to P bec
neither did he lose the ref nor was he
unlawfully deprived thereof.

Baviera: What is the rationale for the


law?
A:
One cannot be expected to look
into the identity of the thing & ask who
is the owner of each & every product.

Facts: PR Guevara lost her ring to a thief in


1952. A year later, she recognized it on the
finger of P De Garcia. Upon examination by
the jeweler who sold the ring to Guevara,
it was found to be the one w/c she bought
& later lost. De Garcia claims she bought
the ring fr. Miranda, who bought it fr.
Hinahon, who, in turn, bought it fr. a certain
Aling Petring. Guevarra sued for recovery of
the ring. CFI ruled for De Garcia, but CA
reversed. De Garcia contends that being a
possessor in good faith, she acquired title
to the ring.
Issue: WoN Guevara can recover her ring?
Held: YES. There is just one ring. The
difference in weight w/c De Garcia sought
to prove in the trial was due to the fact that
she replaced the diamond stone w/ a
heavier one, as testified to by one of the
witnesses.
There is no proof of acquisition in
good faith. De Garcias claim as to the
source of the ring is dubious.
And
assuming that there is good faith on her
part, she cannot retain the diamond ring.
Following Art.
559, as Guevara was
unlawfully deprived of the ring, she is
entitled to recover it fr. De Garcia. The only
exception the law allows is when there is
an acquisition in good faith by the
possessor at a public sale, in w/c case, the
owner cannot obtain its return w/o
reimbursing the price. the right of the
owner cannot be defeated even by proof
that there was good faith in the acquisition
by the possessor. This is bec. he was
dispossessed w/o his consent.
Possession in good faith does not
amount to title. Art. 1132 provides for a
period of acquisitive prescription for
movables thru uninterrupted possession in
good faith for 4 years.
Title of the
possessor in good faith is not that of
ownership, but is merely a presumptive
title sufficient to serve as a basis for
acquisitive prescription. The possessor is
not yet the owner.
199

1. DISTINGUISHED

FR. VOIDABLE TITLE

Art. 1506. Where the seller of goods has


voidable title thereto, but his title has not
been validated at the time of the sale, the
buyer acquires a good title to the goods,
provided he buys them in good faith, for
value, & w/o notice of the sellers defect of
title.

Baviera:
Provision applies to movable property;
even if the goods were bought in a
private sale, not necessary that he
bought it in a merchant sale.
Where the seller has a voidable title to
the goods, but his title has not been
avoided at the time of the sale, he can
transfer valid title to an innocent
purchaser for value. What constitutes
voidable title must necessarily be
governed by the general principles of
contract. So long as the goods are still
in the possession of the buyer, they are
still recoverable by the vendor in action
for annulment.
But once transfer is
made to an innocent purchaser for
value before the annulment of the
contract, then valid title vests on the
buyer.
This is so as said innocent
purchaser must not be punished for
entering into a contract w/c he did not
think was not valid.

Sales Reviewer notes:


Requisites for the acquisition of good title by
the buyer if the seller has a voidable title
to the goods:
1. acquisition before title of seller has been
avoided
2. in good faith & for value
3. w/o notice of sellers defect of title.
TAGATAC V. JIMENEZ
Facts: Tagatac bought a car in the US &
brought
it
to
Manila.
Through
misrepresentation, Feist was able to convince
her to sell the car to him for P15,000. She
was issued a postdated check w/c was
dishonored for insufficient funds. Meantime,
the car was sold by Feist to Sanchez, who

sold it to Jimenez, who sold it to Masalonga,


, & later to Villanueva, before it was
eventually resold to Jimenez.
When
Tagatac saw the car on display for sale, she
demanded its return but was refused. She
filed an action for recovery of possession.
TC dismissed case & confirmed ownership
& possession of Jimenez.
On appeal,
Tagatac claims that Jimenez is a purchaser
in bad faith w/in the purview of Sec 69 (j),
Rule 23, RoC, under w/c a disputable
presumption is created that a person found
in possession of a thing taken in the doing
of a recent wrongful act is the taker & doer
of the whole act.
Issue: WoN Jimenez is a purchaser in good
faith & as such, is entitled to possession of
the car?
Held:
YES.
Tagatacs
contention is
untenable as such provision refers to stolen
goods. In this case, the car was not stolen
fr. Tagatac but was obtained by Jimenez by
virtue of a sale after the fraud perpetuated
by Feist.
There was a valid transmission of
ownership fr. Tagatac to Feist, considering
that they freely entered into the contract of
sale. The fact that the check was w/o
funds may have given rise to a prosecution
for estate, but did not make the
consummated sale unlawful. However, the
fraud & deceit by Feist renders the sale a
voidable contract, making the sale
susceptible of either ratification or
annulment. And as long as no action is
taken by the party entitled (Tagatac) for
either annulment or ratification, the
contract remains valid & binding. Thus,
although Feists title was defective &
voidable, at the time he sold the car to
Sanchez, his title thereto had not been
avoided, He thus conferred good title to
Sanchez, provided the latter acted in good
faith, & the purchase was for value & w/o
notice of defect in Feists title. And even
assuming that Sanchez was in bad faith, as
Jimenez bought the car in good faith, for
value & w/o notice of any defect in
Sanchezs title, then he acquired good title
to the car.
Good title means an
indefeasible title to the car even as against
Tagatac, the original owner.
Unlawfully
deprived?
No,
Tagatac
voluntarily surrendered the property.
200

Failure to pay the price does not avoid the


contract but gives the vendor the right to
resolve it under Art. 1191.
2. ACTION

TO

RECOVER

Art. 1140. Actions to recover movables


shall prescribe eight years fr. the time the
possession thereof is lost, unless the
possessor has acquired the ownership by
prescription for a less period, according to
Art. 1132, & w/o prejudice to the provisions of
Arts. 559, 1505, & 1133.
Art 1141. Real actions over immovables
prescribe after thirty years.
This provision is w/o prejudice to what is
established for the acquisition of ownership &
other real rights by prescription.
VII. USUFRUCT

Art. 607. If the usufruct is constituted on


an immovable property of w/c a building
forms part, & the latter should be destroyed
in any manner whatsoever, the usufructuary
shall have a right to make use of the land &
the materials.
The same rule shall be applied if the
usufruct is constituted on a building only &
the same should be destroyed. But in such a
case, if the owner should wish to construct
another building, he shall have a right to
occupy the land & to make use of the
materials, being obliged to pay to the
usufructuary, during the continuance of the
usufruct, the interest upon the sum
equivalent to the value of the land & of the
materials.

Both land & building


-usufruct on land
ends usufruct on
bldg. continues
Usufruct still entitled
to use of land and
remaining materials

Building only
-usufruct on bldg.
ends & may
use
remaining
materials
Entitled to use of
land bec. Although
no usufruct onland, it
cant be denied that
the user of the bldg.
also uses the land

Naked owner wishes Landowners


to
rebuild
but preference
given
usufructuary
more weight w/the
refuses;
right it is to use the
usufructuarys
will land & payment to
w/c prevails until the usufructuary of
end of usufruct
interest during use
Interest must be on the materials and land
The person at fault, if any, must indemnify
the ones whose rights were injured
GREY V. CARANDANG
Facts: The testatrix Rosario Fabie devised
the naked ownership of a lot w/ a building
& improvements to P Rosario Grey while
the usufruct was devised to Josefa Fabie for
life. Later, the building was destroyed by
fire. Afterwards, a chinaman offered to
lease the property & construct a building
thereon. Fabie claims that she has the
exclusive right to cede the property by
lease & to receive the full rental value of
the same by virtue of her right as
usufructuary. However, Grey claims that
the right of usufruct was extinguished
when the building was destroyed, the right
of the usufructuary being limited to the
legal interest on the value of the lot & the
materials. Thus, a controversy ensued as to
the interpretation of the portion of the will
w/c devised to Fabie the rentals over the
property.
Issue: Whether Fabies lifetime usufruct is
only over the rentals of the building, such
that when the building was destroyed, the
usufruct was extinguished? Or was it over
both the building & the land on w/c it was
erected?
Held: When the testatrix constituted the
lifetime usufruct over the rentals, she
meant to impose the encumbrance on both
the building & land on w/c it was erected,
for the building cannot exist w/o the land.
The land, being an indispensable part of
the rented premises, cannot be considered
as having no rental value whatsoever. As
only the building was destroyed, the
usufruct
subsists.
A
usufruct
is
extinguished only by the total loss of the
thing subject to the encumbrance.

201

Under Art. 517, if a usufruct is


constituted on an immovable where a
building forms part, & such building is
destroyed, the usufructuary has a right to the
use of the land & the materials. This is
calculated to maintain the usufruct alive until
the very thing that has been destroyed is
reconstructed or replaced. Since the usufruct
has not been extinguished & it is for life, it is
only fair that the usufructuary continues to
enjoy the use of the land & the materials that
may have been left by the fire, or that of the
new building w/c may be constructed
thereon.

Baviera: when the usufruct is only over


the land, it cannot extend over the
building.

GABOYA V. CUI
Fact: In a deed of sale over 3 parcels of
land, Don Mariano retained for himself the
usufruct over said property to last during his
lifetime. however, he granted the buyers, his
children Mercedes & Antonio, the right to
construct & improve a building thereon as
long as such will not impair his right to enjoy
the fruits & rents. By virtue of a loan, the 2
children constructed a commercial building
thereon. Later, a complaint was filed by Don
Marianos guardian in his behalf to claim the
rentals over the building w/c he claims was
unlawfully retained by the children for
themselves.
Issue: WoN the usufruct of Don Mariano
extended to the rentals of the building
subsequently constructed on the vacant lots?
Held: NO. The terms of the deed state that
the reserved usufruct in favor of the vendor,
Don Mariano, was limited to the rentals of the
land alone. Had it been intended to include
the rentals over the building, then such would
have been clearly expressed.
That the
enjoyment of the rents over the building
subsequently
erected
passed
to
the
usufructuary inasmuch as the building was an
accession to the land as per Art. 571 is
untenable.
Industrial accession by
edification on the land is limited either to
buildings erected on the land of another or
buildings constructed by the owner of the
land w/ materials owned by another.
Recourse to the rules of accession are totally

unnecessary where the ownership of the


land & materials used to build thereon are
concentrated on one person.
PALAD V. GOV. OF QUEZON PROV. 46 S
354
FACTS: Palad, in his will, devised 2 lots to
the municipality of Tayabas (beneficiary) w/
the provincial governor as trustee. The
proceeds of said lots would be used for the
purpose of erecting a high school in said
town.
The heirs of P are now asking for
the reversion of said lots on the ground
that the purpose of the trust has already
been fulfilled. LC held that the trusteeship
is permanent & is a perpetual charge upon
the land devised.
HELD: Affirmed. Art. 515 of the Spanish
CC prohibiting the creation of a usufruct for
more than 30 yrs. in favor of any town,
province, etc. does NOT apply to trust.
Since the trustee holds the legal
title & the devise is valid, the heirs have no
remaining interest in the land except the
right of reversion in case the DEVISE
SHOULD FAIL. (It did not!)
Neither did the devise violate the
20-yr limit rule on inalienability. The will of
the testator does not interdict the
alienation of the lots, it merely provided
that the income of the said lots be used for
the
establishment,
maintenance
&
operation of the high school.

BAVIERA: USUFRUCT the ownership is


divided between the owner & the
usufructuary. In TRUST, the beneficial
ownership is vested in one person
while legal title is in the trustee NOT
AS OWNER but an administrator.

CHAPTER VIII
EASEMENTS
A.

KINDS

202

Art. 613. An easement or servitude is an


encumbrance upon an immovable for the
benefit of another immovable belonging to a
different owner.

constructing a chapel in the middle of the


said way w/c hindered Ps continued use of
the same. Ps filed an action claiming that
they acquired said right by prescription.

The immovable in favor of w/c the


easement is established is called the
dominant estate, that w/c is subject thereto,
the servient estate.

HELD: An easement of right of way is a


DISCONTINUOUS one. Under the NCC, it
may NOT be acquired by prescription.

Art. 614.
Servitudes may also be
established for the benefit of a community, or
of one or more persons to whom the
encumbered estate does not belong.
Art. 615. Easements may be continuous
or discontinuous, apparent or non-apparent.
Continuous easements are those the use
of w/c is or may be incessant w/o the
intervention of any act of man.

Reyes, J.B.L.: (concurring) The essence


of the easement of right of way lies in the
power of the dominant owner to cross the
servient tenement w/o being prevented or
disturbed by its owner. The limitation on
the part of the servient owner not to
prevent the dominant owner exists only
when the latter actually crosses over the
servient estate; bec. when he does not, the
servient owners right of exclusion is
perfect & undisturbed. Hence, this
easement is intermittent or discontinuous.

Discontinuous easements are those w/c


are used at intervals & depend upon the acts
of man.
Apparent easements are those w/c are
made known & are continually kept in view
by external signs that reveal the use &
enjoyment of the same.

A.
MODES
EASEMENTS

OF

ACQUIRING

Nonapparent easements are those w/c


show no external indication of their
existence.

Art. 620.
Continuous & apparent
easements are acquired either by virtue of
a title or by prescription of ten years.

Art. 616. Easements are also positive or


negative.

Art. 621.
In order to acquire by
prescription the easements referred to in
the preceding article, the time of
possession shall be computed thus: in
positive easements, fr. the day on w/c the
owner of the dominant estate, or the
person who may have made use of the
easement, commenced to exercise it upon
the servient estate; & in negative
easements, fr. the day on w/c the owner of
the dominant estate forbade by an
instrument acknowledged before a notary
public, the owner of the servient estate, fr.
executing an act w/c would be lawful w/o
the easement.

A positive easement is one w/c imposes


upon the owner of the servient estate the
obligation of allowing something to be done
or of doing it himself, & a negative easement,
that w/c prohibits the owner of the servient
estate fr. doing something w/c he could
lawfully do if the easement did not exist.
Note: The kinds of easement were asked in
the 1998 bar exam.
RONQUILLO V. ROCO 103 P 84
FACTS:
P Ronquillo, etc. have been in
continuous & uninterrupted use of a road or
passage way w/c traversed the land of D
Roco, etc. Ds have respect such use for the
past 20 years.
In 1953, Ds started

Art. 622.
Continuous nonapparent
easements, & discontinuous ones, whether
apparent or not, may be acquired only by
title.
Art. 623. The absence of a document
or proof showing the origin of an easement
203

w/c 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.

immediately under the ceiling, & such


opening would be limited to 30 sq.
centimeters. Said opening must have an
iron grating imbedded in the wall & w/ a
wire screen. (Art. 669)

Art. 624. The existence of an apparent


sign of easement between the two estates,
established or maintained by the owner of
both, shall be considered, should either of
them be alienated, as a title in order that the
easement may continue actively & 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 incase of the
division of a thing owned in common by two
or ore persons.

BAR Q: C, the owner of the adjoining lot,


built a house only after 20 years.
Assuming that B who did not follow the 2meter rule made opening larger than 30 sq.
cm, can C require B to reconstruct said
opening in order to make it smaller.

Art. 625. Upon the establishment of an


easement, all the rights necessary for its use
are considered granted.
Art. 626. The owner of the dominant
estate cannot use the easement except for
the benefit of the immovable originally
contemplated. Neither can he exercise the
easement in any other manner than that
previously established.

BAVIERA:
ART. 624.
Requirements (for
easement to continuously exist)

the

two estates owned by the same person


apparent sign of easement is established by
the owner of the 2 estates
ownership of 2 estates is divided
UNLESS:
the contrary (that there would no easement)
is provided in the title of conveyance
apparent sign of easement is removed
BEFORE the execution of the deed of
conveyance.
Bar Q: Gargantos case
BAR Q: B built a house occupying his entire
lot (up to the boundary line). What are the
limitations of Bs right to build said house?
A: Since B did not observe the distance
imposed by Art. 670 (2 meters fr. the
adjoining lot), he can make openings to admit
light at the height of the ceiling joists or

A: YES. B, considering that he did not


follow the 2-meter distance rule, is now
limited to openings the size of w/c should
not be greater than 30 sq. cm. The fact
that he had been enjoying openings larger
than this does not give rise to prescription.
(Art. 670)
BAR Q: B owns a 3,000 sq. m. land
adjoining Cs 2 hectare lot. Prior to the
controversy, C had allowed B to use a
narrow portion of Cs lot as a right of way.
B is now asking for a wider right of way.
Can B do this?
A: YES. Art. 651 provides that the width of
the easement of right of way shall be that
w/c is sufficient for the needs of the
dominant estate, & may accordingly be
changed fr. time to time.
BAR Q: B (ang dami niyang lupa) owns a
subdivision lot w/c does not have any
access to the highway. B bought a rice
field to develop as a road. However, said
plan did not materialize
for reasons
attributable to him.
B now wants to
establish a right of way in Cs subdivision.
Can B compel C?
A: NO. Constabella case. One of the
requisites of Art. 649 is that the isolation
must not be due to proprietors own act. In
the CAB, B had another opening, the rice
field.
However, it was for reasons
attributable to him that said lot remained
undeveloped for purposes of using it as a
road.

Art. 624. The existence of an apparent


sign of easement between the two estates,
established or maintained by the owner of
both, shall be considered, should either of
them be alienated, as a title in order that
the easement may continue actively &
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
204

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.

Tolentino:
When does 624 apply?
Owner alienates one tenement & keeps the
other
Owner alienates both to two different persons
at the same time
When the tenement is owned in common &
there is partition.
While the law declares the easement is to
continue (even if the easement is not
expressed in the title or the apparent signs
thereof are not made to disappear) the
easement actually arises for the first time
only upon alienation of either estate,
inasmuch as before that time there is no
easement to speak of, there being but one
owner of both estates.
Art. 625. Upon the establishment of an
easement, all the right necessary for its use
are considered granted.

Tolentino: Under this article, the owner of


the dominant estate has the right to use
accessory servitudes or those necessary for
the use of other servitudes regarded as
principal ones. (ex. Easement of drawing
water includes easement of right of way to
the place where the water is)
Art. 626. The owner of the dominant
estate cannot use the easement except for
the benefit of the immovable originally
contemplated. Neither can he exercise the
easement is any other manner than that
previously established.

Tolentino:
Easement established in a
general way w/o any specific purpose, it can
be used for all the needs of the dominant
estate & may be adopted to any new
modification
in
the
tenement
itself.
(Easement of view for a house generally
established can still be so used even if the
house was transformed into a commercial
establishment.)
Easement is established for a particular
purpose, the general rule is that the
easement cannot be used for a different
purpose. (Easement for water for irrigation
cannot be used to supply a factory) But if the
change of use does not make the easement

more burdensome, such change can be


allowed.
GARGANTOS VS. TAN
FACTS:
Sanz owned a parcel of land
w/ improvements. He subdivided the same
into 3 portions & sold it to different
persons. Tan Yanon bought that portion w/
the house w/c has on its northeastern
portion doors & windows overlooking the
third portion owned by Gargantos. On the
land of Gargantos was a camarin w/c he
demolished in order to build a residential
structure & a warehouse. Tan opposed on
the ground that his easement of light &
view should remain & that G should
construct at a distance of not less than 3
meters fr. the boundary line.
ISSUE:
WON Tans property had an
easement of light & view? YES
HELD:
Art. 621 is not applicable in
this case. The two estates were formerly
owned by just one person, Sanz. It was
Sanz who introduced improvements on
both properties. On that portion presently
belonging to Tan, he constructed a house
in such a way that the NE side thereof
extends to the wall of the camarin on the
portion belonging to G. These windows &
doors were in existence when T bought the
house. The deed of sale did not provide
that the easement of light & view would
not be established. The existence of the
doors & windows on the NE side of the
house is equivalent to a title for the visible
& permanent sign of a an easement is the
title that characterizes its existence. While
the law declares that the easement is to
continue the easement actually arises for
the first time only upon alienation of either
estate, inasmuch as before that time there
is no easement to speak of, there being but
one owner of both estates.
VALISNO VS. ADRIANO
FACTS:
Valisno is the owner of a
parcel of land, formerly owned by
Honorata, Adrianos sister, adjoining that of
Felipe. Vs land was irrigated by a canal
traversing Adrianos land.
A leveled a
portion of the canal depriving V of water &
prevented the latter fr. cultivating the land.

205

ISSUE: WON Valisno is entitled to easement


of aqueduct or water? Yes
HELD: The existence of the canal on As land
for the passage of water prior to & at the
time of the sale by Honorata to Valisno was
equivalent to a title for the vendee of the
land to continue using it. The deed of sale in
favor of Valisno included the conveyance &
transfer of the water rights & improvements
appurtenant to Honoratas property. Such
water rights was the primary consideration
for his purchase of the property, since w/o it
the property would be unproductive.
Water rights, such as the right to use
a drainage ditch for irrigation purposes, w/c
are appurtenant to a parcel of land, pass w/
the conveyance of the land, although not
specifically mentioned in the conveyance.
The purchasers easement of necessity in a
water ditch running across the grantors land
cannot be defeated even if the water is
supplied by a third person. The fact that an
easement by grant may also have qualified
as an easement of necessity does not detract
fr. its permanency as a property right, w/c
survives the determination of the necessity.
C.

MODES

OF

EXTINGUISHMENT.

Art. 631. Easements are extinguished:


By merger in the same person of the
ownership of the dominant & servient
estates;
By non-user for 10 years; w/ respect to
discontinuous easements, this period shall be
computed fr. the day on w/c they ceased to
be used; & , w/ respect to continuous
easements, fr. the day on w/c an act contrary
to the same took place;
When either or both of the estates fall
into such condition that the easement cannot
be used; but it shall revive if the subsequent
condition of the estates or either of them
should again permit its use, unless when the
use becomes possible, sufficient time for
prescription has elapsed, in accordance w/
the provisions of the preceding number;
By the expiration of the term or the
fulfillment of the condition, if the easement is
temporary or conditional;
By the renunciation of the owner of the
dominant estate;

By the redemption agreed upon


between the owners of the dominant &
servient estates.

Tolentino:
MERGER:
In order for merger to
extinguish easement, it is not necessary
that the merger be w/ respect to the entire
tenement, but only w/ respect to the
portion that is affected by the servitude, or
the part for the benefit of w/c it was
established.
Merger/consolidation must be ABSOLUTE,
PERFECT, AND DEFINITE & w/ respect to
the full ownership.
If dominant estate buys servient estate,
easement is extinguished. But if he
sells servient estate again, easement is
not reestablished.
If merger is rescinded or nullified for
inherent reasons, the easement is reestablished.
NON-USER:
It is a means of extinguishing servitudes
that has been in use & later
abandoned.
It does not apply to
servitudes w/c have not been in use.
It must be due to VOLUNTARY ABSTENTION
by the dominant owner, & NOT to
fortuitous event, bec. the basis of this
cause
is
a
PRESUMPTIVE
RENUNCIATION.
If the dominant estate is co-owned, use by
one co-owner inures to the benefit of
other co-owners & preserves the
easement.
IMPOSSIBILITY OF USE
The impossibility only suspends the
servitude, until such time when it can
be used again.
Impossibility arises fr. the condition of the
tenements.
RENUNCIATION
It must be EXPRESS.
But Manresa & Sanchez Roman says that it
can be tacit if there are acts w/c clearly
reveal it.
But remember, renunciation of a real right
must be made in a public instrument
(Art. 1358).
Hence, the renunciation must be SPECIFIC,
CLEAR & EXPRESS
BENEDICTO VS. CA
FACTS:
Hendrick sold a portion of
her property to Recto.
Said properties
206

included buildings w/c can only be reached


by means of a vehicular passageway. It was
stipulated in the Deed of Sale that an
easement of was would be constituted
between the properties, w/ each parties
contributing an equal portion of his property.
Hendrick sold her property to Heras & Recto
sold his to Benedicto. Heras then demolished
the building on his property. Benedicto, on
the other hand, fenced his property, thereby
closing the passageway.
Heras sued
Benedicto for the re-opening of the
passageway. The TC ruled for Heras & found
that the passageway was entirely w/in the
property of Benedicto.
ISSUE: WON there was extinguishment by
non-user? NO
HELD: Benedicto merely assumed that since
Hera demolished his building that the latter
would already have direct access to a main
street, thereby abandoning the passageway
in question.
B himself admitted that he
fenced his property in 1946, & since the
action was filed in 1955, the prescriptive
period has not yet elapsed. No presumptive
renunciation can be imputed to Heras since
he was constructing an apartment building
on his property w/c would need said
passageway.
Moreover, easement in this
case is perpetual in character & was
annotated in the titles. The fact that an
easement by grant may have also qualified
as an easement of necessity does not detract
fr. its permanency as a property right w/c
survives the termination of the necessity.
Here, the parties made provisions for the
easements observance by all who in the
future might succeed them in dominion, &
this is the reason the permanent character of
the easement was annotated in each & all
TCTs.
SALAZAR VS. GUTIERREZ
FACTS: Salazar is the owner of a parcel of
land bounded by Sapang Tuyo & by Lot 433.
Said lot was irrigated by Sapang Tuyo via a
canal traversing Lot 433. Later, Lot 433 was
registered & a TCT issued. Gutierrez leased
Lot 433 & then demolished the canal. TC
ordered the restoration of the canal. CA ruled
that the easement was voluntary & was
extinguished when Lot 433 was registered &
titled w/o the annotation of said easement/

ISSUE: WON registration of the servient


estate extinguishes the easement? NO
HELD: The easement here is not voluntary
but a legal easement. The 3 requisites for
a legal easement of aqueduct are present:
Salazar must prove that he can
dispose of the water & it is sufficient for the
use for w/c it was intended
The proposed right of was is the most
convenient & the least onerous to third
persons.
Salazar must indemnify the owner
of the servient estate.
In the CAB, the registration w/o the
annotation of the aqueduct cannot
summarily terminate the easement 26
years after where the original owner
allowed it to continue. It can be said that
he either recognized its existence as a
compulsory servitude or voluntarily agreed
to its continuance.

Baviera:
Registration
did
not
extinguish the aqueduct bec. after
such registration, the owner of the
servient estate allowed the use of the
aqueduct for 26 years more.

D.

LEGAL EASEMENTS

Art. 668. The period of prescription for


the acquisition of an easement of light &
view shall be counted:
From the time of the opening of the
window, if it is through a party wall; or
From the time of the formal prohibition
upon the proprietor of the adjoining land or
tenement, if the window is through a wall
on the dominant estate.

Tolentino:
The first is considered a
positive easement while the second is
regarded as a negative.
Art. 669. When the distances in art.
670 are not observed, the owner of a wall
w/c is not a party wall, adjoining a
207

tenement or piece of land belonging to


another, can make in it openings to admit
light at the height of the ceiling joists or
immediately under the ceiling, & of the size
of 30 centimeters square, &, in every case, w/
an iron grating imbedded in the wall & w/ a
wire screen.
Nevertheless, the owner of the tenement
or property adjoining the wall in w/c the
openings are made can close them should he
acquire part-ownership thereof, if there be no
stipulation to the contrary.
He
can
also
obstruct
them
by
constructing a building on his land or by
raising a wall thereon contiguous to that
having such openings, unless an easement of
light has been acquired.

cases of oblique views fr. the dividing line


between the two properties.
Art. 672. The provisions of Art. 670 are
not applicable to buildings separated by a
public way or alley, w/c is not less than
three meters wide, subject to special
regulations & local ordinances.
Art. 673. Whenever by any title a right
has been acquired to have direct views,
balconies or belvederes overlooking an
adjoining property, the owner of the
servient estate cannot build thereon at less
than a distance of 3 meters to be
measured in the same manner provided in
art. 671. Any stipulation permitting
distances less than those prescribed in art.
670 is void.
C.

LEGAL EASEMENTS

Tolentino:
Multi-story building: openings
may be made in every story
Baviera:
How long before A (opening of 30 sq. cm w/
iron grating) can acquire an easement of
light & view? 10 years
If the servient estate in the above question
has been vacant for 20 years? 10 year
prescriptive period.
Subdivision had no access to the highway. A
asked B who owned an adjoining lot to
provide him w/ right of way. However,
there is a vacant lot w/c is an alternative
route? A cannot have a right of way when
there is an alternative route
Art. 670.
No windows, apertures,
balconies, or other similar projections w/c
afford a direct view upon or towards an
adjoining land or tenement can be made, w/o
leaving a distance of 2 meters between the
wall in w/c they are made & such contiguous
property.
Neither can side or oblique views upon or
towards such conterminous property be had,
unless there be a distance of 60 centimeters.
The
non-observance
of
these
distances does not give rise to prescription
Art. 671. The distances referred to in the
preceding article shall be measured in cases
of direct views fr. the outer line of the wall
when the openings do not project, form the
outer line of the latter when they do, & in

ART. 669. When the distances in Article


670 are not observed, the owner of a wall
w/c is not a party wall, adjoining a
tenement or piece of land belonging to
another, can make in it openings to admit
light at the height of the ceiling joists or
immediately under the ceiling, & of the size
of thirty centimeters square, & in every
case, w/ an iron grating imbedded in the
wall & w/ a wire screen.
Nevertheless, the owner of the
tenement or property adjoining the wall in
w/c the openings are made can close them
should he acquire part-ownership thereof, if
there be no stipulation to the contrary.
He can also obstruct them by
constructing a building on his land or by
raising a wall thereon contiguous to that
having such openings, unless an easement
of light has been acquired.

NOTES:
If

the distances for building regular


windows are not observed, owner of a
non-party wall can make openings to
admit light at the height of ceiling joists
or immediately under the ceiling & of
size of 30 cm. Square.
If the distances given in Art. 670 is
observed, bigger or regular windows
may be opened.
208

ART. 670.
No windows, apertures,
balconies, or other similar projections w/c
afford a direct view upon or towards an
adjoining land or tenement can be made, w/o
leaving a distance of two meters between the
wall in w/c they are made & such contiguous
property.
Neither can side or oblique views
upon or towards such coterminous property
be had, unless there be a distance of sixty
centimeters.
The
non-observance
of
these
distances does not give rise to prescription.
ART. 671. The distances referred to in the
preceding article shall be measured in cases
of direct views fr. the outer line of the wall
when the openings do not project, fr. the
outer line of the latter when they do, & in
cases of oblique views fr. the dividing line
between the two properties.
ART. 672. The provisions of Article 670
are not applicable to buildings separated by a
public way or alley, w/c is not less than three
meters wide, subject to special regulations &
local ordinances.
ART. 673. Whenever by any title a right
has been acquired to have direct views,
balconies or belvederes overlooking an
adjoining property, the owner of the servient
estate cannot build thereon at less than
distance of three meters to be measured in
the manner provided in Article 671. Any
stipulation permitting distances as than those
prescribed in Article 679 is void.

NOTES:
Regular windows can be opened provided
proper distances are followed.
Proper distances:
Direct view (face to face) 2 meter distance
between the wall having the windows &
the boundary line.
Side or oblique view 60 cms. between the
boundary lines & nearest edge of the
window.
Permissible to build even up to the boundary
line provided no regular windows are opened
(restricted windows allowed).

NPC VS. GUTIERREZ, MALIT


Facts:
NPC pursuant to the power of
eminent domain invested under CA No. 120
filed eminent domain proceedings against
Gutierrez & Malit.
Issue: The reasonableness & adequacy of
the disturbance of compensation fee of the
expropriated properties.
Held: NPC must pay full compensation
even if it is only after a right of way
easement bec. it will perpetually deprive G
& M of their proprietary rights.
NPC
imposed upon them that no plant higher
than 3 meters is allowed.
Because of the high-tension current
conveyed through the transmission lines,
danger to life & limbs that may be caused
beneath said wires cannot altogether be
discounted. The P1.00 easement fee is
grossly inadequate considering that G & M
will continually pay the taxes due on said
property.
COSTABELLA CORP. VS. CA
Facts: Private Respondents were used to
passing through a passageway w/c
traversed Costabellas land.
However,
when Costabella begun to construct a
resort & hotel on said land, it closed the
passageway. PRs filed for injunction.
Held: The owner of the dominant estate
may claim a compulsory right of way only
after satisfying the following requisites:
the dominant estate is surrounded by other
immovables & is w/o adequate outlet to
public highway;
after payment of the proper indemnity;
the isolation was not due to the proprietors
own acts;
the right of way claimed is at a point least
prejudicial to the servient estate.
In the CAB, the PRs failed to prove the
existence of the four requisites. To justify
the imposition of an easement of a right of
way, there must be a real, nor fictitious or
artificial necessity for it. No right of way
can be granted to them.

209

C.

VOLUNTARY EASEMENTS

TRIAS VS. ARANETA


Facts: Trias filed a petition to cancel fr. her
Torrens Certificate of Title, the annotation
appearing on its back w/c states that no
factories will be permitted in this section.
This prohibition was imposed by J.M. Tuason
& Co., Inc. w/c owned the subdivision where
lot was located.
Held:
The prohibition is in reality an
easement, w/c every owner of real estate
may validly impose under Art. 688 of the New
Civil Code.
The existence of a zoning
ordinance prohibiting factories in the area is
immaterial. The ordinance might be repealed
at any time; & if so repealed, this prohibition
would not be enforceable against the new
purchasers of the land, who may be ignorant
of the prohibition (should the petition for
cancellation be granted).
Should the
ordinance be amended so as to convert the
area into an industrial zone impliedly
permitting factories, probably the limitation
might still bind the lot owner. But, since it is
not the present issue, we do not now decide
it. (Oo nga naman.)
ORTIGAS VS. FEATI
Facts: Ortigas & Co. sold two parcels of land.
TCTs of the land contain the restrictions that
the buyer must use them exclusively for
residential purpose. Res. No. 27 was passed
by the Municipal Council of Mandaluyong
providing that that the area along the
western part of EDSA fr. Shaw Blvd. To the
Pasig River is a commercial & industrial zone.
The 2 lots subject to this case were acquired
by FEATI two years after the resolution was
passed. Ortigas filed a complaint to compel
FEATI to comply w/ the restriction.
Held: Res. No. 27 is a valid exercise of police
power. Contractual obligation cannot prevail
over Res. No. 27 since existing laws are
deemed to be read into contracts in order to
fix obligations between parties. The building
restrictions declaring lots as residential
cannot be enforced. SC ruled that it is now
unprofitable & a hazard to health & comfort,
to use the lots for strictly residential purpose.

IX.
MODES
OWNERSHIP

OF

ACQUIRING

Art. 712. Ownership is acquired by


occupation & by intellectual creation.
Ownership & other real rights over
property are acquired & transmitted by
law, by donation, by testate & intestate
succession, & in consequence of certain
contracts, by tradition.
They may also be acquired by means of
prescription.

A.

ORIGINAL MODES
1. OCCUPATION

Occupation applies only to things w/o


owners (res nullius) , w/c are subject to
hunting. Generally applicable only to lost
movables as lands cannot be acquired by
occupation.
Art. 718. He who by chance discovers
hidden treasure in anothers property shall
have the right granted him in Article 438 of
this Code.
Art. 438. Hidden treasure belongs to
the owner of the land, building or other
property on w/c it is found. Nevertheless,
when the discovery is made on the
property of another, or of the State or any
of its subdivision, & by chance, thereof
shall be allowed to the finder. If the finder
is a trespasser, he shall not be entitled to
any share of the treasure.
If the things found be of interest to
science or the arts, the State may acquire
them at their just price, w/c shall be
divided in conformity w/ the rule stated.
Art. 439. By treasure, is understood, for
legal purposes, any hidden & unknown
deposit of money, jewelry or other precious
objects, the lawful ownership of w/c does
not appear.

210

Art.
117, FC.
The ff. are conjugal
partnership properties: x x x
(4) The share of either spouse in the
hidden treasure w/c the law awards to the
finder or owner of the property where the
treasure is found;

1. INTELLECTUAL CREATION
2. PRESCRIPTION

Baviera: Law as a means of acquiring


ownership does not require any act for
there to be ownership. Ex: in alluvion,
one acquires the property w/o doing any
overt act.
A.

DERIVATIVE MODES
1. DONATION

Art. 725. Donation is an act of liberality


whereby a person disposes gratuitously of a
thing or right in favor of another, who accepts
it.
Q: Is a promise to donate binding? NO.
Q: Enforceable? NO, bec. there must be a
disposition of a thing or right in favor of
another, who accepts it.

the donor, provided they do not constitute


a demandable debt,
or when the gift
imposes upon the donee a burden w/c is
less than the value of the thing given, there
is also a donation.
Art. 727.
Illegal or impossible
conditions in simple & remuneratory
donations shall be considered as not
imposed.
Art. 728. Donations w/c are to take
effect upon the death of the donor partake
of the nature of testamentary provisions, &
shall be governed by the rules established
in the Title on succession.
Art. 729. When the donor intends that
the donation shall take effect during the
lifetime of the donor, though the property
shall not be delivered until after the donors
death, this shall be a donation inter vivos.
The fruits of the property fr. the time of
acceptance of the donation, shall pertain to
the donee, unless the donor provides
otherwise.
Art. 730. The fixing of an event or the
imposition of a suspensive condition, w/c
may take place beyond the natural
expectation of life of the donor, does not
destroy the nature of the act as a donation
inter vivos, unless a contrary intention
appears.
Art. 731.
When a person donates
something, subject to the resolutory
condition of the donors survival, there is a
donation inter vivos.

1. REMUNERATIVE
Art. 734. The donation is perfected fr. the
moment the donor knows of the acceptance
of the donee.
Art. 746.
Acceptance must be made
during the lifetime of the donor & of the
donee.

A.

KINDS

Art. 726. When a person gives to another


a thing or right on account of the latters
merits or of the services rendered by him to

Q: When is it an act of liberality if for


payment of services?
A: If it is not demandable as a debt.
CASTRO V. CA
Facts:
Alejandra Austria (AA) was the
widow of the deceased Antonio Ventenilla
(AV). An original application for registration
was filed by AA covering 10 parcels of
land. Socorro Castro (SC) submitted an
opposition alleging that the lands had been
donated to her by AA. AA died & SC
became administratrix of the lands. The
211

collateral heirs of AV opposed the registration


of such lands in favor of SC. TC rejected both
claims.
Only SC appealed to the CA --dismissed.
Issue: Was the donation by AA to SC mortis
causa thus void for not following formalities
of a will?
Held: No, donation was inter vivos. It is clear
fr. fr. the terms of the donation that the donor
AA intended to & did dispose of her
properties irrevocably in favor of SC as
donee, subject to the condition that the latter
would have no right to the products during
the AAs lifetime. This merely indicates a
reservation in AA of the usufruct over said
properties & does not convert the donation to
one of mortis causa, w/c usufruct would be
consolidated w/ the naked ownership of SC
upon AAs death.
A donation is not mortis causa bec. it
states that it is, if it can be gathered fr. the
body of the instrument that the main
consideration is not the death of the donor,
but rather services rendered to him by the
donee, as in the CAB, or his affection for the
latter, & title is transferred immediately to
the donee, even though the gift is
conditioned to take effect after death of the
donor insofar as possession & enjoyment of
property is concerned.
2. INTER-VIVOS

Issue:
WON donation was inter
vivos (valid) or mortis causa (invalid)?
Held: It was a valid donation inter
vivos. It is the time of effectivity w/c
distinguishes a donation inter vivos fr. a
donation mortis causa. And the effectivity
is determined by the time when the full or
naked ownership of the donated properties
is transmitted to the donees.
If the
donation is made in contemplation of the
donors death, that full ownership shall
pass to the donee only bec. of the donors
death, then it is at that time that the
donation takes effect, & is mortis causa w/c
should be in a will & testament. But if the
donation takes effect during the donors
lifetime or independently of the donors
death, that full ownership shall pass to the
donee during the donors lifetime, not bec.
of the death but bec. of the deed of
donation, then it is inter vivos.
In Cab, it is inter vivos bec. it took
effect during the lifetime of the donors as
shown in #1. It is also shown by the
acceptance in #2 as a donation mortis
causa is never accepted by the donee
during
the lifetime of the donor.
Furthermore, #s 3 & 4 granting limited
right to dispose implies that ownership had
passed by donation w/c was already
effective during the donors lifetime.
Finally, #5 refers to beneficial ownership,
not naked title donors reserved to
themselves the management & fruits of the
lots.
3. MORTIS CAUSA

ALEJANDRO V. GERALDEZ
Facts:
The deed of donation of lots
contained the following
That it was made in consideration of the love
& affection of the donors (spouses Diaz &
Mendoza) for the donees (their children) as
well as the services rendered by the donee to
the donors in the past;
That the donees accept the donation;
That the donees would answer for sickness &
burial of the donors;
That the donees may not sell the parcels of
land while the donors are alive unless
proceeds are made to answer for said
expenses; &
That while the donors are alive, they continue
w/ the administration & ownership of the
property. LC held this was a void donation
mortis causa.

PUIG VS. PENALOSA


FACTS: On Dec. 28, 1949, Dona Carmen
Ubalde executed a deed of donation of a lot
in favor of Estela Magbanua Penaflorida.
The deed contained the ff. stipulations:
The deceased expressly & consistently
declared her conveyance to be one of
donation mortis causa & forbade the
registration of the deed until after her
death.
The express condition that if at the date of
her death, the donor had not
transferred, sold, or conveyed 1/2 of lot
58 of the Pototan Cadastre to other
persons or entities, the donee would be
bound to pay to Caridad Ubalde
P600.00 & such payment was to be
212

made on the date the donee took


possession of lot 58.
The donor reserved her right to dispose of the
property during her lifetime.
The donee, Estela alleges that despite
the reservation by the donor of the right to
dispose of the property during the donors
lifetime, the title to the property passed to
her on Dec. 28, 1949 at the time of the
donation.
ISSUE: Won the donation was one of inter
vivos or mortis causa
HELD: MORTIS CAUSA w/c is invalid bec. it
was not executed w/ the formalities required.
That it is a donation mortis causa is
confirmed by the fact that the donor has an
unqualified & unrestricted right to alienate
the property in favor of other persons of her
choice at any time that she should wish to do
so; it is so expressed in the deed & it
indirectly recognizes the donors power to
nullify the conveyance to the alleged donee
whatever the donor wished to do, for any
reason or for no particular reason at all. This
is a characteristic of conveyance post
mortem or mortis causa; for the right of the
transferor to alienate the property to
someone else necessarily imports that the
conveyance to the donee will not become
final & definite until the donors death.
Jurisprudence has established the ff.
rules:
That the donation mortis causa of the Roman
Law has been eliminated as a juridical,
entity & after the enactment of the
Spanish CC & NCC, w/c admit only
gratuitous transfers of title or real rights
to property either by way of donation
inter vivos or else by way of last will &
testament, executed w/ the requisite
formalities. In a donation inter vivos, the
act is immediately operative even if the
actual execution may be deferred until
the death of the donor. In the second
case, nothing is conveyed to the grantee
& nothing is acquired by the latter, until
the death of the grantor-testator, the
disposition being until then ambulatory &
not final.
That in a donation mortis causa, the
conveyance or alienation should be
recoverable ad nutum, i.e. at the

discretion of the donor simply bec. the


latter changed his mind.
That, in consequence, the specification in a
deed of the causes for revocation
indicates that it is a donation inter
vivos.
That the designation of donation as a
donation mortis causa is not controlling,
but must be construed w/ the rest of
the instrument to give effect to the real
intent of the transferor.
That
a
conveyance
for
onerous
consideration is governed by the rules
of contracts & not those of donation
testament.
That in case of doubt, the conveyance
should be deemed a donation inter
vivos rather than a donation mortis
causa, in order to avoid uncertainty as
to ownership of the property, subject to
the deed.
b. Rules governing each kind.

Art. 732. Donations w/c are to take


effect inter vivos shall be governed by the
general
provisions
on
contracts
&
obligations in all that is not determined in
this Title.
Art. 733. Donations w/ an onerous
cause shall be governed by the rules on
contracts & remuneratory donations by the
provisions of the present Title as regards
that portion w/c exceeds the value of the
burden imposed.

VALDES VS. BURAGA


FACTS: Spouses Andres are the original
owners of the land in litigation. During their
lifetime, they executed a so-called power
of attorney before a barrio lieutenant & 2
witnesses that Domingo shall inherit the
land for the reason that he shall take care
of them up until their death. Upon their
death, Domingo took possession &
cultivated the land. He later sold the same
to Ds. In the meantime, a grandson of the
spouses sold the land to P. Now, P brought
action to be declared the absolute owner of
the land. P argues that Domingo did not
acquire the land bec. the deed purporting
to be donation is not in a public instrument.
213

ISSUE: WON donation to Domingo was valid


HELD: YES. The instrument may be
construed as an onerous donation w/c is not
necessary to be made in a public instrument.
It being governed by the rules on contracts
w/c allow the same to be made in whatever
form.
Consequently,
neither
was
its
acceptance by Domingo necessary to give it
due effect.
LAGURA VS. SERVILLAN
FACTS: Ds donated to Ps 12 parcels of land.
In the deed, the ff. conditions were made:
that Ps cultivate the lands for the support &
maintenance of Ds; that Ps pay for the burial
expenses when Ds die & that the donation
shall be revoked should Ps fail to comply w/
the conditions. Ps violated the conditions. As
a result, Ds in a public document revoked the
donation. Ps filed an action vs. Ds contending
that being an onerous donation, the same
may only be revoked either by the consent of
the donees or by a judicial decree on the
ground provided by law for revocation of
donations (birth, appearance of a child; nonfulfillment of conditions & ingratitude) & that
revocation is ineffective until sanctioned by
the court.
ISSUE: Can
revoked?

the

onerous

donation

be

HELD:
YES.
A
donation
made
in
consideration of services to be rendered is
one w/ onerous cause & the revocation of an
accepted donation needs judicial sanction to
be effective. But the donation may not only
be revoked for the causes stated above.
Onerous donations are governed by the rules
governing contracts, under w/c the parties
may establish clauses & conditions they may
deem advisable provided they are not
contrary to law, morals & public policy & w/c
shall be binding between them. Thus, they
may demand for annulment of the contract in
case of non-compliance by the other party of
the conditions.

BAVIERA: How can such donations be


revoked
for
non-fulfillment
of
conditions? Inasmuch as this was
construed as a contract, then there
must be an axn. for revocation.

LLENADO VS. HILVANO


FACTS: In payment of the services
rendered in taking care of his sister &
mother, Padre Ventura in a Document of
Cession of Land conveyed to PR Maria
Hilvano 1/3 portion of a lot owned by him.
When Padre Vs mother died, PR
administered the whole property. When
Padre V died, PR took possession of the 1/3
portion. P though demanded rentals fr. PR
claiming ownership thereof. It appears that
a brother of Padre V sold 1/2 portion to P.
LC for PR declaring her owner of the 1/3
portion by virtue of the onerous donation.
ISSUE:
land?

WON Maria is the owner of the

HELD: YES. PR obtained the 1/3 portion as


payment for the services she rendered to
the donors mother & sister & the services
she
will
continue
to
render
as
administratrix after the donors death. As
an onerous donation, rules on contracts will
apply. Under Art. 1278, contracts shall be
obligatory in whatever form they may have
been entered into provided all the essential
requisites for their validity are present.
Thus, the donation here is valid & no other
requirement is necessary to give it validity
between the parties except that one party
may demand the other to execute the
proper document in a public instrument
pursuant to Art. 1279.
C. FORM

Art. 748. The donation of a movable


may be made orally or in writing.
An
oral
donation
requires
the
simultaneous delivery of the thing or of the
document representing the right donated.
If the value of the personal property
donated exceeds P5,000.00, the donation
& the acceptance shall be made in writing.
Otherwise, the donation shall be void.

TOLENTINO :
214

Donation of personal property > P5000 must


always be made & accepted in writing,
else the donation would be void even if
the thing is simultaneously delivered.
However, the document/s of donation &
acceptance
need
not
be
public
instruments.
If the donation is < P5000, it may be made
orally or in writing. If orally, donation is
void unless there is simultaneous delivery
of the thing. If the donation of < P5,000
is in writing, its acceptance may be tacit
(ex. if donee accepts the thing delivered)
& need not be in writing.
Art. 749. In order that the donation of an
immovable may be valid, it must be made in
a public document, specifying therein the
property donated & the value of the charges
the donee must satisfy.
The acceptance may be made in the
same deed of donation or in a separate public
document, but it shall not take effect unless it
is done during the lifetime of the donor.
If the acceptance is made in a separate
instrument, the donor shall be notified
thereof in an authentic form, & this step shall
be noted in both instruments.

BAVIERA:
Why is there a need
express acceptance? Why cant it
presumed?
Because one cannot
forced to accept anothers act
liberality. It is a matter of pride.

for
be
be
of

Note that under Arts. 746 & 1323 NCC,


an acceptance is also ineffective if the
donee dies before the donor receives
notice of his acceptance.

TOLENTINO :
Deed of Donation - The transfer of real
property must be expressed in a public
document, otherwise the donation will be an
absolute nullity, i.e., Art. 1357 cannot apply.
The donee cant bring an axn to compel the
donor to execute a public instrument of
donation bec. Art. 1357 applies only to
contracts w/c validly exist, not where the
form is required to make it valid. Onerous
donations, however, are governed by the
rules on contracts so in their case a public
instrument isnt necessary.

Ratification by Heirs - Where the donor


executed a private instrument of donation
w/c his only heir ratified in a public
document, said gift wasnt retroactively
perfected by the public inst.; it cannot
prejudice the creditors of the donors
estate.
However, it can operate as a
quitclaim as to the heir, i.e., he is estopped
fr. asserting any rights to the property.
Specifying Charges - Manresa, Scaevola
& Castan say that the charges here are
those in onerous / condl donations, so the
donations true value can be determined.
Bonet believes that the charges are
those
burdens
imposed
upon
the
immovable property donated.
Acceptance & Notification - Title to
immovable property doesnt pass to the
donee by virtue of the deed of donation
until it has been accepted in a public inst.,
either in the deed or in another inst., +
donor is duly notified thereof. The notice of
the donees acceptance must be noted in
both the deed & in the document of
acceptance to perfect the donation.
Absent any of these, the donation is null &
void.
Within Donors Lifetime - Acceptance
not made before the donors death is w/o
effect bec. the donation isnt considered
accepted until the donor is notified of the
acceptance. If the donee accepted but the
donor died before notification, the donation
wont bind the latters heirs unless they
ratify it (although this doesnt prejudice
donors creditors).
Prescription - A donation of immovable
property not made in a public instrument
cannot transfer title, but it may explain the
adverse & exclusive possession of the
donee.
This possession can ripen into
ownership by acquisitive prescription.
PAJARILLO ET AL. V. IAC (176 S 340)
Facts: Perfecta Balane died. Her brother,
Felipe, & her sister, Juana, executed an
Extrajudl Settlement of the Estate of
Perfecta Balane, a public instrument. In it,
they, as the only heirs of a large tract of
land left by Perfecta, donated said property
to Salud de Matias, Juanas daughter.
Salud executed a public instrument
accepting the donation. Both instruments
were never registered. Title was never
transferred to Salud, but she took
possession of the land. Later, Juana, w/
Saluds permission, possessed the land &
enjoyed its fruits. In 1956, she executed a
Deed of Sale in favor of Claudio, Saluds
215

brother, for P12th. Salud filed a complaint for


reconveyance of the property.

is void. It is valid if intended to indemnify


the damage caused to the other at the
time of separation.

Issue: WON donation was void for being


defective in form

Seducers Promise to Pay - The court


must look into the facts w/c gave rise to
the illicit relation. If it originated fr. a
seduction thru deceit by the man, after w/c
the woman resigned herself to the status of
concubine so she could receive some
means of livelihood fr. him, the agreement
to pay an amount in consideration of the
relationships cessation is valid bec. the
woman had fr. the start an axn against the
seducer. But when a woman voluntarily
enters into a union freely, she cannot exact
indemnity or compensation. However, Ds
intended to maintain or resume a state of
concubinage are void for being based on a
cause contrary to morals & good customs.

Held: The donation is defective in form (but


the SC upheld it anyway). There is nothing in
either of the 2 instruments showing that
authentic notice of the acceptance was
made by Salud to Felipe & Juana. A strict
interpretation of Art. 633 OCC would lead to
the annulment of the donation. However,
under the circumstances, a literal adherence
might result in the distortion of the parties
intentions.
The purpose of the formal
requirement is to ensure that the acceptance
of the donation is duly communicated to the
donor. It is not even suggested that Juana
was unaware of Saluds acceptance. Rather,
Juana confirmed it later & requested Salud
not to register the donated land during her
lifetime. Further, Juana had no right to sell
the land since she was merely holding the
land as a trustee of Salud. The Deed of Sale
was also vitiated by Claudios bad faith, since
he was presumed to have know of the
previous donation to his sister.

Bribery - Par. 3 of this article must be


interpreted to mean spouse, i.e.,
husbands are included.
Insurance Art. 2012 NCC forbids
persons who cannot receive donations
under Art. 739 fr. being named as
beneficiaries in the life insurance policies of
persons who cannot make donations to
them.
Art. 740. Incapacity to succeed by will
shall be applicable to donations inter vivos.

D. LIMITATIONS
TOLENTINO :
Art. 739. The ff. donations shall be void:
Those made between persons who were
guilty of adultery or concubinage at the time
of the donation;
Those made bet. persons found guilty of
the same criminal offense, in consideration
thereof;
Those made to a public officer or his wife,
descendants & ascendants, by reason of his
office.
In the case referred to in No. 1, the action
for declaration of nullity may be brought by
the spouse of the donor or donee; & the guilt
of the donor & donee may be proved by
preponderance of evidence in the same
action.

TOLENTINO
D between Paramours - When the Ds
purpose is to initiate, continue, resume or
compensate illicit relations bet. paramours, it

Persons disqualified fr. succeeding by will


under Art. 1027 NCC cant be recipients of
D inter vivos :
Priest who heard donors confession or
minister who extended spiritual aid to
him during his last illness
Relatives of said priest / minister w/in 4th
degree, & the church, order, chapter,
community, organization or institution
to w/c the priest / minister belongs
Guardian w/ respect to Ds made by ward in
his favor before final accts. of
guardianship were approved, even if
donor dies after the approval; but if
the guardian is the wards ascendant,
descendant, brother, sister or spouse,
D by ward to guardian is valid
Physician, surgeon, nurse, health officer,
druggist who took care of the donor
during his last illness
Individuals,
associations,
corps.
not
permitted by law to receive donations
However, Art. 1032 (incapacity to inherit by
reason of unworthiness) doesnt apply to
Ds. If the D is made before the cause of
unworthiness occurs, it is not revoked by
such cause bec. D inter vivos are revoked
216

only by the causes in Arts. 760, 764-5. If


made after knowledge of the act of
unworthiness, D is analogous to the
testamentary provision under Art. 1033, w/c
operates as a pardon.

receive, by way of donation, more than he


may give or receive by will.

TOLENTINO :
Art. 750. The donation may comprehend
all the present property of the donor, or part
thereof, provided he reserves, in full
ownership or in usufruct, sufficient means for
the support of himself, & of all relatives who,
at the time of the acceptance of the
donations, are by law entitled to be
supported by the donor.
Without such
reservation, the donation shall be reduced on
petition of any person affected.

TOLENTINO :
This applies to all donations except D mortis
causa, D propter nuptias, & onerous Ds.
In condl or modal Ds, there may be
sufficient left for the donors subsistence.
D of donors present property w/o reservation
of an amount sufficient for his
subsistence isnt void but is susceptible
to reduction. It is voidable w/ respect to
the amount needed for the support of
the donor or his dependent relatives.
Art. 751. Donations cannot comprehend
future property.
By future property is understood anything
w/c the donor cannot dispose of at the time
of the donation.

TOLENTINO :
Future prop. includes all property that
belongs to others when the D is made,
although it may or may not later belong to
the donor. It cannot be donated bec. it isnt
his property & therefore he cant dispose of it
at the time of the D. But 1) properties to w/c
the donor has a right, even if their delivery is
fixed at a future date, & 2) properties w/c will
become his upon the happening of a
suspensive condn are not future properties.
The donor can donate such rights as he has
to these properties at the time of the D. Ex.
Properties of an existing inheritance are not
future properties of the heirs after the
predecessors death; heirs accrued right to
the properties at the moment of death.
Art. 752.
The provisions of Art. 750
notw/standing, no person may give or

This limitation applies only to


persons who have compulsory heirs. An
inofficious donation is not a nullity, but only
subject to reduction insofar as it exceeds
what the donor couldve given by will to
the donee.
This amount is only
determinable at the time of the donors
death.

Art. 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.

BAVIERA: Before one can be generous,


one must be just!

TOLENTINO : The donees liability for the


donors debts in this case is limited to the
value of the thing donated. Creditors may
demand the rescission of the D. If the
donee alienated the property to one who
acquired it in good faith so that he is
unable to return it, he will be held liable in
damages, but the damages cannot exceed
the value of the property.
THE INSURANCE LIFE ASSURANCE CO.
LTD. VS. EBRADO (80 S 181)
Facts: In
his
life
insurance
policy,
Buenaventura Ebrado designated Carponia
Ebrado as the revocable beneficiary,
referring to her as his wife. When he died,
Carponia filed a claim w/ the insurer. She
admitted that she & Buenaventura hadnt
really been married.
Pascuala Vda. de
Ebrado, the real wife, also filed a claim for
the proceeds of the policy.

217

Issue: WON a common-law wife can be


named as the beneficiary in the life insurance
policy of a married man
Held: No.
Although the Insurance Code
doesnt contain any specific provision on this
matter, the general rules of civil law, i.e., Art.
2012 NCC, provides that: any person who is
forbidden fr. receiving a donation xxx cannot
be named beneficiary of a life insurance
policy by the person who cannot make a
donation to him. Common-law spouses are
definitely barred fr. receiving donations fr.
each other under Art. 739 NCC. In essence, a
life insurance policy is no different fr. a civil
donation
insofar
as
the
beneficiary
concerned. Both are founded on the same
consideration:
liberality.
As such, the
proscription in Art. 739 NCC should operate
equally in life insurance contracts. Note that
only preponderance of evidence, & not
criminal conviction, is required by Art. 739.
This was satisfied by Carponias stipulations
in the Pre-Trial Conference.
ORACION VS. JUANILLO & PRINCIPE
O.G. 5421

46

Facts: Juanillo spouses who had no children


donated to Principe the lot in question. When
the wife died, husband (H) remarried & had a
daughter Pacita.
H later died.
In the
meantime, by virtue of the judgment w/c
Oracion obtained against H, the property in Q
was levied upon & announced for sale.
Principe initially opposed, but later w/drew
when he was given a right to repurchase. He
failed to repurchase so a final Deed of Sale
was issued to Oracion who secured a Writ of
Possession w/c Principe refused on the
strength of the donation. Pacita intervened
contending that upon her birth the donation
was ipso facto revoked & upon her fathers
death, she inherited it. CA declared sale
invalid as the property then belonged to
Principe who was not a party to the judgment
against H, but declared that the land
rightfully belongs to Pacita.
Held: Principe became the owner of the land
by virtue of the donation in 1923. Upon
Pacitas birth in 1934, the donation was
revoked as per Art. 644 & the property was to
be reverted to the donor, but both revocation
& return are not self-operative or selfexecutory & if donee should refuse to part w/
the property, resort to judicial action shld be
taken under Art 646. As Principe did not

redeliver the property to the donor,


reversion to Pacita will only become
effective upon execution of the judgment of
the CA. Pacitas appearance as intervenor,
claiming the property, served the purposes
of an action for revocation under Art. 646.
Consequently, levy & sale of the property
by Oracion has no legal effect bec. as the
property was then owned by Principe who
was not a party to the judgment.
ORTIZ VS. CA 97 PHIL 46
Facts:
The land in dispute originally
belonged to the Yupo spouses. In 1940,
they donated the lot to their grandchildren,
petrs. Ortiz, in a public document. The
donors were duly notified of the donees
acceptance.
In 1941, donor-spouses
executed another deed of donation of the
same property in favor of priv. resp.
Basada, their nephew, subject to the
condition that the donee would serve &
take care of the donors until their death.
The second donee also accepted it.
Issue: Who has a better right to the land?
Held: The grandchildren Ortiz. From the
time the public instrument of donation was
executed & acknowledged by donors &
donees, the latter acquired not only the
ownership but also the possession of the
donated property, since the execution of a
public instrument of conveyance is one of
the recognized ways in w/c delivery of
lands may be made. Petrs. Ortiz having
been vested w/ ownership & attendant
possession in 1940, it is clear that the
subsequent donation in favor of priv. resp.
Basada conferred on the latter no right
over the property against the former
donees.
Baviera: Take note that in Donation,
there is no need for delivery to
perfect donation.
In a case when there are 2 donations
made of the same property & the
second donation is registered, the
first donation is still valid bec. the
second donee cannot invoke the Land
Registration Act w/c protects only &
innocent
purchaser
for
value.
However, when the conflict is between
a donation & a sale, & the vendee
registered the sale, he may invoke the
218

Land Registration Act as he is an IPV. In


the latter case, the vendee becomes a
Preferred Transferee.
Take note also of the rules on Double
Sales.

CRUZ VS. CA NOV. 22, 1985


Facts: Eduvigis Cruz filed a petition for a
change of name. Joks lang. Again.. Eduvigis
Cruz, a childless widow, donated a residential
land w/ 2-door apartment erected thereon to
her grandnieces, the priv. resps. Same was
embodied in a Deed of Donation. EC later
adopted one Cresencia. Cres later tried to
revoke the donation, but the donees resisted,
alleging that the property was co-owned by
their grandfather, & hence they own 1/2 of
the property by inheritance. And that since
Cres got the other half, her presumptive
legitime was not impaired.
TC ordered
revocation. CA reversed.
Issue: WON the donation should be revoked
in the case at bar.
Held: No. Donation subsists.
In the case of a subsequent adoption
of a minor by one who has previously
donated some or all of his property to
another, the donor may sue for the
annulment or reduction of the donation w/in 4
years fr. the date of the adoption, if the
donation impairs the legitime of the adopted,
taking into account the whole estate of the
donor at the time of the adoption.
The burden of proof is on the plaintiffdonor who must allege & establish the
requirements prescribed by law, on the basis
of w/c annulment or reduction of the donation
can be adjudged. Here, complaint does not
allege that the donation impairs the legitime
of the adopted child Cresencia; there was no
indication of the total assets of the donor, nor
proof of impairment.

DE LUNA VS. ABRIGO 181 SCRA 150

reversion to the donor of the property in


case of non-compliance. Luzon failed to
comply. In April 1971, De Luna executed a
Revival of Donation Inter Vivos, subject to
the ff. conditions: that the donee shall
construct
a
chapel,
a
nursery
&
kindergarten school named after St.
Veronica, all to be completed in 5 years fr.
date of donation.
Again, there was a
provision for the automatic reversion in
case of non-compliance.
Heirs of De luna filed a complaint
for cancellation of the donation & reversion
of the land to them on Sep. 23, 1980.
Donee Luzonian claimed that the action
has already prescribed. TC for Luzonian.
Issue:
WON action for cancellation of
donation has already prescribed.
Held: NO. Donations may be Simple,
Remuneratory or Onerous.
Onerous
donation is one subject to burdens, charges
or future services equal (or more) in value
than that of the thing donated.
The CAB involves an onerous
donation. Under Art. 733, NCC, donations
w/ an onerous cause are governed not by
the law on donations but by the Rules on
Contracts.
And in the matter of
prescription of actions for the revocation of
an onerous donation, the General Rules on
Prescription applies. (Parks vs. Prov. of
Tarlac)
Said rules provide for a 10-yr
prescriptive period to enforce a written
contract [Art. 1144(1),NCC]
E. Revocation & Reduction

Art. 760. Every donation inter vivos


made by a person having no children,
legitimate or legitimated by subsequent
marriage, or illegitimate, may be revoked
or reduced as provided in the next article
by the happening of any of these events.
1) If the donor, after the donation,
should have legitimate or legitimated or
illegitimate children, even tough they may
be posthumous;

Facts:
De Luna donated a lot to the
Luzonian Colleges (in Luzon?). The same was
embodied in a Deed of Donation Inter Vivos,
subject to certain conditions, & to automatic
219

2) If the child of the donor, whom the


latter believed to be dead when he made the
donation, should turn out to be living.
3)
if the donor should subsequently
adopt a minor child.

Baviera: This does not apply to donation


propter nuptias.

Tolentino: If the child is conceived at the


time of the donation but donor is not yet
aware of the conception, then Tole believes
that he may still revoke the donation.
Under this article, revocation takes
place ipso jure, no action is necessary to
revoke the donation.
However, resort to
court shall be necessary if donee refuses to
return the property or denies the right of the
donor.
Art. 761. In the cases referred to in the
preceding article, the donation shall be
revoked or reduced in so far 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 the child.

Tolentino:
revocation.

Contemplates

only

information was received regarding the


existence of the child believed dead.
The action cannot be renounced & is
transmitted upon the death of the donor to
his legitimate & illegitimate children &
descendants.
Tolentino:
The prescription shall be
counted fr. the time the earliest cause for
revocation occurs.
Art. 764. The donation shall be revoked
at the instance of the donor, when the
donee fails to comply w/ any of the
conditions w/c the former imposed upon
the latter.
In this case, the property donated shall
be returned to the donor, the alienations
made by the donee & the mortgages
imposed therein by him being void, w/ the
limitations established, w/ regard to third
persons, by the Mortgage Law & the Land
Registration Laws.
This action shall prescribe four years fr.
the non-compliance w/ the condition, may
be transmitted to the heirs of the donor &
may be exercised against the donees
heirs.

partial

Art. 762.
Upon the revocation or
reduction of the
donation by the birth,
appearance or adoption of a child, the
property affected shall be returned, or its
value if the donee has sold the same.
If the property is mortgaged, the
donor may redeem the mortgage, by paying
the amount guaranteed, w/ a right to recover
the same fr. the donee.
When the property cannot be
returned, it shall be estimated at what it was
worth at the time of the donation.
Art. 763. The action for revocation or
reduction on the grounds set forth in article
760 shall prescribe after four years fr. the
birth of the first child, or fr. his legitimation,
recognition or adoption or fr. the judicial
declaration of filiation or fr. the time

Tolentino: Condition referred to in this


article means the obligations or charges
imposed by the donor upon the donee.
Art. 765. The donation may be revoked
at the instance of the donor, by reason of
ingratitude in the following cases:
1) If the donee should commit some
offense against the person, the honor or
the property of the donor or of his wife or
children under his parental authority.
2) if the donee imputes to the donor
any criminal offense or any act involving
moral turpitude, even though he should
prove it, unless the crime or the act has
been committed against the donee himself,
his wife or children under his authority.
3) If he unduly refuses him support
when the donee is legally or morally bound
to give support to the donor.

220

Tolentino:
This applies to all donations
except donations mortis causa, donations
propter nuptias & onerous donations.
This enumeration is restrictive.
Art. 766.
Although the donation is
revoked
on
account
of
ingratitude,
nevertheless, the alienations & mortgages
effected before the notation of the complaint
for revocation in the Registry of Property shall
subsist.
Later ones shall be void.
Art. 767. In the case referred to in the
first paragraph of the preceding article, the
donor shall have a right to demand fr. the
donee the value of the property alienated w/c
he cannot recover fr. third persons or the sum
for w/c the same has been mortgaged.
The value of said property shall be fixed
as of the time of the donation.
Art. 768. When the donation is revoked
for any of the causes stated in Art. 760 or by
reason of ingratitude or when it is reduced
bec. it is inofficious, the donee shall not
return the fruits except fr. the filing of the
complaint.
If the revocation is based upon noncompliance w/ any of the conditions imposed
in the donation, the donee shall return not
only the property but also the fruits thereof
w/c he may have received after having failed
to fulfill the condition.
Art. 769. The action granted to the donor
by reason of ingratitude cannot be renounced
in advance. This action prescribes w/in one
year, to be counted fr. the time the donor had
knowledge of the fact & it was possible for
him to bring the action.
Art. 770.
This action shall not
transmitted to the heirs of the donor, if
latter did not institute the same although
could have done so, & even if he should
before the expiration of 1 year.

be
the
he
die

Neither
can this action be brought
against the heir of the donee unless upon the
latters death the complaint has been filed.

the donor dies w/o knowing of the fact of


ingratitude, the heirs may institute the
action for revocation.
Art. 771. Donations w/c in accordance
w/ the provisions of Art. 752, are
inofficious, bearing in mind the estimated
net value of the donors property at the
time of his death shall be reduced w/
regard to the excess; but this reduction
shall not prevent the donations fr. taking
effect during the life of the donor, nor shall
it bar the donee fr. appropriating the fruits.
For the reduction of donations the
provisions of this chapter & of articles 911
& 912 of the Code shall govern.
Art. 772. Only those who at the time of
the donors death have a right to the
legitime & their heirs & successors in
interest may ask for the reduction of
inofficious donations.
Those referred to in the preceding
paragraph cannot renounce their right
during the lifetime of the donor, either by
express declaration or by consenting to the
donation.
Art. 773. If, there being two or more
donations, the disposable portion is not
sufficient to cover all of them, those of the
more recent dates shall be suppressed or
reduced w/ regard to the excess.

Tolentino: There must be a proportional


reduction of simultaneous donations but
the donor may express a preference but
such must be expressly stated in the
donation itself.
BAUTISTA V. SABINIANO
Facts:
Bautista executed a deed of
conditional donation in favor of the
Sabinianos w/ the following conditions:
donor retains ownership & control over the
properties during his lifetime
he can dispose of the properties during his
lifetime to support him
if the donor dies , the donee shall pay all
his debts & pay for his funeral
expenses.

Tolentino: When the donor renounced the


action, the heirs cannot bring the action. If
221

ISSUE: WON the deed executed by Bautista


is a donation inter vivos?

by Philippine laws shall be observed in their


execution.

HELD: No, if the donor reserves the right to


revoke it or reserves the right to dispose of all
the properties purportedly donated there is
no donation. If the donation shall take effect
only upon the donors death, as in the case at
bar, then it is a donation mortis causa w/c
must follow the form of wills. As the deed is
not in conformity w/ the formalities of a will &
it is not a donation inter vivos, the deed is
void & there is no valid & lawful transmission
of properties between Bautista & Sabiniano.

Prohibitive laws concerning persons,


their acts or property, & those w/c have for
their object public order, public policy &
good customs shall not be rendered
ineffective
by
laws
or
judgments
promulgated, or by determinations or
conventions agreed upon in a foreign
country.

SUCCESSION

Art. 815. When a Filipino is in a foreign


country, he is authorized to make a will in
any of the forms established by the law of
the country in w/c he may be. Such will
may be probated in the Philippines.

I. Wills

IN RE WILL OF REVEREND ABADIA

A. Law Governing Form


1. In general

Art. 795. The validity of a will as to its


form depends upon the observance of the
law in force at the time it is made.

Balane:
Formal Validity
Time criterion.-- law at the time of execution;
subsequent
laws
cannot
apply
retroactively.
Place criterion.-- Under Art 815-817, five (5)
choices are available to the testator:
Citizenship
Residence
Domicile
Execution
Philippines
2. Intrinsic Validity
Time.-- time of death bec. of Art. 777
Place.-- Law of citizenship of decedent.
Art. 17.
The forms & solemnities of
contracts, wills, & other public instruments
shall be governed by the laws of the country
in w/c 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

FACTS: In 1923, Father Abadia executed


a document purporting to be his Last Will &
Testament. He died in 1943 & 1946, the
will was submitted for probate by Enriquez
for probate.
Enrique was one of the
legatees in the will. If the will was not
allowed, Abadias cousins & nephews will
inherit.
There were 3 witnesses to the
execution of the will but only 1 survived to
testify.
He said that Sancho wrote in
longhand (meaning handwritten) the will in
Spanish & that Abadia signed on the left
hand margin of the front page of each of
the 3 sheets. Finally, the testator signed at
the last page. The 3 witnesses signed their
names on the last page after the
attestation clause & nowhere else.
Note that in 1923, holographic wills
were not permitted. Certain requirements
were imposed by the law at that time like
numbering correlatively each page & not
each sheet & the signing on the left hand
margin by the testator & 3 attesting
witnesses.
ISSUE: Is the will valid? NO, under 1923
laws
HELD: The will was not allowed.
The
validity of the will is not to be judged by
the law in force at the time of the testators
death or at the time the supposed will is
presented in court for probate or when the
222

petition is decided by the court BUT AT THE


TIME THE INSTRUMENT WAS EXECUTED. In
the CAB, this was the law prevailing in 1923.
One reason to support this rule is that
although the will operates upon & after the
death of the testator, the wishes of the
testator about the disposition of his estate
among his heirs & among the legatees is
given solemn expression at the time the will
is executed, & in reality, the legacy or
bequest then becomes a completed act.
However, fr. the day of the death of
the testator, if he leaves a will, the title of the
legatees & devisees under it becomes a
vested right, protected under the due process
clause of the Consti. against subsequent
change in the statute adding new legal
requirements of execution of wills w/c would
invalidate such will.
By parity of reasoning, when one
executes a will w/c is invalid for failure to
observe & follow the legal requirements at
the time of its execution then upon his death
he should be regarded & declared as having
died intestate, & his heirs will then inherit by
intestate succession & no subsequent law w/
more liberal requirements or w/c dispenses
w/ such requirements as to execution should
be allowed to validate a defective will &
thereby divest the heirs of their vested right
in the estate by intestate succession. The
general rule is that the Leg cannot validate
void wills.

Baviera:
The reason for the law
governing form is that one cannot
foresee what the law will be in the
future. The law cannot invalidate what
was valid when executed & vice- versa.
2. Exceptions
a. Wills made by aliens abroad
Art. 816. The will of an alien who is
abroad produces effect in the Philippines if
made w/ the formalities prescribed by the law
of the place in w/c he resides, or according to
the formalities observed in his country, or in
conformity w/ those w/c this Code prescribes.

b. Wills made by diplomatic &


consular
officers
of
the
Philippines

Art. 17 (2) xxx 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. xxx

c. Wills made by aliens in


the Phils.

Art. 817. A will made in the Philippines


by a citizen or subject of another country,
w/c is executed in accordance w/ the law of
the country of w/c he is a citizen or subject,
& w/c might be proved & allowed by the
law of his own country, shall have the same
effect as if executed according to the laws
of the Philippines.

Balane:
Four combinations as to situation:
a. Filipino makes a will here
b. Filipino makes a will abroad.
c. Foreigner makes a will here.
d. Foreigner makes a will abroad.
What law governs the validity of will?
Intrinsic.-the national law of the
testator
Time.-- At the time of death.
Place.-- the same for Filipinos & aliens.
The same rule wherever you make
your will. You have five (5) choices-the law of
1. The testator's citizenship
2. Testator's domicile
3. Place of execution
4. Testator's residence
5. Philippines.
c. Joint Wills

Art. 818. Two or more persons cannot


make a will jointly, or in the same
instrument, either for their reciprocal
benefit or for the benefit of a third person.

Balane:
223

A joint will is one document w/c serves as the


will of 2 persons; this is prohibited;
A reciprocal will involves 2 instruments
reciprocally making each other heir; this
is not prohibited.
Elements of a Joint Will:
one single instrument;
it is the will of 2 or more persons.
Why prohibited?
Because it encourages
undue influence, murder, or attempt to
kill the other bec. generally, joint wills
benefit each other. It runs counter to the
idea that wills are revocable. It makes
revocation more difficult. (E.g., tearing it
up-destroys the will of another) It
undermines the personal element of a
will. (It becomes a multiple will.)
In the same light, joint wills make revocation
difficult as the provisions therein depend on
each other (Baviera)
One sheet of paper. On each side is a will of
one person. Is it valid? Yes, bec. there
are 2 documents.
One sheet of paper. On the front page, on
the upper half is a will of A. On the
bottom half is the will of B. Is it valid?
Yes. This is not a joint will bec. there are
still 2 documents.
The presumption is that wills are valid. The
fault probably is in the wording of the law.
Joint will-- one instrument. What the law
prohibits is not 2 wills on the same sheet of
paper but joint wills.
Art. 819. Wills, prohibited by the
preceding article, executed by Filipinos in a
foreign country shall not be valid in the
Philippines, even though authorized by the
laws of the country where they may have
been executed.
Balane:
This provision is an exception to the rule
enunciated in Articles 815 to 817 that for
Filipinos, as long as the will is valid in the
place of execution, then it is valid in the Phils.
Filipinos, whether here or abroad, cannot
execute joint wills. It is against public policy.
Can aliens execute joint will?
If executed in the country where it is allowed,
YES, it may be probated here.
If made here & their country allows them to
do this? There are 2 views on this:
(i) Yes, follow the personal law.

(ii)No bec. it is against public


policy.
Baviera: Art 819 affects the intrinsic
validity of a will hence, it applies only
to Filipinos.

DE LA CERNA VS. POTOT


FACTS:
The spouses Bernabe &
Gervasia de la Cerna executed a joint will in
their dialect bequeathing their 2 parcels of
land to their niece, Manuela Potot. The
Bernabe died first.
The Gervasia &
Manuela submitted the joint will for probate
& the same was approved. Upon the death
of the wife, another petition for probate of
the same will was filed insofar as Gervasia
was concerned. This time the TC ruled
against the allowance of the will for being
prohibited under the NCC.
ISSUE:
Is the joint will valid?
As to
Bernabe, yes. But as to Gervasia, no.
HELD: The allowance of the joint will
insofar as Bernabe is concerned stands,
despite the fact that even when it was
submitted for probate, joint wills were
already prohibited.
The error committed by the probate
court in admitting the joint will was an error
of law that should have been corrected by
appeal, but w/c did not affect the
jurisdiction of the probate court, nor the
conclusive effect of its final decision,
however erroneous.
A final judgment
rendered on a petition for the probate of a
will is binding upon the whole world &
public policy & sound practice demand that
at the risk of occasional errors, judgment of
courts should become final at some definite
date fixed by law.
The probate decree concerning
Bernabe could only affect his share. It
could not affect the disposition of the share
of the wife, who was then still alive & over
whose interest in the conjugal properties
the probate court acquired no jurisdiction
precisely bec. her estate could not then be
in issue.
It follows that the validity of the
joint will, insofar as the estate of the wife
was concerned, must be, on her death, re224

examined & adjudicated de novo, since a


joint will is considered a separate will of each
testator. Thus, the undivided interest of the
wife should pass upon her death to her
intestate heirs, & not exclusively to the
testamentary heir, unless some other valid
will in her favor is shown to exist or unless
she be the intestate heir of Gervasia.

the other, w/c would have arguably been


sanctionable as a prohibited donation.

VITUG VS. CA

The agreement may also be


considered an aleatory contract.
An
aleatory K is one whose fulfillment depends
on either the happening of an event w/c is
(1) uncertain or (2) w/c is to occur at an
indeterminate time.
In either case, an
element of risk is present. In CAB, the risk
was the death of one party & the
survivorship of the other.

FACTS: Mr. Vitug filed a motion for authority


fr. the probate court of his wifes estate to sell
certain shares of stock & real properties
belonging to his wifes estate to cover
allegedly his advances to the estate w/c he
claimed as personal funds. He said that he
w/drew these funds fr. the savings account w/
Bank of America. The executrix of the wifes
estate opposed saying the account was part
of the conjugal partnership, thus there was
no need for reimbursement.
Mr. Vitug countered by saying that
said funds are his exclusive property by
virtue of a SURVIVORSHIP AGREEMENT signed
by the spouses. (The agreement says
something like if one of us will die ahead of
the other, the funds shall be collectible on
w/drawal by the survivor)
ISSUE: Is reimbursement proper? Yes
Is the survivorship agreement valid?
Yes
HELD: The agreement is not a conveyance
mortis causa. A will has been defined as a
personal, solemn, revocable & free act by w/c
a capacitated person disposes of his property
& rights & declares or complies w/ the duties
to take effect after his death. In other words,
the bequest or devise must pertain to the
testator (that he must own the property
devised) . In CAB, the monies in the bank
were in the nature of conjugal funds.
Neither is the agreement a donation
inter vivos bec. it was to take effect after the
death of one party. Furthermore, it is not a
donation between the spouses bec. it
involved no conveyance of a spouses own
properties to the other.
When the spouses Vitug opened the
account, they merely put what rightfully
belonged to them in a money-making
venture. They did not dispose of it in favor of

The validity of the agreement


seems debatable by reason of its survivor
take all feature, but in reality that contract
imposed a mere obligation w/ a term. The
term being death.

While a survivorship agreement is


per se not contrary to law, its operation or
effect may be violative of the law. It is
illegal if it be shown that such agreement
is a mere cloak to hide an inofficious
donation, or transfer of property in fraud of
creditors, or to defeat the legitime of a
forced heir.
Under these cases,
the
agreement may be annulled.
Baviera: The aleatory agreement was
done by the bank.
Joint accounts
usually made by people who want to
leave something to another w/o going
through the courts

e. Holographic Wills

Art. 810. A person may execute a


holographic will w/c must be entirely
written, dated, & signed by the hand of the
testator himself. It is subject to no other
form, & may be made in or out of the
Philippines, & need not be witnessed.

Baviera: The problem w/ holographic


wills is that they must be proved by
the genuineness of the handwriting of
the testator. By the time the probate
of the will is filed, those familiar w/
the testators handwriting may no
longer be alive.

Balane:
225

Real Requirements (MANDATORY): must be


by the hand of the testator himself.

2. Can a blind testator make a holographic


will? Yes. There is no form required. What
is important is the presence of the 3
requisites.

I. Written entirely by the testator


If partly by the testator & partly by another
person, VOID
If another person wrote an additional part w/o
knowledge of the testator, the will is
VALID but the addition is VOID.
If another person wrote an additional part w/
the knowledge of the testator, VOID.

II. Dated
(1) Roxas v. de Jesus. (Balane case) -- On the
will, the date was written as "Feb./ 61." Is it
valid? Yes.
General rule: Day, month & year must be
indicated.
Exception: When there is no appearance of
fraud, bad faith, undue influence, & pressure
& the authenticity of the will is established, &
the only issue is whether or not "Feb./61" is
valid, then it should be allowed under the
principle of substantial compliance.
(2) Labrador v. CA (Balane case) -- In this
case , the date was indicated in the body of
the will as part of the narration. Is this valid?
Yes. It is not necessary that the will be
separate fr. the body. In fact, it can be
anywhere in the will as long as the date
appears in the will.

B. Law Governing Contents


Art. 16(2).xxx
However, intestate &
testamentary successions, both w/ respect
to the order of succession & to the intrinsic
validity of the testamentary provisions,
shall be regulated by the national law of
the person whose succession is under
consideration, whatever may be the nature
of the property & regardless of the country
wherein said property may be found. xxx
Art. 1039. Capacity to succeed is
governed by the law of the nation of the
decedent.

Bar Question
Q: A Filipino went abroad & acquired US
citizenship. She then made a will giving all
her properties to her paramour.
A:
US laws will govern

If the date is proven wrong, then its validity


depends on whether the error is deliberate or
not. If deliberate, the will is considered not
dated & the will is void. If not deliberate, the
date will be considered as the true date.

Q: What if she was a Filipino citizen when


she executed the will but died a US citizen?
A:
US laws will govern.

Date is usually written by putting the day,


month, & year. However, other ways may be
adopted such as "Christmas day of 1995."

ESTATE OF CHRISTENSEN
AZNAR VS. GARCIA)

Signature
Commentators have said that the signature
must consist of the testator's writing his
name down. The reason for this is since he is
able to write his will, then he is literate
enough to write his name.

FACTS: In accordance w/ the will executed


by the decedent Edward Christensen (a US
citizen but Phil domiciliary) , the executor
in his final account & project of partition,
ratified the payment of P3,600 to Helen, for
such amount that was bequeathed &
devised by the testator to her.
The
executor then proposed that the residue of
the estate be transferred to the decedents
daughter Lucy. Helen opposed saying that
she was deprived of her legitime as the
acknowledged
natural
child
of
the
decedent.
The legal ground of her
opposition was that the distribution should
be governed by the laws of the Phils.

Are holographic wills in letters allowed? Yes,


provided there is an intent on the part of
the testator to dispose of the property in
the letters & the 3 requisites are present.
"I give you 1/2 of my estate as provided for in
the document I kept in the safe." This is a
holographic will bec. the letter does not in
itself dispose of the property.

(A.K.A.

226

ISSUE: Phil or California law? Philippine law


although the decedent is a California citizen.
Read on.
HELD: As Edward was a citizen of the US & of
the State of California at the time of his
death, the successional rights & intrinsic
validity of the provisions in his will are to be
governed by the laws of
California.
According to California law, a testator has
the right to dispose of his property in the way
he desires, bec. the right of absolute
dominion over his property is sacred &
inviolable.
But as provided in Art. 16 (supra), the
national law of the decedent applies. And so,
what is the national law? There is no single
American law governing the validity of
testamentary provisions. Each state of the
union has its own private law applicable to
its citizens only & in force only w/in the state.
The California Probate Code provides that the
testator may dispose of his property by will in
the form & manner he desires (internal law)
BUT Art. 946 of the Civil Code of California
provides that the law of the testators
domicile governs (conflicts rule) Applying the
principle of renvoi, Art. 16 will apply. The
reason being that California internal law
should be applied to its citizens residing
therein, & enforce the conflict rule for citizens
domiciled abroad. Hence, Helen has the
right to demand completion of her legitime.
ESTATE OF AMOS BELLIS (A.K.A. BELLIS
VS. BELLIS)
FACTS:
The decedent Amos Bellis was
born in Texas & was a citizen & resident
thereof at the time of his death. Under Texas
law, there are no forced heirs or legitimes.
He executed a will in the Phils in w/c he
directed that after all taxes, obligations &
expenses his estate shall be divided thus: (1)
$240,000 to his 1st wife; (2) P120,000 to his 3
illegit children, divided equally; & (3) the
remainder goes to his surviving legitimate
children. The 3 illegit children filed their
opposition to the project of partition on the
ground that they were deprived of their
legitime under Phil law (By the way, the illegit
children are all in the Phils)
ISSUE: Texas law or Phil. law? TEXAS

HELD:
Texas law will apply since the
decedent is both a citizen & a domiciliary of
said state. Unless there is a Texas conflicts
rule applying lex rei sitae (law of the place
where the properties are situated), renvoi
will not apply in this case.
Art. 16 & Art 1039 render applicable
the national law of the decedent in
intestate & testamentary succession w/
regard to:
order of succession
amount of successional rights
intrinsic validity of the provisions of the will
capacity to succeed
In the case of Miciano vs. Brimo, the SC
held that a provision in a foreigners will to
apply Phil law & not the national law of the
decedent is illegal & void.
PCIB VS. ESCOLIN
FACTS:
Charles Hodges & his wife
Linnie Jane provided mutually in their
respective wills that : I give, devise,
bequeath all of my estate to my beloved
spouse during his/her natural lifetime,
subject to the condition that upon the
death of whoever of them survived the
other, the remainder of what he or she
would inherit fr. the other is given, devised,
& bequeathed to the brothers & sisters of
the latter.
Linnie died first & Charles became
the Executor of her estate. However, he
made no liquidation of Linnies estate.
When Charles died, Magno was appointed
Administratrix of Linnies estate. PCIB was
declared spl. Administrator of Charles
estate.
PCIB claims that the Hodges
spouses were both residents of the Phils &
that the estate left by Linnie could not have
been more than 1/2 of her share of the
conjugal partnership, the other half being
the legitime of Mr. Hodges (1/4 of the
conjugal partnership) notw/standing that
she is a Texas national.
Magno claims that Art. 16 of the
NCC, the applicable law is Texas law under
w/c there is no system of legitime, hence,
the estate of Linnie cannot be less than her
share or 1/2 of the conjugal partnership)
227

ISSUE: Philippine law or Texas law?


although SC was not categorical

Texas,

HELD:
The Court regrets, however,
that it cannot decide as neither the evidence
submitted by the parties nor their discussion
provide a clear & reliable proof of what in fact
is the possibly applicable law of Texas.
Elementary is the rule that foreign laws may
not be taken judicial notice of & have to be
proven like any other fact in dispute between
the parties in any proceeding, w/ the rare
exception in instances when the said laws are
already w/in the actual knowledge of the
court, such as when they are well & generally
known or they have been actually ruled upon
in other cases before it & none of the parties
concerned do not claim otherwise. Case
remanded to lower court to determine Texas
law.
BUT NO! Whatever be the provisions
actually of the laws of Texas applicable
hereto, the estate of Linnie is at least 1/2 of
the conjugal estate of the spouses. The
existence & effects of foreign laws being
questions of fact, & it being the position now
of PCIB that the estate of Linnie pursuant to
the laws of Texas, should only be 1/2 of the
conjugal estate, such contention constitutes
an admission of fact, & consequently, it
would be in estoppel in any further
proceedings in these cases to claim that said
estate could be less, irrespective of what
might be proved later to be actually the
provisions of the applicable laws of Texas.
AJERO VS. CA
FACTS:
The holographic will of Annie
Sand was submitted for probate.
Ajero
opposed on the ground that one of the
dispositions in the will (house & lot) was
invalid bec. the decedent was not the sole
owner thereof.
ISSUE: Can court pass upon substantial
validity of a will in a probate proceeding? Yes,
in certain cases.
HELD: In a petition to admit a holographic
will, the only issues to be resolved are:
WON the instrument submitted is, indeed,
the decedents last will & testament
WON said will was executed w/ the formalities
prescribed by law

WON the decedent had the necessary


testamentary capacity at the time the
will was executed
WON the execution of the will & its signing
were the voluntary acts of the
decedent.
The general rule is that the probate
court is limited to passing upon the
extrinsic validity of the will. An exception :
Courts are not powerless to do what the
situation constrains them to do, & pass
upon certain provisions of the will. In the
CAB, the property in question is in the
name of the decedents father. Thus, she
cannot validly dispose of
it since she
shares it w/ her fathers other heirs.
A reading of Art. 813 shows that its
requirement affects the validity of the
dispositions contained in the holographic
will, but not its probate. If the testator fails
to sign & date some of the dispositions, the
result is that these dispositions cannot be
effectuated. Such failure, however, does
not render the whole testament void.

C. Kinds
1. Holographic
Art. 810. A person may execute a
holographic will w/c must be entirely
written, dated, & signed by the hand of the
testator himself. It is subject to no other
form, & may be made in or out of the
Philippines, & need not be witnessed.

Baviera:
Why should holographic wills be
dated? To know whether the testator
is of disposing mind at the time of the
execution thereof. Without the date,
the will is void.
But in one case, the SC said that the
date stated in the body of the will is
valid.

Art. 804. Every will must be in writing


& executed in a language or dialect known
to the testator.
228

Balane: Requirements:
1. In writing but no specific form is required.
It could be in a marble glass or on a wall, so
long as there was testamentary capacity.
2. Written in a language or dialect known to
the testator.
Suroza v. Honrado (Balane case) -- The issue
here is whether the will, w/c was written in
English is valid. The SC ruled that it is not.
The testatrix does not know English, being an
Igorot & an illiterate. Obviously, the will is
void, bec. of non-compliance w/ Art. 804. In a
will, can you conclude that it is void where in
the attestation clause, it was stated that the
will was read & translated to Filipino? The
law does not require translation nor
interpretation of the language to the testator
but that he himself personally understands
the said language.

a. GENERAL RULE: The will itself


must be presented (Gan vs. Yap)
EXCEPTION: If there is an existing copy
or
duplicate
photostatic
xerox.
(Rodelas case)
b. Lost holographic wills can not be
probated even by the testimonies of the
witnesses. The reason is that the will itself
is the only proof of its authenticity.
2. Testimonial Requirement
a. Uncontested will.-- only one witness to
identify the signature & handwriting of the
testator.
b. Contested will.-three witnesses to
identify the signature & handwriting of the
testator.
AZAOLA V. SINGSON (BALANE CASE) --

Is it necessary for a will to state that


the testator knew the language? No.
Extrinsic/ testimonial evidence may
prove this.
Is direct evidence always necessary to
prove that the testator knew the
language?
No.
Sometimes,
circumstantial evidence is sufficient.
E.g., a person w/ a college degree does
a will in English.

Art. 811. In the probate of a holographic


will, it shall be necessary that at least one
witness who knows the handwriting &
signature of the testator explicitly declare
that the will & the signature are in the
handwriting of the testator. If the will is
contested, at least three of such witnesses
shall be required.
In the absence of any competent witness
referred to in the preceding paragraph, & if
the court deem it necessary, expert
testimony may be resorted to.

Balane:
Requirements in the Probate of Holographic
Wills:
1. Documentary Requirement

In the case, the oppositors of the will


contested the will on the ground that it was
executed through fraud. They, however,
admitted its due execution. During the
case, the proponent presented only one
witness to identify the signature &
handwriting of the testator. Is one witness
sufficient considering there is an oppositor
to the will?
Yes. The SC held that one witness is
sufficient. What the law envisions is that
the genuineness of the handwriting &
signature be contested.
Contested
holographic will refers to the challenge by
the oppositors that the will is not in the
handwriting of the deceased.
The
oppositors in this case did not challenge
the handwriting of the deceased. Their
ground for opposing probate is that the will
was executed through fraud & improper &
undue influence.
Hence, the probate
required only one witness.
The authenticity of the will is not
contested. Therefore, the will itself, not
being contested was that of the testator.
The oppositors here precisely admit that
authenticity of the will but oppose on the
ground that there is fraud or undue
influence initiated upon her in the
execution of the will.
Hence, it is
uncontested.
Obiter dictum: The three witness
provision for contested holographic will is
merely directory. The court upon satisfying
itself of the authenticity of the will can
require one or ten witnesses. The judge
knows best. The second paragraph of Art.
811 gives the court discretion, hence the
directory effect of the Art.-- (a) it is a
matter of quality & not quantity; (b) to
require 3 witnesses, makes it worse than
treason, w/c requires only 2 witnesses.
229

Bar Questions:
Q:
Wife executes a HW w/c the husband
forged. The will was admitted in probate. Is
the admission a bar to criminal liability?
A:
NO
Q:
How does one prove the existence of
a lost will (HW)?
A:
Witnesses who will testify that they
saw the will after the testators death. After
w/c, present secondary evidence (copy of the
HW)
Q:
J executed a notarial will instituting A
as his sole heir. After a fight, J executed a HW
instituting B instead of A as his sole heir. J
accidentally destroyed the HW.
A:
Can no longer probate the HW. You
only have the testimony of witnesses w/c is
not allowed.
ESTATE OF ESGUERRA
YAP)

(A.K.A. GAN VS.

FACTS:
When decedent Felicidad Yap
died,
Fausto Gan initiated probate
proceedings alleging that there was a
holographic will executed by the decedent.
The surviving spouse asserted that his wife
did not leave any will.
Fausto tried to
establish the due execution & contents of the
will by the testimonies of witnesses.
ISSUE: Can HW be proved w/ witnesses
only? No
HELD:
Due execution & the contents
of a lost or destroyed holographic will cannot
be proved by the bare testimony of witnesses
who have seen & read such will.
As
compared to notarial wills, HW no witnesses
are needed provided however that the will is
entirely written, dated & signed by the hand
of the testator. In HW, the witnesses so
presented do not need to have seen the
execution of the HW. The loss of the HW will
entail the loss of the only medium of proof. If
a notarial will was lost, the subscribing
witnesses are available to authenticate.
Moreover, in the case of a lost HW the
witnesses would testify as to their opinion of
the handwriting w/c they allegedly saw, an
opinion w/c cannot be tested in court nor
directly contradicted by the oppositors bec.
the handwriting itself is not at hand.
RODELAS VS. ARANZA

FACTS:
Marcela Rodelas sought the
probate of the holographic will of Ricardo
Bonilla. Aranza opposed by saying that the
petitioner should have presented the
holographic will itself & not a copy thereof.
ISSUE: Can HW be proved w/ a copy
thereof? Yes
HELD: If the HW has been lost or destroyed
& no other copy is available, the will cannot
be probated bec. the best & only evidence
is the handwriting of the testator in said
will.
It is necessary that there be a
comparison between sample handwritten
statements of the testator & the will. BUT
a photostatic copy or xerox copy of the HW
may be allowed bec. comparison can be
made w/ the standard writings of the
testator.(This was based on a footnote in
Gan vs. Yap, supra. Perhaps it may be
proved by a photographic or photostatic
copy. Even a mimeographed or carbon
copy; or by other similar means, if any,
whereby
the
authenticity
of
the
handwriting of the deceased may be
exhibited & tested before the probate
court.)

Baviera: But first prove the existence


of the HW at the time of death of the
testator. Otherwise, the presumption
is that the will was destroyed.

KALAW VS. RELOVA


FACTS:
Gregorio Kalaw sought the
admission of the holographic will of his
sister Natividad Kalaw. The HW, as first
written, named Rosa as her sole heir.
However, it appears that the testatrix
crossed out Rosas name & inserted
Gregorios name. This change was initialed
by Natividad. Rosa opposed the probate on
the ground that there were erasures,
insertion, cancellation or alterations w/c
were not authenticated by the testatrix by
her full signature.
ISSUE: Will valid? NO
HELD: Ordinarily, when a number of
erasures, corrections, & interlineations
made by the testator in a HW have not
been noted under his signature, the will is
not invalidated as a whole, but at most
230

only w/ respect to the particular words


erased, corrected or interlined.
However, when as in this case, the
HW had only one substantial provision, w/c
was altered by substituting the original heir
w/ another, but w/c alteration did not carry
the requisite of full authentication by the full
signature of the testator, the effect must be
that the entire will is voided or revoked for
the simple reason that nothing remains in the
will after that w/c could remain valid. To state
that the will as first written should be given
efficacy is to disregard the seeming change
of mind of the testatrix. But that change of
mind can neither be given effect bec. she
failed to authenticate it in the manner
required by law by affixing her full signature.
Baviera:
Could this not be taken as a dangerous
precedent whereby those who want to
have the HW voided may do so in the
manner provided for in this case? YES
Distinguish Ajero & Kalaw cases: In Ajero, the
HW was allowed even w/ the alterations.
But the alterations in the Ajero case
probably involved several dispositions. (I
think -chip) In Kalaw, the alteration
involved the only single substantial
provision, & so the entire will was
rendered void. Furthermore, in the Ajero
case,
the SC held that in probate
proceedings, courts are limited to issues
regarding extrinsic validity only.
2. NOTARIAL WILL

Art. 805.
Every will, other than a
holographic will, must be subscribed at the
end thereof by the testator himself or by the
testator's name written by some other person
in his presence, & by his express direction, &
attested & subscribed by three or more
credible witnesses in the presence of the
testator & of one another.
The testator or the person requested by
him to write his name & the instrumental
witnesses of the will, shall also sign, as
aforesaid, each & every page thereof, except
the last, on the left margin, & all the pages
shall be numbered correlatively in letters
placed on the upper part of each page.
The attestation shall state the number of
pages used upon w/c the will is written, &

the fact that the testator signed the will &


every page thereof, or caused some other
person to write his name, under his express
direction, in the presence of the
instrumental witnesses, & that the latter
witnessed & signed the will & all the pages
thereof in the presence of the testator & of
one another.
If the attestation clause is in a language
not known to the witnesses, it shall be
interpreted to them.

Balane:
Fourth Paragraph.-- Know the language
1. Body of the will.-- testator
2. Attestation clause
a. Testator.-- No.
b. witnesses.-- No. Only required
to know the contents thereof.
Discrepancies
Par. 1.-- No mention that the testator signs
in the presence of witnesses & yet par.
3 states this.
Par. 2.-- No statement that the testator &
the witnesses must sign every page in
one another's presence & yet that is
required to be stated in the attestation
clause.
Par. 3.-- In case of agent, all it requires is
that the agent signed by his direction &
not in his presence, but that is required
in par. 1.
Requisites for an ordinary attested
will (notarized will.).-Purpose of
requisites:
judgment call of Code
Commission; balancing of 2 policies.-- (1)
to encourage a person to make a will; (2)
to make sure that the will is testament of
the testator to minimize fraud.
Signed by the testator or his
agent in his presence & by
his express direction at the
end
thereof
&
in
the
presence of the witnesses.
Subscribe.-- literally means "to write one's
name."
Sign means "to put a
distinctive mark" (this is the better
term to use.)
Signing.-- by writing his own name; a
person may sign in other ways
Purpose.-- to authenticate the will
Where should the testator sign? At the end
of the will. There are 2 kinds of ends:
231

Physical end.-- where the writing ends


Logical end.-that where testamentary
disposition ends.
Usually, they are the same. But if
different, t hen either will do. What if after
the signature, some clauses follow? What is
the effect of the said clauses to the will? If
annuls or makes the whole void bec. of the
non-compliance w/ Art. 805.
e. Testator directs another to sign his name.
Four cases:
Testator- A; Agent- B
"B" is not valid
"A" handwritten "by B" typewritten is
valid
"A" typewritten "by B" handwritten is
not valid.
"A" is valid
The agent must sign where the
testator's signature should be.
Purpose of the rules:
to test the
authenticity of the agency. It is an
added safeguard to minimize
fraud.
f. Testator must sign in the presence of
witnesses
Four cases: Testator.-- A; Witnesses.-- B, C,
D
A signs w/ B breathing on her face. Is it
signing in the presence of the testator?
YES.
A signs while B is talking to C. B can see A
through peripheral vision. Is A signing in
B' s presence? YES
A signs while B is talking to C w/ B's back to
A. Is it signing in B's presence? YES.
B goes out & stands behind the wall. He
cannot see A. B is also talking to F. Is a
signing in B's presence? NO.
Attested & subscribed by at least
three credible witnesses in the
testator's presence & of one
another.
Q:

Can the testator sign first not in the


witness' presence, then let the witnesses
sign? No. Art. 805 requires that the
testator should sign at their presence
(Vda. de Ramos case.) There is some
inconsistency here but we have to follow
Art. 805.

Q: Can the validity be affected if the witness


signed ahead of the testator?
A: No. Provided it is made in one occasion or
transaction. However, in strict theory, it can
not be done bec. before the testator signed
there is no will at all w/c the witnesses can
sign & attest to. If there is more than one
transaction, then the testator must always
sign ahead of the witnesses.

Attestation --visual act; witness


Subscribing -- manual act; sign
The three witnesses must do
both
attesting
&
subscribing.
Where must witnesses sign?
clear.

This is not

Can witnesses sign w/ thumb mark? (1)


Some say Yes bec. it is only an act of
authentication; (2) some say no bec.
one requirement is that witnesses must
know how to read & write w/c implies
that the witness write his name.
The testator or agent must sign
every page except the last
on the left margin.
Purpose.-- to prevent the disappearance of
the pages.
"Every page except the last." Why not the
last? Bec. it will already be signed at
the bottom.
Left hand margin.-- requirement was made
when right hand was not justified when
typed.
Now, testator can sign anywhere in the
page.
each
page
is
signed
&
authenticated.-- mandatory
left margin.-- directory.
Witnesses must sign each &
every page, except the last,
on the left margin.
This is the same as number 3.
Witnesses may sign anywhere as long as
they sign.
5. All pages must be numbered
in letters on the upper part of the
page.
Mandatory.-- there must be a method by
w/c the sequence of the pages can be
known; to prevent an insertion or taking
out of a page.
b. Directory
Manner it is numbered- letters, numbers,
Arabic, roman numerals, etc.; any
conventional sequence of symbols is
allowed
Upper part
6. Attestation Clause.
Three things that must be stated:
the number of pages in the will
the fact that the testator or his agent
signed the will in every page thereof in
232

the presence of the instrumental


witnesses
that the instrumental witnesses witnessed &
signed the will & all the pages thereof in
the presence of the testator & one
another.
Attestation clause is not a part of the will
proper bec. it contains no dispositions. It
is merely essential for the formal
requirements of a valid will.
It is a
statement of the witnesses.
Where must witnesses sign? At the bottom in
order to prevent additions.
Must the language of the will be understood
or known by the witnesses? No. After all,
witnesses need not know the contents of
the will.
Q: Is it required that the witnesses knew the
language of the attestation clause:
A: No. So long as it has been interpreted to
them.
Q: Must the testator know the language of
the attestation clause?
A: No. What is required of the testator is to
know the language of the will. An express
requirement of Art. 804.
Reason for the above rules: In order to
minimize fraud. The very purpose of Art. 804
& 805. The law encourages not discourages
will making.
Precisely bec. it wanted to
encourage wills. It sets up safeguards to
protect the will.
Must the testator sign the attestation clause?
No.
Q: Must an attested will be dated?
A: No. Lack of date does not annul an
attested will. But a holographic will must be
dated. (Art. 810.)
Notarization.-- A will is a public instrument
that is why it must notarized.
Art. 806.
Every will must be
acknowledged before a notary public by the
testator & the witnesses. The notary public
shall not be required to retain a copy of the
will, or file another w/ the office of the Clerk
of Court.
Balane:
General rule: The notary public cannot be a
witness.
Exception: When there are more than 3
witnesses. In such a case, the requisite of 3
witnesses is achieved.

Questions.
Q1: Can a witness be an agent who will
sign for the testator?
A1:
(a) Yes. There is no prohibition.
No.
The testator must sign before 3
witnesses.
He cannot sign before
himself.
To be safe, do not let this happen.
As the lawyer, be sure you have
at least 3 witnesses.
Q2:
Is there any particular order of
signing?
A2: No. As long as the signing is done on
one occasion or one continuing transaction.
Yes. If the signing is not done on one
occasion or transaction. In such a case,
there is nothing that the witness is
attesting to.
Art. 809. In the absence of bad faith,
forgery, or fraud, or undue & improper
pressure
&
influence,
defects
&
imperfections in the form of attestation or
in the language used therein shall not
render the will invalid if it is proved that the
will was in fact executed & attested in
substantial
compliance
w/
all
the
requirements of article 805.

Balane:
This is a liberalization rule, an
attempt to liberalize Articles 804 to 808.
Substantial compliance w/ Articles 805 &
806 will validate the will despite some
defects in the attestation clause.
Looking at Art. 809, you get the
impression of utmost liberalization. We can
not determine how liberal we can be or can
we go. This article does not give a clear
rule. JBL Reyes & Tolentino suggest that
you make a distinction.
Guide: If the defect is something that can
be remedied by the visual examination of
the will itself, liberalize. If not, then you
have to be strict.
Illustration: If in an attestation clause, the
number of pages used was not stated, then
you can liberalize bec. by examining the
will itself, you can detect the defect. This is
bec. the pagination of statement in the
attestation clause is merely a double
check.
If the attestation clause failed to
state that "the testator signed in the
presence of witnesses," & this can not be
233

remedied by visual examination of the will,


then you need to be strict.
Suggested amendment of the law: "If
such defect & imperfections can be supplied
by examination of the will itself & it is
proved."
:
CRUZ VS. VILLASOR
Facts: A last will & testament of Valente
Cruz was submitted for probate w/ the CFI of
Cebu. Agapita Cruz, the surviving spouse
opposed the allowance of the will on several
grounds including, that of the 3 instrumental
witness to the will, one of them, is at the
same time the Notary Public before whom the
will
was
supposed
to
have
been
acknowledged.
Held: The last will & testament was not
executed in accordance w/ law. The notary
public
before
whom
the
will
was
acknowledged cannot be considered as the
3rd instrumental witness since he cannot
acknowledge before himself his having
signed the will.
Consequently, if the 3rd witness were
the notary public himself, he would have to
avow, assent, or admit his having signed the
will in front of himself. This cannot be done
bec. he cannot split his personality into two
so that one will appear before the other to
acknowledge his participation in the making
of the will. To permit such situation to obtain
would be sanctioning a sheer absurdity.
IN THE MATTER OF THE TESTATE ESTATE
OF FILOMENA BERMOY
Facts: The will sought for probate here was
written in Visayan dialect, composed of three
pages, dated in 1942 & thumbmarked by
Bermoy & signed by her 3 witnesses. The
attestation clause was signed by another set
of 3 witnesses.
The notary public who prepared the
will testified that the thumbmarks were
affixed by the deceased inside her room &
later brought out by the husband of
Velenzona to be signed in the presence of
witnesses.
Held: The will is null & void. The attestation
clause failed to state that the testatrix signed
the will & every page thereof or caused her

name to be signed thereon in her presence,


in the presence of witnesses & that the
witnesses signed the will & every page
thereof in the presence of the testatrix & of
each & every one of them.
These
omissions are substantial sufficient to
invalidate the will.
CAGRO VS. CAGRO
Facts. In the case, the page where the
attestation clause appears was signed by
the witnesses on the side & not after the
attestation clause.
Held: This was a fatal defect. The logic is
that if there had been no signature at the
bottom but on the sides, there will be
ample room for fraud, that is, to add in the
attestation clause upon the death of the
decedent an essential matter w/c was not
there in the first place to validate it.
RODRIGUEZ VS. YAP
Facts: The will of the deceased Ylanan has
an attestation clause w/c states that:
this is the last will of the deceased
that said will is composed of two pages
inasmuch as the deceased does not know
how to write, upon her direction, her
name was signed by another in her
presence & of her witnesses
that the name of the deceased was signed
in all the pages
that the witnesses signed this will in the
presence of the testatrix & in the
presence of each & every one in Cebu
on 27 Jan. 26
Held:
Will is valid for it substantially
complied w/ the formal requirements. The
attestation clause states ( c ) that, as the
testatrix did not know how to writer, her
name was written by another under her
direction & in her presence & that of her
witnesses. While not so stated, this can
only refer to the foot of the will, & not to
the margin of the pages bec. there is
added in ( b ) that the name of the testatrix
was written in all pages.
The AC also states that the
witnesses signed the will in the presence of
the testatrix & of each other. While it is
also stated that these signatures were
written on the left margin of the pages of
the will, it should be understood in view of
234

the fact that these witnesses only signed on


the left margin of the pages of the will, for
otherwise it would not be a fact that they
signed the will.
IN RE: ESTATE OF SAGUINSIN
Facts: This involves the will of Saguinsin.
Held: The court declared the will to be
invalid. The AC did not state the number of
pages upon w/c the will was written Neither
was the signature w/c guarantees the
genuineness of the testament placed on the
left hand margin of each page nor was each
page numbered by letter in the upper part.
The witnesses who must sign all pages of the
document did not sign the 2nd page.
ESTATE OF BARRIOSO VS. JAVELLANA
Facts: A purported will & codicil of the
deceased were allowed probate. This was
vigorously contested by the executrix stating
several grounds including, that the AC failed
to state that the witnesses signed each &
every one of the three pages of the
testament.
Held: The will & the codicil were valid.
Several SC decisions were imbued w/ a more
liberal spirit upheld the doctrine that literal
conformity w/ the language of the AC, as
prescribed by the statute, is not required, It
is sufficient that fr. the language employed, it
can be reasonably deduced that the AC fulfils
what the law expects of it.
In the CAB, the attestation clause
recites that the testatrix signed on the left
hand margin of pages 1 & 2 & at the foot of
the 3rd page in the presence of the witnesses,
When later on the clause says that the
witnesses signed as instrumental witnesses
it means that the witness signed on the
pages & at the places where the testatrix
signed, bec. when a person signs as a
witness his signature must be in the same
place & on the same page where the testatrix
stamped her signature, i.e. on the left hand
margin. So it appears fr. the codicil that the
witnesses also signed on the left hand margin
of pages 1 & 2 & at the foot of page 3. The
defect lies in the failure of the drafter of the
codicil to follow the language of the statute,
his failure to expressly point out a fact, w/c
however, may be reasonably inferred fr. the
AC as a whole.

GUEVARA VS. GUEVARA


Facts (relevant to the case): On Sept. 27,
1933, Vic Guevara died but his will was not
filed for probate. Four months later, a
certain Rose claiming to be his recognized
natural child brought suit against Ernie
(one of Vics children) claiming a portion of
the lot w/c was sold to the latter by the
deceased prior to his death. The SC ruled
in favor of Ernie & ordered the parties to
present the will for proper probate. Rose
commenced an action for the probate of
the will on 5 October 1945.
Held: The petition for probate of the will
was not barred by the statute of
limitations. Reason & precedent reject the
applicability of the statute of limitations to
probate proceedings bec. the same are
established not exclusively in the interest
of the heirs, but primarily for the protection
of the testators expressed wishes, w/c are
entitled to respect as a consequence of his
ownership & right of disposition. Inasmuch
as the probate of wills is required by public
policy, the state could not have intended to
defeat the same by applying there to the
statute of limitations of action.
ii. PRETERITION

Art. 854. The preterition or omission of


one, some, or all of the compulsory heirs in
the direct line, whether living at the time of
the execution of the will or born after the
death of the testator, shall annul the
institution of heir; but the devisees &
legacies shall be valid insofar as they are
not inofficious.
If the omitted compulsory heirs should
die before the testator, the institution shall
be effectual, w/o prejudice to the right to
representation.

Balane:
A. Clarification:
"Whether living at the time of the
execution of the will or born after the
death of the testator." This does not
cover all the possibilities. What about
235

those born after the execution of the will


but before the death of the testator? Art.
854 also covers them, just an oversight.
Extends protection only to "compulsory heirs
in the direct line." Is this redundant?
Aren't compulsory heirs in the direct line?
No. Spouses are compulsory heirs not in
the direct line.
So what is the remedy of the wife who has
been omitted? Demand her legitime.
Compulsory heirs in the direct line cover only
ascendants & descendants.

Effect of preterition.-"Annul the


institution of heir but devises &
legacies shall be valid insofar as
they are not inofficious."
-Abrogate, set aside, eliminate,
cancel.
Effect of preterition (of parents) when there
are no devises or legacies (Nuguid
case)-whole will is considered
inexistent.

Preterition.-- "praeter" means "to go


beyond" -- not enough to know the
meaning.

If there are devises or legacies.-- Set aside


only the institution of heirs but not the
institution of devisees & legatees. If
the devise & legacy exceed the free
portion, decrease the devise & legacy.

Who is a person preterited?


Manresa.-"Complete omission fr. the will" -- Wrong!
Why? It presupposes that if mentioned in
the will, then the heir is not preterited.
However, whether you are mentioned in
the will or not has no effect on the
preterition.

E.g., Testator has son, A. His will


states "I give 1/2 of my estate to A &
P300,000 to N."
The estate is worth
P600,000. How much will each get? N
gets 300,000. A gets the other 300,000. M
gets nothing.

Illustrations:

E. Criticism

I have a son, A. The will states "I give 1/2 to


B." A is not preterited bec. he gets the
other half.
I have a son, A. The will states "I give 1/3 to
B & 1/3 to C." A is not preterited bec. he
gets the other 1/3. His legitime, however,
is impaired.
I have a son, A. The will states "I give 1/2 to
B, 1/2 to B, & to A, all my love." A, even if
mentioned in the will, was preterited.

1. Why not extend the application to the


wife?
2. Why distinguish between heir & devisee
& legatee?

Preterition occurs if the heir receives


nothing fr. the inheritance by way of
testamentary disposition, devise, legacy,
intestacy, or donation inter vivos.
Situations
Heir is mentioned but nothing is left to him-Heir is preterited if he receives nothing by
intestacy.
Heir is instituted in the will but the part she is
instituted in is less than her legitime.-There is no preterition.
Definition of preterition.-Preterition
happens when the compulsory heirs in
the direct line are totally omitted fr. the
inheritance, that is the heir got nothing by
way
of
testamentary
disposition,
donation, legacy, devise or intestacy.
Who can be preterited?
Legitimate children-- Yes.
Illegitimate children-- Yes. The law makes no
distinction.
Parents, whether legitimate or illegitimate.-Yes.

NOTE: This is the only case where it is


important to know the distinction between
heir, on the one hand, & devisee & legatee
on the other.
Balane: This is not a case of preterition.
This is a case of completion of legitime.
ESCUIN VS ESCUIN
Facts: Emilio Antonio Escuin executed a
will stating that he has no lawful
descendants but in case he has a duly
successor, his child will be his sole &
universal heir. But, if there should be no
such heir, then his father & his wife would
be his universal heirs.
The trial court
partitioned the properties among the wife,
the father, & the natural child, Emilio
Escuin y Batac. But, alas, the natural child
wants all, hence, this case.
Held: The share of the recognized natural
child is only 1/3 of the estate. While the
natural child was ignored by his father in
his will, the designation of the heirs was
annulled by force of law. However, it is
clear & unquestionable that it was the wish
of the testator to favor his natural father &
his wife w/ certain portions of his property
236

w/c, under the law, he had the right to


dispose of by will,, as he has done provided
the legal portion of the general heir was not
impaired, the two others (wife & husband)
being considered as LEGATEES under the will.

be effective & the legacies or mejoras shall


be respected in so far as they are not
inofficious or excessive.

The testamentary provisions impairing


the legal portion of a general heir shall be
reduced in so far as they are illegal or
excessive.

Facts: Rosario Nuguid died. Her sister,


Remedios, filed in court a purported
holographic will of Rosario executed 11
years before her demise & leaving all her
properties to Remedios.
Naturally, the
parents of the deceased opposed.

ELEAZAR VS. ELEAZAR


Facts: The deceased omitted in his last will
& testament his legitimate father, the
appellant, expressly disinherited his lawful
wife, & instituted the appellee, Miguela
Eleazar, as his universal heir. The trial court
gave dad & Miguela the other half.
Held: There was preterition. The will, in so
far as it deprives the legitimate father of his
legal portion is null & void, but is valid w/
respect to the other half w/c the testator
could freely dispose of & w/c should be
considered as a legacy.
NERI VS. ESCUTIN
Facts: The testator left all his property by
universal title to the children by his second
marriage. Without expressly disinheriting his
children by his first marriage, he left nothing
to them. In the said will, however, he stated
that the children by his first marriage already
received their shares in his property
excluding what he had given them as aid
during their financial troubles & the money
they had borrowed fr. him w/c he condoned in
his will.
Held: The findings of the CA showed that the
properties of the deceased has remained
intact & so no portion thereof has been given
to the children of the first marriage. In w/c
case, there is preterition resulting to the
annulment of the institution of heirs &
declare total intestacy according to Art. 814.
The annulment of the institution of
heirs in cases of preterition does not always
carry w/ it the ineffectiveness of the whole
will. If, aside fr. the institution of heirs, there
ate in the will provisions leaving to the heirs
so instituted or to other persons some
specific properties in the form of legacies or
mejoras, such testamentary provisions shall

NUGUID VS. NUGUID

Held:
There was preterition for the will
completely omits the parents of Rosario.
Entire will & not just the institution of the
heir was void. Reduction of the inheritance
of the universal heir & not the annulment
of the entire bequest will result in complete
abrogation of Arts. 814 & 815 of the New
Civil Code. Considering in this case that
the will before us solely provides for the
institution of petitioner as universal heir, &
nothing more, the result is the same. The
entire will is null.
BALANAY VS. MARTINEZ
Facts: Felix Balanay Jr. filed a petition for
the probate of his mothers notarial will.
Felix Sr. & Avelina (kapatid ni Felix Jr.)
opposed the probate.
Later, Felix Sr.
w/drew his opposition & signed an
instrument where he manifested that out of
respect for his wifes will, he waived &
renounced his hereditary rights in her
estate in favor of their 6 children. He
likewise signified his conformity to the
partition scheme.
Held: The will therefore may be probated.
The renunciation of Felix Sr.s hereditary
rights in favor of their 6 children does not
have the effect of preteriting him. It is the
preterition of compulsory heirs in the direct
line, whether living at the time of the
execution of the will or born after the death
of the testator, w/c shall annul the
institution of the heir.
In the CAB,
preterited heir is the surviving spouse who
even signified his conformity to the wills
provisions & renounced his hereditary
rights.
While he can renounce his
testamentary share, his legitime must be
respected.
SOLANO VS. CA
237

Facts: This case made a wrong decision. It


made the effect of preterition the reduction
of the share of the instituted heir rather than
annulling the whole institution of heir.
(Pwedeng magtanong? Asan yong ruling
Obiter Master)

him as father, son, etc., by not instituting


him as heir w/o disinheriting him expressly,
nor assigning to him some part of the
properties. In the CAB, Art. 815 applied, &
the heir could not ask that the institution of
the heir be annulled entirely, but only that
the legitime be completed.

ACAIN VS. IAC


Facts: The case is petition for the probate of
Anemesio Acains will. The will provided that
Nemesios shares in his conjugal property
shall be given to his brother & should the
latter predecease him, to Segundos children.
Held: In the CAB, only the adopted daughter
has been preterited & not the widow.
Preterition consists in the omission in the
testators will of the forced heirs or anyone of
them either bec. they are not mentioned
therein, or though mentioned, are neither
instituted as heirs nor are expressly
disinherited. Since the widow is not an heir in
the ascending or descending line, she is not
subject to preterition.

DEATH OF INSTITUTED HEIR BEFORE


TESTATOR

Distinguished fr. Disinheritance Without


Cause.

Balane:

Art.
918.
Disinheritance w/o a
specification of the cause, or for a cause the
truth of w/c, if contradicted, is not proved, or
w/c is not one of those set forth in this Code,
shall annul the institution of heirs in so far as
it may prejudice the person disinherited; but
the devises & legacies & other testamentary
dispositions shall be valid to such extent as
will not impair the legitime.
Distinguished fr. Art. 906.
Art. 906. Any compulsory heir to whom
the testator has left by any title less than the
legitime belonging to him may demand that
the same be fully satisfied.

IN RE ESTATE OF CHRISTENSEN
Facts: When Edward died, he left a will
wherein he gave bequeathed P3,600 to Maria
Helen & the remainder of his estate to Lucy.
Later, it was judicially declared the Maria
Helen was Edwards daughter.
Held: There was no preterition. Preterition
is the omission of the heir in the will, either
by not naming him at all or, while mentioning

Art. 856. A voluntary heir who dies


before the testator transmits nothing to his
heirs.
A compulsory heir who dies before the
testator, a person incapacitated to
succeed, & one who renounces the
inheritance, shall transmit no right to his
own heirs except in cases expressly
provided for in this Code.

Kind of
Heir
Compulsory
Voluntar
y
Intestate

Pre
decea
se
TN
Rep
TN
No
Rep
TN
Rep

Incapaci
ty

Renunciat
ion

TN
Rep
TN
No Rep

TN
No Rep
TN
No Rep

TN
Rep

TN
No Rep

Legend:
TN-- Transmits Nothing
Rep.-- There is Representation
No
rep.-There
is
representation.

no

Observations:
There is no transmission of any right fr. an
heir to his own heirs for any of the
three cases (P, I & R.) There is no
exception.
For voluntary, there is no representation,
no matter what the reason for
disqualification is
For

renunciation,
there
is
no
representation, no matter what kind of
heir.

III. FIDEICOMMISARY SUBSTITUTION


238

Art. 863. A fideicommissary substitution


by virtue of w/c the fiduciary or first heir
instituted is entrusted w/ the obligation to
preserve & to transmit to a second heir the
whole or part of the inheritance, shall be valid
& shall take effect, provided such substitution
does not go beyond one degree fr. the heir
originally instituted, & provided, further, that
the fiduciary or first heir & the second heir
are living at the time of the death of the
testator.

Balane:
Four Elements of a Fideicommissary
Substitution:
There must be a first heir or fiduciary.
For the substitution to operate, the
first heir receives property, either upon the
death of the testator or upon the fulfillment
of any suspensive condition imposed by the
will. As distinguished fr. a simple substitution
where the second heir receives property only
upon default of the first heir. First heir does
not receive the property.
An absolute obligation is imposed upon the
fiduciary to preserve & to transmit to a
second heir the property at a given time.
Essence of a fideicommissary substitution-dual obligation.
"Given time."-- Provided by the testator; if
not, then it is understood that the period
is the lifetime of the fiduciary.
Scaevola.-- Characterized the situation as a
legacy or devise of the residue.
There is a second heir who must be one
degree fr. the first heir.
"One generation." Does it refer to the degree
of relationship or number of substitution?
It refers to the degree of relationship. See
Palacios v. Ramirez.
However,
fideicommissary
substitutions are also limited to one
transmission. Upon the lapse of time for the
first heir, he transmits the property to the
second heir.
They cannot be any more
fideicommissary substitution coming fr. the
same testator. In other words, there can only
be one fideicommissary transmission such
that after the first, there can be no second
fideicommissary substitution.
The first & second heir must both be living &
qualified at the time of the death of the
testator.

From the moment of the death of the


testator, the rights of the first & second
heir are vested. (look at Art. 866.)
Nature of right of first heir.-- Similar to
usufruct.-Possessory & enjoyment
rights w/o right to alienate.
If fiduciary is able to register the
property in his name, fideicommissary
should annotate his claim on the land on
the title to protect himself against any
alienations in favor of innocent third
parties.
Balane disagrees w/ Tolentino that
there
can
be
no
successive
fideicommissaries or several transmissions.
If this is allowed, chaos will result if the
fideicommissaries die. You will not know
who will get the property & that the
property may be tied up for centuries..
Art.
864.
A
fideicommissary
substitution can never burden the legitime.

Balane:
In fact, no testamentary
disposition can burden the legitime bec.
legitime is transmitted by operation of law
upon the death of the testator.
Art. 865.
Every fideicommissary
substitution must be expressly made in
order that it may be valid.
The fiduciary shall be obliged to deliver
the inheritance to the second heir, w/o
other deductions than those w/c arise fr.
legitimate
expenses,
credits
&
improvements, save in the case where the
testator has provided otherwise.

Balane:
There are 2 ways of making a
fideicommissary substitution:
By naming it.-- "I institute A to 1/2 of my
estate, & by way of fideicommissary
substitution, I institute B as his
substitute."
By imposing upon the fiduciary the
obligation to preserve & transmit.-- "I
institute A to 1/2 of my estate & impose
upon him the obligation to preserve &
to transmit the same to B upon his
return."
Art. 866. The second heir shall acquire
a right to the succession fr. the time of the
239

testator's death, even though he should die


before the fiduciary. The right of the second
heir shall pass to his heirs.
Balane: This relates to the fourth requisite
of fideicommissary.
At the time of the testator's death,
right of the first & second heir become
vested.
Art. 867.
effect:

The following shall not take

(1) Fideicommissary substitutions w/c are


not made in an express manner, either by
giving them this name, or imposing upon the
fiduciary the absolute obligation to deliver
the property to a second heir;
(2) Provisions w/c contain a perpetual
prohibition to alienate, & even a temporary
one, beyond the limit fixed in article 863;
(3) Those w/c impose upon the heir the
charge of paying to various persons
successively, beyond the limit prescribed in
article 863, a certain income or pension;
(4) Those w/c leave to a person the whole
or part of the hereditary property in order
that he may apply or invest the same
according
to
secret
instructions
communicated to him by the testator.

Balane:
Reasons why they will not take effect:
Relate to Art. 865, par. 1. It will not take
effect as a fideicommissary substitution
but may take effect as something else.
This is not a fideicommissary but a prohibited
institution.
Perpetual prohibition will freeze the property
w/c is against public policy.
Temporary prohibition is allowed but cannot
go beyond the limit in Art. 863-- limit is
the death of the fiduciary. Cannot prohibit
alienation beyond the death of the
fiduciary. When the property goes to the
second heir, there is no more prohibition.
Commentators say that it refers to
Art. 870 rather than Art. 863. They contend
that the limit is 20 yrs. In such a case, the
contention is valid if you do not make it
applicable to substitutions.
Q: If you prohibit for 30 yrs., what will
happen?
A: There are 2 answers.

The whole period is void.


Only the first 20 years is valid. (Balane
agrees w/ this.)
Attempt to circumvent one degree
limitation
of
fideicommissary
substitution.
E.g., "I give 1/3 of my estate to X &
impose upon him the obligation to give a
P5,000 pension to A & in A's death, to A's
son."
This is allowed.
But if this is
extended to the son of the son of A, then it
won't be allowed.
The first & second
recipient must be w/in one degree. But it
cannot
extend
beyond
the
second
recipient.
Dummy provision. This is usually used
as a means to circumvent some
prohibition of law.
Example, Prohibition of giving to
paramour
A has a paramour X. A gets B as a
dummy.
Because of the prohibition of
giving to a paramour, they agree between
themselves that A will leave to B a devise &
fr. its profits B will give X. So A pretends to
name B as heir.
But in reality, such
institution is for the benefit of X.
In such a case, the institution will not
benefit X.
Even if X shows a written
agreement bet. A & B, it cannot be
enforced bec. it is contrary to law.
As regards B, he can keep the inheritance
even if he double-crosses A. A instituted B
at his own risk that he may be doublecrossed by B. Too bad for X.
Art. 868.
The nullity of the
fideicommissary substitution does not
prejudice the validity of the institutions of
the
heirs
first
designated;
the
fideicommissary clause shall simply be
considered as not written.

Balane:
The
nullity
of
the
fideicommissary
substitution will not affect validity of
institution of the first heir.
E.g., "I hereby institute A to 1/3 of
my estate under obligation to preserve & to
transmit the same to B upon his death."
If institution of B is invalid, what will
happen to the institution of A? Valid.
Institution of A is valid w/o substitution.

240

If the institution of A is invalid, what will


happen to the institution of B? The law
does not provide. Think about it.
Art. 869.
A provision whereby the
testator leaves to a person the whole or part
of the inheritance, & to another the usufruct,
shall be valid. If he gives the usufruct to
various persons, not simultaneously, but
successively, the provisions of article 863
shall apply.
Balane:

Art.
857.
Substitution
is the
appointment of another heir so that he
may enter into the inheritance in default of
the heir originally instituted.
Art. 858 Substitution of heir may be:
Simple or common;
Brief or compendious;
Reciprocal; or
Fideicommissary.

This is similar to Art. 867, par. 3

CRISOLOGO VS. SINGSON

Example, "I give to A naked ownership, & to B


the usufruct & upon B's death, to his son C."
This is valid. W/in the limit of Art. 863. If it
goes to the son of the son of B, then it is
invalid.

Facts: Dna. Singson died single. She gave


her property to Consolacion Florentino w/
the condition that should the latter die,
whether this occurs before or after that of
the testatrix, the property bequeathed to
her shall be delivered in equal parts to the
testatrixs three brothers, & or to their
forced heirs should anyone one of them die
ahead of Consolacion.

Note: Just as there can be a substitution w/


regard to the usufruct, there can also be a
substitution w/ regard to the naked
ownership.
Art. 870. The dispositions of the testator
declaring all or part of the estate inalienable
for more than twenty years are void.
Balane:
This has nothing to do w/
substitution. It refers to simple institution of
heir, devisee or legatee.
Q: Can it go beyond 20 yrs.?
A: There are 2 answers.
No. The whole period is void.
No. But valid only for the first 20 years.
PEREZ VS. GARCHITORENA
Facts: Ana Maria Alcantara died. She left a
certain sum of money to her niece, Carmen.
A certain Garchitorena obtained judgment of
a sum of money against Carmens husband.
The sheriff levied an attachment on the
money given by Ana Maria w/c was deposited
w/ La Urbana.
Held: The will instituted Carmens children
as fideicommissary heirs of the testatrix Ana
Maria. Thus, said deposit, w/c was part of the
inheritance does not belong to Carmen, not
can the same be the subject of execution of
the judgment against Carmens husband who
is not one of the fideicommissary heirs.
Distinguished fr. Simple Substitution

Held:
The substitution
here is a
substitucion vulgar.
The substitution
provided is not expressly made to be of the
fideicommissary kind. Nor does it contain a
clear statement to the effect that
Consolacion, during her lifetime, shall only
enjoy the usufructuary rights over the
property bequeathed to her, naked
ownership thereof being vested in the
brothers of the testatrix. It merely provides
that upon Cs death whether this happens
before or after that of the testatrix her
share shall belong to the brothers of the
testatrix.
Distinguished
fr.
resolutory
conditional substitution

Art. 867 (1), Art. 866 par. 1, 863, supra

PCIB VS. ESCOLIN


Facts: In the case, the spouses executed
reciprocal wills. It provided that the share
in the conjugal assets will pass to the
surviving spouse & that the surviving
spouse can do whatever he or she wants w/
the inheritance, even sell it, & if there is
any residue fr. the inheritance fr. the other
241

spouse upon the death of the surviving


spouse, it shall pass to the brothers & sisters
of the spouse who first died. The wife died
first.
The husband did not liquidate the
conjugal assets bec. he was the sole heir of
his wife. Upon the husband's death, it is now
questioned whether there is any residue fr.
the wife's estate that could pass to her
brothers & sisters.
PCIB, (& the)
administratrix of the husband claims that:
(1)
There was no fideicommissary
substitution bec. there was no obligation
upon the husband to preserve & transmit the
prop. to the brothers & sisters of the wife as
seen in his authority to sell the property, &
(2) since there was an invalid attempt to
make a substitution, then the testamentary
disposition is void & there can be no
transmission of rights to the brothers &
sisters.

Art. 886. Legitime is that part of the


testator's property w/c he cannot dispose
of bec. the law has reserved it for certain
heirs who are, therefore, called compulsory
heirs.

Balane:
There is compulsion on the part of the
testator to reserve that part of the
estate w/c corresponds to the legitime.
The law sets a fractional portion of the
estate aside for the compulsory heirs.
The law does not specify w/c prop. to
reserve but only sets aside a fractional
portion of the estate.
There is no obligation on the compulsory
heirs to accept.

Held: The SC agreed w/ contention no. 1 on


the same ground. The second requisite was
absent & there could be no fideicommissary
substitution.
With regard to the second
contention, the SC disagreed. The SC said
there was a simultaneous substitution. The
institution of the husband was subject to a
resolutory condition while the institution of
the brothers & sisters was subject to a
suspensive condition. Both conditions are
one & the same. It is the existence in the
husband's estate of assets he received fr. his
wife at the time of his death. If there is, the
husband's right to the residue is extinguished
upon his death while the right of the brothers
& sisters vests at the same time.

The prohibition imposed on the testator is


that he is prohibited fr. making
gratuitous
disposition:
(a)
testamentary disposition mortis causa;
(b) donation inter vivos

RAMIREZ VS. RAMIREZ

Art. 887. The following are compulsory


heirs:

Facts: In the case, 2/3 of the usufruct of the


free portion was given to Wanda, w/ 2 other
persons not related to her as her substitutes
by way of simple & fideicommissary
substitution. Her grandnephews object on
the ground that there could be no
fideicommissary
substitution
bec.
the
substitutes were not w/in one degree of each
other.
Held: The SC agreed w/ the nephews. It
said, quoting Tolentino, that one degree
refers to one generation.
As such, the
fideicommissary can only be either a parent
or child of the fiduciary.
v. LEGITIME

Only the legitime is reserved. The free


portion may be disposed of by will.
E.g., A is married to B. They had a child C.
A owns lot worth P5M.
A sells the lot to D for P5M. This is valid.
The prohibition does not cover an
onerous disposition bec. this involves
an exchange of values.
A donates to D. This is not valid if it
impairs the legitime of B & C.

(1) Legitimate children & descendants,


w/ respect to their legitimate parents &
ascendants;
(2) In default of the foregoing,
legitimate parents & ascendants, w/
respect to their legitimate children &
descendants;
(3) The widow or widower;
(4) Acknowledged natural children, &
natural children by legal fiction;
(5) Other illegitimate children referred
to in article 287.
Compulsory heirs mentioned in Nos. 3,
4 & 5 are not excluded by those in Nos. 1 &
2; neither do they exclude one another.
242

In all cases of illegitimate children, their


filiation must be duly proved.
The father or mother of illegitimate
children of the three classes mentioned, shall
inherit fr. them in the manner & to the extent
established by this Code.

Balane:
There are Five (5) kinds of Compulsory
heirs:
Legitimate children & descendants
Legitimate parents & ascendants
Widow or widower
Acknowledged natural children, & natural
children by legal fiction
Other illegitimate children
Under the Family Code, there is no
more distinction between acknowledged
natural children & illegitimate children. They
are all considered as illegitimate.
Three Kinds of Relationship
Compulsory Heirs:

Among

Primary.-Legitimate children, & in their


absence, legitimate descendants.
They are primary bec. they are absolutely
preferred, & they exclude the secondary.
Secondary.-- Legitimate parents, & in their
absence, legitimate ascendants
They inherit only in the absence of default of
the primary.
Concurring.-- Surviving spouse & illegitimate
children. They get their legitime together
w/ the primary or secondary heirs.
Neither exclude primary or secondary
heirs nor each other.
Except:
Illegitimate
illegitimate parents.
Articles
888
Combinations

to

children

903.

exclude

Different

I. According to Tolentino (all shares are w/


respect to the whole estate unless otherwise
provided.)
Legitimate children 1/2, in equal portions,
whether they survive alone or w/
concurring compulsory heirs. (Art. 888.)
One legitimate child -- 1/2
(Art. 888.)
Surviving spouse -- 1/4 (Art. 892, par. 1.)

Legitimate children -- 1/2, in equal portions


(Art. 888.)
Surviving spouse -- share equal to that
of
each child (Art. 892, par. 2.)
Legitimate children
-1/2, in equal
portions. (Art. 888.)
Natural children -- 1/2 the share of
each
legitimate child (Art. 895,
par. 1.)
Legitimate children -1/2, in equal
portions. (Art. 888.)
Illegitimate children -- 2/5 the share of
each
legitimate child
(Art.
895, par. 2.)
Legitimate children -1/2, in equal
portions.
Natural children -- 1/2 of the share of a
legitimate child. (Art. 895,
par. 1.)
Illegitimate children -- 4/5 of the
share of each
natural child. (Art. 895, par.
2.)
One legitimate child -- 1/2 (Art. 888.)
Natural children -- 1/2 of the share of a
legitimate child. (Art. 895,
par. 1.)
Illegitimate children -- 4/5 of the
share of a
natural child. (Art. 895, par.
2.)
Surviving spouse -- 1/4 (Art. 892,
par. 1.)
NOTE: All concurring heirs get their share
fr. the free portion. The surviving spouse
will be preferred over the natural &
illegitimate children, whose share may
suffer reduction pro rata. (Art. 895, last
par.)
Legitimate children
-1/2, in equal
portions. (Art. 888.)
Natural children -- 1/2 of the share of a
legitimate child. (Art. 895, par. 1.)
Illegitimate children -- 4/5 of the
share of a
natural child. (Art. 895, par.
2.)
Surviving spouse -- share equal to
that of a
legitimate child. (Art. 892,
par. 2, 897, 898.)
Legitimate parents -- 1/2, whether they
survive
alone
or
w/
concurring
compulsory heirs. (Art. 889.)
Legitimate parents -- 1/2 (Art. 889.)
243

Natural children -- 1/4, in equal shares.


(Art.
896.)
Legitimate parents -- 1/2 (Art. 889.)
Illegitimate children -- 1/4, in equal
shares (Art.
896.)
Legitimate parents -- 1/2 (Art. 889.)
Natural children
-- 1/4 (Art. 896)
but each illegitimate child gets 4/5 of the
share of each natural child (Art. 895 par. 2)
Illegitimate children
Legitimate parents -- 1/2 (Art 889.)
Surviving spouse -- 1/4 (Art. 893.)
Legitimate parents -- 1/2 (Art. 889.)
Natural children -- 1/4 (Art. 896) but
each
illegitimate child gets 4/5 of the share
of
each natural child. (Art. 895, par. 2)
Illegitimate children
Surviving spouse -- 1/8 (Art. 899.)
Natural &/ or illegitimate children -- all
together get 1/2 (Art. 901.) If all natural
or all illegitimate, dived the portion
equally.
If some are natural & others illegitimate,
each of the illegitimate child gets only 4/5 of
the share of each natural child. (Art. 895,
par. 2.)

5 Legitimate children -- 1/2 shared equally


= 1/10
SS -- same share as in legitimate child
= 1/10
OBSERVE: There is an inverse proportion
between number of children & the share of
the SS.
1 leg. child -- 1/2
SS -- 1/4
General rule: SS gets share equal to 1
leg. child.
Exception: If only 1 leg. child, SS gets 1/4
2 leg. parents -- 1/2 shared equally
SS -- 1/4
2 leg. parents -- 1/2 shared equally
SS -- 1/8
1 illeg. child -- 1/4
2 leg. parents -- 1/2 shared equally
3 illeg. children -- 1/4 shared equally
2 illeg. parents -- none
3 illeg. children -- 1/2 shared equally
1 adopted child -- 1/2
2 leg. parents -- none.
SS -- 1/3
4 illeg. children -- 1/3 shared equally

Surviving spouse alone -- 1/2 or 1/3 if the


marriage is in articulo mortis & the
deceased dies w/in 3 months after the
marriage. (Art. 900.)

SS -- 1/4
4 illeg. children -- 1/2 of the share of a leg.
child =
1/8 each
2 leg. children -- 1/2 shared equally =
1/4 each
If it exceeds the estate, ratably diminish
the legitime of the illeg. children = 1/16

Illegitimate parents (natural or otherwise)


alone -- 1/2 (Art. 903.)

2 illeg. parents -- 1/4 shared equally


SS -- 1/4

Illegitimate parents -- none. (Art. 903.)


Children or any class -- same as in nos.
1, 4, 6 &
15, as the case may be.

2 leg. children -- 1/2 shared equally


SS -- share equal to 1 leg. child = 1/4
leg. parents -- none

Illegitimate parents -- 1/4


Surviving spouse -- 1/4 (Art. 903.)

1 adopted child -- \
1 leg. child ------- /
SS -- 1/4

Natural &/ or illegitimate children -- 1/3 (Art.


894.), dividing it as in number 15.
Surviving spouse -- 1/3 (Art. 894.)

II. According to Balane (all shares are


w/ respect to the whole estate unless
otherwise provided.)
2 legitimate children -- 1/2 shared equally =
1/4 each
Surviving spouse (hereinafter SS) -- 1/4

1/2 shared
equally

SS -- 1/4
Illeg. parents -- none
1 adopted child -- 1/2
SS alone -- 1/2 except if the marriage is in
articulo mortis, in w/c case the share is 1/3
a. Marriage is in articulo mortis
b. Dies w/in 3 months
c. Not lived together for 5 years
244

d. Person who dies is the sick spouse


1 adopted child -- 1/2
illeg. child -- 1/2 of the share of an adopted
child = 1/4
8 leg. children -- 1/2 shared equally = 1/16
1 illeg. child -- 1/2 of the share of a leg. child
= 1/32
SS -- same as the share of 1 leg. child =
1/16
8 leg. children --\
1/2
shared
equally
1 adopted child - /
= 1/18 each
1 illeg. child -- 1/2 of the share of a leg. child
= 1/36
SS -- same share as 1 leg. child = 1/18
1 leg. parent -- 1/2
SS -- 1/8
1 illeg. child -- 1/4
1 leg. parent -- 1/2
SS -- 1/4
1 leg. parent -- 1/2
1 illeg. child -- 1/4
1 adopted child -- \ 1/2 shared equally
1 leg. child ------- /
= 1/4
SS -- same share as a leg. child = 1/4
1 illeg. child -- 1/2 share of leg. child = 1/8
2 leg. or illeg. parents -- none
1 adopted child -- 1/2
SS -- 1/4
1 illeg. child -- 1/4
2 leg. or illeg. parents -- none
Under the Family Code:
If the decedent died before the Family Code
took effect -- leg. : natural : illeg. = 10 : 5 :
4
If the decedent died after the FC took effect
-- leg. : illeg. = 2 : 1. Do not distinguish
between natural & spurious.
(conc)urring fraction -- 1/2 -- called basic
legitime
In most cases, there will be a group or single
heir who will get 1/2 of the estate.
Exceptions:
Art. 894. -- Illeg. children (1/3) & SS (1/3)
Art. 903. -- Illeg. parents (1/4) & SS (1/4)
Articles 900 -- SS alone in case of marriage
in articulo mortis w/ the following requisites:
a. Marriage in articulo mortis
b. The spouse dies w/in 3 months

c. They have not lived together for


5 years
d. Spouse who dies is the sick
spouse
Example, A, in the ICU, is rich &
dying of AIDS. B, who has not lived w/ A,
accepts A's proposal of marriage. They get
married in the hospital.
After getting
married, A lapses into a coma. The doctor
sends B to buy the medicine. As B is
crossing the street, she is run over by a bus
& dies. A is the only compulsory heir of B.
Is this the marriage in articulo mortis
contemplated by the 3rd exception? No.
The one who should die w/in 3 months
should be A for the exception to apply.
Rationale for the exception in
number 3 -- It is the law's way of
showing its distaste to marriages for
convenience or for interest or gain.
Exception to exception: If they
have lived together for at least 5 years
before the marriage. This shows that it
was not only for interest. Now that one is
dying, to reward the other spouse.
Exception to number 3
-Applies only if the wife is (the) only
compulsory heir.
Why?
Bec. in other
cases, she will always get less than 1/2.
Does not also apply to intestacy if the wife
is the only intestate heir. She will get the
whole estate. In such a case, the testator
was not given a change to make a will. If
given a chance, he could have named
other people.

Art. 888. The legitime of legitimate


children & descendants consists of one-half
of the hereditary estate of the father & of
the mother.
The latter may freely dispose of the
remaining half, subject to the rights of
illegitimate children & of the surviving
spouse as hereinafter provided.

Balane:
If there are legitimate children, they will get
collective legitime of 1/2 of the estate. It
does not say how they will divide the
legitime. Commentators agree that they
will divide the 1/2 equally regardless of
age, sex, marriage of origin (whether 1st,
2nd, etc.)
Why descendants? Rule: Nearer excludes
more remote.
245

If there are children, they will exclude


the
more
remote
descendants,
e.g.,
grandchildren
When descendants?
Right of representation exists
All children renounce. Since all renounce, the
next in line will inherit equally not by virtue of
representation but bec. they are the nearest
relatives in the descending line.
If A, B & C renounce, grandchildren will
inherit
If only B renounces, legitime will be divided
into 2 only, B's children cannot represent
him.
Other half of the estate -- free portion.
Subject to the free disposal of the testator. If
not disposed of by the testator, then it will go
by intestacy.
Art. 889. The legitime of legitimate
parents or ascendants consists of one-half of
the hereditary estates of their children &
descendants.
The children or descendants may freely
dispose of the other half, subject to the rights
of illegitimate children & of the surviving
spouse as hereinafter provided.
Art. 890. The legitime reserved for the
legitimate parents shall be divided between
them equally; if one of the parents should
have died, the whole shall pass to the
survivor.
If the testator leaves neither father nor
mother, but is survived by ascendants of
equal degree of the paternal & maternal
lines, the legitime shall be divided equally
between both lines. If the ascendants should
be of different degrees, it shall pertain
entirely to the ones nearest in degree of
either line.

Balane:
Articles 889 & 890 -- Legitimate parents or
ascendants alone -- 1/2 of the estate.
A. Three rules:
1. Nearer excludes the more remote.
No representation in the ascending line.

Illustration:
A1

A2
\ /
A
\
\

\ /
B
/
/

B1

B2

X
If X dies, the legitime will be shared by the
parents A & B bec. the nearer excludes the
more remote.
If A predeceases X, B gets all. A1 & A2 will
get nothing bec. there is no right of
representation in the ascending line.
2. Division by (between the) lines
-- 1/2 of legitime each to maternal &
paternal (assuming that the nearest
relatives in both sides are of the same
degree.)
Illustration (see illustration above.)
a. If both parents predecease X, the
nearest
ascendants
would
be
the
grandparents. Division by line will apply.
The estate will be divided equally bet. the
maternal & paternal lines (1/4 of estate
each.) Legitimes: A1 = 1/8, A2 = 1/8, B1
= 1/8, B2 = 1/8
b. If A1 predeceases X, there will
still be equal division by lines. Both lines
get 1/4 of the estate each. Legitimes: A2
= 1/4, B1 = 1/8, B2 = 1/8.
NOTE: If one of the parents, either
A or B, is alive, division by line will not
apply. Rule 1 would apply where the nearer
would exclude the more remote.
The
parent would exclude the grandparent.
3. Equal division w/in the line.
B. How far up do you go? As far as
possible as long as all lower ascendants are
dead. The law does not limit but nature
does.
Art. 892. If only one legitimate child or
descendant of the deceased survives, the
widow or widower shall be entitled to onefourth of the hereditary estate. In case of a
legal separation, the surviving spouse may
inherit if it was the deceased who had
given cause for the same.
If there are two or more legitimate
children or descendants, the surviving
spouse shall be entitled to a portion equal
to the legitime of each of the legitimate
children or descendants.
In both cases, the legitime of the
surviving spouse shall be taken fr. the
246

portion that can be freely disposed of by the


testator.
Balane:
A. Legitime of Surviving spouse:
1. If valid or voidable marriage
Qualified. Spouse may inherit.

--

2. If legally separated, it depends:


a. If innocent spouse -- not
disqualified to inherit fr. the guilty spouse
b.
If guilty spouse
-disqualified to inherit fr. the innocent spouse.
B. Rules as to legitime of the surviving
spouse if concurring w/ legitimate children.
1.
1 leg. child -- 1/2 of estate
SS -- 1/4 of estate
2.
2 or more leg. children -- 1/2
of estate shared equally
SS -- share equal to that of a
leg. child.
C.
"Or descendant" (all portions are in
relation to the whole estate unless otherwise
provided.)
Illustration:
X ----------- Y (spouse)
/ | \
A B C
/| /|\ |\
1234567

Balane:
Combination:
Legitimate parents or
ascendants -- 1/2 (divide according to Art.
889 & 890.)
Spouse -- 1/4
Free portion -- 1/4
Art. 894. If the testator leaves
illegitimate children, the surviving spouse
shall be entitled to one-third of the
hereditary estate of the deceased & the
illegitimate children to another third. The
remaining third shall be at the free disposal
of the testator.

Illeg. children -- 1/3 collectively =


divided depending if the decedent died
before (5 : 4) or after (equal) the Family
Code.

2. If B renounces
A = 1/4
C = 1/4
Y = 1/4

Surviving spouse -- 1/3


Free portion -- 1/3

3. If A, B & C predecease
1 & 2 = 1/12 each --- representation
1 & 2 = 1/12 each
3, 4 & 5 = 1/18 each
6 & 7 = 1/12 each
Y
= 1/6
According to commentaries: Y's share
is based on what the children would have
received if they were alive.

= ?

Art. 893. If the testator leaves no


legitimate
descendants,
but
leaves
legitimate
ascendants,
the
surviving
spouse shall have a right to one-fourth of
the hereditary estate.
This fourth shall be taken fr. the free
portion of the estate.

Balane:
This is one of the exceptions to the basic
rule of 1/2.

1. If B predeceases X
A = 1/6
B's children = 1/18 per child
C = 1/6
Y = 1/6

If A, B & C renounce
--- no representation
legitime of 1/2 is divided equally
between the 9 grandchildren

According to Tolentino, Y gets 1/6.


Y's share is based on the number of
children. To allow Y's share to be equal to a
grandchild would give the children the
opportunity to reduce the legitime of Y,
especially if Y is only a stepmother. The
problem in this case is when "or
descendants" will apply.
This issue is
undecided.

Art. 895. The legitime of each of the


acknowledged natural children & each of
the natural children by legal fiction shall
consist of one-half of the legitime of each
of the legitimate children or descendants.
The legitime of an illegitimate child
who is neither an acknowledged natural
child , nor a natural child by legal fiction,
shall be equal in every case to four-fifths of
the legitime of an acknowledged natural
child.
The legitime of the illegitimate
children shall be taken fr. the portion of the
estate at the free disposal of the testator,
provided that in no case shall the total
247

legitime of such illegitimate children exceed


that free portion, & that the legitime of the
surviving spouse must first be fully satisfied.
Art. 176. (Family Code) Illegitimate
children shall use the surname & shall be
under the parental authority of their mother,
& shall be entitled to support in conformity w/
this code. The legitime of each illegitimate
child shall consist of one-half of the legitime
of a legitimate child.

Balane:
1. Legitime of illeg. children affected by the
Family Code.
a. If before -- 10 : 5 : 4
b. If after -- 2 : 1
2. Combination:
Leg. children -- 1/2 collectively
Illeg. children -- 1/2 of the share of a leg.
child each
SS -- share is equal to that of 1 leg. child.
3. Illustration:

X---------Y
/ |
A B C D
After the Family Code:
a. A=
B=
Y=
C= 1/8
D= 1/8
b. If there is a third illegitimate child, E
A=1/4
B=1/4 Legitime exceeds estate
Y=1/4
C=1/8 reduced proportionately
D=1/8 reduced proportionately
E=1/8 reduced proportionately
C=1/12
D=1/12
E=1/12
Art. 896. Illegitimate children who may
survive w/ legitimate parents or ascendants
of the deceased shall be entitled to onefourth of the hereditary estate to be taken fr.
the portion at the free disposal of the
testator.

Balane:
Leg. parents -- 1/2 divided according to Art.
889 & 890

Illeg. children -- 1/4 collectively divided


according to whether decedent died before
or after the Family Code.
Art. 897. When the widow or widower
survives
w/
legitimate
children
or
descendants, & acknowledged natural
children, or natural children by legal fiction,
such surviving spouse shall be entitled a
portion equal to the legitime of each of the
legitimate children w/c must be taken fr.
that part of the estate w/c the testator can
freely dispose of.
Balane: This is a repetition of Art. 895.

Art. 898.
If the widow or widower
survives
w/
legitimate
children
or
descendants, & w/ illegitimate children
other than acknowledged natural, or
natural children by legal fiction, the share
of the surviving spouse shall be the same
as that provided in the preceding article.
Balane: This is the same as Art. 895. The
FC has simplified this.

Art. 899. When the widow or widower


survives
w/
legitimate
parents
or
ascendants & w/ illegitimate children, such
surviving spouse shall be entitled to oneeighth of the hereditary estate of the
deceased w/c must be taken fr. the free
portion, & the illegitimate children shall be
entitled to one-fourth of the estate w/c
shall be taken also fr. the disposable
portion. The testator may freely dispose of
the remaining one-eighth of the estate.

Balane: This shows how arbitrary legitime


scheme is w/ regard to the surviving
spouse.
Leg. parents

-- 1/2 divided according to


Articles 889 & 890
Illeg. children -- 1/4 divided depending on
when the decedent died
SS -- 1/8
Free portion -- 1/8
Art. 900. If the only survivor is the
widow or widower, she or he shall be
248

entitled to one-half of the hereditary estate of


the deceased spouse, & the testator may
freely dispose of the other half.
If the marriage between the
surviving spouse & the testator was
solemnized in articulo mortis, & the testator
died w/in three months fr. the time of the
marriage, the legitime of the surviving
spouse as the sole heir shall be one-third of
the hereditary estate, except when they have
been living as husband & wife for more than
five years. In the latter case, the legitime of
the surviving spouse shall be that specified in
the preceding paragraph.

Balane: Legitime of surviving spouse when


he/ she survives alone:
General rule : SS --1/2; Free portion -- 1/2
Exception : Marriage in articulo mortis;
SS-- 1/3; Free portion -- 2/3
Art. 901. When the testator dies leaving
illegitimate children & no other compulsory
heirs, such illegitimate children shall have a
right to one-half of the hereditary estate of
the deceased.
The other half shall be at the free
disposal of the testator.
Balane:
lleg. children -- 1/2 divided either equally
(decedent died after the FC) or 5 : 4
(decedent died before the FC.)
Art. 902. The rights of illegitimate children
set forth in the preceding articles are
transmitted upon their death to their
descendants,
whether
legitimate
or
illegitimate.
Balane:
Illustration:
X
/
A
B
/\
/
a1 a2 b1 b2
1. A is legitimate while B is illeg.
Both A & B predeceased X. A left a1, a leg.
child & a2, an illeg. child. B left b1, a leg.
child & b2, an illeg. child. Who will inherit &
not inherit when X dies?
A1 can inherit fr. X by representation.

A2 cannot inherit fr. X in either


intestate or compulsory succession bec. of
Art. 992 w/c provides that an illegitimate
cannot inherit ab intestado fr. the
legitimate relatives of the father or mother
& vice-versa
This results in inconsistency &
unfairness. (Art. 902) read w/ Art. 992 puts
a premium on bastardness. Preference is
given to bastard children of bastard
children as compared to bastard children of
legitimate children.
2. If both A & B are dead. Who can
X inherit fr.?
a1 dies -- X can inherit.
a2 dies -- X cannot inherit bec. of
Art. 992
b2 dies -- X cannot inherit. In
illegitimacy, you cannot go beyond the
parent in representation.
b1 dies -- Unknown. The law is
silent on this.
Art. 903. The legitime of the parents
who have an illegitimate child, when such
child leaves neither legitimate descendants, nor a surviving spouse, nor
illegitimate children, is one- half of the
hereditary estate of such illegitimate child.
If only legitimate or illegitimate children are
left, the parents are not entitled to any
legitime whatsoever. If only the widow or
widower survives w/ parents of the
illegitimate child, the legitime of the
parents is one-fourth of the hereditary
estate of the child, & that of the surviving
spouse also one-fourth of the estate.
Balane: There are 2 combinations:
1. Illeg. parents
-- 1/2 does not go
beyond illeg. parents unlike Articles 899 &
890.
2. Illeg. parents -- none
Leg. or illeg. children -- depending on
who is left
VI. RESERVA TRONCAL (RT)
Art. 891. The ascendant who inherits fr.
his descendant any property w/c the latter
may have acquired by gratuitous title fr.
another ascendant, or a brother or sister, is
obliged to reserve such property as he may
have acquired by operation of law for the
benefit of relatives who are w/in the third
degree & who belong to the line fr. w/c said
property came.
249

Nature of Right of Reservor


SIENES V. ESPARCIA
Facts: Saturnino Yaeso was twice
married. With his 1st wife he begot 4 children
including Cipriana & Paulina. With his 2nd wife
he had a son, Francisco. When Saturnino
died he left Lot 3368 to Francisco.
But
Cipriana & Paulina sold Lot 3368 to Esparcia.
Then Francisco died & his mother, as his sole
heir, sold the same lot to Sienes. When the
2nd wife died Cipriana was the only one
surviving.
Sienes commenced action for declaration of
the sale by Cipriana & Paulina to Esparcia as
null & void & for reconveyance. TC declared
both sales
as void bec. Lot 3368 was
reservable. It further held that upon 2 nd
wifes death the lot passed to Cipriana as the
only surviving relative w/in 3rd degree
belonging to the line fr. w/c the property
came fr.. Hence, this petition.
Issue: WON Lot 3368 is reservable
property?
Held: YES. Lot 3368 reverted to estate
of Cipriana.
RT creates 2 resolutory conditions:
The death of the ascendant obliged to
reserve; &
The survival, at the time of such death, of
relatives w/in the 3rd degree belonging to the
line fr. w/c the property came fr..
The reservista has the legal title & dominion
to the reservable property BUT subject a
resolutory condition : that he is like a life
usufructuary of the reservable property; that
he may alienate the same but subject to
reservation, said alienation transmitting only
the revocable & conditional ownership of the
reservista, the rights acquired by the
transferee being revoked or resolved by the
survival of the reservatarios at the time of
the death of the reservista.
In CAB, the sale by the 2nd wife was
subject to the condition that Sienes would
acquire ownership only if the vendor died w/o
being survived by any person entitled to the
reservable property.
But since Cipriana
survived the 2nd wife, the sale became of no
legal effect & Lot 3368 was placed in the
exclusive ownership of Cipriana.
On the other hand the sale to Esparcia
was subject to the suspensive condition that
Cipriana & Paulina should survive the
reservista (2nd wife). Cipriana did survive &

became the absolute owner of Lot 3368 but


Esparcia did not appeal fr. the decision of
the TC.
This decision however, is w/o
prejudice to the right of Esparcia against
estate of Cipriana for reconveyance of Lot
3368.
Distinguished
fr.
Fideicommissary
Substitution (FS)
In FS the usufruct & the naked title of the
property in Q belong to separate owners.
Reservees
FRIAS CHUA V. CFI
Facts: Jose Frias Chua had 3 children by
his first marriage. After his first wife died
he contracted
a 2nd
marriage
w/
Consolacion w/ whom he had a son,
Juanito. Jose died granting 1/2 of a lot to
Consolacion & the other 1/2 to Juanito. But
in the testate proceeding of Jose his
Consolacion & Juanito were ordered by the
court to pay Standard Oil amounts due
based on a separate civil case involving
that corporation & Jose.
Juanito dies
intestate & his mother succeeded to his 1/2
share of the lot. Consolacion dies intestate
w/o heirs except her brother & sisters.
Issues:
WON property was acquired gratuitously?
Yes.
WON reserva troncal applies? Yes.
Held: As long as the transmission to the
heir is free fr. any condition imposed by the
deceased himself & the property is given
out of pure generosity, it is gratuitous.
Even if the Court ordered the heirs to pay
Standard Oil, it is still gratuitous. If the
expense or charge is just incidental, it is
still considered gratuitous. Besides it is the
court, NOT the deceased Jose that imposed
the payment.
The requisites of reserva troncal are
:
The property was acquired by a person fr.
an ascendant of fr. a brother or sister by
gratuitous title.
Said person died w/o legitimate issue.
The property is inherited by another
ascendant by operation of law.

250

There are relatives w/in the third degree


belonging to the line fr. w/c said property
came.
In CAB, children by Joses first
marriage (who fall under requisite #4) are
entitled to 1/2 portion of the lot originally
belonging to Juanito.
GONZALES V. CFI
Facts: Benito Legarda died leaving money,
stocks & 7 properties. The real properties
were partitioned 1/3 to the wife & 6 children;
1/3 to Benito IIs family (bec. Benito II dies
before partition). Daughter Filomena died
intestate thus her mother, Mrs. Legarda, as
sole heir extrajudicially adjudicated to herself
the interests of her daughter in the 7
properties inherited fr. Benito I. The mother
then executed documents disposing of the
properties inherited fr. Filomena in favor of
her 16 grandchildren, including Benito IIs
kids. The mother & her 6 children partitioned
their 1/3 interest. Mrs. Legarda then died w/
her holographic will admitted to probate.
Beatriz Gonzales, daughter of Benito I
& sister to Filomena & Benito II, filed a motion
to exclude fr. her mothers estate the
properties inherited fr. Filomena as these are
reservable & thus should be inherited by
Filomenas
bros.
&
sisses,
not
the
grandchildren.
Issues:
Were the subject properties reservable? Yes.
Could Mrs. Legarda, the mother, dispose of
the properties by will to her 16
grandchildren to the exclusion of her
children? No.
Held: The share of the mother in the 1/3
portion is reservable as all the requisites of
reserva troncal are present. Filomena is the
prepositus;
the mother the reservor/
reservista; & the 6 children, including
petitioner Beatriz G., are the reservees/
reservatarios. Mrs. Legarda as the reservor
could not convey the properties to her
grandchildren through her will bec. these
properties were inherited fr. her daughter &
as reservable properties do not form part of
Mrs. Legardas estate. The reservor cannot
make a disposition mortis causa of the
reservable property as long as the reservees
survive her. The reserva creates 2 resolutory
conditions:

Death of the ascendant obliged to reserve


(in CAB, Mrs. Legarda, the mother); &
Survival at the time of such death, of
relatives w/in the 3rd degree belonging to
the line fr. w/c the property came.
Art. 1891 clearly indicates that the
property shall be inherited by the nearest
relatives w/in the 3rd degree fr. the
prepositus in CAB, the 6 children (the
nearest exclude the more remote). The
reservor, Mrs. Legarda cannot choose to
whom the properties will be given &
deprive the reservees of their share. To
allow such would be a glaring violation of
Art. 1891.
The reservor has legal title &
dominion over the reservable property w/c
is extinguished should he die & reservees
survive
him---thus
reservor
is
a
usufructuary of the reservable property. It
must be noted, however, that the reservor
may alienate the reservable property, but
subject to the reservation. The transferee
acquires the reservors revocable &
conditional ownership but that such rights
are revoked upon the survival of reservees
survive the reservor.
Baviera: the 16 grandchildren cannot
inherit by right of representation in
CAB, as their respective parents are
still alive.
PADURA V. BALDOVINO
Facts: Agustin Padura had two sets of
families. By his first marriage he had a
son, Manuel.
His second marriage to
Benita produced two children Fortunato &
Candelaria. Agustin died & his estate was
divided among his heirs his widow & 3
kids. Fortunato received 4 parcels of land.
Fortunato died & said lands were inherited
by his mother, Benita. When Benita died
the 4 parcels of land were fought over by
the Paduras (the 7 children of Manuel) &
the Baldovinos (the 4 children of
Candelaria).
Issue: How should the reservable property
be divided between the Baldovinos & the
Pduras?
Held:
The Paduras, as nephews of
Fortunato of the 1/2 blood, should get a
share of only 1/2 of the share of the
nephews of the full-blood who are
Baldovinos.
251

Reserva Troncal merely determines


the
group
of
relatives
(reservatarios/reservees)
to
whom
the
property should be returned, BUT w/in the
group the individuals share should be
decided by the rules of ordinary Intestate
Succession. The purpose of reserva troncal is
accomplished once the property has
devolved upon the specified class of relatives
in the line of origin. Art. 1891 no longer
applies.
Upon Benitas death the property
should pass not to the reservatarios as a
class, but only to those nearest in the line of
degree to the descendant prepositus, in this
case Fortunato, excluding those reservatarios
of the more remote. The rule that full-blood
brothers & nephews are entitled to a share
twice that of brothers & nephews of the halfblood applies.
Q: Why was the rule applied in CAB?
A: Because the 2nd heir inherits fr. the
prepositus.
Baviera: This is wrong!
The court should not have
distinguished between the 2 sets of
reservatarios. The law speaks only of
the line, it is irrelevant whether the
people of the same line were of full or
half blood. Court treated it as if the
reservatarios
inherited
fr.
the
prepositus, Fortunato, when they are in
fact inheriting fr. the reservor, Agustin.
The reservatarios are inheriting by
operation of law as they belong to same
line fr. w/c the property came.
DE PAPA V. CAMACHO
Facts: Romana Tioco donated 4 parcels of
land to her niece Toribia.
Toribia dies
intestate leaving the 4 parcels to her 2
children Faustino & Trinidad.
Balbino, Toribias father & Romanas
brother, died intestate survived by
Children Francisca, Manual & Nicolas
(plaintiffs), &
Grandchildren Faustino & Trinidad.
Faustino & Trinidad inherited 3 parcels of land
fr. their lolo as representatives of their
mother. They now share 7 lots w/c they did
not partition.
Faustino died w/o issue, thus his
father Eustacio inherited his 1/2 share in the
7 lots, subject to reserva troncal.

Trinidad died intestate, her 1/2


share was inherited by her only child,
Dalisay (defendant). Eustacio also died
intestate, w/ Dalisay his only legitimate
descendant & thus she inherited his
interests.
There is no dispute that Dalisay is
the owner of 1/2 of the 7 lots as her
inheritance fr. her mother. However the
dispute is over the other 1/2 w/c Dalisay
claims likewise belong to her by virtue of
reserva troncal & intestate succession. On
the other hand her granduncles &
grandaunt claim that of the 1/2 interest
inherited by Eustacio fr. Faustino, 1/2
should go to them as they are also relatives
of the 3rd degree of Faustino. TC ruled in
favor of plaintiff granduncles & grandaunt.
Issues:
Do all relatives of the prepositus w/in the
3rd of
the same line degree succeed
w/o distinction? No.
Are the rights of id relative subject to the
rules on intestate succession? Yes.
Is Dalisay entitled to whole of the 7 lots?
Yes.
Held: Citing Padura v. Baldovino once the
purpose of reserva troncal is accomplished
Art. 1891 no longer applies, the shares of
each should be governed by the rules of
intestate succession. Upon the death of
the reservor, the reservable property
should pass not all reservees as a class but
only to those nearest in degree to the
prepositus, excluding the reservees more
remote.
There is a right of representation on
the part of reservees who are w/in the 3rd
degree, as in the case of nephews of the
deceased fr. whom the property came.
Proximity
of
degree
&
right
of
representation are basic principles of
ordinary intestate succession. Thus, whole
brothers & nephews are entitled to a
double share of brothers & nephews of the
half-blood.
Being
governed
by
intestate
succession, the plaintiffs in CAB must be
held to be w/o any right to the 1/2 interest
over the 7 lots. As aunt & uncles of
Faustino (prepositus) they are excluded fr.
succession by his niece Dalisay even
though they are related to him w/in the
same degree as the niece. Abellana v.
Ferraris in case of intestacy, nephews &
252

nieces exclude all other collaterals (aunts,


uncles, cousins, etc.).

would be deprived of his right to property


w/o due process of law.

Baviera: Another wrong case for the


same reason as Padura, that SC treated
2nd heir as inheriting fr. the prepositus
when in fact inheriting fr. the reservor.
Also there is no use determining
whether there is reserva troncal in CAB
bec. Dalisay (reservee) would still
inherit fr. the reservor as a sole heir.

Baviera: In cases of reserva troncal,


where the reservable property is
registered land & it is purchased fr.
the
Reservor
by
an
innocent
purchaser for value, the reservees can
NO longer acquire the property, on
the condition that no lien was
recorded on the title. This is bec. the
innocent purchaser is protected by
the land registration. (Maam says in
later decisions the SC has held that
although an innocent purchaser has a
right to rely on the TCT, he must also
have investigated title.)
However,
a
different
rule
applies if the land w/c the reservable
property is unregistered. In such a
case even if it was bought by an
innocent purchaser for value, the land
would still belong to the reservee(s)
as in the above mentioned case.

Effect of Alienation by Reservor


NONO V. NEQUIA
Facts: The land in Q was Originally owned by
Nicolas Quilantang. He died & left as heir his
wife Catalina Quilantang (CQ) who had two
sons Rafael & Ruperto Nequia. Rafael died
before CQ but left a son Fernando & a wife,
Margarita. When CQ dies she left as her heirs
Ruperto & Fernando (by intestate succession
in representation of Rafael). The land went to
Fernando. Upon his death, the land went to
his mother, Margarita who sold the same to
Nono evidenced by a deed of sale duly
registered.
When she died the issue of
ownership arose between Nono & Ruperto.
TC ruled in favor of Ruperto & ordered
recission of the deed of sale.
Issue: Who has a right to the land?
Held: Ruperto. Under Art. 891, Margarita
was obligated to reserve the land.
the
reserva troncal is a resolutory condition over
the right of the ascendant who inherits. If
upon the ascendants death the descendant
has relatives w/in the 3rd degree in the troncal
line, these relatives are the ones who acquire
the property by virtue of reservation. As a
consequence
the
successors
of
the
ascendant lose the property.
In CAB, Ruperto was still living at the
time of Margaritas death. Thus, at that time,
he became the owner of the land & the
resolutory condition of the reservation
dissolves the sale to Nono.
The land in Q is not registered. Thus,
Margaritas acquisition in the concept of
owner fr. her son cannot be inscribed unless
she applies for the same in a certificate for
registration. Neither can Ruperto apply for it
as his right to the land was contingent.
Ruperto may not be prejudiced or deprived of
the right tot he reserva troncal by the sale or
registration of the deed of sale. Otherwise he

SUMAYA V. IAC
Facts:
Raul
Balantakbo
(prepositus)
inherited 2 sets of properties fr. 2 different
ascendant
1/3 interest in a parcel of land fr. his
father, Jose, Sr.; &
1/7 interest in 10 parcels of land fr. his
maternal grandmama, Luisa Bautista.
Raul died intestate w/o issue, his sole heir
being his mother Consuelo (reservista).
She sold the first set of properties to
Sumaya who sold it to Villa Honorio Devt
Corp. (VHDC) who transferred its rights to
Agro-Indusl Coconut Coop., Inc. (ACCI).
Documents evidencing this was registered
& the corresponding TCTs were issued.
Consuelo sold the 2nd set of
properties to VHDC w/c transferred the
same to ACCI w/c is presently in
possession.
TCTs do not contain any
annotation of the properties reservable
character.
Consuelo died. The brothers in full
blood of Raul & his nephews & nieces (by
his brother Jose, Jr.) claimed the properties
as theirs since the same are reservable.
Issues:
Is Sumaya an innocent purchaser
value? No.
Is annotation necessary? Yes.

for

253

Has the COA of brothers, nephews & nieces


prescribed? No.
Held: Upon Rauls death, Consuelo caused
the registration of an affidavit of self
adjudication of the estate, it was clearly
stated that the properties were inherited by
Raul fr. his father & grandmother; & that
Consuelo was the lone ascendant/ heir to
Raul.
Although the TCTs showed the
properties to be free fr. lien, the affidavit is
sufficient notice to the whole world. Thus
failure to annotate reservable character
cannot
be
attributed
to
Consuelo.
Furthermore, Sumaya had actual knowledge
of the reservable character of the properties
before buying them fr. Consuelo as is shown/
contained in the deed of sale.
The reservable character of property
may be lost to innocent purchasers for value,
thus, there is a need for annotation. In CAB,
there was notice (affidavit) to Sumaya even if
there was no annotation.
COA did not commence upon Rauls
death , but upon the death of the reservor,
Consuelo on June 3,1968. Relatives have no
title of ownership of or fee simple over the
reserved property during the lifetime of the
reservor, only when reservor should die. The
prescriptive period is 30 yrs. under Art. 1141.
In CAB the action was brought in March
4,1970 or 2 years fr. the death of the reservor
well w/in the period.
Balane:
History of Reserva Troncal:
In the old law, there were 2
reservations:
1. Viudal -- "ordinaria", Art. 968,
OCC
2. Troncal
-"lineal," "familial,"
"extraordinaria," Art. 811 of the OCC
In addition: Reversiones
1. Legal -- Art. 812
2. Adoption -- Rules of Court
Reservations.-- Property set aside for
a group of people who are limited to persons
related fr. whom it came
Reversiones.-- Property goes back to
the person fr. whom it came.
The Code Commission abolished all 4.
In the floor of Congress, there was a last
minute amendment to include reserva
troncal. In 1963, PD 613 revived reversion
adoptiva. But this was eliminated by the
Family Code.
Now, only reserva troncal
remains.

1MS
\

3R
/ \
\
/
\
\ /
\
2P
4R

1MS (Mediate Source) ---- gratuitous title


---- 2P (Prepositus) --- by operation of law
--- 3R (Reservista/ reserver) --- 4R
(Reservatorios/ reservees)
PURPOSE OF RESERVA TRONCAL
Gonzales v. CFI.-- The purpose of
reserva troncal is to return the property to
where it originated & fr. where it strayed
due to the accident of marriage.
"Accident"
here
means
unforeseen
development.
1. Feudal
a.
Underlying concept.-Property should stay w/ the family bec. it
has stayed w/ them for so long & marriage
should not be allowed to cause that
property to leave that family.
b. To prevent the property fr.
leaving the family through the accident of
marriage.
E.g., X ---------- Y
|
A
Property fr. X's family.
X
dies, property goes to A. A dies, property
goes to Y. The property may end up w/ Y's
family.
2.
a.
property
b.
outdated,

This is not good


It impairs the free circulation of
Underlying philosophy is bad-aristocratic.

REQUISITES
Chua v. CFI -The property was acquired by a person fr.
an ascendant of fr. a brother or sister
by gratuitous title.
Said person died w/o legitimate issue.
The property is inherited by another
ascendant by operation of law.
There are relatives w/in the third degree
belonging to the line fr. w/c said
property came.
Comments:
1. "descendant" -- applies only if one got it
fr. an ascendant; but what if one got it fr. a
brother; it should have been "by a person
or individual"
2. Individual died w/o legitimate issue.
254

"Issue" here means children or descendants.


If w/ legitimate issue, this will not
apply but will go to legitimate descendants.
If w/ legitimate issue but they all
renounce, the individual dies as if there was
no legitimate issue
3. "Operation of law"
compulsory succession.
PROCESS.

1MS
\
A \

means

legal

or

3R
/ \
/
\ C
\
/
\
2P
4R

1. A = 1MS -- 2P
MS -- either only an:
(1)
ascendant
\
-- of 2P
(2)
brother or sister /
MS to P -- by gratuitous title -- either:
(1) donation
(2) succession
Chua vs. CFI.-As long as the
transmission to the heir is free fr. any
condition imposed by the deceased himself &
the property is given out of pure generosity,
it is gratuitous. Even if the Court ordered the
heirs to pay Standard Oil, it is still gratuitous.
If the expense or charge is just incidental, it is
still considered gratuitous.
E.g., "I give you my house provided
you pay the mortgage."
This is still
gratuitous but you subtract the value of what
you paid.
2. B = 2P -- 3R
Operation of law:
(a) compulsory succession
(b) intestate succession
Cannot be by:
(a) testate succession
(b) donation
Reserva troncal commences at this point.
3. C = 3R -- 4R
This is a consequence of reserva troncal
This occurs when the reservista dies
Reserva troncal ends here.
NATURE
1. Of right of the reservista over the
reserved property.
Edroso v. Sablan.-Reservista's right over the property is
that of ownership

Reservista's right is subject to a


resolutory condition w/c is that
the reservatorios exist at the time
of the reservista's death. If there
are,
the
reservista's
right
terminates & the property will
pass to the reservatorios.
Reservista's ownership is alienable
but
subject
to
the
same
resolutory condition. The buyer's
ownership is subject to the same
resolutory condition.
Reservista's right of ownership is
registrable.
["Uncle German: -- "germanus" -coming fr. the same seed; later came to
mean "brother."]
Error in the case: The case said
"reservatorios cannot dispose of the
expectancy." According to the Sienes case,
supra., w/c is correct, the expectancy can
be alienated.
2. Of right of the reservatorios over
the reserved property.
Sienes v. Esparcia.-a.
Reservatarios right over the
property during the life of the reservista is
a mere expectancy.
b. The expectancy is subject to a
suspensive condition w/c is that the
reservatorio is alive at the time the
reservista dies
c. The right of expectancy can be
alienated but it will be subject to the same
suspensive condition
d.
The right of expectancy is
registrable. It must be annotated at the
back of the title to protect the
reservatorios fr. innocent purchasers for
value.
Errors in the case:
1.
The case said the "right of
reservista is subject to a double resolutory
condition." -- (a) death of the reservista;
& (b) survival or reservatorio
However,
the
death
of
the
reservista is a term. It should be the "right
of (the) reservatorio is subject to a
suspensive condition."
2. The case said that "alienation by
(the) reservatorios is subject to a resolutory
condition."
It should read "suspensive
condition."
255

PARTIES.
A. Four Parties.
1. Mediate Source.-- Either an ascendant or
a brother or sister of the prepositus.
a. If ascendant, there is no problem.
You know fr. what line the property came fr..
b. If brother or sister & full or half
blood.
(i) If half blood, no problem.
You know what line the property came
fr..
(ii) If full blood, there is a
problem. How will you what line it
came fr.?
JBL Reyes.-- Reserva troncal applies
only to half blood brothers & sisters. You
cannot determine the line if it is of full blood.
Manresa.-- It should apply regardless
of whether it is of full or half blood. The law
does not distinguish.
What line do you apply it to? You
cannot apply it to either line as long as it is
w/in the third degree. Why? The purpose of
the law is not only to bring back the property
to the line (curative) but also to prevent it fr.
leaving the family.
E.g. A----------B
/
\
X
Y
Y to X. A is dead. X dies, so
the property goes to B. B remarries. The
property is lost.
view.

Manresa's view is the accepted

2. Prepositus.-- Either a descendant, or


brother or sister of the mediate source.
He is the central figure in the reserva
troncal bec.:
a.
At the time he receives the
property, he becomes the absolute owner.
He can prevent reserva troncal fr. happening.
How?
By preventing it fr. going to an
ascendant by operation of law. How?
1.
By selling it.
Dispose of a
potentially free portion property (even by
pacto de retro.)
2.
Give it to an ascendant by
donation, devise, legacy or testamentary
succession.
b.
He is the basis or point of
reference for the third degree relationship.
Note: There is no reserva troncal yet
while the property is in the hands of the
prepositus.

3. Reservista-- called "ascendant


reservista." He must be another ascendant
other than the mediate source if the
mediate source is an ascendant.
Reserva troncal begins once the
reservista inherits the property.
He is
bound by the obligations.
Q: Must the ascendant-reservista
belong to a line similar to the mediate
source or should he be fr. a different line?
E.g., X----------Y
|
A----------B
|
C
X donates to C. C dies & it goes to A.
Is there reserva troncal?
1. No. The property never left the
line.
2. Yes. There is no requirement in
Art 891 that the 1MS & 3R must belong to
different lines. This is the view accepted by
the majority of commentators.
4. Reservatorios -- class or group
a. Requirements:
1. Must be w/in the third degree fr.
the prepositus.
2. Must be fr. the line fr. w/c the
property came
3. Must be related by blood to the
mediate source.
(According to commentators.)
E.g., A----------A1
|
B----------B1 (Reservista)
|
C (Prepositus)
B died. Upon A's death, C inherits
fr. A. Upon C's death, the property is
transmitted to B1. Is A1 a reservatorio?
Following the 3 requisites:
1. Yes.
2. Yes.
3. No. A1 is not related by blood to
the mediate source.
b. Reservation.-- in favor of a class.
It is not required that reservatorios be
living at the time of the prepositus' death
but required to be alive at the time of the
death of the reservista.
Why?
Bec.
reservation is in favor of a class. As long
256

as you belong to the class when the


reservista dies, then you are a reservatorio.

class?

c. How do they inherit w/in the

Padura v. Baldovino.-- Apply the rules in


intestate succession:
a. Nearer excludes the more remote.
b.
Representation in favor or nieces for
predeceased brother
c. Proportion of 2 : 1 between full & half
blood nephews & brothers. However, there is
no representation in the case bec. there are
no other brothers. However, the ratio of 2 :
1 is maintained.
Florentino
v.
Florentino.-Representation only in favor of nephews &
nieces of deceased brothers & sisters of the
prepositus.
The case is wrong, however,
when it did not distinguish between full & half
blood nephews & nieces.
B. Three relationships
1. Mediate Source.-- Prepositus-- ascendant
or brother or sister
2. Prepositus.-- Reservista -- descendant ascendant relationship
3. Reservatorio -- Reservista
Mediate Source -- blood relation
Prepositus -- w/in the 3rd degree
All relationships must be legitimate.
In effect, this requirement punishes
legitimate relations bec. if the
relation is illegitimate, there is no
obligation to reserve.
VII. LEGACY
Art. 957. The legacy or devise shall be
w/o effect:
(1) If the testator transforms the thing
bequeathed in such a manner that it does not
retain either the form or the denomination it
had;
(2) If the testator by any title or for any
cause alienates the thing bequeathed or any
part thereof, it being understood that in the
latter case the legacy or devise shall be w/o
effect only w/ respect to the part thus
alienated. If after the alienation the thing
should again belong to the testator, even if it
be by reason of the nullity of the contract, the
legacy or devise shall not thereafter be valid,

unless the reacquisition shall have been


effected by virtue of the exercise of the
right of repurchase;
(3) If the thing bequeathed is totally
lost during the lifetime of the testator, or
after his death w/o the heir's fault.
Nevertheless, the person obliged to pay the
legacy or devise shall be liable for eviction
if the thing bequeathed should not have
been determinate as to its kind, in
accordance w/ the provisions of article 928.

Balane: Grounds for the revocation of


legacy or devise (takes effect by operation
of law.)
1. Transformation of the thing.
E.g.
a. "I bequeath my ring to B." After
making the will, the ring is melted & turned
into a pendant.
b. When a coconut plantation is
transformed into a fishpond.
2. This manifests the intent to revoke.
Exception: If pacto de retro & reacquired
during the testator's lifetime.
Annulment depends on the basis:
a. Vitiated consent.-- Not revoked
bec. there was no intention to revoke
b. All other reasons.-- Revoked.
3. Totally lost.
Art. 928. The heir who is bound to
deliver the legacy or devise shall be liable
in case of eviction, if the thing is
intermediate & is indicated only by its kind.
Art. 959. A disposition made in general
terms in favor of the testator's relatives
shall be understood to be in favor of those
nearest in degree.
Balane:
This does not refer to legacies & devises
This article is misplaced. This should be
in the Chapter on Institution of Heirs
This applies only in favor of the
testator's own relatives.
PARISH PRIEST OF VICTORIA V. RIGOR
Facts: In his will Father Rigor bequeathed
certain ricelands to anyone of his nearest
relatives
who
would
pursue
an
ecclesiastical career until ordination as a
priest. He also provided that during the
time when there is no qualified devisee, the
administration of the ricelands would be
257

under the responsibility of the parish priest of


Victoria (PPV).
13 years later the PPV filed petition
for the delivery of the ricelands & the
accounting of the fruits to the church as
trustee, since a grandnephew of the testator
was a seminarian pursuing a study of
priesthood.
Rigor, et al., brothers & sisters of
Father Rigor, countered & asked that the
bequest be declared inoperative & that they
be adjudged entitled to the lands as the
condition in the will was not fulfilled. TC for
PPV. CA reversed.
Issues:
Who did the testator contemplate as his
nearest male relative?
Fr. Rigor
referred to the nearest male relative
already living at the time of his death.
Is the devise of ricelands efficacious or
enforceable?
No.
Ineffectual &
Unenforceable.
Held: The said bequest referred to nearest
male relative living at the time of his death &
not to any indefinite time thereafter.
Otherwise, it would render the provision
difficult to apply & create uncertainty as to
the disposition of his estate. As no nearest
male relative of the deceased has ever
studied for the priesthood, the conclusion is
that the bequest in question was ineffectual
& inoperative. The grandnephew referred to
was born after the death of the testator thus
not covered by the bequest.
Therefore,
administration of the ricelands by PPV was
likewise inoperative.
CAB is governed by Art. 960(2) w/c
provides that legal succession takes place
when the will does not dispose of all that
belongs to the testator.
There being no
substitution nor accretion s to the said
ricelands, the same should be distributed
among the testators legal heirs. Effect is as
if testator , as to the ricelands, made no
disposition at all.
VIII. INTESTATE SUCCESSION
Art. 968. If there are several relatives of
the same degree, & one or some of them are
unwilling or incapacitated to succeed, his
portion shall accrue to the others of the same
degree, save the right of representation when
it should take place. Art. 969.
If the

inheritance should be repudiated by the


nearest relatives, should there be one only,
or by all the nearest relatives called by law
to succeed, should there be several, those
of the following degree shall inherit in their
own right & cannot represent the person or
persons repudiating the inheritance.
Art. 978. Succession pertains, in the
first place, to the descending direct line.
Art. 979. Legitimate children & their
descendants succeed the parents & other
ascendants, w/o distinction as to sex or
age, & even if they should come fr.
different marriages.
An adopted child succeeds to the
property of the adopting parents in the
same manner as a legitimate child.
Art. 980. The children of the deceased
shall always inherit fr. him in their own
right, dividing the inheritance in equal
shares.
Art. 981.
Should children of the
deceased & descendants of other children
who are dead, survive, the former shall
inherit in their own right, & the latter by
right of representation.
Art. 982. The grandchildren & other
descendants shall inherit by right of
representation, & if any one of them should
have died, leaving several heirs, the
portion pertaining to him shall be divided
among the latter in equal portions.

Baviera: Only legitimate descendants


General rule: Art. 982
Exception: Art. 992.-- An illegitimate
child has no right to inherit ab
intestato fr. the legitimate children &
relatives of his father or mother; nor
shall such children or relatives inherit
in the same manner fr. the illegitimate
child.
This applies only to child, not
descendant
This is called the "iron curtain
rule."

Art. 983. If illegitimate children survive


w/ legitimate children, the shares of the
258

former shall be in the proportions prescribed


by article 895.
Baviera: Article 895 - note article 176 FC
- Illegitimate child is entitled to 1/2 of
share of a legitimate child. The legitime
of the illegitimate child shall be taken fr.
the free portion, provided in no case
shall the total legitime of illegitimate
child exceed the free portion, & the
legitime of surviving spouse must first
be fully satisfied.

Art. 984. In case of death of an adopted


child, leaving no children or descendants, his
parents & relatives by consanguinity & not by
adoption, shall be his legal heirs.
Subsection2.-- Ascending Direct Line.
Art. 985. In default of legitimate children
& descendants of the deceased, his parents &
ascendants shall inherit fr. him, to the
exclusion of collateral relatives.
Art. 986. The father & mother, if living,
shall inherit in equal shares.
Should one only of the survive, he or
she shall succeed to the entire estate of the
child.
Art. 987.
In default of the father &
mother, the ascendants nearest in degree
shall inherit.
Should there by more than one of
equal degree belonging to the same line they
shall divide the inheritance per capita; should
they be of different lines but of equal degree,
one-half shall go to the paternal & the other
half to the maternal ascendants. In each line
the division shall be made per capita.
Subsection 3.-- Illegitimate Children.
Art. 988. In the absence of legitimate
descendants or ascendants, the illegitimate
children shall succeed to the entire estate of
the deceased.
Art. 989. If, together w/ illegitimate
children, there should survive descendants of
another illegitimate child who is dead, the
former shall succeed in their own right & the
latter by right of representation.

Art. 990. The hereditary rights granted


by the two preceding articles to illegitimate
children shall be transmitted upon their
death to their descendants, who shall
inherit by right of representation fr. their
deceased grandparent.
Art. 991. If legitimate ascendants are
left, the illegitimate children shall divide
the inheritance w/ them, taking one-half of
the estate, whatever be the number of the
ascendants or of the illegitimate children.
Art. 992. An illegitimate child has no
right to inherit ab intestato fr. the
legitimate children & relatives of his father
or mother; nor shall such children or
relatives inherit in the same manner fr. the
illegitimate child.
Baviera: This applies only to child, not
descendants. This is called the iron
curtain rule

Art. 993. If an illegitimate child should


die w/o issue, either legitimate or
illegitimate, his father or mother shall
succeed to his entire estate; & if the child's
filiation is duly proved as to both parents,
who are both living, they shall inherit fr.
him share & share alike.
Art. 994. In default of the father or
mother, an illegitimate child shall be
succeeded by his or her surviving spouse,
who shall be entitled to the entire estate.
If the widow or widower
should survive w/ brothers & sisters,
nephews & nieces, she or he shall inherit
one-half of the estate, & the latter the
other half.
Subsection 4.-- Surviving Spouse.
Art. 995. In the absence of legitimate
descendants & ascendants, & illegitimate
children & their descendants, whether
legitimate or illegitimate, the surviving
spouse shall inherit the entire estate, w/o
prejudice to the rights of brothers & sister,
nephews & nieces, should there by any
under article 1001.
Art. 996. If a widow or widower &
legitimate children or descendants are left,
the surviving spouse has in the succession
259

the same share as that of each of the


children.
Art. 997. When the widow or widower
survives w/ legitimate parents or ascendants,
the surviving spouse shall be entitled to onehalf of the estate, & the legitimate parents or
ascendants to the other half.
Art. 998. If a widow or widower survives
w/ illegitimate children, such widow or
widower shall be entitled to one-half of the
inheritance, & the illegitimate children or
their descendants, whether legitimate or
illegitimate, to the other half.
Art. 999. When the widow or widower
survives w/ legitimate children or their
descendants & illegitimate children or their
descendants,
whether
legitimate
or
illegitimate, such widow or widower shall be
entitled to the same share as that of a legitimate child.
Art. 1000. If legitimate ascendants, the
surviving spouse, & illegitimate children are
left, the ascendants shall be entitled to onehalf of the inheritance, & the other half shall
be divided between the surviving spouse &
the illegitimate children so that such widow
or widower shall have one-fourth of the
estate, & the illegitimate children the other
fourth.
Art. 1001. Should brothers & sisters or
their children survive w/ the widow or
widower, the latter shall be entitled to onehalf of the inheritance & the brothers &
sisters or their children to the other half.
Art. 1002. In case of a legal separation, if
the surviving spouse gave cause for the
separation, he or she shall not have any of
the rights granted in the preceding article.
Subsection 5.-- Collateral Relatives
Art. 1003. If there are no descendants,
ascendants, illegitimate children, or a
surviving spouse, the collateral relatives shall
succeed to the entire estate of the deceased
in accordance w/ the following articles.
Art. 1004. Should the only survivors be
brothers & sisters of the full blood, they shall
inherit in equal shares.

Art. 1005. Should brothers & sisters


survive together w/ nephews & nieces, who
are the children of the decedent's brothers
& sisters of the full blood, the former shall
inherit per capita, & the latter per stirpes.
Baviera: Per capita means equally
per
stirpes
means
representation

by

Art. 1006. Should brothers & sisters of


the full blood survive together w/ brother &
sisters of the half blood, the former shall be
entitled to a share double that of the latter.
Art. 1007. In case brothers & sisters of
the half blood, some on the father's &
some on the mother's side, are the only
survivors, all shall inherit in equal shares
w/o distinction as to the origin of the
property.
Art. 1008.
Children of brothers &
sisters of the half blood shall succeed per
capita or per stirpes, in accordance w/ the
rules laid down for brothers & sisters of the
full blood.
Art. 1009.
Should there be neither
brothers nor sisters nor children of brothers
or sisters, the other collateral relatives shall
succeed to the estate.
The latter shall succeed w/o
distinction of lines or preference among
them by reason of relationship by the
whole blood.
Art. 1010.
The right to inherit ab
intestato shall not extend beyond the fifth
degree of relationship in the collateral line.

Summary:
LC whole
LP excluded
LC
ILC of each LC
LC
S same as each LC
LC
ILC of each LC
S same as each LC
260

LP
S
LP
ILC
S
ILC
S
S
B, S, N
Collaterals whole
State whole
CORPUS V. ADMIN

theory that the illegitimate child is


disgracefully looked upon by the legitimate
family & vice-versa. The law does not
recognize the blood tie & seeks to avoid
further grounds for resentment.
ESTATE OF SANTILLON
Facts: Pedro Santillon died w/o testament.
He was survived by his wife, Perfecta
Miranda & his son Claro Santillon. Widow
was appointed administratrix of the estate.
Claro filed a Motion to Declare Share of Heir
& to resolve the conflicting claims
regarding the estate. 1/2 of the estate is
the widows share in the conjugal
partnership, it is the remaining 1/2 that is
in dispute.

Facts:
Teodoro
Yangco
was
the
acknowledged natural son of Rafael &
Ramona Arguelles, who was the widow of
Tomas Corpus (Tomas I).
Teodoro died
leaving a will. He had no forced heirs, & his
nearest relatives were
A half-brother;
A half-sister;
The children of half-brother, Pablo; &
Juanita, daughter of half-brother, Jose.
Petitioner in this case is Tomas Corpus (Tomas
II), son of Juanita.
The heirs of Teodoro entered into a
compromise agreement & the estate was
partitioned accordingly. 2 years later, Tomas
II as the sole heir of Juanita filed an action to
recover her supposed share in the intestate
estate of Teodoro Yangco. TC dismissed.

Claro claims that as an only child he


is entitled to 3/4 & the 1/4 of the disputed
portion, pursuant to Art. 892, NCC.

Issues:
Is Juanita a legal heir of Teodoro Yangco? No.
Does Tomas II have COA? No.

Art. 892 falls under Testamentary


Succession; Art. 996 under Legal or
Intestate Succession. Such being the case
it is obvious that Claro cannot rely on Art.
892 bec. it merely fixes the legitime of the
surviving spouse. While it may indicate the
intent of the law w/ respect to ideal shares,
it does not fix the amount of shares that a
child & a surviving spouse are entitled to
when intestacy occurs.
Incases of
intestacy, Art. 996 applies.

Held: Teodoro Yangco & Juanitas father,


Jose, had different fathers but the same
mother. Testator was an illegitimate child
while Jose was a legitimate child.
Thus,
Tomas II as grandson of Jose, had no cause of
action for the recovery of the supposed
hereditary share of his mother Juanita as
legal heir to Yangcos estate for the simple
reason that Juanita was not such an heir. In
fact, Yangcos half-brothers on the Corpus
side who were legitimate, had no right to
succeed to his estate under the rules of
intestacy. There is no reciprocal succession
between legitimate & illegitimate relatives as
per Art. 992, CC. The rule is based on the

Widow claims 1/2 should go to Claro


& 1/2 to her, invoking Art. 996, NCC. TC
ruled 1/2-1/2 or equal sharing.
Issue: How should the intestate estate be
divided between the spouse & the one
legitimate child? each.
Held: Claro claims that Art. 996 is unjust
& inequitable bec. it grants the widow the
same share as that of children in intestate
succession, whereas in testate succession
the surviving spouse is given only 1/2 while
the only child gets 1/2.

BICOMONG V. ALMANZA
Facts: Simeon Bagsic in his first marriage
had 3 children Perpetua, Igmedia &
Ignacio. All three are dead & the present
action was filed by their respective children
(nephews & nieces of the half-blood).
261

When his first wife died, Simeon


remarried to Silvestra & they had 2 children
Felipa & Maura. Felipa died leaving & was
survived by her husband Geronimo, her
daughter Cristeta & her husband Engracio.
The subject matter in CAB is 1/2 share
of Maura in 5 parcels of land w/c she
inherited fr. her mother Silvestra.
When
Maura died the propertied passed to her fullblood niece Cristeta who took charge of
administration of the same. Several years
after Mauras death the 1/2 blood nephews &
nieces requested Cristeta for a partition of
Mauras estate. Cristeta agreed but died w/o
dividing,
thus
leaving
possession
&
administration to Geronimo & Engracio. TC
declared nephews & nieces of the half-blood
are entitled to 10/24 share of the 5 parcels of
land.
Issue: Who are the intestate heirs of Maura?
Her nephews & nieces of the full & halfblood.
Held:
Articles 975, 1006 & 1008 are
applicable in CAB.
In the absence of descendants,
ascendants, illegitimate children or surviving
spouse, Art. 1003 provides that collateral
relatives shall succeed to the entire estate.
In CAB, Maura died intestate w/o issue & her
husband & descendants have died ahead of
her, she is succeeded by her surviving
collateral relatives namely, her full-blood
niece (the daughter of her full-blood sister) &
her half-blood nephews & nieces (the 10
children of her half-brother & 2 half-sisters).
In accordance w/ Art. 975.
Nephews & nieces are entitled to
inherit in their own right. Nephews & nieces
alone do not inherit by right of representation
unless concurring w/ brothers & sisters of the
deceased.
Under Art. 975, there is no
qualification as to whether the nephews or
nieces are on the maternal or paternal side;
& there is no preference as to whether
relation ship is full or half blood. The only
difference in their right of succession is
provided in Art. 1008 in relation to Art. 1006
w/c entitles those of full-blood to a share
double that of those of the half-blood.
In CAB, the existence of a niece of the
full-blood does not exclude the 10 nephews &

nieces of the half-blood fr. inheriting.


Maura could not have been succeeded by
Felipa such as to exclude the 10 half-blood
collaterals, for the simple reason that Felipa
predeceased Maura.

Art. 992. An illegitimate child has no


right to inherit ab intestato fr. the
legitimate children & relatives of his father
or mother; nor shall such children or
relatives inherit in the same manner fr. the
illegitimate child.

DIAZ V. IAC
Facts: Simona Pamuti died & her niece
Felisa Pamuti Jardin was declared by the
CFI to be sole heir. Felisa was likewise
allowed to intervene in the intestate
estates of Pascual (Simonas husband) &
Pablo (Simonas son) Santero, both
predeceased Simona. However, Pablo had
6 illegitimate children; 4 w/ Diaz & 2 w/
Pacursa. Diaz & Pacursa moved to exclude
Felisa fr. taking part in the settlement of
the said estates. The CFI reversed its
decision & held instead that Felisa is not an
heir of Simona.
IAC reversed this &
declared Felisa sole heir of Simona.
Issues: Can Pablos illegitimate children
inherit fr. Simona by right of representation
of their father her legitimate son? No.
Who are Simonas legal heirs? Felisa is
the sole heir.
Held: Art. 992 absolutely prohibits a
succession
ab
intestado
between
illegitimate child & the legitimate children
& relatives of the father or mother of said
legitimate child. They may have a natural
tie of blood, but this is not recognized by
the law for the purpose of Art. 992.
Between the legitimate & illegitimate
family there is a presumed antagonism,
thus the law seeks to avoid further grounds
for resentment. In CAB, the illegitimate
children of Pablo cannot represent their
father in the succession of the latter to the
intestate estate of his legitimate mother,
Simona bec. of the barrier of Art. 992.
Note however, that while 992
prevents the illegitimate issue of a
legitimate child fr. representing him in
262

intestate succession of the grandparent, the


illegitimate issues of illegitimate children can
now do so. Art. 982 is the general rule while
Art 992 is the exception. The determining
factor being the illegitimacy or legitimacy of
the person to be represented.
If illegitimate descendants, legitimate or
illegitimate may represent him.
If
legitimate

only
his
legitimate
descendants
may
exercise
right
of
representation.

succeed to the entire estate of the


deceased in accordance w/ the following
articles.
Art. 1004. Should the only survivors be
brothers & sisters of the full blood, they
shall inherit in equal shares.
Art. 1005. Should brothers & sisters
survive together w/ nephews & nieces, who
are the children of the decedents brothers
& sisters of the full blood, the former shall
inherit per capita, & the latter per stirpes.

a. Estate of an Illegitimate Child

Art. 903. The legitime of the parents who


have an illegitimate child, when such child
leaves neither legitimate descendants, nor a
surviving spouse, nor illegitimate children, is

of the hereditary estate of such


illegitimate child.
If only legitimate or
illegitimate children are left the parents are
not entitled to any legitime whatsoever. If
only the widow or the widower survives w/
the parents of the illegitimate child, the
legitime of the parents is of the hereditary
estate of the child, & that of the surviving
spouse also of the estate.
Art. 992. An illegitimate child has no right
to inherit ab intestato fr. the legitimate
children & relatives of his father or mother;
nor shall such children or relatives inherit in
the same manner fr. the illegitimate child.
Art. 993. If an illegitimate child should die
w/o issue, either legitimate or illegitimate, his
father or mother shall succeed to his entire
estate; & if the childs filiation is duly proved
as to both parents, who are both living, they
shall inherit fr. him share & share alike.
Art. 994. In default
mother, an illegitimate
succeeded by his or her
who shall be entitled to the

of the father or
child shall be
surviving spouse,
entire estate.

If the widow or widower should survive w/


brothers & sisters, nephews & nieces, she or
he shall inherit one-half of the estate, & the
latter the other half.
Art. 1003. If there are no descendants,
ascendants, illegitimate children, or a
surviving spouse, the collateral relatives shall

Baviera: Per capita means equally; per


stirpes means by representation

Art. 1006. Should brothers & sisters of


the full blood survive together w/ brother &
sisters of the half blood, the former shall be
entitled to a share double that of the latter.
Art. 1007. In case brothers & sisters of
the half blood, some on the fathers &
some on the mothers side, are the only
survivors, all shall inherit in equal shares
w/o distinction as to the origin of the
property.
Art. 1008.
Children of brothers &
sisters of the half blood shall succeed per
capita or per stirpes, in accordance w/ the
rules laid down for brothers & sisters of the
full blood.
Art. 1009.
Should there be neither
brothers nor sisters nor children of brothers
or sisters, the other collateral relatives shall
succeed to the estate.
The latter shall succeed w/o
distinction of lines or preference among
them by reason of relationship by the
whole blood.
Art. 1010.
The right to inherit ab
intestato shall not extend beyond the fifth
degree of relationship in the collateral line.

b. Estate of the Adopted Child

Art. 190, FC. Repealed.

263

successional rights to the intestate estate


of Vicente, but not to the estate of
Dominga.

DELA PUERTA V. CA
Facts: Dominga Revuelta died & in her will
she left her properties to her 3 children
Alfredo, Vicente & Isabel. Isabel was given
the free portion in addition to her legitime &
was appointed executrix.
Probate was
opposed by the brothers on the ground that
some of the properties listed in the inventory
of their mothers estate actually belonged to
them exclusively.
Alfredo died leaving
Vicente as the lone oppositor to the probate.
Vicente filed petition to adopt
Carmelita granted but appealed by Isabel.
Pending the same Vicente died; Isabel moved
for dismissal.
Carmelita was allowed to intervene, she filed
a motion for payment of a monthly allowance
as the acknowledged natural child of Vicente.
She presented evidence to prove the same
probate court granted her motion.
CA
affirmed.
Issue: Can Carmelita claim
successional rights to the
Dominga? No.

support &
estate of

Held:
Vicente did not predecease his
mother, Dominga. Representation can take
place only in the ff.: When
the person represented dies ahead of the
testator;
person
represented
is
incapable
of
succeeding the testator; &
person represented is disinherited by the
testator.
In all these cases there is a vacancy in the
inheritance
and
the
law
call
the
descendants/children
of
the
person
represented to succeed by
right of
representation. There is representation only
when relatives of a deceased person try to
succeed him in his rights w/c he would have
had if he were still living.
Not having
predeceased Dominga, Vicente had the right
to inherit directly, no representation.
Carmelita is a spurious child. As a
spurious child she is barred fr. inheriting fr.
Dominga bec. of Art. 992 w/c is a barrier
between legitimate & illegitimate families.
Even as an adopted child she is still barred as
there is no natural kindred ties between
Carmelita & Dominga.
Carmelita had

IX. Collation

Art. 1061. Every compulsory heir, who


succeeds w/ other compulsory heirs, must
bring into the mass of the estate any
property or right w/c he may have received
fr. the decedent, during the lifetime of the
latter, by way of donation, or any other
gratuitous title, in order that it may be
computed in the determination of the
legitime of each heir, & in the account of
the partition.

Balane: First sense, computation. This is


the same as the third step in Art. 908.
Inaccuracy in the provision.-- "collation
done by compulsory heirs."-- All donations
are collated provided there is at least one
compulsory heir bec. there will be a
legitime.
Art. 1062. Collation shall not take place
among compulsory heirs if the donor
should have so expressly provided, or if the
donee should repudiate the inheritance,
unless the donation should be reduced as
inofficious.

Balane:
Second
(Articles 909, 910.)

sense,

imputation.

General rule: Donation to a compulsory


heir shall be collated (imputed) to his
legitime.
Exceptions:
Donor provides otherwise. In such a case,
it will be imputed to the free portion.
Donee repudiates the inheritance.
Art. 1063. Property left by will is not
deemed subject to collation, if the testator
has not otherwise provided, but the
legitime shall in any case remain
unimpaired.

Balane: Second sense, imputation.


264

Testamentary Disposition. This is imputed


against the free portion & not against the
legitime.
The heir gets legitime +
testamentary disposition. Why? If not, what
is the use? He will get it anyway. Unless, of
course, if it impairs the legitime of others.

Art. 1064. When grandchildren, who


survive w/ their uncles, aunts, or cousins,
inherit fr. their grandparents in representation
of their father or mother, they shall bring to
collation all that their parents, if alive, would
have been obliged to bring, even though
such grandchildren have not inherited the
property.

Balane:
Second sense, imputation.
Illustration:

/
\
A
B
|
/ \
a1 b1 b2
In 1995, X donated to a1. In 2001, X dies
while A is still alive. Will A impute the
donation to a1? No. a1 is considered a
stranger bec. he is not a compulsory heir.
Impute vs. the free portion.

They shall also bring to collation all that


they may have received fr. the decedent
during his lifetime, unless the testator has
provided otherwise, in w/c case his wishes
must be respected, if the legitime of the coheirs is not prejudiced.

Art. 1066. Neither shall donations to the


spouse of the child be brought to collation;
but if they have been given by the parent
to the spouses jointly, the child shall be
obliged to bring to collation one-half of the
thing donated.

Balane:

Balane:

Second sense, imputation.


"Grandchildren" refer to all descendants who
inherit by representation.

Second sense, imputation.


Illustration:
X

Illustration:
/

\
A
B
/ \
b1 b2

B predeceased X.
1. In 1988, X donated to B P70,000.
2. In 2001, X donated to b1 & b2 P50,000
What will b1 & b2 impute when X dies?
Par. 1.-- 1988 donation.-- Yes bec. B would
have imputed it (if he) were he alive.
Par. 2.-- 2001 donation.-- Yes. This is not
logical bec. b1 & b2 inherit by representation.
The general rule is that only persons who
receive the donation are bound to impute it.
Art. 1065. Parents are not obliged to
bring to collation in the inheritance of the
ascendants any property w/c may have been
donated by the latter to their children.

|
A' ----A

Two cases:
X donates to A' only, imputed to the free
portion.
X donates to both A & A', impute 1/2 to
legitime of A & 1/2 to the free portion.
Rule: Donation given to the spouse will
not be imputed to the legitime of the
descendant spouse bec. the spouse is
considered a stranger.
Art. 1067. Expenses for support,
education, medical, attendance, even in
extraordinary
illness,
apprenticeship,
ordinary equipment, or customary gifts are
not subject to collation.
Balane:
First sense, computation.
265

Overlap between support in the NCC & in the


FC.-- Support in the FC already includes
medical attendance.
All expenses in Art. 1067 are not imputed to
the legitime.-- Including 6 things in support
in the FC.
Art. 1068.
Expenses incurred by the
parents in giving their children a professional,
vocational or other career shall not be
brought into collation unless the parents so
provide, or unless they impair the legitime;
but when their collation is required, the sum
w/c the child would have spent if he had lived
in the house & company of his parents shall
be deducted therefr..

Wedding gifts.-- Two views:


Literal.-- Cannot be beyond 1/10 of the
free portion.
If it exceeds, return the
excess.
Liberal.-below 1/10 of the free portion, impute to
the free portion
above 1/10 of the free portion, impute to
the legitime.
E.g., Estate is worth 600. There are 3
children. Legitimes = 300. When A got
married, he was given a gift of 40. This is
more than 1/10 of the free portion.
1.
Literal = 30, impute to the
legitime
10, return

Balane:
Second sense, imputation.
This qualifies Art. 1067.
General rule:
Imputed versus the free
portion.
Exceptions:
When parents provide otherwise
When it impairs the legitimes of other
compulsory heirs.
But if you lived away fr. home, deduct the
living expenses fr. what would be imputed
against your legitime.
This is inconsistent bec. this is included in
support under the Family Code.
Art. 1069. Any sums paid by a parent in
satisfaction of the debts of his children,
election expenses, fines, & similar expenses
shall be brought to collation.

portion

2. Liberal = 30, impute to the free

legitime.

10, impute to the

Art. 1071. The same things donated


are not to be brought to collation &
partition, but only their value at the time of
the donation, even though their just value
may not then have been assessed. Their
subsequent increase or deterioration &
even their total loss or destruction, be it
accidental or culpable, shall be for the
benefit or account & risk of the donee.

Balane:
Par. 1.-First & second
computation & imputation.

senses,

What do you compute? The value at the


time of the donation.
Balane: Second sense, imputation.
Art. 1070. Wedding gifts by parents &
ascendants consisting of jewelry, clothing, &
outfit, shall not be reduced as inofficious
except insofar as they may exceed one-tenth
of the sum w/c is disposable by will.

Balane:

Par. 2.-- Any change in the value is for the


account of the donee. Why? Bec. the
donee is the owner of the thing donated.
(Res perit domino.)
Art. 1072. In the collation of a donation
made by both parents, one-half shall be
brought to the inheritance of the father, &
the other half, to that of the mother. That
given by one alone shall be brought to
collation in his or her inheritance.

Second sense, imputation.


266

Balane:
First & second
imputation.

senses,

computation

&

This provision contemplates joint donation by


parents fr. their common property.

For the purpose of ascertaining their


amount, the fruits & interest of the
property of the estate of the same kind &
quality as that subject to collation shall be
made the standard of assessment.

1/2 computed for determination of the estate


of the husband.
1/2 computed for determination of the estate
of the wife.

Balane:

Same rule for imputation w/ respect to the


donee. Impute 1/2 to father & 1/2 to mother.

Assume that the property donated has to


be returned bec. the legitime has been
impaired.
The return may be total or
partial.

Art. 1073. The donee's share of the estate


shall be reduced by an amount equal to that
already received by him; & his co- heirs shall
receive & equivalent, as much as possible, in
property of the same nature, class & quality.

Donee may return: (a) property; (b) cash


value

Balane:
Second sense, imputation.
In
partition, there should be among heirs of the
same class, as much as possible, equality not
only as to value but also as to kind & nature.
This is subject, of course, to a contrary
agreement of the heirs concerned.
Art. 1074. Should the provisions of the
preceding article be impracticable, if the
property donated was immovable, the coheirs shall be entitled to receive its
equivalent in cash or securities, at the rate of
quotation; & should there be neither cash nor
marketable securities in the estate, so much
of the other property as may be necessary
shall be sold at public auction.
If the property donated was movable, the
co-heirs shall only have a right to select an
equivalent of other personal property of the
inheritance at its just price.

Balane: Second sense, imputation.


Applies if Art. 1073 is not possible.
1. Immovables-- cash or securities
2.
Movables-similarly valued
movable
Art. 1075. The fruits & interest of the
property subject to collation shall not pertain
to the estate except fr. the day on w/c the
succession is opened.

Third sense, return.

Obligation to return arises at the time of


death. The fruits are also returned fr. that
time. The amount depends on how much
of the property has to be returned.
E.g., A donated to X a mango plantation.
If X has to return all, return all the fruits fr.
the time of the death of A.
If X has to return 1/2, return 1/2 of the
fruits fr. the time of the death of A.
Baviera: At the moment of death of
donor, donee's right over the property
is modified

Art. 1076. The co-heirs are bound to


reimburse to the donee the necessary
expenses w/c he has incurred for the
preservation of the property donated to
him, though they may not have augmented
its value.
The donee who collates in kind an
immovable, w/c has been given to him,
must be reimbursed by his co-heirs for the
improvements w/c have increased the
value of the property, & w/c exists at the
time the partition is effected.
As to works made on the estate for the
mere
pleasure
of
the
donee,
no
reimbursement is due him for them; he
has, however, the right to remove them, if
he can do so w/o injuring the estate.

267

Balane:
Third sense, return, on the assumption that
the donation is totally inofficious.
Par. 1.-- The donee, being the rightful owner,
has to be reimbursed the necessary
expenses. How much? It depends on how
much is collated. (same as Art. 1075.)
Par. 2.-- Useful expenses.-- Apply the same
rules as in necessary expenses.
Par. 3.-- Ornamental expenses.-- No right to
reimbursement but has the right to remove.
These are incidental obligations
arising fr. collation in the third sense.
Art. 1077. Should any question arise
among the co-heirs upon the obligation to
bring to collation or as to the things w/c are
subject to collation, the distribution of the
estate shall not be interrupted for this reason,
provided adequate security is given.
Art. 51.
xxx The delivery of the
presumptive legitimes herein prescribed shall
in no way prejudice the ultimate successional
rights of the children accruing upon the death
of either or both of the parents; but the value
of the properties already received under the
decree of annulment or absolute nullity shall
be considered as advances on their legitime.
(Family Code, par. 3 thereof.)
Art. 227.
If the parents entrust the
management or administration of any of their
properties to an unemancipated child, the net
proceeds of such property shall belong to the
owner. The child shall be given a reasonable
monthly allowance in an amount not less
than that w/c the owner would have paid if
the administrator were a stranger, unless the
owner, grants the entire proceeds to the
child. In any case, the proceeds thus given in
whole or in part shall not be charged to the
child's legitime. (Family Code.)

ADAN V. CASILI
Facts:
Felix Adan commenced an action
against his sister Victoria & her husband to
secure judicial partition of the estate left by
their deceased mother consisting of 6 lots, 2
of w/c were discarded, thus there are only 4
remaining amounting to P2,783.55.

The spouse claimed that the 4 lots


were donated to Victoria as her share in the
inheritance. They also claimed that Felix
had already received more than his share
in the form of money, livestock, palay &
real property. TC found that the alleged
donation of the 4 parcels to Victoria was
not duly proven, thus they should be
brought to collation. TC also found that
Felix had received sums fr. their mother for
studying in Manila & that 1/2 of the amount
received ought to be brought to collation.
As the amount received by Felix was more
than the total value of the 4 lots the court
absolved Victoria & her husband.
Issue: Which amounts received by Felix
should be brought to collation? Parties
should be left as they are.
Held:
Art. 1041, OCC states that
allowances
for
support,
education,
attendance for illness are not subject to
collation.
But, Art. 1042 provides that
expenses incurred by parents giving their
children a profession or artistic career are
NOT subject to collation, unless:
parent so orders, or
the same encroaches upon the legitime of
other heirs.
It is also provided that in cases where it
is proper to collate, the money w/c the
child would have spent if he had lived in
the house & company of his parents shall
be deducted fr. therefrom.
In the CAB, Felix studied surveyorship
w/c is a 2-year course & it is shown that he
received an average of P500 per year fr. his
mother.
Surveyorship is a professional
course & since the expenses incurred in
giving him that career encroached upon
the legitime of Victoria, it is proper to
collate 1/2 of said amount. The other 1/2 is
deemed the amount he would have spent if
he lived in the house & company of his
mother.
SC further held that the cash, cavans of
palay & carabaos received by Felix fr. the
mother are likewise collationable. Since
the value of all that Felix received is
greater than the value of the 4 parcels, the
parties are to be left as they are.

268

VDA. DE TUPAS V. PTC


Facts: Epifanio Tupas died w/o issue his sole
heir being his widow Partenza. his will was
admitted to probate. Among the properties
listed therein were 3 lots w/c formed part of
deceaseds private capital. However, at the
time of his death these lots were no longer
owned by him as he had donated them to the
Tupas Foundation the year before. Tupas
Foundation obtained title to these lots.
The widow claimed that she was
practically destitute
& thus brought suit
against Tupas Foundation. She claimed that
the donation was inofficious & prejudiced her
legitime. CFI dismissed the same.
Issue: WON a donation inter vivos by a
donor now deceased is inofficious & should
be reduced at the instance of the donors
widow? Yes.
Held:
A persons prerogative to make
donations is limited in that he cannot give by
donation more than what he can give by will.
Whatever is donated that is in excess of what
he can give by will is deemed inofficious &
thus the donation is reducible. Moreover,
such donation is collationable.
value is
imputable to the estate of the deceased in
order to determine the value of the legitime
of the compulsory heirs. Collationable gifts
include those made in favor of forced heirs as
well as those given to strangers.
The fat therefore that the donated
property is no longer part of the deceaseds
estate cannot be asserted to prevent the
collation. The fact that the properties form
private capital of the deceased is of no
moment.
To determine whether or not donation
is inofficious, a step by step process should
be followed:
determine value of the property w/c remains
at the time of the testators death;
determine the obligations, debts & charges to
be paid out of the value of the property
thus left;
determination of the difference between the
assets & liabilities , giving rise to the
hereditary estate;
add the value of donations (at the time they
were made) subject to collation; &
determination of the amounts of legitimes.

DE ROMA V. CA
Facts: Candelaria de Roma had 2 legally
adopted daughters -- Buhay & Rosalinda.
She died intestate.
Admin proceedings
were instituted by the guardian of
Rosalinda.
Buhay
was
appointed
administratrix & filed an inventory.
Rosalinda opposed bec. certain properties
earlier donated by Candelaria to Buhay
were not included, including 7 parcels of
land & its fruits. Buhay claimed that the
donor prohibited collation of the said
parcels in the deed of donation. TC ruled in
favor of Buhay. CA reversed.
Issue: Are donated properties subject to
collation? Yes.
Held: Nothing in the provisions of the
deed of sale expressly prohibits the
collation of the donated properties.
It
merely described the donations as
irrevocable. Anything less than express
prohibition will NOT suffice under the clear
language of Art. 1062. Implied prohibition
merits little consideration as imputation is
not in question. Sole issue is whether or
not there is express prohibition.
X. PARTITION OF THE ESTATE

Art. 1079. Partition, in general, is the


separation, division & assignment of a
thing held in common among those to
whom it may belong. The thing itself may
be divided, or its value.

Balane:
Definition.-- "Separate, divide & assign."
1. Ways to go about partition.
Extrajudicially.-- Decedent dies intestate &
there are no debts.
All the heirs agree among themselves.-Upon agreement, partition is already
valid.
If registered property is included, publish
the partition in a public document
Go to the Register of Deeds to have titles
transferred
Judicial
269

Settlement proceeding
Ordinary action on co-ownership
2. General Procedure
If w/ a will, it must first be probated. After
probate, the heirs can choose between:
Extrajudicial
Judicial.-- Judge will divide but will first give
the heirs a chance to submit their own
partition.
If the heirs do not agree on the partition , the
judge will appoint a commissioner.
Commissioner will submit a project of
partition to the judge. This project of
partition, however, is not binding on the
judge.
The judge will issue an order of partition.
Property will be adjudicated among the heirs
accordingly.
Art. 1080.
Should a person make a
partition of his estate by an act inter vivos, or
by will, such partition shall be respected,
insofar as it does not prejudice the legitime of
the compulsory heirs.
A parent who, in the interest of his or her
family, desires to keep any agricultural,
industrial, or manufacturing enterprise intact,
may avail himself of the right granted him in
this article, by ordering that the legitime of
the other children to whom the property is
not assigned, be paid in cash.
Balane:
Par. 1.-- Person can make partition. How?
1. By will-- making two things:
Testamentary disposition.-- State what value
the person will get.
Partition.-- State specific property the heir
will get or what comprises the value.
E.g., X has no compulsory heirs. He
states in his will "I give to A 1/3 of my estate.
To comprise A's share, I would like her to get
my house in Alabang."
The testator is allowed to do so even if
he has compulsory heirs. The partition is
valid as long as the items given do not impair
the legitime.
Act inter vivos, e.g., private writing not a will.
Rule under the OCC -- to do this, there has to
be a prior existing will. Why? If no prior
existing will, you are giving the person power

to make dispositions not in the form of a


will. This is seen in the use of the word
"testator" in the article.
Rules under the NCC, is it valid?
(i) Yes, as long as (it is) strictly confine(d)
to rules of intestate succession since there
is no will.
(You) can only state what
properties they are to receive & not make
testamentary dispositions.
(ii) Otherwise, he will have to make a
supporting will. This is seen in the use of
the word "person" in the article.
Note: (This) can still be done in (the)
manner done in the OCC.
Example: Estate of A consists of RTW
factory & cash. A has 3 compulsory heirs
X, Y & Z. A wants the factory to go to X. A
makes a partition "Factory to X. Y & Z are
to get their legitime in cash."
This is valid. Bec. legitimes are only values
& not specific properties.
Also, the
legitimes are not impaired.
CHAVEZ V. IAC.-In the case, Manuela assigned or
distributed her estate equally among her
six (6) children. Three of those sold their
share to a sister, Concepcion, w/ the
consent of Manuela. Manuela then sold the
entire property to Ferrer. Was the partition
by an act inter vivos valid? Yes. Art. 1080
allows the person to make a partition. If
the partition is by will, it must be w/ the
formalities on wills. If the partition is by an
act inter vivos, the partition may be oral or
written, & need not be in the form of a will,
provided the partition does not prejudice
the legitime of the compulsory heirs. The
deeds of sale between Concepcion & her
sisters are valid bec. they are not contracts
w/ respect to future inheritance but rather
a contract perfected & consummated
during the lifetime of Manuela, who signed
& gave her consent.
1. Right of Redemption

Art. 1088. Should any of the heirs sell


his hereditary rights to a stranger before
the partition, any or all of the co-heirs may
be subrogated to the rights of the
purchaser by reimbursing him for the price
270

of the sale, provided they do so w/in the


period of one month fr. the time they were
notified in writing of the sale by the vendor.
Art. 1619. Legal redemption is the right
to be subrogated, upon the same terms &
conditions stipulated in the contract, in the
place of one who acquires a thing by
purchase or dation in payment, or by any
other transaction whereby ownership is transmitted by onerous title.

Balane:
The right of redemption given to the co-heir
provided the co-heir/ vendor sold his
undivided share or a portion thereof in the
estate.
Article 1620 on legal redemption & Art. 1088
are the same. The only difference is in the
application.
1. Art. 1620 applies to specific property
2. Art. 1088 applies to hereditary mass
B.
How will the right of redemption be
exercised?
If only one will redeem, he will pay the
purchase price.
If more than one will redeem, they will pay
purchase price proportionally to their share in
the property.
Note: Share must have been sold to a
stranger. If sold to a co-heir, the right of
redemption does not exist.
Why?
The
purpose is to keep the proprietary mass w/in
the co-owners.
.
DOROMAL V. CA
Facts: Horilleno siblings Luis, Soledad, Fe,
Rosita, Carlos, Antonio & Esperanza coowned Lot 3504.
Esperanza died & is
survived by her daughter Filomena. All the
owners except Filomena decided to sell their
6/7 portion over the lot in favor of the
Doromal spouses. The co-owners executed a
power of attorney in favor of their niece Mary,
except Filomena. A draft of the power of
attorney was sent to Filomena stating that
the selling price was P4.00 per sq. meter.
Filomena was not agreeable & refused to
sign. However, Carlos had already accepted
fr. the Doromal spouses P5,000.
The
remaining co-owners went ahead w/ the sale
of their 6/7 portion for P30,000. A TCT was

issued w/ 6/7 in the name of the Doromals


& 1/7 in the name of Filomena.
Filomena offered P30,000 to the
Doromals to redeem the portion of the lot
sold, but they refused. Hence they filed an
action. TC dismissed. CA reversed.
Issue:
Can Filomena can redeem the
property? Yes.
Held: the letters of Carlos to Filomena
were not evidence of a consummated sales
they contained mere offer of P4.00 per sq.
meter. & later P5.00 per sq. meter. Art.
1623 requires a notice of a perfected sale,
as well as actual execution & delivery of
the deed of sale.
There is nothing to show that the
P5,ooo paid to Carlos was in the concept of
earnest money, rather it was a guarantee
that the buyer would not back out.
Art. 1619 bestows to a co-owner the
right to redeem under the same terms &
conditions stipulated in the contract & to
avoid any controversy, it is best that the
period
therefore shall not commence
unless the notice of the dispositions is
made after the formal deed of disposal has
been duly executed.
As P30,000 was the price stipulated
in the deed of sale it is also the amount to
paid for redemption.
Effects of Partition
GULLAS V. JUDGE
Facts:
Jacinta Lopez was married to
Alejandro & they had no children. Jacinta
executed a will w/ her husband as the sole
heir. However, after the execution of the
will they legally adopted Juanita. Jacinta
did not amend her will nor execute a
codicil.
Upon the death of Jacinta judicial
partition was made granting Juanita 2
parcels of land w/ the remainder of the
estate going to the Alejandro.
Court
archived the case.

271

Juanita filed an action to set aside the


partition on the ground of lesion, preterition &
fraud. She was also seeking the delivery of
the 2 parcels of land. Alejandro opposed
claiming the approval of the project of
partition by the court & the order archiving
the same
closed & terminated the
proceeding.
Issue: WON TCs approval of the partition
terminated the testate proceeding? No.
Held: the probate court loses jurisdiction of
an estate under administration only after the
payment of all the debts & when the
remaining of the estate is delivered to the
heirs entitled. The finality of the approval of
the project of partition
alone does not
terminate the probate proceeding.
As long as an order of the distribution
of the estate has not been complied w/,
probate proceedings cannot be deemed
closed.
DELOS SANTOS V. DELA CRUZ
Facts: the owner of the estate is Pelagia dela
Cruz who died intestate. The parties in this
case are the grandniece Delos Santos
(plaintiff) & the nephew Dela Cruz
(defendant). There was a project of partition
among the heirs of Pelagia wherein Dela Cruz
was granted 3 lots in addition to his share,
on the condition that he would supervise the
development & subdivision of the estate.
Expenses to be defrayed fr. proceeds of the
sale. He failed to comply w/ the condition.
Thus Delos Santos filed for specific
performance. Dela Cruz countered that the
partition was void as to Delos Santos as she
was not a legal heir of Pelagia.
Issues:
Is Delos Santos a legal heir entitling her to
inclusion in the partition? No.
If not, will this render the partition void w/
respect to her? Yes.
Is Dela Cruz estopped fr. questioning Delos
Santos right to enforce the agreement? No.
What is the effect of Dela Cruz counterclaim?
Restoration to legal heirs of property.
Held: Art. 972 provides that in the collateral
line representation takes place only in favor
of the children of brothers & sisters, whether

half or full blood.


Delos Santos is a
grandniece & thus beyond the degree
where representation is allowed (limited to
nephews & nieces. Neither can she inherit
in her own right as Art. 962 provides that
those of the nearer degree exclude the
farther.
Art. 1105 provides that a partition
w/c includes a person believed to be an
heir, but who is not, shall be void only w/
respect to that person.
Estoppel cannot be predicated on a
void contract or on acts w/c are prohibited
by law or are against public policy. No
estoppel arises where the representation or
conduct of the party sought to be estopped
is due to ignorance founded upon a
mistake.
PRESCRIPTION
I. In General
Chapter One
GENERAL PROVISIONS

Art. 1106. By prescription, one acquires


ownership & other real rights through the
lapse of time in the manner & under the
conditions laid down by law.
In the same way, rights & actions
are lost by prescription.
Art. 1107. Persons who are capable of
acquiring property or rights by the other
legal modes may acquire the same by
means of prescription.
Minors & other incapacitated persons
may acquire property or rights by
prescription, either personally or through
their
parents,
guardians,
or
legal
representatives.
Art. 1108. Prescription, both acquisitive
& extinctive runs against:
(1) Minors & other incapacitated
persons who have parents, guardians or
other legal representatives;
(2)
Absentees
who
have
administrators, either appointed by them
272

before their disappearance, or appointed by


the courts.;
(3) Persons living abroad who have
managers or administrators;
(4) Juridical persons, except the State
& its subdivisions.;
Persons who are disqualified fr.
administering their property have a right to
claim damages fr. their legal representatives
whose negligence has been the cause of
prescription.
Art. 1109. Prescription does not run
between husband & wife, even though there
be a separation of property agreed upon in
the marriage settlements or by juridical
decree.
Neither does prescription run between
parents & children during the minority or
insanity of the latter, & between guardian &
ward during the continuance of the
guardianship.
Art. 1110. Prescription, acquisitive &
extinctive runs in favor of, or against a
married woman.
Art. 1111. Prescription obtained by a coproprietor or co-owner shall benefit the
others.
Art. 1112. Persons w/ capacity to alienate
property may renounce prescription already
obtained but not the right to prescribe in the
future.
Prescription is deemed to have been
tacitly renounced when the renunciation
results fr. acts w/c imply the abandonment of
the right acquired.
Art. 1113. All things w/c are w/in the
commerce of
men are susceptible of
prescription, unless otherwise provided.
Property of the State or any of its subdivision
not patrimonial in character shall not be the
object of prescription.
Art. 1114. Creditors & all other persons
interested in making the prescription
effective may avail themselves thereof
notw/standing
the
express
or
tacit
renunciation by the debtor or proprietor.

what in this Code or


special laws is
established w/ respect to specific cases of
prescription.
Art. 1116. Prescription already running
before the effectivity of this Code shall be
governed by laws previously in force; but if,
since the time this Code took effect, the
entire
period
herein
acquired
for
prescription should elapse, the present
Code shall be applicable, even though by
the former laws a longer period may be
required.

Chapter Two
PRESCRIPTION OF OWNERSHIP AND
OTHER REAL RIGHTS
Art. 1117. Acquisitive prescription of
dominion & other real rights may be
ordinary or extraordinary.
Ordinary acquisitive prescription
requires possession of things in good faith
& w/o just title for the time fixed by law.
Art. 1118. Possession has to be in the
concept of an owner, public, peaceful &
uninterrupted.
Art. 1119. Acts of possessory character
executed in virtue of license or by mere
tolerance of the owner shall not be
available for the purpose of possession.
Art. 1120. Possession is uninterrupted
for the purposes of prescription, naturally
or civilly.
Art. 1121. Possession is naturally
interrupted when through any cause it
should cease for more than one year.
The old possession is not revived if a
new possession should be exercised by the
same adverse claimant.
Art. 1122. If the natural interruption is
for only one year or less, the time elapsed
shall be counted in favor of the
prescription.
Art. 1123. Civil interruption is produced
by judicial summons to the possessor.

Art. 1115. The provisions of the present


Title are understood to be w/o prejudice to
273

Art. 1124. Judicial summons shall be


deemed not to have been issued & shall not
give rise to interruption.
(1) If it should be void for lack of legal
solemnities;
(2) If the plaintiff should desist fr. the
complaint or should allow the proceedings to
elapse.
(3) If the possessor should be absolved fr.
the complaint.
In all these cases, the period of
interruption shall be counted for the
prescription.
Art. 1125. Any express or tacit recognition
w/c the possessor may make of the owners
rights also interrupts possession.
Art. 1126. Against a title recorded in the
registry of Property, ordinary prescription of
ownership or real rights shall not take place
to the prejudice of a third person, except in
virtue of another title also recorded; & the
time shall begin to run fr. the recording of
the latter.
As to land registered under the Land
Registration Act, the provisions of that special
law shall govern.
Art. 1127. The good faith of the possessor
consists in the reasonable belief that the
person fr. whom he received the thing was
the owner thereof & could transmit his
ownership.
Art. 1128. The conditions of good faith
required for possession in articles 526, 527,
528 & 529 of this Code are likewise necessary
for the determination of good faith in the
prescription of ownership & other real rights.
Art. 526. He is deemed a possessor in
good faith who is not aware that there exists
in his title or mode of acquisition any flaw w/c
invalidates it.
He is deemed a possessor in bad faith
who possesses in any case contrary to the
foregoing.
Mistake upon a doubtful or difficult
question of law may be the basis of good
faith.

Art. 527. Good faith is always


presumed, & upon him who alleges bad
faith on the part of a possessor rests the
burden of proof.
Art. 528. Possession acquired in goof
faith does not lose this character except in
the case
& fr. the moment facts exist
w/c show that the possessor is not unaware
that he possesses the thing improperly or
wrongfully.
Art.
529. It is presumed that
possession continues to be enjoyed in the
same character in w/c it was acquired, until
the contrary is proved.
Art. 1129.
For the purpose of
prescription, there is just title when the
adverse claimant came into possession of
the property though 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.
Art. 1130. The title for prescription
must be true & valid.
Art. 1131. For the purpose of
prescription, just title must be proved, it is
never presumed.
Art. 1132. The ownership of movable
prescribes
through
uninterrupted
possession for fours years in good faith.
The owner ship of personal property
also prescribed through uninterrupted
possession for eight years w/o need of any
other condition.
With regard to the right of the owner to
recover personal property lost or of w/c he
has been illegally deprived, as well as w/
respect to movables acquired in a public
sale, fair or market or fr. a merchants
store, the provisions of articles 559 & 1505
of this Code shall be observed.
Art. 559. The possession of movable
property acquired in good faith is
equivalent to a title. Nevertheless, one who
has lost any movable or has been
unlawfully deprived thereof may recover it
fr. the person in possession of the same. If
the possessor of a movable lost or of w/c
274

the owner has been unlawfully deprived, had


acquired it in food faith at a public sale, the
owner cannot obtain its return w/o
reimbursing the price paid therefor.
Art. 1505. Subject to the provisions of
this Title, where goods are sold by a person
who is not the owner thereof, & who does not
sell them under authority or w/ the consent of
the owner. the buyer acquires no better title
to the goods than the seller had, unless the
owner of the goods is by his conduct
precluded fr. denying the sellers authority to
sell.
Nothing in this Title , however, shall
affect:
(1) The provisions of any factors act,
recording laws, or any other provision of law
enabling the apparent owner of goods to
dispose of them as if he were the true owner
thereof;
(2) The validity of any contract of sale
under statutory power of sale or under the
order of a court of competent jurisdiction
(3) Purchases made in a merchants store,
or in fair, or markets, in accordance w/ the
Code of Commerce & special laws;
Art. 1133. Movables possessed through a
crime can never be acquired through
prescription by the offender.
Art. 1134. Ownership & other real rights
over immovable property are acquired by
ordinary prescription through possession of
ten years.
Art. 1135. In case the adverse claimant
possesses by mistake an area greater or less
than that expressed in his title, prescription
shall be based on the possession.
Art. 1136. Possession in wartime, when
the civil courts are not open shall not be
counted in favor of the adverse claimant.
Art. 1137. Ownership & other real rights
over immovables also prescribe through
uninterrupted adverse possession thereof for
thirty years w/o need of title or of good faith.
Art. 1138. In the computation of time
necessary for prescription, the following rules
shall be observed:

(1) The present possessor may


complete the period necessary for
prescription by tacking his possession to
that of his grantor or predecessor in
interest.
(2) It is presumed that the present
possessor who was also the possessor at a
previous time, has continued to be in
possession during the intervening time,
unless there is proof to the contrary.
(3) The first day shall be excluded & the
last day, included.

Chapter Three
PRESCRIPTION OF ACTIONS

Art. 1139. Actions prescribe by the


mere lapse of time fixed by law.
Art. 1140. Actions to recover movables
shall prescribe eight years fr. the time the
possession thereof is lost, unless the
possessor has acquired the ownership by
prescription for a less period, according to
article 1132, & w/o prejudice to the
provisions of articles 559, 1505 & 1133.
Art. 1132. The ownership of movables
prescribed
through
uninterrupted
possession for
our years in good
faith.
The ownership of movables prescribe
through uninterrupted possession for eight
years w/o need of any other condition.
With regard to the right of the owner to
recover personal property lost or of w/c he
has been illegally deprived, as well as w/
respect to movables acquired in a public
sale, fair, or market, or fr. a merchants
store, the provisions of articles 559 & 1505
of this Code shall be observed.
Art 559. The possession of movable
property acquired in good faith is
equivalent to a
title.
Nevertheless,
one who has lost any movable or has been
unlawfully deprived thereof may recover it
fr. the person in possession of the same. If
the possessor of a movable lost or of w/c
the owner has been unlawfully deprived,
had acquired it in food faith at a public
sale, the owner cannot obtain its return w/o
reimbursing the price paid therefor.
275

Art 1505. Subject to the provisions of this


Title, where goods are sold by a person who
is not the owner thereof, & who does not sell
them under authority or w/ the consent of the
owner. the buyer acquires no better title to
the goods than the seller had, unless the
owner of the goods is by his conduct
precluded fr. denying the sellers authority to
sell.

neighboring estates, after payment of the


proper indemnity.
Should this easement be established in
such
a manner that its use may be
continuous for all the needs of the
dominant estate, establishing a permanent
passage, the indemnity shall consist of the
value of the land occupied & the amount of
the damage caused to the servient estate.

Nothing in this Title , however, shall


affect:
The provisions of any factors act,
recording laws, or any other provision of law
enabling the apparent owner of goods
to dispose of them as if he were the true
owner thereof;

In case the right of way is limited to the


necessary passage for the cultivation of
the estate surrounded by others & for the
gathering of its crops through the servient
estate w/o a permanent way, the indemnity
shall consist in the payment of the damage
cause by such encumbrance.

(2) The validity of any contract of sale


under statutory power of sale or under the
order of a court of competent jurisdiction

This easement is not compulsory if the


isolation of the immovable is due to the
proprietors own acts.

(3) Purchases made in a merchants store,


or in fair, or markets, in accordance w/ the
Code of Commerce & special laws;

(2) To bring an action to abate a public


or private nuisance.

Art. 1133. Movables possessed through a


crime can never be acquired through
prescription by the offender.
Art. 1141. Real action over immovables
prescribe after thirty years.
This provision is w/o prejudice to what is
established for the acquisition of ownership &
other real rights by prescription.
Art. 1142. A mortgage action prescribes
after ten years.
Art. 1143. The following rights, among
others specified elsewhere in this Code are
not extinguished by prescription;
(1) To demand a right of way, regulated in
article 649
Art. 649. (Easement of right of way) The
owner, or any person who by virtue of a real
right may cultivate or use any immovable,
w/c is surrounded by other
immovables
pertaining to other persons & w/o adequate
outlet to a public highway, is entitled to
demand a right of way through the

Art. 1144. The following actions must


be brought w/in ten years fr. the time the
right of action accrues:
(1) Upon a written contract;
(2)Upon
an
obligation
created by law
(3) Upon a judgment
Art. 1145. The following actions must
be commenced w/in six years:
(1) Upon an injury to the rights of
the plaintiffs
(2) Upon a quasi contract
Art. 1146. The following actions must
be instituted w/in four years
(1) Upon an injury to the rights of
the plaintiff;
(2) Upon a quasi delict;
However, when the action arises fr. or
out of any act, activity, or conduct of any
public officer involving the exercise of
powers or authority arising fr. Martial law
including the arrest, detention &/ or trial of
the plaintiff, the same must be brought
w/in one year. (As amended by PD 1755,
Sec. 24, 1980)
Art. 1147. The following actions must
be filed w/in one year:
276

(1.) For forcible entry & detainer;


(2.) For defamation
Art. 1148. The limitations of actions in
articles 1140 to 1142 & 1144 to 1147 are w/o
prejudice to those specified in other parts of
this Code, in the Code of Commerce, & in
special laws.
Art. 1149. All other actions whose periods
are not fixed in this Code or in other laws
must be brought w/in five years fr. the time
the right of action accrues.
Art. 1150. The time for prescription for all
kinds of actions when there is no special
provision w/c ordains, otherwise shall be
counted fr. the day they may be brought.
Art. 1151. The time for the prescription of
actions w/c have for their object the
enforcement of obligations to pay principal w/
interest or annuity runs fr. the last payment
of the annuity or of the interests.
Art. 1152. The period for
actions to demand the
obligation
declared
by
commences fr. the time
becomes final.

prescription of
fulfillment of
a
judgment
the judgment

Art. 1153. The period for prescription of


actions to demand accounting runs fr. the
day the persons who would render the same
cease in their functions.
The period for the action arising fr. the
result of the accounting runs fr. the date
when said result was recognized by
agreement of the interested parties.
Art. 1154. The period during w/c the
obligee was prevented by a fortuitous event
fr. enforcing his right is not reckoned against
him.
Art. 1155. The prescription of actions is
interrupted when they are filed before the
court, when there is a written extrajudicial
demand by the creditors, & when there is any
written acknowledgment of the debt by the
debtors.

BAVIERA NOTES:
1. Acquisitive Prescription:

a. Tacit recognition interrupts prescriptive


period.
b. This need not be specifically alleged.
2.
Extinctive
Prescription:
Written
acknowledgment of debtor interrupts the
prescriptive period.
Sec. 42. Code of Civil Procedure
Sec. 45 Code of Civil Procedure

SOLIS V. CA 176 S 678, 685-7


FACTS:
Ps are the owners of a
residential land w/c they inherited fr. their
father. In 1939, they allowed Ds to
construct a house thereon but when PS
demanded that Ds vacate the same in
1965, the latter refused to do so. Ps thus
filed this action. Ds claim that they had
acquired the land by donation propter
nuptias & they have been in continuous,
open, & adverse possession of the same.
Trial court for Ps. CA reversed. Hence this
appeal.
ISSUE: Who has a better title between the
Ps & Ds?
HELD: CA decision AFFIRMED. Ds are
lawful owners. Evidence shows that there
was indeed a DPN executed by Ps father in
favor of Ds father. And even granting that
the DPN was void, suffice it to say that a
void donation may be the basis of claim of
ownership w/c may ripen into title by
prescription. It is the essence of the status
of limitations that whether the party had a
right to the possession or not, if he entered
under the claim of such right & remained in
possession ....for 10 years, the right of
action of the Ps father who had the better
title is barred by that adverse possession.
The right given by the statute of
limitations doe not depend upon, & has no
necessary connection ( w/ ) the validity of
the claim under w/c the possession is held.
The just title required for acquisitive
prescription to set in is not titulo
verdadero y valido.... or such title by itself
is sufficient to transfer ownership w/o
necessity of letting the prescriptive period
to elapse but only titulo colorado--- or
such title where, although there was a
mode of transferring ownership, still
277

something is wrong bec. the grantor is not


the owner. Acquisitive prescription has set in
under the CCP.
BAVIERA: Donation is void as to form.
Can the same ripen into acquisitive
prescription (AP) w/in 10 years? NO, as
the donation is void. Thirty years is
needed for AP as the donee cannot
invoke good faith. AP still requires that
the title is valid & true.

MERALCO VS. IAC 174, S313, 320-2


FACTS:
P MERALCO built transmission
towers on the land owned by Prs. The same
had been standing thereon for 43 years. But
it was only in 1973 that PRs sued MERALCO
for damages. For PR. IAC affirmed. Hence,
this appeal .
ISSUE: WON Meralco acquired the perpetual
easement by prescription
HELD: No. IAC decision AFFIRMED . There
being no evidence that the original use of the
property in question by P was based upon
any express grant of a fee to the said
property, or of an easement of right of way
nor that it had began under an assertion of a
right on its part, the presumption must be
that the origin of the use was the mere
tolerance or license of Nazario Crisostomo. It
is a fundamental principle of law that
possession is not affected by acts of a
possessory character w/c are merely
tolerated by the possessor, or w/c are due
to his license. Possession, to constitute the
foundation of a prescriptive right, must be
POSSESSION UNDER A CLAIM OF TITLE (en
concepto de dueno). It must be ADVERSE.
Acts of a possessory character performed by
one who holds by mere tolerance of the
owner are clearly not n concepto de dueno
& such possessory acts, no matter how long
so continued, do not start the running of the
period of prescription..

BAVIERA: Estoppel by laches does not


vest title. It merely bars the owner fr.
recovering the property.
A land was possessed by another & the
owner
cannot
recover
possession
thereof
as he was guilty of laches.

Then the land is transferred to a third


period. Is he an innocent purchaser?
NO, as the land was in possession of
another & he should have therefore
inquired as to the state of affairs.
What if the property was taken
possession of by another while the
owner thereof
was
abroad. The
owner returned after many years &
seeks to recover his property. LACHES
? NO. He is not guilty of conduct
amounting to laches.
Remember
that
in
laches,
the
property remains the property of the
owner, only that he cannot recover
possession fr. the possessor as such
action is barred by law. Thus, the
creditor of the rightful owner may still
attach the rightful owners interest in
the same.

KIAMKO V. CA, 211 S 156, 161-2


FACTS: Faustino sold the property here in
question to the Villamor spouses under a
pacto de retro. When the latter later on
needed money, Faustinos father in law
Jose Daguilmo bought the same fr. the
Villamors & immediately took possession of
the land. Then Faustino abandoned his
family only to return 20 years later to
repossess the land in dispute fr. Jose. He
failed but he sold the same to P- Kiamko. P,
unable to get possession of the land, filed
an action for quieting the title. For P. CA
reversed, hence this.
HELD: AFFIRMED. Pursuant to Art. 1116 of
the NCC, the law to be applied in
determining whether prescription had
already set in is the CCP. Under the same,
only 10 years is needed for acquiring land
by prescription, whether there is good or
bad faith. More than 10 years had passed
since Joe first took possession of the land.
He has thus acquired the land by
acquisitive prescription.
BAVIERA: EXTINCTIVE PRESCRIPTION is
also known as the STATUTE OF
LIMITATIONS.
Prescription has a substantive &
procedural aspect.

278

A partner & a co-owner cannot recover


property of the partnership or under coownership unless he first repudiates the
PS or the co-ownership.
Extraordinary prescription only requires
that possession be peaceful & not taken
by force.
Under the CCP, a uniform period of 10
years is the maximum for AP, depending
on the nature of the action.

II. DISTINCTION BETWEEN ACQUISITIVE


AND EXTINCTIVE PRESCRIPTION
MONTANEZ VS. MONTANEZ 51 OG NO. 8
, P. 4119
FACTS: In question is the ownership of a lot
originally owned by one Galicia. On the land
was constructed the house of
Juan
Montanez & Gregorio Montanez mother.
Galicia asked the parties mother to buy the
land but as she had no money , she referred
Galicia to her D- son Gregorio. D bought the
land & immediately took possession. But
when the Japanese came, his house was
looted so he lost the document of sale. Pfs
now bring action for partition.. For Ds. Hence
this appeal.
ISSUE: WON Gregorio owns the lot
HELD: YES.
Contention of
D
as to
ownership, WITH MERIT. D never did hold the
land in common w/ the Ps.
As to the courts consideration of the
defense of prescription even though the
same was not raised by Gregorio, it must be
noted that there is a distinction between
acquisitive prescription (AP) & extinctive
prescription (EP). EP or prescription of action
should be affirmatively pleaded & proved in
order to bar the action or claim of the
adverse party whereas AP can be proven
under the general issue w/o its being
affirmatively pleaded. The latter applies in
this case so Ds failure to allege the same
constitutes no waiver.

BAVIERA:
Why
can
AP
not
be
affirmatively alleged? Because it is a
MATTER OF EVIDENCE. Only ultimate
facts need be alleged.

SUNGA VS. GUZMAN, JUNE 17, 1979.


FACTS:
The spouses Guzman left to
their 9 children a fishpond as part of their
in inheritance. 5 of the children sold their
shares in the fishpond to Sibug for P700 via
a private contract of sale. In 1948, Sunga,
to whom the shares of the 5 brothers were
sold took physical possession of the
fishpond. However, the tax declaration of
the fishpond remained in the name of its
original owners, spouses Guzman. Rs (3 of
the 9 children), since 1955 have demanded
for the delivery of their respective share.
Later, Rs brought action to recover their
share in the same. Granted & Rs were
declared pro-indiviso owners of the 3/9
portion of the fishpond. The CA affirmed.
Hence this appeal.
ISSUE: WON Sunga, et. al. acquired
ownership of the land through prescription.
HELD: NO. CA decision AFFIRMED. Rs were
not definitely aware since 1948 contrary to
Ps contention that Ps possession over the
same extended over the whole fishpond.
Thus, possession of Ps since 1948 cannot
be said to be adverse & open as to give
rise to title by prescription in favor of Ps.
The only way that a fishpond may be said
to have been held in adverse possession by
some of its co-owners is when they harvest
all the fish in the fishpond, leaving nothing
for the other co-owners to harvest.
Besides, the property in question
has remained in the name of the father.
Thus, possession of Ps cannot be
completely adverse or open, & nor was it in
the concept of an owner, w/c are
indispensable elements for prescription.
Also, the Ps have promised one of
the Rs that they will pay his share in the
land. This fact shows the Ps continuing
recognition of the rights of Rs over their
corresponding share in the fishpond
BAVIERA: THIS INTERRUPTED
RUNNING OF PRESCRIPTION.

THE
Art.
279

1155 w/c is invoked by Ps is not


applicable as it refers to prescription by
action, not acquisitive prescription.

OVERSEAS
BANK
DEC.28, 1979

VS.

GERALDEZ

Facts:
Rs owed P Bank money. As Rs
defaulted in their payment, P made several
extra-judicial demands, the last being in
August 1976. Later, it commenced this action
for recovery of the debt. Barred on the
ground of prescription (allegedly Ps COA
accrued February 1965 & action was brought
only in October 1975) Lower court held that
the 6 extra judicial demands merely tolled
the running of the prescriptive period for a
total of 6 days ( 1 day per demand ).

HELD: NO.
DISMISSED. Ps are mere
squatters on the lot & w/o any legal right to
be protected by declaratory relief or by a
writ of prohibition. Their occupation of the
land by mere tolerance can by no means
give rise to a right that the law should
protect in their favor as against the true
local owners.
LEDESMA VS. CA, 224 S 175
FACTS: In 1980, action was brought by PR
bank against P to enforce the terms of a
1974 trust agreement. Dismissed for failure
to serve summons. In 1988, PR filed
another action based on the same c/a. P
filed MTD on the ground of prescription.
Denied & for PR. CA AFFIRMED. SC
AFFIRMED. Hence, this MFR.

ISSUE: What is the effect of the written


demands made by the Bank upon the debtors
on the running of the prescriptive period?

ISSUE: WON the second civil case filed by


RCBC is barred by prescription

HELD: REVERSED. The letters of demand


interrupted the running of the period. Action
has not yet prescribed. The interruption of
the prescriptive period by the written extra
judicial demands means that the prescriptive
period commenced anew fr.-- the receipt of
the demand. And as action upon a written
contract prescribes in 10 years, Ps action
would prescribe only in 1986.

HELD: NO. AFFIRMED. Upon filing of an


axn. in court, the full period of prescription
commences to run anew.
Art. 1153
provides that the filing of an action
interrupts the running of the 10 year
prescriptive period. This means that when
an action is filed, the prescriptive period is
suspended & upon the cessation of the
action, the period commences to run anew.
(10 years ulit)

BAVIERA: Dapat alisin na ang ground na


iyan. Baka demand ka nga ng demand,
hindi ka naman nag-pa file ng action.
What if meanwhile, the evidence has
been lost. The case of a written
acknowledgment
of
the
debt
is
different.

BUENAVENTE VS. MELCHOR


1979

MARCH 30,

Facts: Ps have their houses erected on land


owned by NDC. They filed this action to
prevent Rs fr. demolishing their houses &
relocating them in Cavite. They also ask that
they be declared first priority applicants of
the tenement housing unit built near their
place pursuant to RA 3469.
ISSUE: WON Ps have a right to be protected
under RA 3469

BAVIERA: The article says while the


case is pending, the period is
interrupted. When does the period
run or commence anew ? WHEN THE
ACTION
IS
DISMISSED
WITHOUT
THERE BEING A DECISION ON THE
MERITS.
From the service of summons,
the D becomes aware of the flaw in
his title so becomes in bad faith. In
such a case, when he was initially in
GF, then later became in BF, how do
you apply E prescription. THE PERIOD
WHEN HE WAS IN GOOD FAITH,
ACCORDING TO MANRESA IS COUNTED
. SO IF HE WAS IN GF FOR 5 YEARS,
THEN HE WAS ABLE TO COMPLETE 1/2
OF THE PERIOD FOR ORDINARY
PRESCRIPTION. 1/2 NA LANG NUNG
PERIOD FOR EX .PRESCRIPTION. ANG
KAILANGAN, MEANING 15 YEARS.
280

III. DISTINCTION BETWEEN EXTINCTIVE


PRESCRIPTION AND LACHES
MIGUEL VS. CATALINO, NOVEMBER 29,
1968
FACTS:
Bacquiao sold his land in 1928
to Ds father but no formal deed was
executed. D & his father, however, took
possession of the land & have continued
doing so for more than 30 years. In 1949, P,
(a daughter of Bacquiao) again sold the land
to D. In 1969, Ds father sold the land to D. In
1962, Pfs. brought action in the CF against D
for recovery of the land. Dismissed.
ISSUE: WON the 1928 sale was null & void
ab initio (YES ) WON Pfs. can still recover
possession of the land (NO) bec. of laches.
HELD: AFFIRMED. Although the sale in 1928
was void for lack of the required executive
approval, D still has the right over the land on
the ground of acquisitive prescription. And
even granting that no prescription lies
against Ps fathers recorded title, still their
passivity & inaction for than 34 years justifies
D in setting up the defense of laches. Ps are
thus barred by laches fr. recovering the
property.
All the 4 elements of laches ( A
FAVORITE BAR QUESTION , ACCORDING TO
MAM) are present in the case at bar: 1.)
conduct on the part of the D or of one under
whom he claims, giving rise to the situation
of w/c complaint is made & for w/c
complainant seeks a remedy; 2.) delay in
asserting the complainants rights. the
complainant having had knowledge or notice
of the Ds conduct & having been afforded an
opportunity to institute a suit; 3.) lack of
knowledge or notice on the part of the D that
the complainant would assert the right on w/c
he bases his suit; & 4.) injury or prejudice to
the D in the event relief is accorded to the
complainant or the suit is not held barred.
Prescription is different fr. laches. The
2 defenses are independent.
Prescription is concerned w/ the fact of delay.,
whereas laches is concerned w/ the effect of
delay.
Prescription is a matter of time; laches is
principally a question of inequity of

permitting a claim to be enforced, this


inequity being founded on some change in
the condition of the property or the relation
of the parties.
Prescription is statutory, laces is not.
Laches
applies
in
equity,
whereas
prescription applies at law.
Prescription is based on fixed time,. laches
is not.
BAVIERA: Under the CC, an action to
declare
the
contract
valid
is
imprescriptible. But still, in this case,
the SC applied the principle of laches.

LOLA VS. CA, 145 S 439, 449


FACTS:
Zabala owned 2 adjoining
lots, one in front of the Sto Nino Street, &
the other behind said lot. She sold the back
lot to Fr. Lola. The latter, however, believed
that what was sold to him included the
front lot. So he occupied the same &
Zabala now brings this action. Fr. Lola
asserts that more than 30 years have
elapsed since the execution of the sale &
thus, PR is now estopped fr. asserting any
rights, having slept on them for 30 years.
LC for P. CA REVERSED.
ISSUE: WON Zabala is barred by laches
HELD: YES. CA decision REVERSED. For P.
Although the defense of prescription is
unavailing to Lola bec. admittedly, the title
to the lot in question is still registered in he
name of PR, still he has acquired title to it
by virtue of the equitable principle of
laches due to PRs failure to assert her
claim & ownership for 32 years. The long
inaction & delay of the title holder in
asserting his right over the disputed land
bars him fr. recovering the same.
Courts cannot look w/ favor at
parties who, by their silence, delay , &
inaction, knowingly induce another to
spend time, effort & expense in cultivating
the land, paying taxes & making
improvements thereon for 30 long years,
only to spring fr. ambush & claim title when
the possessors efforts & the rise of land
values offer an opportunity to make easy
profit at his expense.
VICTORIANO VS. CA, 194 S 18
281

FACTS:
Masigla was in possession of
Lot 897. In 1987, his son entered the
adjoining lot owned by P & prohibited her fr.
cultivating the land. P thus filed a criminal
action against the son. In the process, she
discovered that Lot 897 was registered in the
name of her grandfather. She secured
partition fr. all the heirs & was able to register
the land in her name. The heirs of Arcilla,
represented by Masigla, thus filed an action
for reconveyance alleging that their father
bought the lot fr. Ps grandfather & they had
been in possession of the same since 1927.
For P. CA reversed.

Section 1.
When a criminal action is
instituted, the civil action for recovery of
civil liability arising fr. the offense charged
is impliedly instituted w/ the criminal
action, unless the offended party expressly
waives the civil action or reserves his right
to institute it separately.

III. Special Cases

Thus, when the criminal action was


filed against Javier on Dec. 16, 1947, the
civil action for recovery of her civil liability
was deemed instituted w/ it. Garrido did
not then reserve his right to institute the
civil action separately; he did so on Feb.
18, 1959. In the meantime, the civil aspect
of the case was kept alive by its pendency
in the criminal action, fr. the time it was
revived on Jan. 12, 1950, up to the time the
reservation was made.
The aggregate
duration of the periods available for
prescription is less than the prescriptive
period:
Oct. 1, 1947 when the COA accrued, up to
Dec. 16, 1947 when the criminal action for
estafa was filed;
fr. Mar. 22, 1948 when the said action was
provisionally dismissed, up to
Jan. 12,
1950 when it was revived by the Court; &
fr. Feb. 18, 1959 when Garrido expressly
reserved his right to institute a separate
civil action, to Feb. 20, 1959, when the
complaint in said action was filed.

GARRIDO V. ENRIQUEZ

ESPIRITU V. CFI

FACTS:
Javier received fr. Garrido two
pieces of jewelry. Javier failed to return these
jewelry or to pay the agreed value in spite of
repeated demands. She charged w/ estafa.
Javier wrote to Garrido, requesting him to
allow her to pay in installments. Garrido
agreed & the case was provisionally
dismissed.
Javier failed to pay the
installments. Garrido moved to set aside the
order of provisional dismissal. to revive the
case. CFI granted the motion. Garrido filed a
separate civil action for recovery of the
jewelrys value. Javier alleges that the action
has prescribed. Javier was acquitted in the
criminal case. However, he was adjudged
liable in the civil case.

FACTS:
Espiritu in her complaint
alleged that defendant Topacio verbally
sold to her 2 parcels of land & that delivery
was made to her but no deed of sale was
executed. Espiritu claimed that despite
repeated demands, defendant sellers failed
w/o just cause to comply w/ the execution
of the deed of sale. Defendant denied that
it was a contract of sale & alleged it was
only an antichresis & that the action has
prescribed. Espiritu claims her action is
imprescriptible since it is an action to
compel compliance to a promise to
execute the necessary public document of
sale of real estate.

ISSUE: Who owns Lot 897?


HELD: CA decision AFFIRMED. Masigla & her
co-heirs own the lot. Ps action to recover the
lot is barred by laches. Laches is such
neglect or omission to assert a right taken in
conjunction w/ the lapse of time & other
circumstances causing prejudice to an
adverse party, as will operate as a bar in
equity. True, titled lands cannot be acquired
by prescription. However, as stated, Ps
inaction for more than 50 years now bars her
fr. acquiring possession of the land on the
ground of laches.

ISSUE:
WON
prescribed. NO.

Garridos

COA

has

HELD: Rule 111, Sec.1 of the ROC provides:

ISSUE:
WON
prescribed. YES.

the

action

has

HELD: Art. 1357 of the NCC provides:


If the law requires a document or other
special form, as in the acts & contracts
282

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 w/ the action upon the
contract.

However, the original MTD did not


allege prescription.
Under the ROC,
defenses & objections not pleaded either in
an MTD or in the answer are deemed
waived.

Said article does not contemplate that


the time to commence an action to compel
the execution of a formal agreement can be
longer than that for filing of the suit for
specific performance of the perfected K itself.
The NCC does not consider the action to
compel the execution of a formal agreement
imprescriptible. Under Art. 1143, only the
following rights are imprescriptible:
to demand a right of way
to bring an action to abate a public nuisance

SOLIDARIOS V. ALAMPAY

The nature of Espiritus action may be


said to be one founded on an oral K. Under
Art. 1145, it must be commenced w/in 6
years (also an action upon a quasi-contract).
The COA accrued in 1948 ( re: the
verbal sale) while the present suit was
instituted in 1964.

FACTS:
The Solidario spouses filed
on Nov. 29, 1972 a complaint against Ong
for reformation of a deed of absolute sale
(executed on Dec. 24, 1964) into a contract
of mortgage & for the return of the land to
them upon payment of the loan.
HELD: The action has not yet prescribed.
The applicable period is that relating to
actions based upon a written contract & for
reformation thereof, w/c is 10 years. Only
less than 8 years has elapsed fr. the
execution of the deed of sale up to the
filing of this action.
Special cases
JALANDONI V. PNB

TORREDA V. BONCAROS
FACTS:
Defendants Visayan Sawmill &
Ang Tay are the proprietors & operator of a
cargo truck. It was being driven by Tionson
when its protruding lumber cargo struck &
killed Torreda, a passenger in another truck.
A criminal complaint was filed against the
driver of both trucks. The criminal case has
been pending for 9 years bec. Tionson went
abroad to hide. The widow of Torreda filed a
notice manifesting her reservation of her
right to file a separate civil action against the
driver & employer (defendants in this case).
Defendants filed a MTD on the ground
of lack of cause of action, & later a
Supplemental MTD on the ground that the
action based on culpa aquiliana had
prescribed.
HELD: Suit by the widow not barred.
Regardless of the criminal case, the
case of quasi-delict could have been filed
separately, since this kind of action is entirely
independent of the criminal responsibility of
the offender.

Facts: CFI rendered judgement ordering


Jalandoni to pay PNB. The Sheriff levied
upon a property owned by Jalandoni. No
effort was made to sell the land at a public
auction to satisfy the judgment. Jalandoni
filed an action to quiet title or for the
cancellation of the notice of embargo on
the ground that 10 years had elapsed fr.
the time the sale was made.
Issue: May the judgement debtors land
w/c was levied upon w/in 5 years fr. entry
of judgment, be sold at an execution sale
after the expiration of the 10 year period
for enforcing judgment?
Ratio: No. Employees of the bank were
negligent. Thus, laches & neglect bar the
creditors fr. enforcing the debt. The notice
of embargo is no longer enforceable & has
become a cloud upon his title.
BOARD OF LIQUIDATORS V. ZULUETA
Facts: In 1955, a decision was rendered
ordering
Zulueta to pay the Land
Settlement & Development Corporation. In
283

1965, the Board of Liquidators as trustee for


LSDC filed a complaint against Zulueta to
revive the judgment, w/c had not been
enforced bec. summons was not served on
Zulueta. The Court dismissed the case foe
lack of interest to prosecute. The Board filed
another complaint in 1966. Zulueta averred
that the cause of action had prescribed ( 10
years)
Issue: Whether or not the Boards cause of
action in the new case has prescribed? No.
Held: Art. 144 provide that an action based
upon a judgment must be brought w/in 10
years fr. the time the right of action accrues.
The prescriptive period starts fr. the time the
judgment becomes final & executory. In the
CAB, the first decision sought to be enforced
became final & executory on the date of its
rendition in 1955.
Article 1155 expressly provides that
the prescription of action is interrupted when
they are filed before the court. Such
interruption lasts during the pendency of the
action.
In the CAB, the first action for revival was
dismissed not by reason of abandonment but
bec. of the inability to serve summons on
Zulueta. The dismissal of the action filed w/in
the prescriptive period does not necessarily
result in the non-interruption of the period of
limitation. an action based upon a judgment.
REPUBLIC V. CFI
Facts: In 1943, Infante obtained loans fr. the
Bank of Taiwan. In 1961, the Republic of the
Philippines as successor in interest filed a
complaint to collect the amount. Infante
moved to dismiss on the ground of
prescription.
Issue: Whether
prescribed?

or

not

the

action

has

Held: No. Prescription does not run against


the State. Moratorium laws also interrupted
the running of the prescriptive period.
LUZON SURETY V. IAC
(This is no longer relevant. Check the New
Rules of Civil Procedure & ask someone who
has taken Remedial Law to explain it to you)

Facts: Judgement was rendered against


Gil Puyat & company on April 13, 1967.
Another civil case was instituted to revive
the judgment. In 1974, judgment was
rendered ordering Puyat etc. to pay Luzon
Surety. In 1982, Luzon filed a claim against
the estate of Puyat. Heirs said Luzon is
barred by laches.
Issue: Whether the ten year prescriptive
period to file an action to enforce a
judgment
pursuant
to
Art.
1144
commences to run fr. the finality of the
original judgment or fr. the revived
judgment?
Held: Count fr. the finality of judgment.
After the expiration of 5 years w/in w/c
execution can be the manner therein
provide so long as the period of 10 years
does not expire fr. the date of such
judgment. The right of the winning party to
enforce the judgment begins to exist the
moment then judgment becomes final. In
reconciling the Rules of Court provision
(now irrelevant) & the Civil Code , what the
law intends is that after the expiration of
the first 5 years, there remain to the
winning party 10 years after the expiration
of the first 5 years, there remain to the
winning party only another 5 years to
revive it.
ATOK BIG WEDGE V. CA
Facts: AI Reynolds located Fredia Mineral
claim. Reynolds executed a Declaration of
Location. And recorded it in the Office of
the Mining Recorder in 1931. Reynolds sold
the claim to Atok in a deed of sale in 1931.
Since then it has been in continuous &
exclusive ownership & possession of the
claim.
Consi has a lot located in the area.
In 1984, Atok filed a complaint for forcible
entry & detainer against Consi.
Issue: Whether or not an individuals long
term occupation of a land of public domain
vests him w/ such rights over the same to
defeat the rights of the owner of that
claim?
Held: No. Atok now owns the property. The
perfection of the mining claim converted
the property to mineral land & removed it
fr. the public domain. In CAB, the records
284

show that the lot was acquired through a


Deed of Sale. The land was not & could not
have been transferred to Consi by virtue of
acquisitive prescription bec. at the time,
Consi occupied the property it is still part of
the public domain. His possession did not
confer him possessory rights over the same.

obligation to give while obligee is used in


an obligation to do.

OBLIGATIONS

Book IV starts w/ an inaccuracy. It gives the


impression that obligations & contracts are of
the same status, w/c they are not. A contract
is only one of the sources of obligations.
Book IV should have been simply titled
"Obligations."

Both parties are determined at the time of


the execution of the obligation.
An obligation wherein one party is
determined at the constitution of the
obligation & the other to be determined
subsequently in accordance w/ a criteria
that is previously established.
An obligation in w/c the subject is
determined in accordance w/ his relation to
a thing & therefor it changes where the
thing passes fr. one person to another. This
is a property-linked obligation.

Etymology.-- The word obligation comes fr.


two Latin words, ligare, meaning "to bind" &
ob w/c is a proposition used to intensify a
verb.
Literally obligare means "to bind
securely."

Object of the obligation.-- This refers to the


conduct or activity that must be observed
by the debtor. The object of the obligation
is always an activity or conduct, the
prestation.

Art. 1156. An obligation is a juridical


necessity to give, to do or not to do.

Requisites of an object:
It must be licit.
It must be possible.
It must be determinate or determinable.
It must have pecuniary value so that if not
performed it is converted into damages.

Balane:

Balane:
Definition. A better definition would be,
An obligation is a juridical relation
(bec. there are 2 parties) whereby a person
should engage or refrain fr. engaging in a
certain activity for the satisfaction of the
private interests of another, who in case of
non-fulfillment of such duty may obtain fr.
the patrimony of the former through proper
judicial proceedings the very prestation due
or in default thereof, the economic
equivalent (damages) that it represents.
(Diaz Piero.)
Characteristics of an Obligation:
It represents an exclusively private interest
It creates ties that are by nature transitory
It involves the power to make the juridical tie
effective in case of non-fulfillment through an
economic equivalent obtained fr. the debtor's
patrimony.
Essential Elements of an Obligation:
Active Subject.-- This refers to the creditor or
the obligee. Strictly speaking the two are not
the same. A creditor generally used in an

Passive Subject.-- This refers to the debtor


or the obligor. If you want to be a civilist,
debtor is used in an obligation to give while
obligor is used in an obligation to do.
On the first two elements: They
must be determinate or determinable. The
following are possible combinations:

Vinculum juris (legal tie).-- Upon default or


refusal of the debtor to perform, the
creditor can go to court. When a person
says "I promise to pay you when I like to,"
there is no obligation here bec. there is no
vinculum juris
All these first three four elements are
agreed upon by commentators as essential
elements. The following two are being
debated.
Causa debendi/ obligationes (Castan).-This is what makes the obligation
demandable. This is the proximate why of
an obligation.
Form.-This is controversial.
This is
acceptable only if form means some
manifestation of the intent of the parties.
I. Sources of Obligations

Art. 1157. Obligations arise fr.:


(1) Law;
(2) Contracts;
285

law; &

(3) Quasi-contracts;
(4) Acts or omissions punished by
(5) Quasi-delicts

Balane:
Law as a source of obligation.-- I am
under the impression that all obligations are
derived fr. law. It is my opinion that there is
an overlap in the enumeration bec. all
obligations arise fr. law. So, what is the idea
of enumerating law as only one of the
sources of an obligation as if it is only one of
them when the four find their sources in law?
Is it true that law is the only source of
obligation? Yes & No. Yes, law is the only
source of obligation if you talk of it in the
ultimate sense. No, if you are talking of law
as a proximate source. In this case, there are
five sources of obligations. Law is both the
ultimate & a proximate source of obligations.
Sources of Obligations according to
Sanchez Roman.-- Law & Acts. The latter
are further classified, as follows: (1) licit acts
created by concurrence of wills (contracts);
(2) licit acts either voluntary or involuntary
w/o concurrence of wills (quasi-contract); (3)
illicit acts of civil character w/c are not
punishable, voluntary or involuntary (torts &
all damages arising fr. delay); (4) illicit acts
w/c are voluntary & are punishable by law
(crimes.)
SAGRADA ORDEN VS. NACOCO
503]

[91 P

If def.-appellant (NaCoCo) is liable at all, its


obligations must arise fr. any of the 4 sources
of obligations, namely, law, contract or quasi
contract, crime, or negligence. (Art. 1089,
OCC.) Def.-appellant is not guilty of any
offense at all, bec. it entered into the
premises & occupied it w/ the permission of
the entity w/c had the legal control & admin.
thereof, the Alien Prop. Admin. (APA) Neither
was there any negligence on its part. There
was also no privity (of contract or obligation)
bet. the APA & Taiwan Tekkosho, w/c had
secured the possession of the prop. fr. the
pltff-appellee by the use of duress, such that
the Alien Prop. Custodian or its permittee
(def.-appellant) may be held responsible for
the supposed illegality of the occupation of
the prop. by said Tekkosho. The APA had the
control & admin. of the prop. not as
successor to the interests of the enemy
holder of the title, the T. Tekkosho, but by
express provision of law. Neither is it a

trustee of the former owner, the pltffappellee herein, but a trustee of the US
Govt., in its own right, to the exclusion of,
& against the claim or title of, the enemy
owner.
From Aug. 1946, when def.appellant took possession, to the date of
the judgment on 2/28/48, the APA had the
absolute control of the prop. as trustee of
the US Govt., w/ power to dispose of it by
sale or otherwise, as though it were the
absolute owner. Therefore, even if def.
were liable to the APA for rentals, these
would not accrue to the benefit of the pltff.,
the old owner, but the US Govt.
Balane:
Is the enumeration in Art. 1157
exclusive or merely illustrative? The sense
that the case of Sagrada Orden tells us is
that the enumeration is exclusive.
In
resolving the issue of whether the def.
should be liable to pay rentals, the SC used
the process of exclusion. For there to be an
obligation to pay rentals, that obligation
must arise fr. either of the five (5) sources
of obligations. If it does not, then there is
no obligation. The clear implication of this
ruling is that, these five (5) are the only
sources of obligations.
The problem w/ Art. 1157 is that it
might not cover all situations.
For
example: Carale uses Dove as his soap.
He then hears an advertisement fr. Proctor
& Gamble that it is offering a nice tumbler
for those who can collect 30 wrappers of
Tide before Feb. 29, 1996. So, Carale
stopped using Dove & started using Tide.
He was able to consume all 30 wrappers on
Feb. 29, 1996. He then went to Proctor &
Gamble (P & G) to exchange the 30 Tide
wrappers for a tumbler. But P & G told
Carale that their tumblers run out of stock.
Carale contracted a skin allergy as a result
of using Tide in taking a bath.
The
question is:
Does P & G have any
obligation to Carale. If we look at Art.
1157, this situation does not fall in any of
the five sources. So, we know have a
problem. The German Civil Code (BGB)
covers this situation. The BGB has a sixth
source of obligation, the Auslobung, w/c
means a unilateral offer. Art. 657 of the
BGB provides:
Art. 657. Binding promise. A person
who, by public notice, announces a reward
for the performance of an act, in particular
for the production of a result, is bound to
pay a reward to any person who has
performed the act, even if he did not act w/
a view to the reward.
286

Note:
We now have a DTI regulation
covering this situation.
This is an
administrative regulation w/c has the force of
law. But it would have been better to have
placed this rule in a law rather than in a mere
administrative regulation.
Articles 1158 - 1162 specify the general
principles regarding the sources of obligation
enumerated in Art. 1157.
Art. 1158. Obligations derived fr. law are
not
presumed.
Only
those
expressly
determined in this Code or in special laws are
demandable, & shall be regulated by the
precepts of the law w/c established them; &
as to what has not been foreseen, by the
provisions of this Book.

penal laws, subject to the provisions of


article 2177, & of the pertinent provisions
of Chapter 2, Preliminary Title, on Human
Relations, & of Title XVIII of this Book,
regulating damages.
Art. 2177. Responsibility for fault or
negligence under the preceding article is
entirely separate & distinct fr. the civil
liability arising fr. negligence under the
Penal Code. But the plaintiff cannot recover
damages twice for the same act or
omission of the defendant.
Art. 1162. Obligations derived fr. quasidelicts shall be governed by the provisions
of Chapter 2, Title XVII of this Book, & by
special laws.

Balane:
Art. 1159. Obligations arising fr. contracts
have the force of law between the
contracting parties & should be complied w/
in good faith.

Balane: There are two parts in Art. 1159.


The first part is that obligations derived fr.
contract has the force of law bet. the
contracting parties (jus civili.) The second
part is that there must be compliance in good
faith (jus gentium.)
PEOPLE'S
CAR
VS.
SECURITY [51 SCRA 40]

COMMANDO

Pltff. (People's Car) was in law liable to its


customers for the damages caused the
customer's car, w/c had been entrusted into
its custody.
Pltff. therefore was in law
justified in making good such damages &
relying in turn on def.(Commando Security) to
honor its contract & indemnify it for such
undisputed damages, w/c had been caused
directly by the unlawful & wrongful acts of
def.'s security guard in breach of their
contract.

Art. 1160. Obligations derived fr. quasicontracts shall be subject to the provisions of
Chapter 1, Title XVIII of this Book.
Art. 1161. Civil obligations arising fr.
criminal offenses shall be governed by the

The Code Commission did not choose to


use tort. This is bec. tort does not exactly
have the same meaning as quasi-delict.
Tort covers intentional torts w/c in quasidelict is considered as civil liability arising
fr. acts or omissions punishable by law.
There are some quasi-delicts w/c are not
covered by tort. Dean Bocobo suggested
the ancient term culpa aquiliana. But this
did not merit the approval of the Code
Commission.
Question: If there is a contract bet. the
parties, can there be a quasi-delict
committed by one against the other
regarding the area covered by the contract.
If you look at Art. 2176, you get the
impression that if there is a contract bet.
the parties, the parties cannot be liable for
quasi-delict on an area covered by the
contract. The case of Cangco has not
really resolve this controversy.
CANGCO VS. MANILA RAILROAD CO.
[38 P 768] Balane:
There are two important
principles that we learn fr. this case:
The difference in concept bet. contract &
quasi-delict is that in a contract, there
is a pre-existing juridical tie bet. the
parties.
Violation of the contract
gives rise to liability but not to the
juridical tie. Juridical tie is not borne
by a violation. In quasi-delict, it is
precisely the wrongful act w/c gives
rise to the juridical tie. Liability &
juridical tie are simultaneous.

287

Contracts & quasi-delicts create two


concentric circles w/ quasi-delict as the
bigger circle.
[Note: There is a little mistake in Cangco.
The SC said that the driver can be sued under
culpa contractual. This is wrong. The driver
cannot be sued as he has no privity of
contract w/ the passenger.]
So, the question now is: Is it possible
that even if there is a contract bet. the
parties, a quasi-delict can still be committed
by one against the other regarding the area
covered by the contract? Yes, according to
the case of Araneta v. de Joya, 57 SCRA 59.
The same act can give rise to obligations
arising fr. different sources.
For example, Alinea is the owner of a
bus co., the Alinea Bus Co., Molina is a driver
of one of the buses of Alinea Bus Co.
Lagdameo rode the bus being driven by
Molina. As a result of the reckless driving of
Molina, Lagdameo suffered injuries. In this
case, Lagdameo has a choice-- he can sue
on either contract, quasi-delict or on crime. If
he decided to sue on the breach of the
contract of carriage, all he has to prove is the
(existence of the contract) & that it was not
performed. In this case, he can sue the
common carrier but not the driver bec. he
has no contract w/ the driver. If he sues on
quasi-delict, he can sue both the common
carrier & the driver. The defense of the driver
would be diligence in driving (or fortuitous
event.) The defense of the common carrier
would be diligence in the selection &
supervision of employees. If he sues under
crime, he has to sue the driver. In case the
driver is convicted & has been sentenced to
pay civil liability, the employer (Alinea Bus
Co.) is subsidiarily liable.
If Molina is
insolvent, Alinea Bus Co. will pay.
Notice that the choice of cause of
action will determine three things: the theory
of the plaintiff, the defense of the def. & the
question of whom to sue.
Again, remember that in this case, the
victim has a choice. Provided that he is
consistent w/ his theory & provided, further,
that he cannot recover damages twice for the
same injury.
Note: There is still a brewing controversy
among civilists w/ regard to this question.
This is only my opinion.
GUTIERREZ VS. GUTIERREZ [56 P 177]
One G, a passenger in a truck,
recovers damages in the amount of P5,000 fr.
the owner of a pvt. automobile not in the car,
the machine being operated by a son 18 yrs.
of age, w/ other members of the family

accommodated therein, & fr. the chauffeur


& owner of the truck w/c collided w/ the
pvt. automobile on a bridge, causing
physical injuries to G as a result of the
automobile accident.
The head of a house, the owner of
an automobile, who maintains it for the
general use of his family, is liable for its
negligent operation by one of his children,
whom he designates or permits to run it,
where the car is occupied & being used at
the time of the injury for the pleasure of
other members of the owner's family than
the child driving it.
A. Quasi-Contracts
Art. 2142. Certain lawful, voluntary &
unilateral acts give rise to the juridical
relation of quasi-contract to the end that no
one shall be unjustly enriched or benefited
at the expense of another.
Art. 2175.
Any person who is
constrained to pay the taxes of another
shall be entitled to reimbursement fr. the
latter.
Art. 22. Every person who through an
act of performance by another, or any
other means, acquires or comes into
possession of something at the expense of
the latter w/o just or legal ground shall
return the same to him.
Art. 23. Even when an act or event
causing damage to another's property was
not due to the fault or negligence of the
defendant, the latter shall be liable for
indemnity if through the act or event he
was benefited.

Benefits Conferred
Voluntarily
Preservation of Property
or Business
(1) Negotiorum Gestio

Art. 2144. Whoever voluntarily takes


charge of the agency or management of
the business or property of another, w/o
any power fr. the latter, is obliged to
continue the same until the termination of
the affair & its incidents, or to require the
288

person concerned to substitute him, if the


owner is in a position to do so. This juridical
relation does not arise in either of these
instances:
(1) When the property or business is not
neglected or abandoned;
(2) If in fact the manager has been tacitly
authorized by the owner;
In the first case, the provisions of articles
1317, 1403, No. 1, & 1404 regarding
unauthorized contracts shall govern.
In the second case, the rules on agency in
Title X of this Book shall be applicable.
Art. 1317. No one may contract in the
name of another w/o 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.
Art. 1403. 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;
Art. 1404. Unauthorized contracts are
governed by article 1317 & the principles of
agency in Title X of this Book.
Art. 2145. The officious manager shall
perform his duties w/ all the diligence of a
good father of a family, & pay the damages
w/c through his fault or negligence may be
suffered by the owner of the property or
business under management.
The courts may, however, increase or
moderate the indemnity according to the
circumstances of each case.
Art. 2146.
If the officious manager
delegates to another person all or some of his
duties, he shall be liable for the acts of the
delegate, w/o prejudice to the direct
obligation of the latter toward the owner of
the business.

The responsibility of two or more


officious managers shall be solidary, unless
the management was assumed to save the
thing or business fr. imminent danger.
Art. 2147. The officious manager shall
be liable for any fortuitous event:
(1) If he undertakes risky operations w/c
the owner was not accustomed to embark
upon;
(2) If he has preferred his own interest
to that of the owner;
(3) If he fails to return the property or
business after demand by the owner;
(4) If he assumed the management in
bad faith.
Art.
2148.
Except
when
the
management was assumed to save the
property or business fr. imminent danger,
the officious manager shall be liable for
fortuitous events:
(1) If he is manifestly unfit to carry on
the management;
(2) If by his intervention he prevented a
more competent person fr. taking up the
management.
Art. 2149.
The ratification of the
management by the owner of the business
produces the effects of an express agency,
even if the business may not have been
successful.
Art. 2150. Although the officious
management may not have been expressly
ratified, the owner of the property or
business who enjoys the advantages of the
same shall be liable for obligations incurred
in his interest, & shall reimburse the
officious manager for the necessary &
useful expenses & for the damages w/c the
latter
may
have
suffered
in
the
performance of his duties.
The same obligation shall be incumbent
upon him when the management had for
its purpose the prevention of an imminent
& manifest loss, although no benefit may
have been derived.
Art. 2151. Even though the owner did
not derive any benefit & there has been no
imminent & manifest danger to the
property or business, the owner is liable as
289

under the first paragraph of the preceding


article, provided:
(1) The officious manager has acted in
good faith;
(2) The property or business is intact,
ready to be returned to the owner.
Art. 2152.
The officious manager is
personally liable for contracts w/c he has
entered into w/ third persons, even though he
acted in the name of the owner & third
persons. These provisions shall not apply:
(1) If the owner has expressly or tacitly
ratified the management, or
(2) When the contract refers to things
pertaining to the owner of the business.
Art.
2153.
The
management
is
extinguished:
(1) When the owner repudiates it or puts
an end thereto;
(2) When the officious manager w/draws
fr. the management subject to the provisions
of article 2144;
Art. 2144.
Whoever voluntarily takes
charge of the agency or management of the
business or property of another, w/o any
power fr. the latter, is obliged to continue the
same until the termination of the affair & its
incidents, or to require the person concerned
to substitute him, if the owner is in a position
to do so. xxx
(3) By the death, civil interdiction,
insanity or insolvency of the owner or the
officious manager.

considerably diminish its value, it shall be


sold at public auction eight days after the
publication.
Six months fr. the publication having
elapsed w/o the owner having appeared,
the thing found, or its value, shall be
awarded to the finder. The finder & the
owner shall be obliged, as the case may
be, to reimburse the expenses.
Art. 720. 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.
Art. 2172. The right of every possessor
in good faith to reimbursement for
necessary & useful expenses is governed
by article 546.
Art. 546. Necessary expenses shall be
refunded to every possessor; but only the
possessor in good faith may retain the
thing until he has been reimbursed
therefor.
Useful expenses shall be refunded only
to the possessor in good faith w/ the same
right of retention, the person who has
defeated him in the possession having the
option of refunding the amount of the
expenses or of paying the increase in value
w/c the thing may have acquired by reason
thereof.

(b) Payments by 3rd Persons


(2) Finder of Lost Property
Art. 2171. The rights & obligations of the
finder of lost personal property shall be
governed by articles 719 & 720.
Art. 719. Whoever finds a movable, w/c is
not treasure, must return it to its previous
possessor. If the latter is unknown, the finder
shall immediately deposit it w/ the mayor of
the city or municipality where the finding has
taken place.
The
finding
shall
be
publicly
announced by the mayor for two consecutive
weeks in the way he deems best.
If the movable cannot be kept w/o
deterioration, or w/o the expenses w/c

Art. 2173. When a third person, w/o the


knowledge of the debtor, pays the debt,
the rights of the former are governed by
articles 1236 & 1237.
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.
Whoever pays for another may
demand fr. the debtor what he has paid,
except that if he paid w/o the knowledge or
against the will of the debtor, he can
recover only insofar as the payment has
been beneficial to the debtor.
290

Art. 1237. Whoever pays on behalf of the


debtor w/o the knowledge or against the will
of the latter, cannot compel the creditor to
subrogate him in his rights such as those
arising fr. a mortgage, guaranty, or penalty.

2.
Benefits
Conferred

Involuntarily

(a) Solutio Indebiti

Art. 2154. If something was received


when there is no right to demand it, & it was
unduly delivered through mistake, the
obligation to return it arises.
Art. 2155.
Payment by reason of a
mistake in the construction or application of a
doubtful or difficult question of law may come
w/in the scope of the preceding article.
Art. 2156. If the payer was in doubt
whether the debt was due, he may recover if
he proves that it was not due.
Art. 2157. The responsibility of two or
more payees, when there has been payment
of what is not due, is solidary.
Art. 2158. When the property delivered
or money paid belongs to a third person, the
payee shall comply w/ the provisions of
article 1984.
Art. 1984.
The depositary cannot
demand that the depositor prove his
ownership of the thing deposited.
Nevertheless, should he discover that the
thing has been stolen & who its true owner is,
he must advise the latter of the deposit.
If the owner, in spite of such information,
does not claim it w/in the period of one
month, the depositary shall be relieved of all
responsibility
by
returning
the
thing
deposited to the depositor.
If the depositary has reasonable grounds
to believe that the thing has not been
lawfully acquired by the depositor, the former
may return the same.

Art. 2159.
Whoever in bad faith
accepts an undue payment, shall pay legal
interest if a sum of money is involved, or
shall be liable for fruits received or w/c
should have been received if the thing
produces fruits.
He shall furthermore be answerable
for any loss or impairment of the thing fr.
any cause, & for damages to the person
who delivered the thing, until it is
recovered.
Art. 2160. He who in good faith accepts
an undue payment of thing certain &
determinate shall only be responsible for
the impairment or loss of the same or its
accessories & accessions insofar as he has
thereby been benefited. If he has alienated
it, he shall return the price or assign the
action to collect the sum.
Art.
2161.
As
regards
the
reimbursement
for
improvements
&
expenses incurred by him who unduly
received the thing, the provisions of Title V
of Book II shall govern.
Art. 2162. He shall be exempt fr. the
obligation to restore who, believing in good
faith that the payment was being made of
a legitimate & subsisting claim, destroyed
the document, or allowed the action to prescribe, or gave up the pledges, or canceled
the guaranties for his right. He who paid
unduly may proceed only against the true
debtor or the guarantors w/ regard to
whom the action is still effective.
Art. 2163. It is presumed that there
was a mistake in the payment if something
w/c had never been due or had already
been paid was delivered; but he fr. whom
the return is claimed may prove that the
delivery was made out of liberality or for
any other just cause.

(1)Distinguished
Obligations

fr.

Natural

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 & natural law, do
not grant a right of action to enforce their
291

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.
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. 1425. When w/o the knowledge or
against the will of the debtor, a third person
pays a debt w/c the obligor is not legally
bound to pay bec. the action thereon has
prescribed, but the debtor later voluntarily
reimburses the third person, the obligor
cannot recover what he has paid.
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.
Art. 1429. When a testate or intestate
heir voluntarily pays a debt of the decedent
exceeding the value of the property w/c he
received by will or by the law of intestacy fr.
the estate of the deceased, the payment is
valid & cannot be rescinded by the payer.
Art. 1430. When a will is declared void
bec. it has not been executed in accordance
w/ the formalities required by law, but one of
the intestate heirs, after the settlement of the
debts of the deceased, pays a legacy in
compliance w/ a clause in the defective will,
the payment is effective & irrevocable.
Art. 1960. If the borrower pays interest
when there has been no stipulation therefor,
the provisions of this Code concerning solutio
indebiti, or natural obligations, shall be
applied, as the case may be.
Art. 1956. No interest shall be due unless
it has been expressly stipulated in writing.

Performance of
Obligations imposed by law in
the interest of the public

(1) Support

Art. 2164. When, w/o the knowledge of


the person obliged to give support, it is
given by a stranger, the latter shall have a
right to claim the same fr. the former,
unless it appears that he gave it out of
piety & w/o intent of being repaid.
Art. 2165. When funeral expenses are
borne by a third person, w/o the knowledge
of those relatives who were obliged to give
support to the deceased, said relatives
shall reimburse the third person, should the
latter claim reimbursement.
Art. 2166. When the person obliged to
support an orphan, or an insane or other
indigent person unjustly refuses to give
support to the latter, any third person may
furnish support to the needy individual, w/
right of reimbursement fr. the person
obliged to give support. The provisions of
this article apply when the father or mother
of a child under eighteen years of age
unjustly refuses to support him.

(2) Unjust refusal to support


orphan, insane or other indigent

an

Art. 206. When, w/o the knowledge of


the person obliged to give support, it is
given by a stranger, the latter shall have a
right to claim the same fr. the former,
unless it appears that he gave it w/o
intention of being reimbursed.
(Family
Code.)
Art. 207. When the person obliged to
support another unjustly refuses or fails to
give support when urgently needed by the
latter, any third person may furnish support
to the needy individual, w/ right of
reimbursement fr. the person obliged to
give support. This Article shall apply
particularly when the father or mother of a
child under the age of majority unjustly
refuses to support or fails to give support
to the child when urgently needed. (Id.)

DEL RIO V. TANGUILAY

292

Facts: Cuartero filed an action for support in


behalf of her 5 minor children against their
father, Tanguilay.
The CFI approved the
agreement entered into bet. the parties
wherein it was provided that Tanguilay will
give support in the amount of 1,500/month.
It appears, however, that a certain Del Rio
furnished the children w/ additional money
for their support. He now filed this action to
recover the sum fr. Tanguilay based on Art.
1894 of the CC ( now Art. 2164 NCC)
Issue; WON Tanguilay is liable to Del Rio for
the sum furnished by the former to his
children?
Held: No, Tanguilay is not liable. In order for
one to be liable under Art. 1894, the ff. must
be present:
support has been furnished a dependent of
one bound to give support but who fails to
do so;
support was supplied by a stranger
support was given w/o the knowledge of the
person charged w/ the duty
In this case, Del Rio made the
advances not only w/o the knowledge of
Tanguilay but in fact, against his wishes.
Therefore, Del Rio was not justified in
continuing the supply of money to Tanguilays
children nor could he expect to be
reimbursed by Tanguilay.
(3) Funeral expenses

Art. 2165. When funeral expenses are


borne by a third person, w/o the knowledge
of those relatives who were obliged to give
support to the deceased, said relatives shall
reimburse the third person, should the latter
claim reimbursement.

(4)
Health
or
regulation re: property

safety

Art. 2169. When the government, upon


the failure of any person to comply w/ health
or safety regulations concerning property,
undertakes to do the necessary work, even
over his objection, he shall be liable to pay
the expenses.

(5) Constraint of life or property


on occasion of & accident or
calamity

Art. 2167. When through an accident


or other cause a person is injured or
becomes seriously ill, & he is treated or
helped while he is not in a condition to give
consent to a contract, he shall be liable to
pay for the services of the physician or
other person aiding him, unless the
services has been rendered out of pure
generosity.
Art. 2168. When during a fire, flood,
storm, or other calamity, property is saved
fr. destruction by another person w/o the
knowledge of the owner, the latter is bound
to pay the former just compensation.
Art. 2174. When in a small community
a majority of the inhabitants of age decide
upon a measure for protection against
lawlessness, fire, flood, storm or other
calamity, any one who objects to the plan
& refuses to contribute to the expenses but
is benefited by the project as executed
shall be liable to pay his share of said
expenses.
Art. 2170. When by accident or other
fortuitous event, movables separately
pertaining to two or more persons are
commingled or confused, the rules on coownership shall be applicable.

B. Quasi-delicts

Art. 2176. Whoever by act or omission


causes damage to another, there being
fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if
there is no pre-existing contractual relation
between the parties, is called a quasi-delict
& is governed by the provisions of this
Chapter.
Art. 2177. Responsibility for fault or
negligence under the preceding article is
entirely separate & distinct fr. the civil
liability arising fr. negligence under the
Penal Code. But the plaintiff cannot recover
293

damages twice for the same act or omission


of the defendant.
Art. 2180. The obligation imposed by
article 2176 is demandable not only for one's
own acts or omissions, but also for those of
persons for whom one is responsible.
The father &, in case of his death or
incapacity, the mother, are responsible for
the damages caused by the minor children
who live in their company.
Guardians are liable for damages
caused by the minors or incapacitated
persons who are under their authority & live
in their company.
The
owners
&
managers
of
an
establishment or enterprise are likewise
responsible for damages caused by their
employees in the service of the branches in
w/c the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages
caused by their employees & household
helpers acting w/in the scope of their
assigned tasks, even though the former are
not engaged in any business or industry.
The State is responsible in like manner
when it acts through a special agent; but not
when the damage has been caused by the
official to whom the task done properly
pertains, in w/c case what is provided in
article 2176 shall be applicable.
Lastly,
teachers
or
heads
of
establishments of arts & trades shall be liable
for damages caused by their pupils &
students or apprentices, so long as they
remain in their custody.
The responsibility treated of in this article
shall cease when the persons herein
mentioned prove that they observed all the
diligence of a good father of a family to
prevent damage.
Art. 2182. If the minor or insane person
causing damage has no parents or guardian,
the minor or insane person shall be
answerable w/ his own property in an action
against him where a guardian ad litem shall
be appointed.

Art. 2194. The responsibility of two or


more persons who are liable for quasi-delict
is solidary.
Art. 1728. The contractor is liable for all
the claims of laborers & others employed
by him, & of third persons for death or
physical injuries during the construction.
Art. 1763.
A common carrier is
responsible for injuries suffered by a
passenger on account of the willful acts or
negligence of other passengers or of
strangers,
if
the
common
carrier's
employees through the exercise of the
diligence of a good father of a family could
have prevented or stopped the act or
omission.
Art. 218. The school, its administrators
& teachers, or the individual, entity or
institutions engaged in child care shall
have
special
parental
authority
&
responsibility over the minor child while
under their supervision, instruction or
custody.
Authority & responsibility shall
apply to all authorized activities whether
inside or outside the premises of the school
entity or institution. (Family Code.)
Art. 219. Those given the authority &
responsibility under the preceding Article
shall be principally & solidarily liable for
damages caused by the acts or omissions
of the unemancipated minor. The parents,
judicial guardians or the persons exercising
parental authority over said minor shall be
subsidiarily liable.
The respective liabilities of those
referred to in the preceding paragraph shall
not apply if it is proved that they exercised
the proper diligence required under the
particular circumstances.
All other cases not covered by this &
the preceding articles shall be governed by
the provisions of the Civil Code on quasidelicts. (Id.)

LASALA V. VELEZ
Facts:
Velez owns a lot.
When the
Japanese forces invaded the Philippines, he
was forced to turn it over to the Japs.
294

When the US forces took over, the lot was


leased to Lasala. The latter then operated an
ice plant on said lot. When Velez learned of
the lease to Lasala, he then asked for the
return of the lot to him. He also inhibited
Lasala fr. entering his property & ordered the
removal of the flying wheel. Lasala filed an
action for damages against Velez contending
that as a result of Velez act of removing the
wheel, he was forced to find other sources of
water.
Issue:
tort?

WON Velez is liable for damages/

Held: No. For an action for tort or damages


to prosper, it is necessary that the act
complained of be illicit or unlawful. In the
CAB, the lease contract entered into by
Lasala does not include the use of the wheel.
The wheel was constructed to supply water to
the Velez residence & not to his ice plant.
Lasala used the wheel w/o obtaining the
proper authority, thus Velez is not guilty of
tort in removing the wheel.

Baviera:
There was no legal or
contractual obligation on the part of
Velez to supply water to Lasala fr. the
well.

TACTACQUIN V. PALILEO
Facts: Tactaquin died when he was run over
by a car driven by Palileo. A criminal case for
reckless imprudence was filed against Palileo.
During the arraignment, Palileo pleaded
guilty & he was sentenced forthw/ to suffer
imprisonment & to pay 4,000 as damages.
The private prosecutor made an oral
reservation to file a separate civil action for
damages. Consequently, the civil case was
filed. Palileo filed a MtD on the ground that
the civil action is barred
by the final
judgment in the criminal case.
Issue: WON the civil action is barred?
Held: No. There was a timely reservation
made by the private prosecutor on behalf of
the complainant. As a result thereof, the civil
liability was automatically taken out of the
crim. case & was not before the court. The
decision of the lower court sentencing Palileo
to pay damages is therefore a nullity.

The reservation to file a separate


civil action may be made at any time
before rendition of the final judgment.
Upon such reservation, the private
complainant loses the right to intervene in
the crim. action.
PADUA V. ROBLES
Facts: Normandy, son of the pet. Padua
died when he was run over by a taxi cab
driven by Punzalan & owned by Robles.
Both civil & criminal cases were filed
against Punzalan. Punzalan was adjudged
criminally liable but no award for damages
was given in view of the filing of the sep.
civil action. However, in the civil action,
the writ of execution against Punzalan was
returned unsatisfied prompting the Paduas
to enforce the subsidiary liability of Robles
under Art. 103 of the RPC.
Issue: WON the Paduas are barred fr.
enforcing the civil liability of the employer
under the RPC?
Held; No. Civil liability coexists w/ the
criminal responsibility & the offended party
has the option to file a civil action based on
culpa criminal ( RPC) & action for damages
based on culpa aquiliana ( CC). The former
is deemed simultaneously instituted w/ the
crim. action unless expressly waived or
reserved.
What Art. 2177 of the CC
precludes recovery of damages twice for
the same negligent act or omission.
Allowance of the action of Paduas against
the employers subsidiary liability involves
no violation of the proscription against
double recovery. Art. 2177 forbids actual
double recovery of damages.
Baviera: Requisites of enforcing the
subsidiary obligation of the employer
under the RPC:
criminal case was filed against the
employee
the act or negligence arose during or
in connection w/ the performance of
the latters employment
the employee is found guilty of
criminal negligence
a writ of execution has been returned
unsatisfied, i.e., employee has been
found to be insolvent.
There is no res judicata as
regards the ER as there is a difference
295

in the COA. Quasi-delict differs fr. an


action based on delict on the following
grounds:
QD: ERs liability is primary in RPC, its
subsidiary
QD: diligence of good father of the
family may be set up by the ER, in RPC,
such defense is not available.

SINGSON V. BPI
Facts: Singson, Lobregat & Villa-Abrille were
adjudged liable to pay Phil. Milling Corp the
sum of 105, 539.
Singson & Lobregat
appealed the judgment, Villa Abrille did not.
As a consequence, a writ of garnishment was
served upon BPI in w/c the Singsons had a
current account insofar as Villa-Abrilles
account was concerned. However, there was
a misunderstanding & Singsons account was
also garnished. As a result thereof, checks
issued by Singson bounced.
The bank
officials, upon realizing their error made
efforts to rectify the situation.
Singson,
however filed an action based on QD against
BPI. the CFI dismissed the action on the
ground that Singson cannot recover damages
based on QD as the rel. between him & the
bank is contractual in nature.
Issue: WON a n action based on QD will
prosper against BPI?
Held: Yes.
The existence of a contract
between the parties does not bar the
commission of a tort by one against the other
& the consequent recovery of damages
therefor. The act that breaks the contract
may also constitute a tort.
Baviera: The damages in this case was
awarded based on QD bec. the act
complained of did not relate to the
performance
of
BPIs
contractual
obligation w/ Singson.
Q: When is the wrongful dishonoring of
a check a contractual negligence?
A: In case of mistake in the recording of
funds, for example. In such a case,
there would not be available the
defense of diligence of GFF as the
action is not based on QD.

MALIPOL V. TAN
Facts: Malipol died when he was hit by
tanker driven by Labsan & owned by Tan.
An action for damages was field against
Labsan. The TC ordered Labsan to pay
damages to Malipols heirs & made Tan
subsidiarily liable.
Issue: WON an action based on QD makes
the ER only subs. liable?
Held: NO. The allegation in the complaint
against Labsan reveals that it is an action
based on Art. 2180 of the CC, QD. The
liability therefor of the ER is not merely
subsidiary but primary & direct giving him
only a right to reimbursement form the
employee.

Baviera:
If there is contractual
negligence, there is no more need to
sue the employee.
To determine what kind of
action
is
brought
against
the
employer, look at the allegations in
the complaint.

MARCIA V. CA
Facts:
VLI Liner bus driven by Paje
collided w/ a jeep driven by Marcia
resulting in the death of the latter. Both
civil & criminal cases were filed against VLI
& Paje. However, Paje was eventually
acquitted by the CA in the criminal case
stating that: criminal negligence
is
wanting, that Paje was not even guilty of
civil negligence. Paje & VLI then moved
to dismiss the civil case invoking the CA
decision in the crim. case.
Issue: WON the CA decision bars the sep.
civil axn for damages?
Held: YES. An acquittal based on the
finding that the facts upon w/c civil liability
did not exist bars the filling of an
independent civil action if it is based on
crime.
No sep. civil axn. may be field by
Marcia under Art. 33 as it is not one of the
3 crimes enumerated thereunder. In the
action field by Marcia, the allegation was
that the act was committed as a result of
296

negligence, not that they were inflicted w/


malice. No civil action may therefore be filed
under Art.33
The essence of the quasi-offense of
criminal negligence under Art. 365 RPC lies in
the execution of an imprudent or negligent
act, that, if intentionally done, would be
punishable as a felony. The law penalizes the
negligent or careless act, not the result
thereof. the gravity of the consequence is
only taken into acct. to det. the penalty.

Baviera: Although the criminal & civil


cases had diff. COA, they basically had
the same issues, to wit, WON there was
negligence on the part of the driver.

FERNANDO V. CA
Facts: 5 men died when they suffocated
while cleaning a septic tank of a Public
Market in Davao. The heirs sued the City
Government basing their claim on the alleged
negligence of the city for neglecting the
cleaning of the tank for 19 years & for not
putting up signs near & around the area. It
appears, however, that the deceased cleaned
the tank w/o authority fr. the government.
Issue: WON the city government is liable for
damages?
Held: No. The city is not guilty of negligence,
they cannot not be held liable for damages.
The putting up of signs in the area is not one
of the reqts for construction of public
utilities, septic tanks not being nuisances per
se.
The deaths of the 5 men occurred
through their own negligence. They were
engaged in the business of cleaning septic
tanks, they are charged w/ the knowledge of
knowing the risks attendant to such business.
To be entitled to damages for an injury
resulting fr. the negligence of another, a
claimant must establish the relation between
the omission & the damage. It must be
proved that the negligence was the
immediate & proximate cause of his injury.
MMTC V. CA
Facts: Custodia died when the passenger
jeep, (driven by Calebag) she was riding
collided w/ an MMTC bus driven by Leonardo.
An action for damages was field by

Custodias heirs & the TC found the drivers


concurrently negligent. The TC, however,
absolved MMTC on the ground that the
latter has sufficiently proven that it had
exercised the diligence of GFF.
Issue: WON MMTC should be absolved fr.
liability?
Held:
MMTC has not proven that it
exercised due diligence in the supervision
of its employees. It should be made liable.
Under the Civil Code, the employer has the
burden of proving it has been diligent.
Negligence is imputed to them by law
unless they prove the contrary. Under the
NCC, it is not the representation nor
interest nor even the necessity of having
somebody else answer for the damages
caused by the persons devoid of
personality w/c is the basis of the action
but the non-performance of certain duties
of precaution & prudence imposed upon
the persons who become responsible by
civil bond uniting the actor to them, w/c
forms the foundation of such responsibility.
The presentation of hiring procedures &
supervision policies are not suff. to prove
exercise of diligence as the ER must show
actual supervision of the EEs work.

Baviera: What is the liability of the


school if an EE is negligent in driving
a car when such EE was not assigned
to drive the vehicle?
A: No liability. The EE was not acting
w/in the scope of his assigned task at
the time of the accident.

LIBI V. IAC
Facts: Julie Gotiong ( 18 yrs. old ) &
Wendell Libi (18 yrs. old) were sweethearts.
When they broke up, Wendell apparently
did not take news lightly, he threatened
Julie. Finally, the couple was found dead.
Wendell shot Julie, then himself using a gun
owned by his father. Julies Parents filed an
action for damages against Wendells
parents ( Libi) under Art. 2180 of the Civil
Code.
Issue: WON the parents of Wendell are
liable under Art. 2180? If so, WON such
liability is vicarious or primary?
297

Held: Yes, they are liable. The parents are &


should be held primarily liable for the civil
liability
arising
fr.
criminal
offenses
committed by their minor children under their
legal authority & control or who live in their
company, UNLESS it is proven that the former
acted w/ the diligence of a good father of the
family to prevent such damages.
Libis parents did not exercise due
diligence. The father kept the gun in a safety
box but left the key lying around. the liability
is primary & not vicarious under Art. 2180 of
the Civil code. If the liability of the parents fr.
crimes or quasi-delicts of their minor children
is subsidiary, then the parents cannot invoke
the defense of the GFF. This primary liability
is supported by Art. 2194 of the NCC w/c
provides for solidary liability of joint
tortfeasors, in this case, the father & the
minor. Further, the primary liability of the
parents may be seen on the last par. of Art.
2180 w/c makes available the defense of GFF.
Under the RPC, the SC also believe
that the liability of the parents is primary ref.
to Art. 101 of the RPC.
Thus, in both delicts & quasi-delicts,
the parents are primarily liable for such
damages by their minor children & the minor
is made to answer only in the absence of or
in case of insolvency of the parents.
Baviera: Art. 2180 applies only for acts
or omissions committed through fault or
negligence. In this case, the parents
were held liable bec. they themselves
were negligent.

C. Law

Art. 1158. Obligations derived fr. law are


not
presumed.
Only
those
expressly
determined in this Code or in special laws are
demandable, & shall be regulated by the
precepts of the law w/c establishes them; &
as to what has not been foreseen, by the
provisions of this Book.
Art. 294. The claim for support, when
proper & two or more persons are obliged to
give it, shall be made in the following order:

(1) From the spouse;


(2) From the descendants of the
nearest degree;
(3) From the ascendants, also of the
nearest degree;
(4) From the brothers & sisters.
Among descendants & ascendants the
order in w/c they are called to the intestate
succession of the person who has a right to
claim support shall be observed.
NOTES: Under the NCC, follow the order of
intestate succession.
Art. 199.
Whenever two or more
persons are obliged to give support, the
liability shall devolve upon the following
persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest
degree;
(3) The ascendants in the nearest
degree;
(4) The brothers & sisters.
(Family
Code.)
Art. 448. The owner of the land on w/c
anything has been built, sown, or planted
in good faith, shall have the right to
appropriate as his own the works, sowing
or planting, after payment of the indemnity
provided for in articles 546 & 548, or to
oblige the one who built or planted to pay
the price of the land, & the one who sowed,
the proper rent. However, the builder or
planter cannot be obliged to buy the land if
its value is considerably more than that of
the building or trees. In such case, he shall
pay reasonable rent, if the owner of the
land does not choose to appropriate the
building or trees after proper indemnity.
The parties shall agree upon the terms of
the lease & in case of disagreement, the
court shall fix the terms thereof.
Art. 546. Necessary expenses shall be
refunded to every possessor; but only the
possessor in good faith may retain the
thing until he has been reimbursed
therefor.
Useful expenses shall be refunded only
to the possessor in good faith w/ the same
right of retention, the person who has
defeated him in the possession having the
298

option of refunding the amount of the


expenses or of paying the increase in value
w/c the thing may have acquired by reason
thereof.
Art. 548. Expenses for pure luxury or
mere pleasure shall not be refunded to the
possessor in good faith; but he may remove
the ornaments w/ w/c he has embellished the
principal thing if it suffers no injury thereby, &
if his successor in the possession does not
prefer to refund the amount expended.
Art. 636. Easements established by law
in the interest of private persons or for
private use shall be governed by the
provisions of this Title, w/o prejudice to the
provisions of general or local laws &
ordinances for the general welfare.
These easements may be modified by
agreement
of the
interested
parties,
whenever the law does not prohibit it or no
injury is suffered by a third person.
Art. 2014. No action can be maintained
by the winner for the collection of what he
has won in a game of chance. But any loser
in a game of chance may recover his loss fr.
the winner, w/ legal interest fr. the time he
paid the amount lost, & subsidiarily fr. the
operator or manager of the gambling house.

conditions as they may deem convenient,


provided they are not contrary to law,
morals, good customs, public order, or
public policy.

E. Delict
PEOPLE VS. SENDAYDIEGO
20, 1978

JANUARY

Facts:
Defendant Sendaydiego, the
provincial treasurer of Pangasinan, in
conspiracy w/ co-defs. Samson (EE of a
lumber & hardware store) & Quirimit
(provincial auditor), were charged w/
several counts of malversation through
falsification. It seems that 6 provincial
vouchers were forged to embezzle P57,000
fr. the road & bridge fund.
The LC
acquitted
Quirimit,
but
convicted
Sendaydiego & Samson. Both appealed to
this court. PENDING APPEAL, Sendaydiego
died. This appeal as to his criminal liability
was dismissed, death having extinguished
the same. But his civil liability remained.
Issue: WON the case on appeal when
Sendaydiego died survived the latter wrt to
civil liability.
Held: YES. Lower Court affirmed.

Baviera:
When the source of the
obligation is Law, there is no need for
an act or omission for the obligation to
arise.

D. Contracts
Baviera: The terms of the contract
cannot
be
against
mandatory
&
prohibitive laws. And if the contract is
valid, it shall have the force of law
between the contracting parties.

Art. 1159. Obligations arising fr. contracts


have the force of law between the
contracting parties & should be complied w/
in good faith.
Art. 1306. The contracting parties may
establish such stipulations, clauses, terms &

If the defendant dies after a money


judgment had been rendered against him
by the CFI, the action survives him. It may
be continued on appeal. The accountable
officer may still be civilly liable for the
funds improperly disbursed although he
has no criminal liability. In such a case, the
heirs or the administrator will be
substituted for the deceased insofar as the
civil action for the civil liability is
concerned. The title of this case should be
amended to show its civil aspect.
VDA. DE PAMAN VS. SENERIS
SCRA 709

115

Facts: De los Santos, while driving a truck


owned by Western Mindanao, through
negligence caused Paman to fall off fr. the
truck & die consequently.
A case for
reckless imprudence was filed.
De los
Santos pleaded guilty & was ordered to pay
P12,000 as indemnity. As De los Santos
299

was insolvent, petr. Vda. de Paman filed a


Motion for Execution on Subsidiary liability of
ER Western Mindanao in the same criminal
action. Resp. Judge Seneris denied on the
ground that a separate action must be filed
therefore.
Issue: WON subsidiary liability of the ER
may be enforced in the criminal case where
EE was held liable.
Held: YES. The alleged drawback in the
enforcement of the subsidiary liability in the
same criminal proceeding is the lack of due
process to the ER, that it should be shown
that (1)
ER is engaged in any kind of
industry; (2) EE committed the offense in the
discharge of his duties; & (3) he is insolvent.
This is untenable.
Under Sec. 1, Rule 111 of ROC, when
a criminal action is instituted, the civil action
for the recovery of civil liability arising fr. the
offense charged is impliedly instituted w/ the
criminal action, unless the offended party
expressly waives the civil action or reserves
his right to institute separately. This mean
that the 2 actions are joined in one as twins,
each
one
complete
w/
the
same
completeness as any of the 2 normal persons
composing twins.
The SC held in the case of Pajarito vs.
Seneris that a criminal court should hear &
decide in the same proceeding the subsidiary
liability of the alleged owner & operator of
the vehicle.
The proceeding for the
enforcement of the subsidiary liability may be
considered as part of the proceeding for the
execution of
the judgment.
Besides, a
judgment of conviction sentencing a
defendant-ER to pay an indemnity in the
absence of collusion between the defendant
& the offended party, is conclusive upon the
employer in an action for the enforcement of
the latters subsidiary liability not only w/
regard to civil liability, but also w/ regard to
its amount. A separate & independent action
is, therefore, unnecessary & would only
prolong the agony of the heirs of the victim.

Baviera: This is a novel case as the


decision is sought to be enforced
against a person NOT a party to the
action.

Balane Provisions:

Art. 1161. Civil obligations arising fr.


criminal offenses shall be governed by the
penal laws, subject to the provisions of
article 2177, & of the pertinent provisions
of Chapter 2, Preliminary Title, on Human
Relations, & of Title XVIII of this Book,
regulating damages.
correlate this w/ Art. 100, RPC
Art. 100. Civil Liability of a person
guilty of felony.-- Every person criminally
liable for a felony is also civilly liable.

Back to Maam Baviera:

RPC, Art. 108.


Obligation to make
restoration,
reparation
for
damages,
indemnification for consequential damages
& action to demand the same - Upon whom
it devolves. - The obligation to make
restoration or reparation for damages &
indemnification for consequential damages
devolves upon the heirs of the person
liable.
The action to demand restoration,
reparation, & indemnification likewise
descends to the heirs of the person injured.
(Revised Penal Code.)
Art. 89. How criminal liability is totally
extinguished. - Criminal liability is totally
extinguished:
1. By the death of the convict, as to
the personal penalties; & as to pecuniary
penalties, liability therefor is extinguished
only when the death of the offender occurs
before final judgment.
2. By service of the sentence;
3.
By amnesty, w/c completely
extinguishes the penalty & all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended
woman, as provided in Article 344 of this
Code. (Id.)
Art. 344, RPC.
xxx In cases of
seduction, abduction, acts of lasciviousness
& rape, the marriage of the offender w/ the
300

offended party shall extinguish the criminal


action or remit the penalty already imposed
upon him. The provisions of this paragraph
shall also be applicable to the co-principals,
accomplices & accessories after the fact of
the above-mentioned crimes. (Id.)

PETRALBA VS. SANDIGANBAYAN


SCRA644

200

Facts: Petralba was charged w/ Malversation


of Public Funds before the Sandiganbayan as
when his cash & accounts for December 1980
to March 1981 were audited, he was found
short of P29,000. He was convicted. While
case was pending before the SC, Petralba
died.
Issue: WON Petralbas civil liability survives
his death.
Held: YES. Petralbas death during the
pendency of the appeal extinguished his
criminal liability, but not his civil liability. The
govt. should be indemnified for P6,900.
Under Art. 89, RPC, death of a convict
extinguished his criminal liability. But his
criminal liability does not only mean the
obligation to serve the personal or
imprisonment penalties, but it also includes
the liability to pay the fines or pecuniary
penalties. Pecuniary liability is extinguished
only when the death of the offender occurs
before final judgment. In the case at bar,
Petralba died pending appeal & before any
final judgment therein. Hence the death of P
extinguished his personal & pecuniary
liabilities (e.g. Fine).
Howevah, his civil
liability survives.
Extinction of criminal
liability does not necessarily mean that the
civil liability is also extinguished. No separate
civil action need be instituted. (People vs.
Sendaydiego)
VILLEGAS VS. CA 271 SCRA 148
Facts:
Manila Mayor Antonio Villegas
publicly imputed acts constituting violations
of Anti-Graft & Corrupt Practices Act against
Assemblyman Raquiza. A Senate Committee
cleared Raquiza of all charges. Raquiza filed
a case for Libel vs. Villegas. During the
pendency of the case, Villegas went to the US
where he died. The lower court issued an
order dismissing the criminal aspect of the

case, but reserving the right to resolve its


civil aspect. Later, LC ordered the estate of
Villegas to pay Raquiza P200M in Damages.
Issue: WON death of Villegas extinguished
his civil liability.
Held: NO. The SC ruled in People vs
Bayotas: The survival of the civil liability
depends on whether the same can be
predicated on sources of obligation other
than delict. Stated differently, the claim for
civil liability is also extinguished together
w/ the criminal action if it were solely
based thereon.
In recovering damages for injury to
persons through an independent civil
action based on Art. 33, NCC, the same
must be filed against the executor or
administrator of the estate of deceased
accused (under Sec.1 Rule 87 ROC) & not
against the estate (under Sec. 5, Rule 86)
bec the latter rule explicitly limits the claim
to those of funeral expenses, for last
sickness, etc.
In CAB: the source of
Villegas civil liability is the felonious act of
libel. It could be deemed a quasi-delict
under Art. 33 in rel to Art. 1157, NCC. And
since both proceedings, crim & civil, were
terminated w/o final adjudication, the civil
action of the offended party under Art. 33
may yet be enforced separately.
HEIRS OF TEODORO GUARING VS. CA
269 SCRA 283 (1997)
Facts: A 3-way vehicular accident involving
Guaring (driver of a car), Cuevas (driver,
Phil Rabbit Bus), & Enriquez (driver, Toyota
car), occurred along North Expressway.
Guaring & Enriquez died. Heirs of Guaring
filed an Action for Damages based on
Quasi-Delict vs. Cuevas & his ER. RTC
found bus co. & driver Cuevas at fault, &
held them liable solidarily. CA reversed &
dismissed the complaint on the strength of
the decision by the RTC in crim case
acquitting the bus driver of reckless
imprudence resulting to damage to prop &
double homicide. That since the basis of
the petitioners action was the negligence
of the driver, the latters acquittal in the
crim case rendered the civil case on Qdelict
untenable.

301

Issue: WON acquittal of the accused carried


w/ it the extinction of the civil liability based
on Quasi-Delict.
Held: NO. As held in Tayag vs. Alcantara, a
separate civil action lies against the offender
in a criminal act, WON he is criminally
prosecuted & found guilty or acquitted,
provided that the offended party is not
allowed, if he is actually charged also
criminally, to recover damages on both, &
w/d be entitled in such eventuality only to the
bigger award of the 2. In other words, the
extinction referred to in the ROC R111 S2(b)
refers to civil liability founded on A100 of
RPC, whereas the civil liability for the same
act considered as a QD only is not
extinguished even by a declaration that the
crim act charged has not happened or has
not been committed by the accused.
It was error for CA to skip review of
the evidence in this case & instead based its
on the findings of the TC in the crim case.
This case must be decided on the basis of the
evid in the civil case; this involves a different
set of witnesses.
In the crim case, bus
driver was acquitted based on reasonable
doubt. (Such quantum of evid not applicable
to CAB w/c merely requires preponderance of
evidence.)
Balane:
Crime as a source of
obligation.-- There are many crimes fr. w/c,
civil liability arises in their commission, in
addition to the criminal penalty attached to
them. This underlines the two aspects in a
crime: one, as an offense against the state,
& two as an offense against the victim. It is
in the latter case that civil liability is
recoverable.
As far as crime is concerned, civil law
is not concerned w/ the penal liability but
only w/ the civil liab.
(not in Bavieras outline)

CHAPTER 2.-OBLIGATIONS

NATURE AND EFFECT OF

Articles 1163 - 1168 in relation to Art.


1156.

Balane:
Three types of obligations.-(1)
obligation to give; (2) obligation to do; &
(3) obligation not to do.
I. Obligation to give
A. Specific thing
B. Generic thing
II. To do
III.
Not to do (this includes all
negative obligations like obligation not to
give.)
Kinds of performance.-- (1) specific
performance (performance by the debtor
himself); (2)
substitute performance
(performance at the expense of the
debtor); (3) equivalent performance (grant
of damages.)
Articles 1163 - 1166 cover obligation to
give.
Three Accessory Obligations:
1. Art. 1163.-- To take care of the thing w/
the diligence of a good father of a family
until actual delivery.
2. Art. 1164.-- To deliver the fruits to the
creditor (fruits produced after obligation to
deliver arises.)
3. Art. 1166.-- To deliver accessions &
accessories.
Art. 1163. Every person obliged to give
something is also obliged to take care of it
w/ the proper diligence of a good father of
a family, unless the law or the stipulation of
the parties requires another standard of
care.
Art. 1164. The creditor has a right to
the fruits of the thing fr. the time the
obligation to deliver arises. However, he
shall have no real right over it until the
same has been delivered to him.

Balane:
From the time the obligation
arises, the creditor has a personal right
against the debtor as to the fruits. But he
has no real right over them until actual
delivery.
Real right is a right w/c is
enforceable against the whole world. He
has only the personal right against the
debtor w/ regard to the undelivered fruits.
This is bec. of the principle Non nudis
pactis, sed traditione, dominia rerum
transferentur."
(It is not by mere
agreement, but by delivery, is ownership
transferred.) Personal right arises fr. the
time the obligation to deliver arises
302

whereas the real right does not arise until


actual delivery.
Articles 1165 - 1167.-- Remedies Available
to the Creditor (specific performance,
substitute
performance,
equivalent
performance.)
A. In obligations to give
1. A determinate thing
a. Specific performance
b. Equivalent performance
2.
available

A generic thing, all remedies are

B. In an obligation to do, make a distinction:


Obligation to do w/c is purely personal, only
equivalent performance is available
Obligation to do w/c is not personal
a. substitute performance
b. equivalent performance
Note that in obligations to do, specific
performance is not available. The reason for
this is that specific performance will give rise
to involuntary servitude.
C. Obligation not to do
1. substitute performance
2. equivalent performance.
In all these cases, the creditor has the option
of resolution or rescission under Art. 1191. In
addition, he can also claim damages.
Art. 1165. When what is to be delivered
is a determinate thing, the creditor, in
addition to the right granted him by article
1170, may compel the debtor to make the
delivery.

Art. 1167. If a person obliged to do


something fails to do it, the same shall be
executed at his cost.
This same rule shall be observed if he
does it in contravention of the tenor of the
obligation. Furthermore, it may be decreed
that what has been poorly done be undone.
Art. 1168. When the obligation consists
in not doing & the obligor does what has
been forbidden him, it shall also be undone
at his expense.

Articles 1169 - 1174.-- Irregularity of


Performance.
Balane:
Two Classes of Irregularity of Performance:
I. Attributable to the debtor
A. Fraud
B. Negligence
C. Delay
II. Not attributable to the debtor
A. Fortuitous event.
Art. 1169. Those obliged to deliver or
to do something incur in delay fr. the time
the obligee judicially or extrajudicially
demands fr. them the fulfillment of their
obligation.
However, the demand by the creditor
shall not be necessary in order that delay
may exist:

If the thing is indeterminate or generic, he


may ask that the obligation be complied w/ at
the expense of the debtor.

(1) When the obligation or the law


expressly so declare;

If the obligor delays, or has promised to


deliver the same thing to two or more
persons who do not have the same interest,
he shall be responsible for any fortuitous
event until he has effected the delivery.

(2) When fr. the nature & 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;

Art. 1166.
The obligation to give a
determinate thing includes that of delivering
its accessions & accessories, even though
they may not have been mentioned.

(3) When demand would be useless, as


when the obligor has rendered it beyond
his power to perform.
In reciprocal obligations, neither party
incurs in delay if the other does not comply
or is not ready to comply in a proper
303

manner w/ what is incumbent upon him. From


the moment one of the parties fulfills his
obligation, delay by the other begins.

Balane:
When does delay set in?-the following manner:

Delay sets in

1. For Reciprocal simultaneous obligations.-by the readiness of one of the parties to


perform & his letting the other party know; &
the other party is not ready to comply in a
proper manner w/ what is incumbent upon
him.
2. For Reciprocal obligations w/c are not
simultaneous.-Gen. Rule:
Demand is
necessary (Art. 1169, par. 1.) This is called
mora solvendi ex persona.
Exception:
When demand is not
necessary (the exceptions are found in Art.
11 69, par. 2.) This is called mora solvendi
ex re

AGCAOILI VS. GSIS [165 S 1]


There was then a perfected contract of sale
bet. the parties; there had been a meeting
of the minds upon the purchase by Agcaoili
of a determinate house & lot in the GSIS
Housing Project at Nangka, Marikina, Rizal,
at a definite price payable in amortizations
at P31.56 per mo., & fr. the moment the
parties acquired the right to reciprocally
demand performance. It was, to be sure,
the duty of the GSIS, as seller, to deliver
the thing sold in a condition suitable for its
enjoyment by the buyer for the purpose
contemplated, in other words, to deliver
the house subject of the contract in a
reasonably livable state. This it failed to
do.
xxx

What kind of demand is necessary?-Judicial or extra-judicial

Since GSIS did not fulfill that


obligation, & was not willing to put the
house in habitable state, it cannot invoke
Agcaoili's suspension of payment of
amortization as cause to cancel the
contract bet. them. It is axiomatic that
"(i)n reciprocal obligations, neither party
incurs in delay if the other does not comply
or is not ready to comply in a proper
manner w/ what is incumbent upon him.

Exceptions:

SSS VS. MOONWALK [221 S 119]

When the obligation or the law expressly so


declare.-- when the contract says that
w/o the necessity of demand, default sets
in upon the failure of the obligor to
perform on due date. There must be
something in the contract w/c explicitly
states that the demand is not necessary
in order that delay may set in.

Requisites in order that debtor may be in


default; Necessity of demand.-- To be in
default "xxx is different fr. mere delay in
the grammatical sense, bec. it involves the
beginning of a special condition or status
w/c has its own peculiar effects or results."
In order that the debtor may be in default it
is necessary that the following requisites
be present: (1) that the obligation be
demandable & already liquidated; (2) that
the debtor delays performance; & (3) that
the creditor requires the performance
judicially or extrajudicially.
Default
generally begins fr. the moment the
creditor demands the performance of the
obligation. Nowhere in this case did it
appear that SSS demanded fr. Moonwalk
the payment of its monthly amortization.
Neither did it show that petitioner
demanded the payment of the stipulated
penalty upon the failure of Moonwalk to
meet its monthly amortization. What the
complaint itself showed was that SSS tried
to enforce the obligation sometime in Sept,
1977 by foreclosing the real estate
mortgages executed by Moonwalk in favor
of SSS. But this foreclosure did not push
through upon Moonwalk's requests &
promises to pay in full. The next demand
for payment happened on Oct. 1, 1979
when SSS issued a Statement of Account to
Moonwalk.
And in accordance w/ said
statement, Moonwalk paid its loan in full.
What is clear, therefore, is that Moonwalk
was never in default bec. SSS never
compelled performance.

When fr. the nature & 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.
Illustration: Bong Baylon is getting
married in Valentines '96. Inno Sotto was
supposed to make Ella's (the bride) wedding
gown.
Feb. 14 comes , no gown was
delivered. Ella gets married in blue jeans & Tshirt. Finally, on Feb. 15, Inno delivers the
gown. xxx Ella sues Inno for breach. Inno
says there was no demand. In this case,
demand is not necessary in order that delay
may exist.
When demand would be useless, as when the
obligor has rendered it beyond his power
to perform.-- Example is the case of
Chavez v. Gonzales, infra.
BALANE CASES:

304

Art. 1170. Those who in the performance


of their obligation are guilty of fraud,
negligence or delay, & those who in any
manner contravene the tenor thereof, are
liable for damages.

BALANE CASES:
ARRIETA VS. NARIC [10 S 79]
One who assumes a contractual obligation &
fails to perform the same on account of his
inability to meet certain bank requirements
w/c inability he knew & was aware of when
he entered into the contract, should be held
liable in damages for breach of contract.
Under Art. 1170, not only debtors guilty of
fraud, negligence or default but also every
debtor, in general, who fails the performance
of his obligation is bound to indemnify for the
losses & damages caused thereby.
Meaning of phrase "in any manner
contravene the tenor" of the obligation.-- The
phrase includes any illicit task w/c impairs the
strict & faithful fulfillment of the obligation, or
every kind of defective performance.
Balane: This phrase is a catch-all provision.
At worst, it is a superfluity. At best, there is a
safety net just in case there is a culpable
irregularity of performance w/c is not covered
by fraud, negligence or delay. In this case,
the SC was apparently not sure as to what
category the breach fell. This phrase is not
really an independent ground.
TELEFAST VS. CASTRO [158 s 445] - In
the case at bar, petitioner & private
respondent Sofia C. Crouch entered into a
contract whereby, for a fee, petitioner
undertook to send said private respondent's
message overseas by telegram.
This,
petitioner did not do, despite performance by
said pvt. resp. of her obligation by paying the
required charges. Petitioner was therefore
guilty of contravening its obligation to said
private respondent & is thus liable for
damages.
NPC VS. CA [161 S 334] - NPC cannot
escape liability bec. its negligence was the
proximate cause of the loss & damage even
though the typhoon was an act of God.-- It is
clear fr. the appellate court's decision that
based on its findings of fact & that of the trial
court's, petitioner NPC was undoubtedly
negligent bec. it opened the spillway gates of

the Angat Dam only at the height of


typhoon "Welming" when it knew very well
that it was safer to have opened the same
gradually & earlier, as it was also
undeniable that NPC knew of the coming of
the typhoon at least 4 days bef. it actually
struck. And even though the typhoon was
an act of God or what we may call force
majeure, NPC cannot escape liability bec.
its negligence was the proximate cause of
the loss & damage. As we have said in
Juan Nakpil & Sons vs. CA, 144 SCRA 596,
Thus, if upon the happening of a fortuitous
event or an act of God, there concurs a
corresponding fraud, negligence, delay or
violation or contravention in any manner of
the tenor of the obligation as provided for
in Art. 1170, w/c results in a loss or
damage, the obligor cannot escape liability.
The principle embodied in the act of God
doctrine strictly requires that the act must
be one occasioned exclusively by the
violence of nature & human agencies are
to be excluded fr. creating or entering into
the cause of the mischief. When the effect,
the cause of w/c is to be considered, is
found to be in part the result of the
participation of man, whether it be fr.
active intervention or neglect, or failure to
act, the whole occurrence is thereby
humanized, as it was, & removed fr. the
rules applicable to the acts of God. Thus, it
has been held that when the negligence of
a person concurs w/ an act of God in
producing a loss, such person is not
exempt fr. liability by showing that the
immediate cause of the damage was the
act of God. To be exempt fr. liability for
loss bec. of an act of God, he must be free
fr. any previous negligence or misconduct
by w/c the loss or damage may have been
occasioned.
RCPI VS. RODRIGUEZ [182 S 889] Resp. Rodriguez & RCPI entered into a
contract whereby for a fee RCPI undertook
to send the respondent's message
overseas. When, therefore, resp. Rodriguez
paid RCPI to deliver his message overseas
by telegram, RCPI obligated itself to
transmit the messages to the addressee.
Clearly, RCPI reneged on its obligation
when it failed to deliver the messages or to
inform the sender about the non-delivery,
thus making it liable for damages.
Fraud
Balane: Is it correct to say that fraud in
Art. 1170 means deceit or insidious
machinations? No.
LEGASPI OIL VS. CA [224 S 213] Definition of Fraud.-- In general, fraud may
be defined as the voluntary execution of a
wrongful act, or willful omission, knowing &
305

intending the effects w/c naturally &


necessarily arise fr. such act or omission; the
fraud referred to in Art. 1170 is the deliberate
& intentional evasion of the normal
fulfillment of obligation; it is distinguished fr.
negligence by the presence of deliberate
intent, w/c is lacking in the latter.
Balane:
Fraud as used in Art. 1170 is different fr. fraud
as a cause for vitiation of consent in
contracts (more properly called deceit w/c
prevents the contract fr. arising; this is found
in Art. 1380, et seq.)
Q: What is a synonym for fraud as used in
Art. 1170?
A: Malice.
Effects of Fraud:
Creditor may insist on performance, specific
or substitute (Art. 1233.)
2. Creditor may resolve/ rescind (Art. 1191.)
3. Damages in either case (Art. 1170.)
Negligence
Negligence is the absence of something
that should be there-- due diligence.
Delay
Delay is the non-fulfillment of the obligation
w/ respect to time.
Kinds of Delay:
1. Mora Solvendi -- delay in the performance
(on the part of the debtor);
2.
Mora Accipiendi -delay in the
acceptance (on the part of the creditor);
3. Compensation Morae -- mutual delay
Art. 1171. Responsibility arising fr. fraud
is demandable in all obligations. Any waiver
of an action for future fraud is void.
Art. 1172.
Responsibility arising fr.
negligence in the performance of every kind
of obligation is also demandable, but such
liability shall may be regulated by the courts,
according to the circumstances.

was rectified only on 4/15/82 or nine days


after receipt of the credit memo. Clearly,
petitioner bank was remiss in its duty &
obligation to treat pvt. resp's account w/
the highest degree of care, considering the
fiduciary nature of the relationship. The
bank is under obligation to treat the
accounts of its depositors w/ meticulous
care, whether such account consists only of
a few hundred pesos or of millions. It must
bear the blame for failing to discover the
mistake of its employee despite the
established procedure requiring bank
papers to pass through bank personnel
whose duty it is to check & countercheck
them for possible errors. Responsibility
arising fr. negligence in the performance of
every kind of obligation is demandable.
BACK TO MAAM BAVIERA:
II. Diligence required

Art. 1173. The fault or negligence of


the obligor consists in the omission of that
diligence w/c is required by the nature of
the obligation & corresponds w/ the
circumstances of the persons, of the time &
of the place. When negligence shows bad
faith, the provisions of articles 1171 &
2201, paragraph 2, shall apply.
Art. 1171.
Responsibility arising fr.
fraud is demandable in all obligations. Any
waiver of an action for future fraud is void.
Art. 2201. xxx
(2) In contracts & quasi-contracts, the
damages for w/c the obligor who acted in
good faith is liable shall be those that are
the natural & probable consequences of
the breach of the obligation, & w/c the
parties have foreseen or could have
reasonably foreseen at the time the obligation was constituted.
In case of fraud, bad faith, malice or
wanton attitude, the obligor shall be
responsible for all damages w/c may be
reasonably
attributed
to
the
nonperformance of the obligation.

BALANE CASE:
Balane:
METROBANK VS. CA [237 S 761] - As
borne out by the records, the dishonoring of
the resp.'s checks committed through
negligence by the petitioner bank on 4/6/82

Negligence is the absence of something


that should be there-- diligence.
306

Negligence is covered by Articles 1170, 1172


& 1173
Measure of Due Diligence.-two guides:

There are

Diligence demanded by circumstances of


person, place & time
Care required of a good father of a family
(fictional bonus pater familias who was
the embodiment of care, caution &
protection in Roman law.)
In common law, the degree of care required is
the diligence of a prudent businessman. This
is actually the same as the diligence of a
good father of a family.
Effects of Negligence:
Creditor may insist on performance, specific
or substitute (Art. 1233.)
Creditor may resolve/ rescind (Art. 1191.)
Damages in either case (Art. 1170.)

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 by strangers; but
not that w/c may proceed fr. any force
majeure. The fact that travelers 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.

NOTES:
Q: Why are the innkeepers held liable
under Art. 2000?
A: Because travelers are constrained to
rely on their VIGILANCE.

BALANE CASE:
JIMENEZ VS. CITY OF MANILA [150 S 510]
- City of Mla. failed to exercise the diligence
of a good father of a family w/c is a defense
in quasi-delict.-- As a defense against liability
on the basis of quasi-delict, one must have
exercised the diligence of a good father of a
family. There is no argument that it is the
duty of the City of Mla. to exercise reasonable
care to keep the public market reasonably
safe for people frequenting the place for their
marketing needs. While it may be conceded
that the fulfillment of such duties is
extremely difficult during storms & floods, it
must, however, be admitted that ordinary
precautions could have been taken during
good weather to minimize the dangers to life
& limb under those difficult circumstances.
For instance, the drainage hole could have
been placed under the stalls instead of on the
passage ways. Even more important is the
fact, that the City should have seen to it that
the openings were covered.
Sadly, the
evidence indicates that long before petitioner
fell into the opening, it was already
uncovered, & 5 mos. after the incident
happened, the opening was still uncovered.
Moreover, while there are findings that during
floods the vendors remove the iron grills to
hasten the flow of water, there is no showing
that such practice has ever been prohibited,
much less penalized by the City of Mla.
Neither was it shown that any sign had been
placed thereabouts to warn passers-by of the
impending danger.
Extraordinary diligence required

Art. 2001. The act of a thief or robber,


who has entered the hotel is not deemed
force majeure, unless it is done w/ the use
of arms or through an irresistible force.

B. Common Carriers

Art. 1733. Common carriers, fr. the


nature of their business & for reasons of
public policy, are bound to observe
extraordinary diligence in the vigilance
over the goods & for the safety of the
passengers transported by them, according
to all the circumstances of each case.
Such extraordinary diligence in the
vigilance over the goods is further
expressed in articles 1734, 1735, & 1745,
Nos. 5, 6, & 7, while the extraordinary
diligence for the safety of passengers is
further set forth in articles 1755 & 1756.
Art. 1734.
Common carriers are
responsible for the loss, destruction, or
deterioration of the goods, unless the same
is due to any of the following causes only:
(1) Flood, storm, earthquake, lightning,
or other natural disaster or calamity;
(2) Act of the public enemy in war,
whether international or civil;

A. Innkeeper
307

(3) Act or omission of the shipper or


owner of the goods;
(4) The character of the goods or defects
in the packing or in the containers;
(5) Order or act of competent public
authority.

C. Lessee of Agricultural land

Art. 1680. The lessee shall have no right


to a reduction of the rent on account of the
sterility of the land leased, or by reason of
the loss of fruits due to ordinary fortuitous
events; but he shall have such right in case of
loss of more than one-half of the fruits
through
extraordinary
&
unforeseen
fortuitous events, save always when there is
a specific stipulation to the contrary.

Held: NO. To constitute a caso fortuito


that w/d exempt a person fr. responsibility,
it is necessary that
the event must be independent of human
will;
the occurrence must render it impossible
for the debtor to fulfill the obligation in
a normal manner;
that the obligor must be free of
participation in, or aggravation of, the
injury to the creditor.

Art. 1174.
Except in cases expressly
specified by law, or when it otherwise
declared by stipulation, or when the nature of
the obligation requires the assumption of risk,
no person shall be responsible for those
events w/c could not be foreseen, or w/c
,though foreseen, were inevitable.

To avail of the exemption granted by


the law, it is not necessary that the persons
responsible for the occurrence should be
found or punished; it shld only be sufficient
to establish that the unforeseeable event,
the robbery in CAB, did take place w/o any
concurrent fault on the debtors part, & this
can be done through preponderance of
evidence. To require prior conviction of the
culprits in order to establish the robbery as
a fact w/d be to demand proof beyond
reasonable doubt to prove a fact in a civil
case.
I is undeniable that in order to
completely exonerate the debtor for reason
of fortuitous event, such debtor must, in
addition to the casus itself, be free fr. any
concurrent
or contributory
fault
or
negligence.
It is clear that under the
circumstances prevailing at present in the
City of Manila, the conduct of Abad in
returning alone to her house in the evening
carrying jewelry of considerable value, w/d
be negligence per se, & w/d not exempt
her fr. responsibility in case of robbery.
However, the same rule w/d not be
applicable ten years previously, or in 1961,
for at that time, criminality had not by far
reached the levels attained in the present
day.

AUSTRIA VS. ABAD JUNE 10, 1971

Balane:

Facts: While walking home one night, Maria


Abad was accosted by 2 men who hit her in
the face & snatched her purse. Inside her
purse was a pendant w/ diamond w/c she
received fr. plaintiff Austria to be sold on
commission basis. Austria filed a civil case
for recovery of the pendant or its value vs.
Abad.

General Rule:
The happening of a
fortuitous event exonerates the debtor fr.
liability.

Extraordinary
fortuitous
events
are
understood to be: fire, war, pestilence,
unusual flood, locusts, earthquake, or others
w/c are uncommon, & w/c the contracting
parties could not have reasonably foreseen.

Q: Bandits stole fish in a leased fishpond.


Lessee entitled to reduction of lease?
III. Loss due to Fortuitous Events

Issue: WON Abad can be held liable for the


pendant or its value.

Exceptions:
When the law so specifies.-- e.g., if the
debtor is already in delay (Art. 1165,
par. 3.)
When the parties so agree
When the nature of the obligation requires
the assumption of risk, e.g., an
insurance contract.
308

BALANE CASES:
NAKPIL & SONS VS. CA [144 S 596] Requisites for exemption fr. liability due to an
"act of God."-- To exempt the obligor fr.
liability under Art. 1174, for a breach of an
obligation due to an "act of God," the
following must concur:
the cause of the breach of the obligation
must be independent of the will of the
debtor;
the event must be either unforeseeable or
unavoidable; (c) the event must be such
as to render it impossible for the debtor
to fulfill his obligation in a normal manner;
&
the debtor must be fee fr. any participation
in, or aggravation of the injury to the
creditor.
Balane: Some of the elements were present
in this case. What was absent was the last
element.
NAKPIL & SONS VS. CA [160 S 334] "One who negligently creates a dangerous
condition cannot escape liability for the
natural & probable consequences thereof,
although the act of a third person, or an act
of God for w/c he is not responsible,
intervenes to precipitate the loss." (citing
Tucker v. Milan, 49 OG 4379, 4380.)
QUISUMBING VS. CA [189 S 605] - PAL's
failure to take certain steps that a certain
passenger in hindsight believes should have
been taken is not the negligence or
misconduct w/c mingles w/ force majeure as
an active & cooperative cause.-- A careful
analysis of the record in relation to the
memoranda & other pleadings of the parties,
convinces this Court of the correctness of the
essential conclusion of both the trial &
appellate courts that the evidence does
indeed fail to prove any want of diligence on
the part of PAL, or that, more specifically, it
had failed to comply w/ applicable
regulations, or universally accepted &
observed procedures to preclude hijacking; &
that the particular acts singled out by the
petitioners as supposedly demonstrative of
negligence were, in the light of the
circumstances of the case, not in truth
negligent acts "sufficient to overcome the
force majeure nature of the armed robbery."
The Court quite agrees, too, w/ the Appellate
Tribunal's wry observation that PAL's failure to
take certain steps that a passenger in
hindsight believes should have been taken is
not the negligence or misconduct w/c
mingles w/ force majeure as an active &
cooperative cause."
BACHELOR EXPRESS VS. CA [188 S 216] The running amuck of the passenger was the
proximate cause of the incident as it

triggered off a commotion & panic among


the passengers such that the passengers
started running to the sole exit shoving
each other resulting in the falling off the
bus by passengers Beter & Rautraut
causing them fatal injuries w/c killed them.
The sudden act of the passenger who
stabbed another passenger in the bus is
w/in the context of force majeure.
However, in order that a common carrier
may be absolved fr. liability in case of force
majeure, it is not enough that the accident
was caused by force majeure.
The
common carrier must still prove that it was
not negligent in causing the injuries
resulting fr. such accident.
Considering the factual findings of the CA-the bus driver did not immediately stop the
bus at the height of the commotion; the
bus was speeding fr. a full stop; the victims
fell fr. the bus door when it was opened or
gave way while the bus was still running;
the conductor panicked & blew his whistle
after people had already fallen off the bus;
& the bus was not properly equipped w/
doors in accordance w/ law-- it is clear that
petitioners have failed to overcome the
presumption of fault & negligence found in
the law governing common carriers.
The petitioner's argument that the
petitioners "are not insurers of their
passengers" deserves no merit in view of
the failure of the petitioners to prove that
the deaths of the 2 passengers were
exclusively due to force majeure & not to
the failure of the petitioners to observe
extraordinary diligence in transporting
safely the passengers to their destination
as warranted by law.
NPC VS. CA [222 S 415] - Petitioners
cannot be heard to invoke the act of God or
force majeure to escape liability for the loss
or damage sustained by the pvt.
respondents since they, the petitioners,
were guilty of negligence. The event then
was not occasioned exclusively by an act of
God or force majeure; a human factor-negligence
or
imprudence-had
intervened. The effect then of the force
majeure in question may be deemed to
have, even if only partly, resulted fr. the
participation of man.
Thus, the whole
occurrence was thereby humanized, as it
were, & removed fr. the rules applicable to
acts of God.
SIA VS. CA
[222 S 24]
SBTC's
negligence aggravated the injury or
damage to the petitioner w/c resulted fr.
the loss or injury or damage to the
petitioner w/c resulted fr. the loss or
destruction of the stamp collection. SBTC
was aware of the floods of 1985 & 1986; it
also knew that the floodwaters inundated
the room where Safe Deposit Box No. 54
was located. In view thereof, it should
have lost no time in notifying the petitioner
309

in order that the box could have been opted


to retrieve the stamps, thus saving the same
fr. further deterioration & loss.
In this
respect, it failed to exercise the reasonable
care & prudence expected of a good father of
a family, thereby becoming a party to the
aggravation of the injury or loss. Accordingly,
the aforementioned fourth characteristic (the
debtor must be fee fr. any participation in, or
aggravation of the injury to the creditor) of a
fortuitous event is absent. xxx
NPC VS. CA [223 S 649] - Petitioners have
raised the same issues & defenses as in the 2
other decided cases therein mentioned.
Predictably therefore, this petition must
perforce be dismissed bec. the losses &
damages sustained by the private resp.'s had
been proximately caused by the negligence
of the petitioners, although the typhoon w/c
preceded the flooding could be considered as
a force majeure.
A. Exceptions
Express Provision of
Law
Depositary

Art. 1979. The depositary is liable for the


loss of the thing through a fortuitous event:
(1) If it is so stipulated;
(2) If he uses the thing w/o the depositor's
permission;
(3) If he delays its return;
(4) If he allows others to use it, even
though he himself may have been authorized
to use the same.

NOTES:
Q: What if a depositor was in the premises of
the bank & was robbed of his money w/c he
was about to deposit?
A: Bank cannot be held liable for fortuitous
event (robbery) esp in CAB where the money
has not yet been actually deposited.
Art. 1979 provides for instances wherein
depositary is still liable even in cases of
fortuitous event.
Q: What kind of diligence is required of a
depositary?
A: Ordinary Diligence.
*Safety Deposit Box: If the jewelry inside a
SDB was stolen, rules on deposit will not

apply bec. the contract governing the


transaction is LEASE of safety deposit box.
Bailee in commodatum

Art. 1942. The bailee is liable for the


loss of the thing, even if it should be
through a fortuitous event:
(1) If he devotes the thing to any
purpose different fr. that for w/c it has been
loaned;
(2) If he keeps it longer than the period
stipulated, or after the accomplishment of
the use for w/c the commodatum has been
constituted;
If the thing loaned has been delivered
w/ appraisal of its value, unless there is a
stipulation exempting the bailee fr.
responsibility in case of a fortuitous event;
If he lends or leases the thing to a third
person, who is not a member of his
household;
(5) If, being able to save either the
thing borrowed or his own thing, he
chooses to save the latter.

Negotiorum Gestio

Art. 2147. The officious manager shall


be liable for any fortuitous event:
(1) If he undertakes risky operations w/c
the owner was not accustomed to embark
upon;
(2) If he has preferred his own interest
to that of the owner;
(3) If he fails to return the property or
business after demand by the owner;
(4) If he assumed the management in
bad faith.
Art.
2148.
Except
when
the
management was assumed to save the
property or business fr. imminent danger,
the officious manager shall be liable for
fortuitous events:
(1) If he is manifestly unfit to carry on
the management;
(2) If by his intervention he prevented a
more competent person fr. taking up the
management.

310

Payee in Solutio Indebiti

Art. 2159. Whoever in bad faith accepts


an undue payment, shall pay legal interest if
a sum of money is involved, or shall be liable
for fruits received or w/c should have been
received if the thing produces fruits.
He shall furthermore be answerable for
any loss or impairment of the thing fr. any
cause, & for damages to the person who
delivered the thing, until it is recovered.

Lessee

Art. 1648. Every lease of real estate may


be recorded in the Registry of Property.
Unless a lease is recorded, it shall not be
binding upon third persons.
Art. 1671.
If the lessee continues
enjoying the thing after the expiration of the
contract, over the lessor's objection, the
former shall be subject to the responsibilities
of a possessor in bad faith.
Art. 552. xxx.
A possessor in bad faith shall be liable
for deterioration or loss in every case, even if
caused by a fortuitous event.

Independent Contractor

Art. 1727. The contractor is responsible


for the work done by persons employed by
him.
Art. 1728. The contractor is liable for all
the claims of laborers & others employed by
him, & of third persons for death or physical
injuries during the construction.

Common Carrier

Art. 1763.
A common carrier
responsible for injuries suffered by
passenger on account of the willful acts
negligence of other passengers or

is
a
or
of

strangers,
if
the
common
carrier's
employees through the exercise of the
diligence of a good father of a family could
have prevented or stopped the act or
omission.

2. Mora or default
a. Mora solvendi
- delay on the part of debtor to fulfill his
obligation to give or to do.
Art. 1165. xxx. If the obligor delays,
or has promised to deliver the same thing
to two or more persons who do not have
the same interest, he shall be responsible
for any fortuitous event until he has
effected the delivery.
Art. 1169. Those obliged to deliver or
to do something incur in delay fr. the time
the obligee judicially or extrajudicially
demands fr. them the fulfillment of their
obligation.
However, the demand by the creditor
shall not be necessary in order that delay
may exist:
(1) When the obligation or the law
expressly so declare;
(2) When fr. the nature & 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;
(3) When demand would be useless, as
when the obligor has rendered it beyond
his power to perform.
In reciprocal obligations, neither party
incurs in delay if the other does not comply
or is not ready to comply in a proper
manner w/ what is incumbent upon him.
From the moment one of the parties fulfills
his obligation, delay by the other begins.
(Compensatio Morae)
Art. 552. Xxx A possessor in bad faith
shall be liable for deterioration or loss in
every case, even if caused by a fortuitous
event.

311

monthly payments. During pendency of


case filed by V, fire razed the properties.

b. Mora accipiendi
- delay on the part of the creditor to accept
performance of the obligation.
Art. 1718.
The contractor who has
undertaken to put only his work or skill,
cannot claim any compensation if the work
should be destroyed before its delivery,
unless there has been delay in receiving it, or
if the destruction was caused by the poor
quality of the material, provided this fact was
communicated in due time to the owner. If
the material is lost through a fortuitous
event, the contract is extinguished.
Art. 1504. Unless otherwise agreed, the
goods remain at the seller's risk until the
ownership therein is transferred to the buyer,
but when the ownership therein is transferred
to the buyer the goods are at the buyer's risk
whether actual delivery has been made or
not, except that:
(1) Where delivery of the goods has been
made to the buyer or to a bailee for the
buyer, in pursuance of the contract & the
ownership in the goods has been retained by
the seller merely to secure performance by
the buyer of his obligations under the
contract, the goods are at the buyer's risk fr.
the time of such delivery;
(2) Where actual delivery has been
delayed through the fault of either the buyer
or seller the goods are at the risk of the party
in fault.

Issues:
WON MMC liable for rent during Jap pd.
(NO.)
WON MMC was in default in payment of
rent, & therefore liable for destruction
of the bldgs. (NO.)
Held: Under the first par. of A1560, lessor
does not answer for a mere act of trespass
as disting. fr. trespass under color of title in
w/c lessor bears liability. In CAB, ouster of
the Jap forces belongs to the 2nd class of
disturbances--under color of title, & thus,
the lessor-pltffs. bear the burden.
For
under the generally accepted prin of IL, a
belligerent occupant may legitimately billet
or qtr. its troops in privately owned land or
bldgs. for the duration of the occupation.
The
lessors
insistence
upon
collecting Jap occupation rentals was
unwarranted in law. Hence, their refusal to
accept the current rental w/o qualification
placed them in default (mora accipiendi) w/
the result that thereafter, they had to bear
all supervening risks of accidental injury or
destruction of the leased premises. While
not expressly stated by the Code of 1889,
this result is clearly inferable fr. the nature
& effects of mora & Arts. 1185, 1452(3) &
1589. That the lessee did not consign
rentals in court did not render debtor liable
for default nor answerable for fortuitous
event.
3. Express agreement

VILLARUEL VS. MANILA MOTOR CO.


O.G. NO. 18

56

Facts: Pltf. Villaruel & def. Manila Motor


entered into a contract whereby Villaruel w/d
lease real prop to MMC for 5 years. The
Japanese came & occupied the real prop as
part of their quarters. The Japs paid no rent.
Upon liberation, Americans occupied the
bldgs. on the prop & paid rent. When the G.I.
Joes left, MMC exercised its option to renew
lease for another 5 years. MMC sublet the
prop to one Colmenares.
Consequently,
Villaruel sought rescission of the K of Lease,
& demanded payment by MMC of rentals
during the time same was held by the Japs
(1942-1945). V refused to accept MMCs

Art. 1306. The contracting parties may


establish such stipulations, clauses, terms
& conditions as they may
deem
convenient, provided they are not contrary
to law, morals, good customs, public order,
or public policy.

4. Aleatory Contract

Art. 2010. By an aleatory contract, one


of the parties or both reciprocally bind
themselves to give or to do something in
consideration of what the other shall give
312

or do upon the happening of an event w/c is


uncertain, or w/c is to occur at an
indeterminate time.

accion
subrogatoria,
wherein
the
creditor is subrogated in the rights of
the debtor.
Accion pauliana (Articles 1387-89).-- This
is the right of creditors to set aside
fraudulent transfers w/c the debtor
made so much of it as is necessary to
pay the debts.

(not in Baviera's outline)

Art. 1175. Usurious transactions shall be


governed by special laws.

Tolentino:

Art. 1178. Subject to the laws, all rights


acquired in virtue of an obligation are
transmissible, if there has been no
stipulation to the contrary.

Usury.-Usury is the contracting for or


receiving something in excess of the amount
allowed by law for the loan or forbearance or
money, goods or chattels.

CHAPTER 3.-OBLIGATIONS

Special law on usury.-- The Usury Law was


Act No. 2655. This law was repealed during
the period of martial law, leaving parties free
to stipulate higher rates.

Section 1.-Obligations

DIFFERENT KINDS OF
Pure

&

Conditional

Balane:
Art. 1176. The receipt of the principal by
the creditor w/o reservation w/ respect to the
interest shall give rise to the presumption
that said interest has been paid.

Articles 1179 - 1230.-- The trouble w/ the


classification is that there is no system.

The receipt of a later installment of a debt


w/o reservation as to prior installments, shall
likewise raise the presumption that such
installments have been paid.

1.. According to criteria of demandability:


a. Pure
b. Conditional
c. W/ a term

Art. 1177. The creditors, after having


pursued the property in possession of the
debtor to satisfy their claims, may exercise all
the rights & bring all the actions of the latter
for the same purpose, save those w/c are
inherent in his person; they may also impugn
the acts w/c the debtor may have done to
defraud them.

Balane:
Against what
performance?

can

the

obligee

demand

Against non-exempt properties of the


debtor.-- The debtor is liable w/ all his
property, present & future, for the
fulfillment of his obligations, subject to
the exemptions provided by law. (Art.
2236.)
If number one is not enough, the creditor
goes to any claims w/c the debtor may
have against third persons. This is called

Classification of Obligations:

2. According to plurality of objects:


a. Single
b. Alternative
c. Facultative
3. According to Plurality of subjects:
a. Joint
b. Solidary
4. According to Performance:
a. Divisible
b. Indivisible
5. According to Sanctions for Breach:
a. Simple
b. W/ a penal clause

Different Types of Civil


Obligations
As to Criteria of
Demandability
1. Pure Obligation.-313

A pure obligation is one w/c is not subject to a


condition or a term.
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.
Every obligation w/c contains a resolutory
condition shall also be demandable, w/o
prejudice to the effects of the happening of
the event.

BALANE CASE:
PAY V. PALANCA [57 SCRA 618] - From the
manner in w/c the P/N was executed, it would
appear that petitioner was hopeful that the
satisfaction of his credit could be realized
either through the debtor sued receiving cash
payment fr. the estate of the late Carlos
Palanca presumptively as one of the heirs, or,
as expressed therein, "upon demand." There
is nothing in the record that would indicate
whether or not the first alternative was
fulfilled.
What is undeniable is that on
8/26/67, more than 15 yrs. after the
execution of the P/N on 1/30/52, this petition
was filed.
The defense interposed was
prescription. Its merit is rather obvious. Art.
1179, par. 1 says so. xxx
The obligation being due & demandable, it
would appear that the filing of the suit after
15 yrs. was much too late.
B. Conditional Obligations

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 w/c constitutes the condition.

Balane: A condition is a future & uncertain


event upon w/c an obligation or provision is
made to depend. xxx Futurity & uncertainty
must concur as characteristics of the event.
(IV Tolentino.)
A past thing can never be a condition.
A condition is always future & uncertain.
Past event unknown to the
parties.-- It is really the knowledge of the

event w/c constitutes the future. It is the


knowledge w/c is future & uncertain. For
example, when I say " I will treat you for
lunch if you get the highest score in the
Civil Law Final Exams (on the assumption
that Prof. Balane has already finished
checking the papers.)" Here, the event
(getting the highest score) is already a past
event, yet the knowledge is future &
uncertain.
Condition compared to a term.-As to element of futurity, condition &
element are the same. They differ in the
aspect of certainty-a condition is
uncertain whereas a term is certain.
Conditions can either be:
Suspensive
condition
(condition
precedent) wherein the happening of
the event gives birth to an obligation
Resolutory
condition
(condition
subsequent) wherein the happening
of the event will extinguish the
obligation.
1. Distinguished fr. term or
period

Art. 1193.
Obligations for whose
fulfillment a day certain has been fixed,
shall be demandable only when that day
comes.
Obligations w/ a resolutory period take
effect at once, but terminate upon arrival of
the day certain.
A day certain is understood to be that
w/c 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, & it shall be regulated by the
rules of the preceding Section.

Balane:
A term is a future and certain
event upon w/c the demandability (or
extinguishment) of an obligation depends.
A term or period is an interval of
time, w/c, exerting an influence on an
obligation as a consequence of a juridical
act, either suspends its demandability or
produces its extinguishment. (Manresa.)
A term can either be:
1. suspensive condition (ex die -- fr. the
day) or one the arrival of w/c will make the
obligation demandable
314

2. resolutory condition (in die -- into the day)


or one the arrival of w/c will extinguish the
obligation.
2. Kinds of Conditional
Obligations
a. Condition precedent
(Suspensive Condition)

Art. 1187. 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 &
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 & interests received, unless fr. the
nature & circumstances of the obligation it
should be inferred that the intention of the
person constituting the same was different.
In obligations to do & not to do, the courts
shall determine, in each case, the retroactive
effect of the condition that has been
complied w/.

Balane:
This article refers to suspensive condition.
This article sets forth the rule of retroactivity
in an obligation to give. This rule is logical
but impractical. Many modern Civil Codes
have discarded it.
No Retroactivity as to the Fruits.-Notice that there is no retroactivity w/ respect
to the fruits. The fruits are deemed to cancel
out each other. If only one of the thing
produces fruits, there is no obligation to
deliver the fruits.
(ii) Condition subsequent
(Resolutory Condition)

Art. 1190. When the conditions have for


their purpose the extinguishment of an
obligation to give, the parties, upon the
fulfillment of said conditions, shall return to
each other what they have received.

In case of the loss, deterioration or


improvement of the thing, the provisions
w/c, w/ respect to the debtor, are laid down
in the preceding article shall be applied to
the party who is bound to return.
As for obligations to do & 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.
Art. 1187. Xxx In obligations to do &
not to do, the courts shall determine, in
each case, the retroactive effect of the
condition that has been complied w/.

Balane: Art. 1190 refers to resolutory


conditions. This is just the opposite of Art.
1189.
3. Kinds of conditions

Art. 1182. When the fulfillment of the


condition depends upon the sole will of the
debtor, the conditional obligation shall be
void. If it depends upon chance or upon the
will of a third person, the obligation shall
take effect in conformity w/ the provisions
of this Code.

TIBLE VS. AQUINO


(1975)

65 SCRA 207

Facts: Petr. Amelia Tible was appointed


administratrix of the estate of Cong. Emilio
Tible. Notice to creditors of the settlement
of estate was made. PR Jose Aquino filed a
claim for P30T w/c was opposed by Petr.
Tible.
Accdg to Aquino, Cong. T borrowed
P50T fr. him w/c money T used to buy As
timber concession.
Total price of
concession was P107T.
At time of Ts
death, latter still owed A P30T as evid by
PNs.
Accdg to Tible: Timberland of A was
ceded for P50T w/c Tible had already paid.
Then A convinced T to increase price to
P80T, to w/c Tible agreed, & issued PN for,
on the condition that payment of the
balance (P30T) would depend upon the
315

operation of the timberland. Moreover, A


cont to borrow money fr. T w/c at the end
amounted to P54T.
TC ruled for Amelia Tible.
Aquino.
Issue:
valid?

CA for

WON condition imposed by Tible

Held: NO. The condition that payment of


the amount embodied in the PNs issued by
Tible shall be dependent upon the operation
by Tible of the forest concession acquired fr.
Aquino is a VOID conditional obligation since
its fulfillment is made to depend upon the
exclusive will of the debtor. SC gave more
credence to Aquinos version on the basis of
factual evidence.
There was no novation in CAB. Mere
extension of payment & addition of another
obli not incompatible w/ the old one is not a
novation thereof.
NOTES:
Q: Debtor: Ill give you a horse when I feel
like it.
A: Void. Dependent upon will of debtor.
Q: Ill pay the P500 I owe you when I feel like
it.
A: Void time of performance (when I feel like
it) of the obli. But obli to pay still valid as a
pre-existing obligation.
Balane: We are talking here of a suspensive
condition.
First sentence of Art. 1182.-The
condition must be suspensive, potestative &
depends on the sole will of the debtor. E.g., "I
promise to sell you my car for P1.00
whenever I like."
Q: Why does it make the obligation void?
A: Bec. such an obligation lacks one of the
essential elements of an obligation, the
vinculum juris, the binding force-- the means
by w/c it is enforceable in court. In this case,
there is no binding force.
There is no
obligation. It is a joke.
Potestative Condition is one w/c
depends solely on the will of either one party.
E.g., " I will give you my plantation in Davao
provided you reside in Davao permanently."

Casual Condition is one where the


condition is made to depend upon a third
person or upon chance. E.g., "I will give
you my land in Floridablanca if Mt. Pinatubo
erupts this year."
Mixed Condition is one w/c
depends partly upon the will of one of the
parties & partly on either chance or the will
of a third person.
Q: What if the condition is suspensive,
potestative & depends solely on the will of
the creditor, is the conditional obligation
valid?
A: Yes. In fact, the obligation is not even a
condition obligation. It is a pure obligation,
binding at once.
BALANE CASE:
SMITH BELL V. SOTELO MATTI [44 P
874]
Where the fulfillment of the
condition does not depend on the will of
the obligor, but on that of a 3rd person who
can, in no way be compelled to carry it out,
the obligor's part of the contract is
complied w/, if he does all that is in his
power, & it then becomes incumbent upon
the other contracting party to comply w/
the terms of the contract.
(not in Baviera's outline)

Art. 1183. Impossible conditions, those


contrary to good customs or public policy &
those prohibited by law shall annul the
obligation w/c depends upon them. If the
obligation is divisible, that part thereof w/c
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.

Balane:
This refers to a suspensive condition.
There are
conditions:

classes

of

impossible

Impossible in fact, e.g., "I promise to sell


my car to Mr. M for P2 if he can swim
across the Pacific Ocean for 2 hours."
Impossible in law or one w/c attaches an
illegal condition, e.g., "I promise to sell
316

my car to Mr. M for P2 on condition that


he burns the College of Law."
Effect of Impossible Condition.-It
annuls the obligation w/c depends upon
them. The entire juridical tie is tainted by the
impossible condition.
Correlate this w/
Articles 727 & 873.
Art. 727. Illegal or impossible conditions
in simple & remuneratory donations shall be
considered as not imposed.
Art. 873. Impossible conditions & those
contrary to law or good customs shall be
considered as not imposed & shall in no
manner prejudice the heir, even if the
testator should otherwise provide.

According to Tolentino: In contracts,


an impossible condition annuls the contract.
In gratuitous dispositions, the impossible
condition is simply disregarded.
The first statement is inaccurate bec.
donation is a contract & in a donation, the
impossible condition does not annul the
contract.
It is simply disregarded.
The
proper way to say it is that: In an onerous
transaction, an impossible condition annuls
the condition obligation.
In a gratuitous
disposition, as in a donation or testamentary
disposition, an impossible condition attached
to the disposition is simply considered as not
imposed.

A condition not to do an illegal thing


(negative)-This is not expressly
provided for in the provision but is
implied. The obligation is valid. E.g. "I
will sell you a piece of land provided
you do not plant marijuana on it."
Art. 1184. The condition that some
event will not happen at a determinate
time shall extinguish the obligation as soon
as the time expires or if it has become
indubitable that the event will not take
place.

Balane: This article refers to suspensive


conditions. If the condition is resolutory,
the effect is the opposite.
Art. 1185. The condition that some
even will not happen at a determinate time
shall render the obligation effective fr. the
moment the time indicated has elapsed, or
if it has become evident that the event
cannot occur.
If no time has been fixed, the condition
shall be deemed fulfilled at such time as
may have probably been contemplated,
bearing in mind the nature of the
obligation.

Q: Why is there a difference?

Balane: This article refers to a suspensive


condition.

A:
Bec. in a donation as well as in a
testamentary disposition, the causa or
consideration is the liberality of the donor or
testator, as the case may be. Even if you
take away the impossible condition, there is
still a reason for the disposition to exist-liberality. They (donation & testamentary
disposition) have both their underpinnings,
liberality.

Art. 1186.
The condition shall be
deemed
fulfilled
when
the
obligor
voluntarily prevents its fulfillment.

But in an onerous transaction, since


an onerous prestation w/c is reciprocal
requires concomitant performances, that
impossible condition becomes part of the
causa.
Therefore, if the condition is
impossible, there is failure of causa. In no
causa, there is also no contract.
Paras' outline on impossible conditions:
Positive suspensive condition to do an
impossible/ illegal thing-- The obligation
is void (Art. 1183, par. 1.)
A negative condition (not to do an impossible
thing)-- Just disregard the condition (Art.
1183, par. 2.)

Balane: This article refers to a suspensive


condition.
Doctrine of Constructive Compliance.-There are three requisites in order that this
article may apply:
Intent on the part of the obligor to prevent
fulfillment of the condition. The intent
does not have to be malicious.
Actual prevention of compliance (by the
obligor)
Constructive
compliance
can
have
application only if the condition is
potestative. It can also apply to Mixed
317

condition as to that part w/c the obligor


should perform.

Q: Why does Art. 1188 give the creditor a


recourse although technically the creditor
still have no right?

BALANE CASES:

A: Bec. as a matter of fact, although


technically the creditor still have no right,
he is already expecting a right. You cannot
let the creditor sit & fold his arms & wait for
his right of expectancy to be rendered
illusory.

TAYAG V. CA [219 SCRA 480] - Insofar as


the 3rd item of the contract is concerned, xxx
resp. court applied Art. 1186, NCC on
constructive fulfillment w/c petitioners claim
should not have been appreciated bec. they
are the obligees while the proviso in point
speaks of the obligor. But, petitioners must
concede that in a reciprocal obligation like a
contract of purchase, both parties are
mutually obligors & also obligees, & any of
the contracting parties may, upon nonfulfillment by the other privy of his part of the
prestation, rescind the contract or seek
fulfillment.
In short, it is puerile for
petitioners to say that they are the only
obligees under the contract since they are
also bound as obligors to respect the
stipulation in permitting pvt. resp. to assume
the loan w/ the Phi. Veterans Bank w/c
petitioners impeded when they paid the
balance of said loan. As vendors, they are
supposed to execute the final deed of sale
upon full payment of the balance as
determined hereafter.
Art. 1188. The creditor may, before the
fulfillment of the condition, bring the
appropriate actions for the preservation of his
right.
The debtor may recover what during the
same time he has paid by mistake in case of
a suspensive condition.

Balane: This article refers to suspensive


conditions.
Bring the appropriate actions ...-According to Mr. Justice JBL Reyes, the phrase
"may xxx bring the appropriate actions" is
inaccurate. To bring action is to file a suit.
But the creditor is not restricted to filing a
suit. The proper verb is not "bring" but
"take." For example, in a sale of land subject
to suspensive condition, the creditor should
have the suspensive condition annotated on
the title of the land. This is not bringing an
appropriate action but taking an appropriate
action.
The principle in this article is:
Vigilantibus et non dormientibus jura
subveniunt w/c means that the laws aid those
who are vigilant, not those who sleep upon
their rights.

C. Obligations w/ a period
1. Kinds

Art. 1193.
Obligations for whose
fulfillment a day certain has been fixed,
shall be demandable only when that day
comes.
Obligations w/ a resolutory period
take effect at once, but terminate upon
arrival of the day certain.
A day certain is understood to be
that w/c 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, & it shall be
regulated by the rules of the preceding
Section.

Tolentino:
Concept of Term.-- A term or period is a
space of time w/c, exerting an influence on
obligations as a consequence of a juridical
act, suspends their demandability or
determines
their
extinguishment.
(Manresa.)
Distinguished fr. Condition:
As to fulfillment.-A condition is an
uncertain event, while a term is an
event that must necessarily come,
whether on a date known before hand
or at a time w/c cannot be
predetermined.
As to influence on the obligation.-- While a
condition gives rise to an obligation or
extinguishes one already existing, a
period has no effect upon the existence
of
obligations,
but
only
their
demandability or performance. Bec. of
this difference, a period does not carry
w/ it, except when there is a special
agreement, any retroactive effect.
318

As to time.-- A period always refer to the


future, while a condition may refer to a
past event unknown to the parties.
As to will of debtor.-A condition w/c
depends exclusively on the will of the
debtor annuls the obligation, but a period
left to the debtor's will merely empowers
the court to fix such period.
Balane:
In a (suspensive) term, the
obligation has already arisen except that it is
not yet demandable.
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.
Art. 1189. When the conditions have
been imposed w/ 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 w/o 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 w/o the
fault of the debtor, the impairment is to be
borne by the creditor;
(4) If it deteriorates through the fault of
the debtor, the creditor may choose between
the rescission of the obligation & its
fulfillment, w/ 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.

There are three requisites in order for Art.


1189 to apply-There is loss, deterioration or delay
There is an obligation to deliver a
determinate thing (on the part of the
debtor)
There is loss, deterioration or improvement
before the happening of the condition.
The condition happens.
Rights of a usufructuary
Art. 579. The usufructuary may make
on the property held in usufruct such useful
improvements or expenses for mere
pleasure as he may deem proper, provided
he does not alter its form or substance; but
he shall have no right to be indemnified
therefor. He may, however, remove such
improvements, should it be possible to do
so w/o damage to the property.

(not in Bavieras outline)

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 &
demandable, may be recovered, w/ the
fruits & interests.

Balane:
Mistaken Premature Delivery.-- This
article assumes 2 things: (1) the delivery
was by mistake; (2)
the mistake was
discovered bef. the term arrives.
Both the things & the fruits can be
recovered.
If the term has already arrived, the
question is moot & academic. But can he
recover the fruits produced during the
meantime? It depends on what school of
thought you follow:
According to one school of thought, the
debtor is entitled to the fruits produced
in the meantime (Tolentino.)
According to another school of thought, all
the fruits received during the pendency
of the term belong to the creditor
(Caguioa.)

Balane:
319

When fruits & interests


recovered
notw/standing
delivery:

cannot be
premature

When the obligation is reciprocal & there has


been premature performance (by both
parties);
When the obligation is a loan in w/c the
debtor is bound to pay interest;
When the period is for the creditor's exclusive
benefit;
When the debtor is aware of the period &
pays anyway.
2. Presumed for whose
benefit

Art. 1196. Whenever in an obligation a


period is designated, it is presumed to have
been established for the benefit of both the
creditor & the debtor, unless fr. 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.

Balane:
General rule: If a period is attached in an
obligation, the presumption is that it is for the
benefit of both parties. The consequence is
that the creditor cannot compel the
performance before the arrival of the term;
the debtor cannot compel acceptance bef.
the arrival of the term.
If the term is for the benefit of the
creditor.-The creditor can demand
performance anytime; but the debtor cannot
insist on payment bef. the period.
If the term is for the benefit of the
debtor.-The creditor cannot demand
performance anytime; but the debtor can
insist on performance anytime.
Illustrations: "I promise to pay w/in 60
days." This is a term for the benefit of the
debtor.
"I promise to pay Clara the sum of
P100,000 on or before Oct. 31, 1996." This is
a term for the benefit of the debtor.
3. When no period is fixed

Art. 1197. If the obligation does not fix a


period, but fr. its nature & the circumstances

it can be inferred that a period was


intended, the courts may fix the duration
thereof.
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.

Balane:
Cases where the Courts may fix a
period.-1. Art. 1197, par. 1

Art. 1197. If the obligation does not fix


a period, but fr. its nature & the
circumstances it can be inferred that a
period was intended, the courts may fix the
duration thereof.

Exceptions:

(a) Art. 1682

Article 1682. The lease of a piece of


rural land, when its duration has not been
fixed, is understood to have been made for
all the time necessary for the gathering of
the fruits w/c the whole estate leased may
yield in one year, or w/c it may yield once,
although two or more years may have to
elapse for the purpose.
Article 1687. If the period for the lease
has not been fixed, it is understood to be fr.
year to year, if the rent agreed upon is
annual; fr. month to month, if it is monthly;
fr. week to week, if the rent is weekly; & fr.
day to day, if the rent is to be paid daily.
xxx

Art. 1606 in pacto de retro sale where


the period is not specified by the
parties
320

Art. 1606. The right referred to in


article 1601 (the right of conventional
redemption on the part of the vendor a retro),
in the absence of an express agreement,
shall last four years fr. the date of the
contract.
xxx

contract of services for an indefinite


term (bec. fixing of a period by the
courts may amount to involuntary
servitude)

Art. 1197. Xxx The courts shall also fix


the duration of the period when it depends
upon the will of the debtor.
Art. 1191. Xxx he court shall decree the
rescission claimed, unless there be just cause
authorizing the fixing of a period.
xxx
Art. 1687. xxx However, even though a
monthly rent is paid, & no period for the
lease has been set, the courts may fix a
longer term for the lease after the lessee has
occupied the premises for over one year. If
the rent is weekly, the courts may likewise
determine a longer period after the lessee
has been in possession for over six months.
In case of daily rent, the courts may also fix a
longer period after the lessee has stayed in
the place for over one month.
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 w/ a
period, subject to the provisions of article
1197.

BALANE CASES:
CHAVEZ V. GONZALES [32 SCRA 547] Where obligation does not fix a period; When
fixing a period is mere formality.-- Where the
def. virtually admitted non-performance by
returning the typewriter he was obliged to
repair in a non-working condition, w/ essential
parts, missing, he cannot invoke Art. 1197 of
the NCC. The time for compliance having
evidently expired, & there being a breach of
contract
by non-performance,
it was
academic for the pltff. to have first petitioned
the court to fix a period for the performance
of the contract before filing his complaint in
this case. The fixing of a period would thus

be a mere formality & would serve no


purpose than to delay.
ENCARNACION V. BALDOMAR
[77 P
470] - The continuance & fulfillment of the
contract of lease cannot be made to
depend solely & exclusively upon the free
& uncontrolled choice of the lessees bet.
continuing paying the rentals or not,
completely depriving the owner of all say in
the matter. For if this were allowed, so long
as defs. elected to continue the lease by
continuing the payment of the rentals the
owner would never be able to discontinue
it; conversely, although the owner should
desire the lease to continue, the lessees
could effectively thwart his purpose if they
should prefer to terminate the contract by
the simple expedient of stopping payment
of the rentals. This, of course, is prohibited
by art. 1256, NCC.
ELEIZEUI V. LAWN TENNIS CLUB [2
P309]
The term of a lease whose
termination is expressly left to the will of
the lessee must be fixed by the courts
according to the character & conditions of
the mutual undertakings, in an action
brought for that purpose xxx.
PHILBANKING V. LUI SHE [21 SCRA 53]
- A lease to an alien for a reasonable
period is valid.
LIM V. PEOPLE [133 SCRA 333] - It is
clear in the agreement that the proceeds of
the sale of the tobacco should be turned
over to the complainant as soon as the
same was sold, or, that the obligation was
immediately demandable as soon as the
tobacco was disposed of. Hence, Art. 1197
of the NCC, w/c provides that the courts
may fix the duration of the obligation if it
does not fix a period, does not apply.
MILLARE V. HERNANDO [151 SCRA 484]
- Par. 1 of Art. 1197 is clearly inapplicable,
since the Contract of Lease did in fact fix
an original period of 5 yrs., w/c had
expired. It is also clear fr. par. 13 of the
contract that the parties reserved to
themselves the faculty of agreeing upon
the period of the renewal contract. The
2nd par. of Art. 1197 is equally inapplicable
since the duration of the renewal period
was not left to the will of the lessee alone,
but rather to the will of both the lessor &
the lessee. Most importantly, Art. 1197
applies only where a contract of lease
clearly exists. Here, the contract was not
renewed at all, there was in fact no
contract at all the period of w/c could have
been fixed.

321

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 w/ a
period, subject to the provisions of article
1197.

Baviera Cases:
CPU V. CA
Facts: Lopez executed a deed of donation of
a parcel of land in favor of Central Phil. Univ.
A TCT was issued in CPUs name w/ the
annotation that the land shall be utilized by
CPU exclusively for the establishment & use
of a medical college. The heirs of Lopez filed
an action for the annulment of the donation
& reconveyance alleging that CPU did not
comply w/ the conditions. CPU alleged that
the action had prescribed.
Held: The SC allowed the revocation of the
donation.
It held that the donation was
onerous. The action has not prescribed. The
condition imposed upon the donor depended
upon the exclusive will of the donee as to
when this condition shall be fulfilled. The
absolute acceptance & acknowledgment of
the obligation to build the buildings were
sufficient to prevent the statute of limitations
fr. barring the action of the heirs.
The starting point in counting the
prescriptive period begins w/ the expiration of
a reasonable period & opportunity for
petitioner to fulfill what has been charged
upon it by the donor. In this case, more than
50 years has elapsed. There is no more need
to fix the duration of the term when such
would be a mere technicality & formality.
Notes:
Q: Why has the action not prescribed?
A: Because before an action to revoke the
donation can be filed, there must first be an
action to fix the period. Since it is moot to fix
the period in the CPU case due to the lapse of
50 years (w/c is more than a reasonable
period) the donation should be revoked.
ARANETA INC. V. PSED CO.
Facts: JMT & Co. is the owner if Sta. Mesa
Hts. Subdivision.
Through GAI, it sold a
portion thereof to PSED.
The buyers
stipulated in the contract that the buyer will

build on the said land the Sto. Domingo


Church & Convent while the seller will
construct the streets on the NE, NW, & SW
sides of the land.
PSED finished the construction of
the church. JMT was not able to finish
construction of the streets bec. squatters
were occupying a part thereof & refused to
vacate.
PSED filed a complaint against JMT
to compel the latter to comply w/ their
agreement.
Held: Art. 1197 prescribes that the court
shall determine such period as may under
the
circumstances
been
probably
contemplated by the parties. It involves a
two-step process:
the court must first determine whether fr.
the nature & circumstances it can be
inferred that a period has been
intended but that the obligation does
not fix the period
decide
what
period
was
probably
contemplated by the parties
Therefore, the court cannot fix the
period merely bec. in its opinion it is
reasonable but it must set the time that the
parties are shown to have intended.
The K shows that the parties were fully
aware that the land described was
occupied by squatters. The conclusion is
thus forced that the parties must have
intended to defer the performance of the
obligations until the squatters have been
duly evicted, i.e. the performance is fixed
at the date that all the squatters on the
affected areas have been evicted.
4. When debtor loses the
benefit of period

Art. 1198. The debtor shall lose every


right to make use of the period:
(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 w/c he
has promised;
322

(3) When by his own acts he has impaired


said guaranties or securities after their
establishment, & when through a fortuitous
event they disappear, unless he immediately
gives new ones equally satisfactory;
(4) When the debtor violates any
undertaking, in consideration of w/c the
creditor agreed to the period;
(5) When the debtor attempts to abscond.
(6) Art. 2109 - If the creditor is deceived
on the substance or quality of the thing
pledged, he may either claim another thing in
its stead, or demand immediate payment of
the principal obligation. (The sixth ground
was added by Prof. Balane.)

7. Acceleration clause
Balane: In number one, factual insolvency is
enough. A judicial declaration of insolvency
is not required.
DAGUHOY ENTERPRISES V. PONCE
Facts: Domingo was Chairman & Manager of
Daguhoy Enterprises. His wife borrowed P5T
fr. Daguhoy payable w/in 6 years.
As
security, she executed two deeds of
mortgage over a parcel of land. Domingo &
his wife presented the mortgage deeds for
registration, but the Register of Deeds
refused due to defects therein.
Without
curing the defects, the spouses mortgaged
the same parcel to RFC to secure another
loan.
A stockholder of Daguhoy sued
Domingo for an accounting & collection of the
debt. Domingo claims that the loan was not
yet due.
Held:
Under Article 1198, the debtor
loses the benefit of the period by reason of
her failure to give the security in the form of
the two deeds of mortgage & register them.
The obligation then became pure & w/o any
condition. Consequently, the loan became
due & immediately demandable.
Obligations according to plurality of
objects:
A. Simple

B. Multiple
Conjunctive where the debtor must
perform more than one prestation
Alternative Obligations where the debtor
must perform any of the prestations
Facultative where only one thing is due but
the debtor has reserved the right to
substitute it w/ another (IV Tolentino)
(Art. 1206.)
D. Alternative Obligations

Art. 1199. A person alternatively bound


by different prestations shall completely
perform one of them.
The creditor cannot be compelled to
receive part of one & part of the other
undertaking.

Tolentino:
The
characteristic
of
alternative obligations is that, several
objects being due, the fulfillment of one is
sufficient xxx.
Art. 1200. The right of choice belongs
to the debtor, unless it has been expressly
granted to the creditor.
The debtor shall have no right to
choose
those
prestations
w/c
are
impossible, unlawful or w/c could not have
been the object of the obligation.

Balane:
To whom does the right of choice belong?
General rule: To the debtor (Art. 1200.)
Exception: When expressly granted to the
creditor
There is a third possibility where
the choice may be made by a third person
upon agreement of the parties.
Q: What is the technical term of the act of
making a choice in alternative obligations?
A: Concentration.
Art. 1201. The choice shall produce no
effect except fr. the time it has been
communicated.
323

Balane:
Requirement
of
Communication
of
choice.-If the choice belongs to the
creditor, of course, he has to communicate
his choice to the debtor. The debtor is not a
prophet.
Q: If the choice belongs to the debtor, why
require communication before performance if
the choice belongs to him anyway?
A: To give the creditor an opportunity to
consent to the choice or impugn it. (Ong v.
Sempio-Dy, 46 P 592.)
BUT how can the creditor impugn it if
the choice belongs to the debtor. The better
reason would be to give the creditor a chance
to prepare for the performance.
Articles 1202 to 1205 talk of the loss of
some of the prestations before performance.
1. If the choice is debtor's
a. When only one prestation is left
(whether or not the rest of the prestations
have been lost through fortuitous event or
through the fault of the debtor), the debtor
may perform the one that is left.-- Art. 1202.

been lost, or the compliance of


obligation has become impossible.

the

The indemnity shall be fixed taking as a


basis the value of the last thing w/c
disappeared, or that of the service w/c last
became impossible.
Damages other than the value of the
last thing or service may also be awarded.

d. If some things are lost through


the debtor's fault, the debtor can still
choose fr. those remaining.
e. If all are lost through fortuitous
event, the obligation is extinguished.
f. If all prestations but one are lost
through fortuitous event, & the remaining
prestation was lost through the debtor's
fault, the latter is liable to indemnify the
creditor for damages.
g. If all but one are lost through the
fault of the debtor & the last one was lost
through fortuitous event, the obligation is
extinguished.
2. Choice is the creditor's

Art. 1202. The debtor shall lose the right


of choice when among the prestations
whereby he is alternatively bound, only one is
practicable.

Art. 1205. When the choice has been


expressly given to the creditor, the
obligation shall cease to be alternative fr.
the day when the selection has been
communicated to the debtor.

b. If the choice is limited through the


creditor's own acts, the debtor can ask for
resolution plus damages.-- Art. 1203

Until then the responsibility of the


debtor shall be governed by the following
rules:

Art. 1203. 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 w/ damages.

c. If everything is lost through the


debtor's fault, the latter is liable to indemnify
the creditor for damages.-- Art. 1204.
Art. 1204. The creditor shall have a right
to indemnity for damages when, through the
fault of the debtor, all the things w/c are
alternatively the object of the obligation have

(1) If one of the things is lost through a


fortuitous event, he shall perform the
obligation by delivering that w/c the
creditor should choose fr. among the
remainder, or that w/c remains if only one
subsists;
(2) If the loss of one of the things
occurs through the fault of the debtor, the
creditor may claim any of those subsisting,
or the price of that w/c, through the fault of
the former, has disappeared, w/ a right to
damages;
(3) If all the things are lost through the
fault of the debtor, the choice by the
creditor shall fall upon the price of any one
of them, also w/ indemnity for damages.
324

The same rules shall be applied to


obligations to do or not to do in case one,
some or all of the prestations should become
impossible.

a. If one or some are lost through


fortuitous event, the creditor may choose fr.
those remaining.-- Art. 1205 (1), supra.
b. If one or some are lost through the
debtor's fault, the creditor has choice fr. the
remainder or the value of the things lost plus
damages.-- Art. 1205 (2), supra.

As to nullity: In alternative obligations, the


nullity of one prestation does not
invalidate the obligation, w/c is still in
force w/ respect to those w/c have no
vice; while in facultative, the nullity of
the principal prestation invalidates the
obligation & the creditor cannot
demand the substitute even when this
is valid.
As to choice: In alternative, the right to
choose may be given to the creditor;
while in facultative, only the debtor
can choose the substitute prestation.

c. If all are lost through the debtor's


fault, the choice of the creditor shall fall upon
the price of any of them, w/ indemnity for
damages.-- Art. 1205 (3), supra.

As to effect of loss: In alternative, only the


impossibility of all the prestations due
w/o fault of the debtor extinguishes the
obligation; while in facultative, the
impossibility of the principal prestation
is sufficient to extinguish the obligation,
even if the substitute is possible.

d.
If some are lost through the
creditor's fault, the creditor may choose fr.
the remainder.

Balane:
Facultative obligations always
involve choice by the debtor.

e. If all are lost through fortuitous


event, the obligation is extinguished.
f. If all are lost through the creditor's
fault, the obligation is extinguished.
Distinguished fr. Facultative obligations

In theory, it is easy to distinguish a


facultative obligation fr. an alternative one.
But in practice, it is difficult to distinguish
the two. You just have to find out what the
parties really intended.
E.

Joint & Solidary Obligations


1. Joint Obligations

Art. 1206. When only one prestation has


been agreed upon, but the obligor may
render another in substitution, the obligation
is called facultative.
The loss or deterioration of the thing
intended as a substitute, through the
negligence of the obligor, does not render
him liable. But once the substitution has been
made, the obligor is liable for the loss of the
substitute on account of his delay, negligence
or fraud.

Tolentino:
Distinguished fr. Alternative.-As to contents of the obligation:
In the
alternative, there are various prestations
all of w/c constitute parts of the
obligation; while in facultative, only the
principal
prestation
constitutes
the
obligation, the accessory being only a
means to facilitate payment.

Balane:
Joint Obligation.-- A joint obligation is
one in w/c each of the debtors is liable only
for a proportionate part of the debt or each
creditor is entitled only to a proportionate
part of the credit.
In joint obligations, there are as
many obligations as there are debtors
multiplied by the number of creditors.
There are three kinds of joint
obligations: (1) Active joint where the
obligation is joint on the creditor's side; (2)
Passive joint where the obligation is joint
on the debtor's side; & (3) Multiple Joint
where there are multiple parties on each
side of a joint obligation.
Tolentino:
The joint obligation has been variously
termed mancomunada or mancomunada
simple or pro rata.
The phrase "We
promise to pay," used by 2 or more signers,
creates a pro rata liability.
325

Effects of Joint Liability:


The demand by one creditor upon one
debtor, produces the effects of default
only w/ respect to the creditor who
demanded & the debtor on whom the
demand was made, but not w/ respect to
the others;
The interruption of prescription by the judicial
demand of one creditor upon a debtor,
does not benefit the other creditors nor
interrupt the prescription as to other
debtors. On the same principle, a partial
payment or acknowledgement made by
one of several joint debtors does not stop
the running of the statute of limitations as
to the others;
The vices of each obligation arising fr. the
personal defect of a particular debtor or
creditor does not affect the obligation or
rights of the others;
The insolvency of a debtor does not increase
the responsibility of his co-debtors, nor
does it authorize a creditor to demand
anything fr. his co-creditors;
In the joint divisible obligation, the defense of
res judicata is not extended fr. one debtor
to another. (Manresa.)
Art. 1208. If fr. the law, or the nature or
the wording of the obligations to w/c the
preceding article refers the contrary does not
appear, the 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 fr. one
another, subject to the Rules of Court
governing the multiplicity of suits.

2. Indivisible Obligations

Art. 1209. If the division is impossible,


the right of the creditors may be prejudiced
only by their collective acts, & the debt can
be enforced only by proceeding against all
the debtors. If one of the latter should be
insolvent, the other shall not be liable for his
share.
Art. 1210.
The indivisibility of an
obligation does not necessarily give rise to
solidarity. Nor does solidarity of itself imply
indivisibility.
Distinguished fr. Solidary Obligations

Art. 1224. A joint indivisible obligation


gives rise to indemnity for damages fr. the
time anyone of the debtors does not
comply w/ 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 w/c the obligation
consists.

3. Solidary obligations
Balane:
Solidary Obligations.-A solidary
obligation is one in w/c the debtor is liable
for the entire obligation or each creditor is
entitled to demand the whole obligation.
There is only one obligation is a solidary
obligation.
There are three kinds of solidarity:
(1) Active solidary where there are several
creditors w/ one debtor in a solidary
obligation; (2)
Passive solidarity where
there is one creditor w/ several debtors
solidary bound; (3) Mixed Solidarity where
there are several creditors & several
debtors in a solidary obligation.
Tolentino:
Solidary obligations may also be
referred to as mancomunada solidaria or
joint & several or in solidum. It has also
been held that the terms "juntos o
separadamente" in a promissory note
creates a solidary responsibility; that where
there are no words used to indicate the
character of a liability, the phrase "I
promise to pay," followed by the signatures
of 2 or more persons, gives rise to an
individual or solidary responsibility. The
words "individually & collectively" also
create a solidary liability.
So does an
agreement to be "individually liable" or
"individually & jointly liable."
a. Active Solidarity

Art. 1211.
Solidarity may exist
although the creditors & the debtors may
not be bound in the same manner & by the
same periods & conditions.
Art. 1207. The concurrence of two or
more creditors or of two or more debtors in
326

one & the same obligation does not imply


that each one of the former has a right to
demand, or that each one of the latter is
bound to render, entire compliance w/ the
prestation. There is solidary liability only
when the obligation expressly so states, or
when the law or the nature of the obligation
requires solidarity.

Balane:
When is an obligation w/ several parties on
either side Joint or Solidary?
The
presumption is that an obligation is joint bec.
a joint obligation is less onerous that a
solidary one.
There is solidary obligation only in
three cases:
(1)
when the obligation
expressly so states; or (2) when the law or
the (3) nature of the obligation requires
solidarity.
Characteristics of Active Solidarity:
Since it is a reciprocal agency, the death of a
solidary creditor does not transmit the
solidarity to each of his heirs but to all of
them taken together. (IV Tolentino);
Each creditor represents others in the act of
requiring payment, & in all other acts w/c
tend to secure the credit or make it more
advantageous. Hence, if he receives only
a partial payment, he must divide it
among the other creditors.
He can
interrupt the period of prescription or
render the debtor in default, for the
benefit of all other creditors;
A credit once paid is shared equally among
the creditors unless a different intention
appears;
Debtor may pay any of the creditors but if
any demand, judicial or extrajudicial is
made on him, he must pay only to one
demanding payment (Art. 1214);
One creditor does not represent the others in
such acts as novation (even if the credit
becomes
more
advantageous),
compensation & remission.
In these
cases, even if the debtor is released, the
other creditors can still enforce their
rights against the creditor who made the
novation, compensation or remission;

Characteristics of Passive Solidarity:


Each debtor may be required to pay the
entire obligation but after payment, he
can recover fr. the co-debtors their
respective shares (this is something
similar to subrogation);
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,
bec.
the
extinguishment of the obligation by
prescription extinguishes also the
mutual representation among the
solidary debtors.
The debtor who is required to pay may set
up by way of compensation his own
claim against the creditor, in this case,
the effect is the same as that of
payment;
The total remission of the debt in favor of a
debtor releases all the debtors; but
when this remission affects only the
share of one debtor, the other debtors
are still liable for the balance of the
obligation.
All the debtors are liable for the loss of the
thing due, even if such loss is caused
by the fault of only one of them, or by
fortuitous event after one of the
debtors has incurred in delay;
The interests due by reason of the delay of
one of the debtors are borne by all of
them.
(Words in italics were taken fr. IV Tolentino.)
IV Tolentino: When the law requires
solidarity.-The liability of joint
tortfeasors, w/c include all persons who
command, instigate, promote, encourage,
advise, countenance, cooperate in, aid or
abet the commission of a tort, or who
approve of it, after it is done, if done for
their benefit.

Each creditor may renounce his right even


against the will of the debtor, & the latter
need not thereafter pay the obligation to
the former.

Solidarity fr. Nature of Obligations.-Liability may arise fr. the provisions of


articles 19 to 22 of the NCC. If 2 or more
persons acting jointly become liable under
these provisions, their liability should be
solidary bec. of the nature of the
obligation. xxx The acts giving rise to
liability under these articles have a
common element-they are morally
wrong. A moral wrong cannot be divided
into parts; hence, the liability for it must be
solidary.

(Parts in italics were taken fr. IV Tolentino.)

BALANE CASES:
327

RONQUILLO V. CA [132 S 274] - Clearly


then, by the express term of the compromise
agreement & the decision based upon it, the
defs. obligated themselves to pay their
obligation "individually & jointly." The term
"individually" has the same meaning as
"collectively," "separately," "distinctively,"
"respectively" or "severally." An agreement
to be "individually liable" undoubtedly
creates a several obligation, & a "several
obligation" is one by w/c one individual binds
himself to perform the whole obligation.
xxx [T]he phrase juntos or separadamente
used in the P/N is an express statement
making each of the persons who signed it
individually liable for the payment of the full
amount of the obligation contained therein.
xxx In the absence of a finding of facts that
the defs. made themselves individually liable
for the debts incurred they are each liable
only for 1/2 of said amount. The obligation in
the case at bar being described as
"individually & jointly," the same is therefore
enforceable against one of the numerous
obligors.
MALAYAN INSURANCE V. CA [165 S 536] The direct liability of the insurer under
indemnity contracts against third-party
liability does not mean that the insurer can
be held solidarily liable w/ the insured &/ or
the other parties found at fault.-- While it is
true that where the insurance contract
provide for indemnity against liability to 3rd
persons, such 3rd persons can directly sue
the insurer, however, the direct liability of the
insurer under the indemnity contracts against
third party liab. does not mean that the
insurer can be held solidarily liable w/ the
insured &/ or the other parties found at fault.
The liab. of the insurer is based on contract;
that of the insured is based on tort.
In the case at bar, petitioner as insurer of Sio
Choy, is liable to respondent Vallejos, but it
cannot, as incorrectly held by the trial court,
be made "solidarily" liable w/ the 2 principal
tortfeasors, namely respondents Sio Choy &
San Leon Rice Mill, Inc. For if petitionerinsurer were solidarily liable w/ said 2
respondents by reason of the indemnity
contract, against 3rd party liability-- under
w/c an insurer can be directly sued by a 3rd
party-- this will result in a violation of the
principles underlying solidary obligations &
insurance contracts.
RCBC V. CA [178 S 739] - Where an
obligation expressly states a solidary liability
the concurrence of 2 or more creditors or 2 or
more debtors in one & the same obligation
implies that each of the former has a right to
demand, or that each one of the latter is
bound to render, entire compliance w/ the
prestation (Art. 1207.)
The creditor may
proceed against any one of the solidary
debtors
or
some
or
all
of
them
simultaneously.

QUISIMBING V. CA [189 S 325] - Joint


obligation
distinguished
fr.
solidary
obligations; Concept of active solidarity-Distinguishing it fr. the joint obligation,
Tolentino makes the ff. observation: A joint
obligation is one in w/c each of the debtors
is liable only for a proportionate part of the
debt, & each creditor is entitled only to a
proportionate part of the credit. A solidary
obligation is one in w/c each debtor is liable
for the entire obligation, & each creditor is
entitled to demand the whole obligation.
Hence, in the former, each creditor can
recover only his share of the obligation, &
each debtor can be made to pay only his
part; whereas, in the latter, each creditor
may enforce the entire obligation, & each
debtor may be obliged to pay it in full.
The same work describes the concept of
active solidarity thus:
The essence of
active solidarity consists in the authority of
each creditor to claim & enforce the rights
of all, w/ the resulting obligation of paying
every one what belongs to him; there is no
merger, much less a renunciation of rights,
but only mutual restitution.
REPUBLIC PLANTERS BANK [216 S 738]
- An instrument w/c begins w/ "I," "WE" or
"Either of us" promise to pay, when signed
by two or more persons, makes them
solidarily liable. The fact that the singular
pronoun is used indicates that the promise
is individual as to each other; meaning that
each of the co-signers is deemed to have
made an independent singular promise to
pay the notes in full.
In the case at bar, the solidary liability of
private resp. F. Canlas is made clearer &
certain, w/o reason for ambiguity, by the
presence of the phrase "joint & several" as
describing the unconditional promise to
pay to the order of Republic Planters Bank.
xxx
CERNA V. CA [220 SCRA 517] - Only
Delgado singed the P/N & accordingly, he
was the only one bound by the contract of
loan. Nowhere did it appear in the P/N that
petitioner was a co-debtor. The law is clear
that "(c)ontracts take effect only between
the parties xxx" But by some stretch of the
imagination, petitioner was held solidarily
liable for the debt allegedly bec. he was a
co-mortgagor of the principal debtor,
Delgado. This ignores the basic precept
that "(t)here is solidary liability only when
the obligation expressly so states, or when
the law or the nature of the obligation
requires solidarity.
Art. 1212. Each one of the solidary
creditors may do whatever may be useful
to the others, but not anything w/c may be
prejudicial to the latter.
328

Balane:
There is an apparent conflict bet. Art. 1212 &
1215.
Art. 1212 states that the agency
extends only to things w/c will benefit all cocreditors. But not anything w/c is prejudicial
to the latter. In Art. 1215, he can do an acts
prejudicial to the other creditors, like
remission for instance.
Art. 1213.
A solidary creditor cannot
assign his rights w/o the consent of the
others.
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.

obligation, w/o prejudice to the provisions


of article 1219.
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 w/c affects one of the
solidary debtors does not release the latter
fr. his responsibility towards the co-debtors,
in case the debt had been totally paid by
anyone of them before the remission was
effected.
Art. 1915. If two or more persons have
appointed an agent for a common
transaction or undertaking, they shall be
solidarily liable to the agent for all the
consequences of the agency.

Balane:
General Rule.-- A debtor may pay any of the
solidary creditors.
Exception.-- If demand is made by one
creditor upon the debtor, in w/c case the
latter must pay the demanding creditor only.
Cases:
Debtor upon whom demand was made pays
to a creditor other than the one who
made the demand in violation of Art.
1214.-- This is considered payment to a
third person (Art. 1241, par. 2) & the
debtor can still be made to pay the debt.
The only concession given to the debtor is
that he is allowed to deduct the share of
the receiving creditor fr. the total amount
due even if he paid the entire amount due
to that creditor.
Creditor A makes demand on debtor Y. Does
it mean that he cannot pay the share
pertaining to creditor B? According to
commentators he can.
But this is
dangerous bec. there may already be an
agreement on the part of the creditors.
There are three creditors -- A, B & C & there
are three debtors -- X, Y & Z. A makes a
demand on Y. X pays B. This is not
covered by Art. 1214.
Art. 1215.
Novation, compensation,
confusion or remission of the debt, made by
any of the solidary creditors or w/ any of the
solidary debtors, shall extinguish the

Baviera:
Principals
are always liable
solidarily; Agents are not liable solidarily
unless expressly stipulated
b. Passive Solidarity

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 w/c may
subsequently be directed against the
others, so long as the debt has not been
fully collected.

BALANE CASES:
PNB V. INDEPENDENT PLANTERS [122
SCRA 113] - If one of the alleged solidary
debtor dies during the pendency of the
collection case, the court where said case
is pending retains jurisdiction to continue
hearing the charge as against the surviving
defendants.-- It is crystal clear that Art.
1216 is the applicable provision in this
matter. Said provision gives the creditor
the right to proceed against anyone of the
solidary debtors or some or all of them
simultaneously. The choice is undoubtedly
left to the solidary creditor to determine
against whom he will enforce collection. In
case of the death of the solidary debtors,
he (the creditor) may, if he so chooses,
329

proceed against the surviving solidary


debtors w/o necessity of filing a claim in the
estate of the deceased debtors. It is not
mandatory for him to have the case
dismissed against the surviving debtors & file
its claim in the estate of the deceased
solidary debtor.
Rules of Procedure cannot prevail over
substantive law.-- If Sec. 6, Rule 86, ROC
were applied literally, Art. 1216 would, in
effect, be repealed since under the ROC,
petitioner has no choice but to proceed
against the estate of Manuel Barredo only.
Obviously, this provision diminishes the
Bank's right under the NCC to proceed
against any one, some or all of the solidary
debtors.
Such a construction is not
sanctioned by the principle xxx that a
substantive law cannot be amended by a
procedural law. Otherwise stated, Sec. 6 of
Rule 86 cannot be made to prevail over Art.
1216, the former being merely procedural,
while the latter, substantive.
OUANO V. ALEONAR [202 SCRA 619] The creditor may proceed against any one of
the solidary debtor or some or all of them
simultaneously.-- If that were to happen,
petitioner has only itself to blame. It allowed
the period for appeal to lapse w/o appealing.
Art. 1216 provides that "[T]he creditor may
proceed against any one of the solidary
debtor
or
some
or
all
of
them
simultaneously."
Thus IPI, as solidary
creditor, has the right to enforce the trial
court's decision against petitioner OASI.
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 w/c offer to accept.
He who made the payment may claim fr.
his co-debtors only the share w/c corresponds
to each, w/ 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.
When one of the solidary debtors cannot,
bec. of his insolvency, reimburse his share to
the debtor paying the obligation, such share
shall be borne by all his co-debtors, in
proportion to the debt of each.
Art. 1218. Payment by a solidary debtor
shall not entitle him to reimbursement fr. his
co-debtors if such payment is made after the
obligation has prescribed or become illegal.
Art. 1219. The remission made by the
creditor of the share w/c affects one of the

solidary debtors does not release the latter


fr. his responsibility towards the co-debtors,
in case the debt has been totally paid by
anyone of them before the remission was
effected.

Balane:
Effect of Remission.-- Problem: Solidary
debtors W, X, Y & Z are indebted to A for
P12,000. A remits the share of Y (P3,000.)
Q: Can Y be sued?
A: Yes, for the P9,000 (P12,000 less P3,000
share of Y.)
Q: Supposing X is insolvent?
A:
Y can still be made to contribute.
Remission will benefit Y only in so far as his
share is concerned. His liability in case of
insolvency of one co-creditor is not
affected.
Q: Can A demand the P9,000 fr. Y.
A: Yes. But he can recover the same fr. W,
X & Z.
Art. 1220. The remission of the whole
obligation, obtained by one of the solidary
debtors,
does
not
entitle
him
to
reimbursement fr. his co-debtors.
Art. 1221. If the thing has been lost or
if the prestation has become impossible
w/o the fault of the solidary debtors, the
obligation shall be extinguished.
If there was fault on the part of any one
of them, all shall be responsible to the
creditor, for the price & the payment of
damages & interest, w/o prejudice to their
action against the guilty or negligent
debtor.
If through a fortuitous event, the thing
is lost or the performance has become
impossible after one of the solidary debtors
has incurred in delay through the judicial or
extrajudicial demand upon him by the
creditor, the provisions of the preceding
paragraph shall apply.
Art. 1895. If solidarity has been agreed
upon, each of the agents is responsible for
the non-fulfillment of the agency, & for the
fault or negligence of his fellow agents,
except in the latter case when the fellow
330

agents acted beyond the scope of their


authority.
Art. 1222. A solidary debtor may, in
actions filed by the creditor, avail himself of
all defenses w/c are derived fr. the nature of
the obligation & of those w/c are personal to
him, or pertain to his own share. With respect
to those w/c personally belong to the others,
he may avail himself thereof only as regards
that part of the debt for w/c the latter are
responsible.

Balane:
Three Defenses in Passive Solidarity:
Those derived fr. the nature of the obligation
is a total defense, e.g., prescription,
illegality of obligation.
Those defenses personal to the debtordefendant, e.g., insanity. If it involves
vitiation of consent, total defense. If it
involves a special term or a condition, a
partial defense.
Those defenses personal to other debtors,
e.g., partial defense, is a defense as to
the share corresponding to other
debtors.)
BALANE CASE:
UNIVERSAL MOTORS V. CA [205 S 448] When the obligation of the other solidary
debtors is so dependent on that of their cosolidary debtor, the release of the one who
appealed, provided it be not on grounds
personal to such appealing private resp.
operates as well as to the others who did not
appeal. It is for this reason, that a decision or
judgment in favor of the private resp. who
appealed can be invoked as res judicata by
the other private respondents.
xxx
It is obvious that the resp. court
committed no error in ruling that its decision
inures to the benefit of all the private resps.
regardless of the fact that only one appealed.
It is erroneous to rule that the decision of the
trial court could be reversed as to the
appealing private resp. & continue in force
against the other pvt. resps. The latter could
not remain bound after the former had been
released; although the other pvt. resps had
not joined in the appeal, the decision
rendered by the resp. court inured to their
benefit.

Art. 1215.
Novation, compensation,
confusion or remission of the debt, made
by any of the solidary creditors or w/ any of
the solidary debtors, shall extinguish the
obligation, w/o prejudice to the provisions
of article 1219.
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 w/c affects one of the
solidary debtors does not release the latter
fr. his responsibility towards the co-debtors,
in case the debt had been totally paid by
anyone of them before the remission was
effected.

PNB V. DE LA ASUNCION
Facts:
PNB granted in favor of
respondent Fabar Inc. various credit
accommodations & advances. These are
secured by the joint & several signatures of
Jose Barredo, Carmen Borromeo, Tomas
Borromeo & Manuel Barredo. For failure of
respondents to pay their obligations
despite demands, PNB instituted a case for
collection against all private respondents.
Manuel Barredo died. Respondent Court
dismissed the entire case reasoning that
the suit was for a money claim w/c does
not survive the death of defendant.
Held: The dismissal should only be against
the deceased defendant Manuel Barredo.
The lower court erred in dismissing the
case against all the defendants. A creditor
in a solidary obligation has the option
whether to file or not to file a claim against
the estate of the solidary debtor. The NCC
expressly allows the creditor to proceed
against any one of the solidary debtors or
some or all of them simultaneously.
Art. 1216 of the NCC gives the
creditor the right to proceed against
anyone of the solidary debtors or some or
all of them simultaneously. The creditor,
may, if he so chooses, proceed against the
surviving solidary debtors w/o necessity of
filing a claim in the estate of the deceased
331

debtor/s.
For to require the creditor to
proceed against the estate, making it a
condition precedent for any collection action
against the surviving debtors to prosper (if
the Rules of Court were applied literally),
would deprive him of his substantive rights
under Art. 1216.

Even thought the creditor may have


stipulated w/ some of the solidary debtors,
this does not lead to the conclusion that
the solidarity is broken. Solidarity may
exist even though the debtors are not
bound in the same manner & for the same
periods & under the same conditions.

Defenses Available

There was no novation for there was


no incompatibility between the old & new
obligations.

Art. 1222. A solidary debtor may, in


actions filed by the creditor, avail himself of
all defenses w/c are derived fr. the nature of
the obligation & of those w/c are personal to
him, or pertain to his own share. With respect
to those w/c personally belong to the others,
he may avail himself thereof only as regards
that part of the debt for w/c the latter are
responsible.
Art. 1215.
Novation, compensation,
confusion or remission of the debt, made by
any of the solidary creditors or w/ any of the
solidary debtors, shall extinguish the
obligation, w/o prejudice to the provisions of
article 1219.
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.

The obligation being solidary, the


remission of any part of the debt made by
a creditor in favor of one or more of the
solidary debtors necessarily benefits the
others.
The personal defense of Gregorios
two brothers & a sister as to the part of the
debt for w/c they are responsible made in
their favor can be set up by him as a partial
defense. The part of the debt w/c these
are responsible is 3/6 of P 225,000 or P
112,500 so that Gregorio may claim that
that part w/c pertained to his co-debtors is
not yet due. Thus, the action by Inchausti
will be only as to the P112,500.
F. Indivisible & Divisible
Obligations
Balane:

INCHAUSTI V. YULO

This kind of obligations has something to


do w/ the prestation, not to the thing.

FACTS:
Teodoro Yulo borrowed money
fr. Inchausti.
Teodoro died.
His child
Gregorio, in representation of the latters 4
brothers & 1 sister executed a document
admitting
their
solidarily
indebtedness
amounting to P 253, 445.42. However, one
of his brothers did not ratify the agreement.
Two brothers & the
sister of Gregorio
executed another instrument w/ Inchausti
providing that the debt is reduced for them to
P 225,000 (plus extension of the term of
payment). Inchausti sued Gregorio alone for
the debt.

Divisible
obligation
is
one
susceptible of partial performance.
An
indivisible obligation is one that must be
performed in one act.

HELD:
The debtors having obligated
themselves in solidum, the creditor can bring
the action in toto against any one of them.

General
rule:
Obligation
is
indivisible w/c means that it has to be
performed in one act singly. Why? Bec.
the law provides so: Unless there is an
express stipulation to that effect, the
creditor cannot be compelled partially to
receive the prestations in w/c the obligation
consists.
Neither may the debtor be
required to make partial payments. xxx
(Art. 1248, par. 1.)
Three Exceptions
Indivisibility:

to

the

When the parties so provide.


par. 1.)

Rule

on

(Art. 1248,

332

When the nature of the obligation necessarily


entails performance in parts.
Where the law provides otherwise.
Divisibility of Obligation distinguished
fr. divisibility of object.-- Divisibility of
obligation or prestation does not necessarily
mean a divisible obligation. Divisibility of
object is not the same as divisibility of
obligation. But the reverse is not the same.
Indivisibility of object means an indivisibile
obligation.
Art. 1223. The divisibility or indivisibility
of the things that are the object of obligations
in w/c there is only one debtor & only one
creditor does not alter or modify the
provisions of Chapter 2 of this Title (Nature &
Effect of Obligations).
Art. 1224. A joint indivisible obligation
gives rise to indemnity for damages fr. the
time anyone of the debtors does not comply
w/ 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 piece of the
thing or of the value of the service in w/c the
obligation consists.
Art. 1225.
For the purposes of the
preceding articles, obligations to give definite
things & those w/c are not susceptible of
partial performance shall be deemed to 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 w/c by
their nature are susceptible of partial
performance, it shall be divisible.
However, 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.

Indivisible Obligations

Art. 1209. If the division is impossible,


the right of the creditors may be prejudiced

only by their collective acts, & 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.
Art. 1210.
The indivisibility of an
obligation does not necessarily give rise to
solidarity. Nor does solidarity of itself imply
indivisibility.
Examples of Indivisible Obligations
(1) By virtue of its object

Art. 618. Easements are indivisible. If


the servient estate is divided between two
or more persons, the easement is not
modified, & each of them must bear it on
the part w/c corresponds to him.
If it is the dominant estate that is
divided between two or more persons,
each of them may use the easement in its
entirety, w/o changing the place of its use,
or making it more burdensome in any other
way.

(2) Express provision of law

Art. 2089. A pledge or mortgage is


indivisible, even though the debt may be
divided among the successors in interest of
the debtor or of the creditor.
Therefore, the debtor's heir who has
paid a part of the debt cannot ask for the
proportionate extinguishment of the pledge
or mortgage as long as the debt is not
completely satisfied.
Neither can the creditor's heir who
received his share of the debt return the
pledge or cancel the mortgage, to the
prejudice of the other heirs who have not
been paid.
From these provisions, it is expected
the case in w/c, there being several things
given in mortgage or pledge, each one of
them guarantees only a determinate
portion of the credit.

333

The debtor, in this case, shall have a right


to the extinguishment of the pledge or
mortgage as the portion of the debt for w/c
each thing is specially answerable is satisfied.
Art. 2090. The indivisibility of a pledge or
mortgage is not affected by the fact that the
debtors are not solidarily liable.
Art. 1612. If several persons, jointly & in
the same contract, should sell an undivided
immovable w/ a right of repurchase, none of
them may exercise this right for more than
his respective share.
The same rule shall apply if the person
who sold an immovable alone has left several
heirs, in w/c case each of the latter may only
redeem the part w/c he may have acquired.
Art. 1613. In the case of the preceding
article, the vendee may demand of all the
vendors or co-heirs that they come to an
agreement upon the repurchase of the whole
thing sold; and should they fail to do so, the
vendee cannot be compelled to consent to a
partial redemption.
Art. 1248. Unless there is an express
stipulation to that effect, the creditor cannot
be compelled partially to receive the
prestations in w/c the obligation consists.
Neither may the debtor be required to make
partial payments.
However, when the debt is in part
liquidated & in part unliquidated, the creditor
may demand & the debtor may effect the
payment of the former w/o waiting for the
liquidation of the latter.
Art. 1583. Unless otherwise agreed, the
buyer of goods is not bound to accept
delivery thereof by installments.
Where there is a contract of sale of goods
to be delivered by stated installments, w/c
are to be separately paid for, & the seller
makes defective deliveries in respect of one
or more installments, or the buyer neglects or
refuses w/o just cause to take delivery of or
pay for one or more installments, it depends
in each case on the terms of the contract &
the circumstances of the case, whether the
breach of contract is so material as to justify
the injured party in refusing to proceed
further & suing for damages for breach of the

entire contract, or whether the breach is


severable, giving rise to a claim for
compensation but not to a right to treat the
whole contract as broken.

(3) Express agreement


Art. 1714. If the contractor agrees to
produce the work fr. material furnished by
him, he shall deliver the thing produced to
the employer & transfer dominion over the
thing. This contract shall be governed by
the following articles as well as by the
pertinent provisions on warranty of title &
against hidden defects & the payment of
price in a contract of sale.

G. Obligations w/ a Penal Clause


Balane:
Articles 1226 to 1230 on obligation w/ a
penal clause is the same as liquidated
damages found in Articles 2226 to 2228 by
authority of Lambert v. Fox, 26 Phil. 588.
Penal Clause.-- A penal clause is an
accessory undertaking to assume greater
liability in case of breach. The purpose is
to strengthen the coercive force of the
obligation. When a penal clause is present,
damages do not have to be proved.
Characteristics of Penal Clause:
1. Subsidiary (also called alternative) w/c
means that upon non-performance, only
the penalty may be demanded.
Exception:
Where penalty is joint
(cumulative) - where both the principal
undertaking & penalty may be demanded
-- Art. 1227, second sentence: "xxx unless
this right has been clearly granted him."
Notice the word clearly (not explicitly) w/c
means that the right can be clearly granted
by implication.
2. Exclusive w/c means that a penal clause
is for reparation. It takes the place of
damages.
Exception: When it is for the punishment in
w/c case both penalty & damages may be
demanded, namely-If there is a stipulation that both penalty &
damages are recoverable in case of
breach
334

If the obligor refuses to pay the penalty


If the obligor is guilty of fraud in the
fulfillment of his obligation.
Art. 1226.
In obligations w/ a penal
clause, the penalty shall substitute the
indemnity for damages & the payment of
interests in case of non-compliance, if there is
no stipulation to the contrary. Nevertheless,
damages shall be paid if the obligor refuses
to pay the penalty or is guilty of fraud in the
fulfillment of the obligation.
The penalty may be enforced only when it
is demandable in accordance w/ the
provisions of this Code.

BALANE CASES:
BACHRACH V. ESPIRITU [52 P 346] - Art.
1152 of the OCC permits the agreement upon
a penalty apart fr. the interest. Should there
be such an agreement, the penalty xxx does
not include the interest, & as such the two
are different & distinct things w/c may be
demanded separately. The penalty is not to
be
added
to the
interest for
the
determination of whether the interest
exceeds the rate fixed by law, since said rate
was fixed only for the interest.
ROBES-FRANCISCO V. CFI [86 S 59] Petitioner contends that the deed of absolute
sale executed bet. the parties stipulates that
should the vendor fail to issue the transfer
cert. of title w/in 6 mos. fr. the date of full
payment, it shall refund to the vendee the
total amount paid for w/ interest at the rate
of 4% p.a., hence, the vendee is bound by
the terms of the provision & cannot recover
more than what is agreed upon. xxx
HELD: The foregoing argument of petitioner
is totally devoid of merit. We would agree w/
petitioner if the clause in question were to be
considered as a penal clause. Nevertheless,
for very obvious reasons, said clause does
not convey any penalty, for even w/o it,
pursuant to Art. 2209 of the NCC, the vendee
would be entitled to recover the amount paid
by her w/ legal rate of interest w/c is even
more than the 4% provided for in the clause.

sustained bec. the second sentence of art.


1226 itself provides that "nevertheless,
damages shall be paid if the obligor xxx is
guilty of fraud in the fulfillment of the
obligation." xxx The trial court & the CA
found that Pamintuan was guilty of fraud
bec. he did not make a complete delivery
of the plastic sheeting & he overpriced the
same. xxx
Penalty & Liquidated damages.-There
is no justification for the NCC to make an
apparent distinction bet. penalty &
liquidated damages bec. the settled rule is
that there is no difference bet. penalty &
liquidated damages insofar as legal results
are concerned & either may be recovered
w/o the necessity of proving actual
damages & both may be reduced when
proper. Xxx
We further hold that justice would be
adequately done in this case by allowing Yu
Ping Kun Co., Inc. to recover only the actual
damages proven, & not to award to it the
stipulated liquidated damages of P10,000
for any breach of the contract. The proven
damages
supersede
the
stipulated
liquidated damages.
This view finds support in the opinion of
Manresa that in cases of fraud the
difference bet. the proven damages & the
stipulated penalty may be recovered.
COUNTRY BANKERS V. CA [201 S 458] A provision w/c calls for the forfeiture of the
remaining deposit still in the possession of
the lessor, w/o prejudice to any other
obligation still owing, in the event of the
termination
or
cancellation
of
the
agreement by reason of the lessee's
violation of any of the terms & conditions of
the agreement is a penal clause that may
be validly entered into. A penal clause is
an accessory obligation w/c the parties
attach to a principal obligation for the
purpose of insuring the performance
thereof by imposing on the debtor a
special prestation (generally consisting in
the payment of a sum of money) in case
the obligation is not fulfilled or is irregularly
or inadequately fulfilled. As a general rule,
in obligations w/ a penal clause, the
penalty shall substitute the indemnity for
damages & the payment of interests in
case of non-compliance. This is specifically
provided for in Art. 1226, par. 1. In such
case, proof of actual damages suffered by
the creditor is not necessary in order that
the penalty may be demanded. xxx

Balane: The SC considered the 4% interest


as not a penal clause bec. it does not
strengthen the coercive force of the
obligation.

But there are cases when both the penalty


& the actual damages may be recovered,
such as when there is a stipulation to the
contrary or when the obligor is guilty of
fraud.

PAMINTUAN V. CA [94 S 556] - We hold


that appellant's contention cannot be

Balane: Country Bankers case is better


than Pamintuan v. CA. Both the penalty &
335

damages are recoverable in exceptional


circumstances. You do not merge the two.
SSS V. MOONWALK [221 S 119] - A penal
clause is an accessory undertaking to assume
greater liability in case of breach. It has a
double function: (1) to provide for liquidated
damages; & (2) to strengthen the coercive
force of the obligation by the threat of
greater responsibility in the event of breach.
From the foregoing, it is clear that a penal
clause is intended to prevent the obligor fr.
defaulting in the performance of his
obligation. Thus, if there should be default,
the penalty may be enforced.
Art. 1227. The debtor cannot exempt
himself fr. the performance of the obligation
by paying the penalty, save in the case
where this right has been expressly reserved
for him. Neither can the creditor demand the
fulfillment of the obligation & the satisfaction
of the penalty at the same time, unless this
right has been clearly granted him. However,
if after the creditor has decided to require the
fulfillment of the obligation, the performance
thereof should become impossible w/o his
fault, the penalty may be enforced.
Art. 1228.
Proof of actual damages
suffered by the creditor is not necessary in
order that the penalty may be demanded.

Baviera:
Courts enforce
according to their terms

contracts

Art. 1229.
The judge shall equitably
reduce the penalty when the principal
obligation has been partly or irregularly
complied w/ by the debtor. Even if there has
been no performance, the penalty may also
be reduced by the courts if it is iniquitous or
unconscionable.
Art. 1230. The nullity of the penal clause
does not carry w/ it that of the principal
obligation.
The nullity of the principal obligation
carrier w/ it that of the penal clause.

1. Distinguished fr.
alternative obligations

Art. 1227. The debtor cannot exempt


himself fr. the performance of the
obligation by paying the penalty, save in
the case where his right has been expressly
reserved for him. Neither can the creditor
demand the fulfillment of the obligation &
the satisfaction of the penalty at the same
time, unless this right has been clearly
granted him. However, if after the creditor
has decided to require the fulfillment of the
obligation, the performance thereof should
become impossible w/o his fault, the
penalty may be enforced.
Art. 1200. The right of choice belongs
to the debtor, unless it has been expressly
granted to the creditor.
The debtor shall have no right to
choose
those
prestations
w/c
are
impossible, unlawful or w/c could not have
been the object of the obligation.

2. Distinguished fr.
facultative obligations

Art. 1206. When only one prestation


has been agreed upon, but the obligor may
render another in substitution, the
obligation is called facultative.
The loss or deterioration of the
thing intended as a substitute, through the
negligence of the obligor does not render
him liable. But once the substitution has
been made, the obligor is liable for the loss
of the substitute on account of his delay,
negligence or fraud.
Art. 1227. The debtor cannot exempt
himself fr. the performance of the
obligation by paying the penalty, save in
the case where this right has been
expressly reserved for him. Neither can the
creditor demand the fulfillment of the
obligation & the satisfaction of the penalty
at the same time, unless this right has
been clearly granted him. However, if after
the creditor has decided to require the
fulfillment
of
the
obligation,
the
performance
thereof
should
become
impossible w/o his fault, the penalty may
be enforced.

336

V. Extinguishment of Obligations

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 the creditor & debtor;
(5) By compensation;
(6) By novation.
Other causes of extinguishment of
obligations, such as annulment, rescission,
fulfillment of a resolutory condition, &
prescription are governed elsewhere in this
Code.

Balane:
Art. 1231 gives us ten modes of
extinguishing an obligation.
One of the
modes mentioned is rescission. But it does
not tell us whether this is rescission under
Art. 1191 (resolution) or rescission under Art.
1380, et. seq. If it means both, then we have
eleven modes of extinguishing an obligation
under Art. 1231. (Similar to Tolentinos)
This enumeration is not exclusive.
Other modes of extinguishing an obligation
are the following:
Death, particularly where the obligation is
purely personal, e.g., death of one
partner dissolves the partnership.
Renunciation by the creditor
Compromise
Arrival of resolutory term
Mutual desistance or mutuo disenso (Saura v.
DBP.)
In some cases, unilateral w/drawal, e.g., in
partnership, any partner can w/draw any
time fr. the partnership.
In some cases, change of civil status, e.g., if
marriage is annulled, it extinguishes
obligations like the obligation to give
support, among others.
Unforeseen events (rebus sic stantibus) (Art.
1267.)
Want of interest
Illustration: Carale owns a restaurant. He
hires Molina as a chef. In the contract of
employment, there was a stipulation that if
Molina resigns fr. Carale's restaurant, he
cannot
seek employment fr.
another
restaurant for a period of five years.
Subsequently, Molina resigns fr. Carale's
restaurant & wants to apply to Mildo's House
of Chicken. In this case, Molina cannot work

w/ Mildo's bec. of the stipulation in the


contract he signed w/ Carale. Suppose,
however,
Carale,
closes
down
his
restaurant & engages in a totally different
business, a construction business, for
example, Molina can apply for work at
Mildo's even before the lapse of the five
year prohibitive period.
In this case, Molina can make out a
case of extinguishment of obligation on the
ground of want of interest. The obvious
purpose of the stipulation is to prevent
unfair competition.
10. Judicial insolvency
BALANE CASE:
SAURA IMPORT & EXPORT BANK VS. DBP
[44 S 445] - Where after approval of his
loan, the borrower, instead of insisting for
its release, asked that the mortgage given
as security be cancelled & the creditor
acceded thereto, the action taken by both
parties was in the nature of mutual
desistance - what Manresa terms "mutuo
disenso" - w/c is a mode of extinguishing
obligations. It is a concept that derives fr.
the principle that since mutual agreement
can
create
a
contract,
mutual
disagreement by the parties can cause its
extinguishment.
A. Payment or Performance
Balanes Outline of the Articles on
Payment:
Requisites
Performance:
I.

of

Payment

or

Re: The prestation


1. Identity
2. Integrity
3. Indivisibility

II.

Re: The parties


1. Payor/ obligor/ debtor
2. Payee/ obligee/ creditor

III.

Re: Time & place

I. With respect to prestation:


1. Identity
If specific prestation, this requisite means
that the very thing or service must be
delivered. (Art. 1244.)
337

If generic, the requisite requires the delivery


of something of neither inferior or
superior quality (Art. 1246). It must be
something in the middle.
In case of
money, there are special rules:
Governing rule: RA 529 as amended by RA
4100-- In case of money debts, you will
have to pay in legal tender in the
Philippines.
This law supersedes Art.
1249.
If the parties stipulate that payment
will be made in foreign currency, the
obligation to pay is valid but the obligation to
pay in foreign currency is void. Payment will
be made in Phil. currency.
How do you convert? In case of an
obligation w/c is not a loan in foreign
currency, if incurred bef. RA 529, conversion
must be as of the time the obligation was
incurred. If incurred after RA 529 became
effective, the conversion must be as of the
time the obligation was incurred (Kalalo v.
Luz.) If the loan is in foreign currency, the
conversion is as of the time of payment. (RA
529.)
Payment in negotiable paper-- This may
be refused by the creditor. Payment in
manager's check or certified check is not
payment in legal tender. The ruling in
Seneris has been reversed in the case of
Bishop of Malolos. The Malolos ruling is
better.
I found it hard to accept that
manager's check or certified check is
good as legal tender. There are always
risks to w/c cashier's checks are subject.
What if after having issued a cashier's
check, the drawee-bank closes, what
happens to your cashier's check?
In any event, payment by check can
be refused by the creditor. And even if
payment by check is accepted by the
creditor, the acceptance is only a provisional
payment until the check is (a) encashed or
(b) when through the fault of the creditor
they have been impaired.
The case of
Namarco v. Federation, 49 SCRA 238,
interprets the phrase "when through the fault
of the creditor, they have been impaired" as
to apply only to a check used in payment if
issued by a person other than the debtor.
Why? Bec. if the check was issued by the
debtor himself, all that the debtor have to do
is to issue another check.
Revaluation in case of extraordinary inflation
or deflation (Art. 1250.)-- This rule has
never been used. It was only during the
Japanese occupation that there was a
recognition of extraordinary inflation in
this country.
Exceptions
identity

to

the

requirement

of

(i) Dacion en pago (Art. 1245.)

(ii) Novation
In both cases, there is a voluntary change
in the object.
2. Integrity.-There must be delivery of the entire
prestation due.
(Art. 1233.)
The
exceptions to the requirement of integrity
are:
In case of substantial performance in good
faith (Art. 1234.) This is an equity rule.
In case of waiver of obligee/ creditor (Art.
1235.)
In case of application of payments if
several debts are equally onerous (Art.
1254, par. 2.)
3. Indivisibility.-This means that the obligor must perform
the prestation in one act & not in parts.
(Art. 1248.) There are several exceptions
to this requirement:
In case or express stipulation. (Art. 1248.)
In case of prestations w/c necessarily entail
partial performance. (Art. 1225, par. 2)
If the debt is liquidated in part &
unliquidated in part. (Art. 1248.)
In case of joint divisible obligations (Art.
1208.)
In solidary obligations when the debtors
are bound under different terms &
conditions. (Art. 1211.)
In compensation when a balance is left.
(Art. 1290.)
If the work is to be delivered partially, the
price or compensation for each part
having been fixed. (Art. 1720.)
In case of several guarantors who demand
the right of division. (Art. 2065.)
In case of impossibility or extreme difficulty
of single performance.
II. With respect to the parties
There are two parties involved:
1. Payor/ obligor/ debtor
2. Payee/ obligee/ creditor
Requirements:
1. Art. 1226 - 1238. Who should the payor
be:
a. Without need of the creditor's
consent
The debtor himself
His heirs or assigns
His agent
Anyone interested in the fulfillment of the
obligation, e.g., a guarantor
338

b.

With the creditor's consent -Anyone. This is a departure fr. the


rule in the Old Civil Code w/c did
not require consent on the part of
the creditor.

c.
person:

Effect of payment by a third

If the payment was w/ the debtor's consent,


he becomes the agent of the debtor. The
effect is subrogation (Articles 1236-1237.)
Exception: If the person paying intended
it to be a donation. (Art. 1238.)
If payment was w/o the debtor's consent, the
third person may demand repayment to
the extent that the debtor has been
benefited. (Art. 1236, par. 2.)
2. Who may be the payee?
The obligee proper (Articles 1240, 1626.)
His successor or transferee (Art. 1240.)
His agent (ibid.)
Any third person subject to the following
qualifications:
provided it redounded to the obligee's benefit
& only to the extent of such benefit. (Art.
1241, par. 2.)
If it falls under Art. 1241, par. 2 nos. 1, 2 & 3,
benefit is deemed to be total.
Anyone in possession of the credit.
1242.)

(Art.

In all these five (5) cases, it is required


that the debt should not have been
garnished. (Art. 1243.)
III. With respect to the time & place of
payment
due

1. When payment to be made: When


2. Place (Art. 1251.)

Primary rule: As stipulated


Secondary rule: Place where the thing was at
the time the obligation was constituted if
the obligation is to deliver a determinate
thing.
Tertiary rule: At the debtor's domicile
Art. 1232. Payment means not only the
delivery of money but also the performance,
in any other manner, of an obligation.

Balane:

Payment
or
Performance
are
used
interchangeably. But technically, payment
is used in obligations to give whereas
performance is used in obligations to do.
Payment/ performance is the paradigmatic
mode of extinguishment of an obligation. It
is the only normal way of extinguishing an
obligation.
Art. 1233.
A debt shall not be
understood to have been paid unless the
thing or service in w/c the obligation
consists has been completely delivered or
rendered, as the case may be.
Art. 1234. If the obligation has been
substantially performed in good faith, the
obligor may recover as though there had
been a strict & complete fulfillment, less
damages suffered by the obligee.

BALANE CASES:
LEGARDA HERMANOS V. SALDANA [55
S 324] - The Court's doctrine in J.M.
Tuason v. Javier is fully applicable to the
present case.
J.M. TUASON V. JAVIER [31 S 829] - In
the interest of justice & equity, court may
grant the vendee a new term where he
substantially performed in good faith
according to Art. 1234, regardless of Art.
1592 of the same Code.
PRESBITERO V. CA [217 S 372] - Under
Art. 1234, if the obligation has been
substantially performed in GF, the obligor
(private resp. Leonardo Canoso) may
recover as though there had been a strict &
complete fulfillment, less damages suffered
by the obligee (Presbitero.)
Moreover,
when the obligee accepts the performance
as what happened in this case, knowing its
incompleteness or irregularity, & w/o
expressing any protest or objection, the
obligation is deemed fully complied w/.
TAYAG V. CA [219 S 480] - Both the trial
court & the appellate courts were correct in
sustaining the claim of pvt resps. anchored
on estoppel or waiver by acceptance of
delayed payments under Art. 1235
considering that the heirs of Juan Galicia,
Sr. accommodated pvt. resp. by accepting
the latter's delayed payments not only
beyond the grace periods but also during
the pendency of the case for specific
performance. Indeed, the right to rescind
is not absolute & will not be granted where
there has been substantial compliance by
partial payments. By & large, petitioners'
actuation is susceptible of but one
339

construction-- that they are now estopped fr.


reneging fr. their commitment on account of
acceptance of benefits arising fr. overdue
accounts of pvt. resps.
Art. 1235. When the obligee accepts the
performance, knowing its incompleteness or
irregularity, & w/o expressing any protest or
objection, the obligation is deemed fully
complied w/.

BALANE CASES:
AZCONA V. JAMANDRE [151 S 317] - xxx
If the petitioner is fussy enough to invoke it
now, it stands to reason that he would have
fussed it too in the receipt he willingly signed
after accepting, w/o reservation & apparently
w/o protest only P7,000.
Art. 1235 is
applicable.
Petitioner says that he could not demand
payment of the balance of P200 on 10/26/60,
date of receipt bec. the rental for the crop
year 1961-1962 was due on or before
1/30/61. But this would not have prevented
him fr. reserving in the receipt his right to
collect the balance when it fell due.
Moreover, there is evidence in the record that
when the due date arrived, he made any
demand, written or verbal, for the payment of
that amount.
PAGSIBIGAN V. CA [221 S 202] - We hold
that the payment amounting to P8,500 for
the balance of P3,558.20 as of 8/26/78 plus
the P1,000 it was asked to pay on 4/24/84
would at the very least constitute substantial
performance. xxx Petitioner in this case has
the right to move for the cancellation of the
mortgage & the release of the mortgaged
prop., upon payment of the balance of the
loan. xxx
Thus, aside fr. the fact that the resp. bank
was estopped fr. enforcing its right to
foreclose by virtue of its acceptance of the
delayed payments for a period of more than
six years, the application of such payment to
the interest & the principal during the first
three payments constitutes a virtual waiver
of the acceleration clause provided in the
contract. We cannot sustain the legality of
the foreclosure under the peculiar facts of
this case, bec. there is substantial
performance of the obligation on the part of
petitioner. xxx
1. To whom payment should be
made

Art. 1240. Payment shall be made to


the person in whose favor the obligation
has been constituted, or his successor in
interest, or any person authorized to
receive it.

BALANE CASES:
ARANAS V. TUTAAN
[127 S 828] Payment by judgment debtor to the wrong
party does not extinguish judgment debt.-The burden of recovering the supposed
payments of the cash dividends made by
UTEX to the wrong parties Castaneda &
Manuel squarely falls upon itself by its own
action & cannot be passed by it to
petitioners as innocent parties.
It is
elementary that payment made by a
judgment debtor to a wrong party cannot
extinguish the judgment obligation of such
debtor to its creditor. xxx
PAL V. CA [181 S 557] - A payment in
order to be effective to discharge an
obligation must be made to the proper
parties.-- In general, a payment, in order
to be effective to discharge an obligation,
must be made to the proper person. Thus,
payment must be made to the obligee
himself or to an agent having authority,
express or implied, to receive the particular
payment.
Payment made to one having
apparent authority to receive the money
will, as a rule, be treated as though actual
authority had been given for its receipt.
Likewise, if payment is made to one who by
law is authorized to act for the creditor, it
will work a discharge.
The receipt of
money due on a judgment by an officer
authorized by law to accept it will,
therefore satisfy the debt.
xxx The theory is where a payment is
made to a person authorized & recognized
by the creditor, the payment to such a
person so authorized is deemed payment
to the creditor. xxx
Unless authorized by law or by consent of
the obligee, a public officer has no
authority to accept anything other than
money in payment of an obligation under a
judgment being executed.-- In the absence
of an agreement, either express or implied,
payment means the discharge of a debt or
obligation in money & unless the parties so
agree, a debtor has no rights, except at his
own peril, to substitute something in lieu of
cash as medium of payment of his debt.
Consequently, Unless authorized by law or
by consent of the obligee, a public officer
has no authority to accept anything other
than money in payment of an obligation
under a judgment being executed. Strictly
speaking, the acceptance by the sheriff of
the petitioner's checks, in the case at bar,
340

does not, per se, operate as a discharge of


the judgment debt.
Tolentino:
Authority
to
receive:
LEGAL
or
CONVENTIONAL
Legal: conferred by law, such as autho. Of
guardian to inc. creditor (Cr), or the admr
of estate
Conventional: autho. Fr. Cr himself, as when
agent is appted. To collect fr. Debtor (Dr)
Paymt. To wrong party does NOT extinguish
oblig to Cr, if there is no fault or
negligence w/c can be imputed to the
latter, even when Dr acted in utmost GF &
by mistake as to the person of his Cr, or
thru error induced by fraud of 3P, EXCEPT
AS PROV. IN ART. 1241
Deposit by Dr in bank, in the name of & to
the credit of Cr, w/o latters autho. Does
NOT constitute paymt; but when the Cr
cannot be found in the place of payment,
such deposit may be a valid excuse for
not holding the Dr in default
GR: Consignation in ct. of thing or amt. Due,
when properly made will ext. oblig.
Art. 1241. Payment to a person who is
incapacitated to administer his property shall
be valid if he has kept the thing delivered, or
insofar as the payment has been beneficial to
him.
Payment made to a third person shall also
be valid insofar as it has redounded to the
benefit of the creditor. Such benefit to the
creditor need not be proved in the following
cases:
(1) If after the payment, the third persons
acquires the creditor's rights;
(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.

Baviera:
Pais

Number three is Estoppel in

When Cr is incapacitated, payment


must be made to his legal
rep. Or deliver the thing to ct.
for consignation ff. Art. 1256
Paymt. To Inc. Cr shall be valid only
insofar as it accrued to his
benefit. Absence of benefit,
Dr may be made to pay again
by Cr when he attains
capacity, or his legal rep
during the inc.
Same principles are applicable to
paymt made to 3P, but
person who paid has right to
recover fr. 3P
In ff. Cases, paymt. To 3P releases Dr:
(1) when w/o notice to
assngmt. Of credit he pays to
original Cr [Art. 1626] & (2)
when in GF he pays to one in
possn of credit [Art. 1242]
If mistake of Dr due to fault of Cr, then
Cr cannot demand anew
Art. 1242. Payment made in good faith
to any person in possession of the credit
shall release the debtor.
(Assignment of
Incorporeal Rights)

Credits

&

Other

Art. 1626.
The debtor who, before
having knowledge of the assignment, pays
his creditor shall be released fr. the
obligation.
2. Who shall make payment
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.
Whoever pays for another may demand
fr. the debtor what he has paid, except that
if he paid w/o 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 w/o the knowledge or against
the will of the latter, cannot compel the
creditor to subrogate him in his rights, such
as those arising fr. a mortgage, guaranty,
or penalty.

Tolentino:
Art. 1238. Payment made by a third
person who does not intend to be
341

reimbursed by the debtor is deemed to be a


donation, w/c requires the debtor's consent.
But the payment is in any case valid as to the
creditor who has accepted it.
(Other Quasi-Contracts)
Art. 2173. When a third person, w/o the
knowledge of the debtor, pays the debt, the
rights of the former are governed by articles
1236 & 1237.
Art. 1239. In obligations to give, payment
made by one who does not have the free
disposal of the thing due & capacity to
alienate it shall not be valid, w/o prejudice to
the provisions of article 1427 under the Title
on "Natural Obligations."
Art. 1427.
When a minor between
eighteen & twenty-one years of age, who has
entered into a contract w/o 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 fr. the obligee who
has spent or consumed it in good faith.

NOTE: age of majority is now 18.


Tolentino:
Where the person paying has no capacity to
make the pmt, the Cr cannot be
compelled to accept it. Consignn will not
be proper.
In case Cr accepts, the pmt will not be valid,
except in the case provided in A 1427.
RFC V. CA
Facts: Anduiza & Cano made a PN solidarily
promising to pay AIB, predecessor of RFC, a
sum of money in 10 equal installments. They
failed to pay in 42 &43. Madrid offered, &
subsequently paid such debt to AIB. Despite
demands, Anduiza failed to pay Madrid. AIB
refused to cancel the mortgage made by A &
C. Thus, Madrid filed a complaint praying that
the indebtedness be declared paid, that the
mortgage be canceled & that A&C pay the
amount he paid to AIB.
Issue: WON payment by M valid

Held: Yes. A&C did not protest when M


paid AIB. Thus M entitled to payment.
Under 1158, payment made by any person,
WON interested in the obligation & WON
payment is known & approved by Dr or
WON he is aware of it. If made v. Drs will,
the payor will only recover insofar as the
payment has been beneficial to him. The
Bank cannot invoke the provision that the
payor may only recover fr. the Dr only
insofar as the payment has been beneficial
to him. This defense may only be availed
of by the Dr, not the bank. Besides, in order
that the rights of the payor may be subject
to such limitation, the Dr must oppose the
pmts b4 or at the time the same were
made, not subsequently thereto.

Art. 1243.
Payment made to the
creditor by the debtor after the latter has
been judicially ordered to retain the debt
shall not be valid.

Tolentino:
Pmt to Cr after the credit has been
attached ir garnished is void as to the
party who obtained the attachmt or
garnishmt, to the extent of the amt of
jmt in his favor
Dr can therefor be made to pay again to
the party who secured the attachtmt or
garnishmt, but he can recover the same
to the extent what he has pd to his Cr
Art. 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
w/c 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.

Tolentino:
Defects of the thing delivered may be
waived by the Cr, if he expressly so
declares, or if, w/ knowledge thereof, he
accepts the thing w/o protest or disposes of
it or consumes it

342

Art. 1245. Dation in payment, whereby


property is alienated to the creditor in
satisfaction of a debt in money, shall be
governed by the law of sales.

BALANE CASES:
FILINVEST V. PHIL. ACETYLENE [111 S
421] - We find appellant's contention devoid
of persuasive force. The mere return of the
mortgaged motor vehicle by the mortgagor,
the herein appellant, to the mortgagee, the
herein appellee, does not constitute dation in
payment in the absence, express or implied
of the true intention of the parties.
Dacion en pago, according to Manresa, is the
transmission of the ownership of a thing by
the debtor to the creditor as an accepted
equivalent of the performance of an
obligation. In dacion en pago, as a special
mode of payment, the debtor offers another
thing to the creditor who accepts it as
equivalent of payment of an outstanding
debt.
Dacion en pago in the nature of sale.-- The
undertaking really partakes in one sense of
the nature of sale, that is, the creditor is
really buying the thing or property of the
debtor, payment for w/c is to be charged
against the debtor's debt.
As such, the
essential elements of a contract of sale,
namely, consent, object certain, & cause or
consideration must be present.
Dacion en pago in its modern concept.-- In
its modern concept, what actually takes place
in dacion en pago is an objective novation of
the obligation where the thing offered as an
accepted equivalent of the performance of an
obligation is considered as the object of the
contract of sale, while the debt is considered
as the purchase price. In any case, common
consent is an essential prerequisite, be it sale
or novation, to have the effect of totally
extinguishing the debt or obligation.
CITIZENS SURETY V. CA [162 S 738] There is no dation in payment when there is
no obligation to be extinguished.-The
transaction could not be dation in payment.
xxx [W]hen the deed of assignment was
executed on 12/4/59, the obligation of the
assignor to refund the assignee h ad not yet
arisen.
In other words, there was no
obligation yet on the part of the petitioner,
Citizens' to pay Singer Sewing Machine Co.
There was nothing to be extinguished on that
date, hence, there could not have been a
dation in payment.

Art. 1246. When the obligation consists


in the delivery of an indeterminate or
generic
thing,
whose
quality
&
circumstances have not been stated, the
creditor cannot demand a thing of superior
quality. Neither can the debtor deliver a
thing of inferior quality. The purpose of the
obligation & other circumstances shall be
taken into consideration.

Tolentino:
Cr or Dr may waive the benefit of this Art.
Cr may require a thing of inferior qlty & Dr
may deliver a thing of superior qlty,
unless the price to be pd in the latter
case is dependent upon the qlty
Art. 1247.
Unless it is otherwise
stipulated, the extrajudicial expenses
required by the payment shall be for the
account of the debtor.
With regard to
judicial costs, the Rules of Court shall
govern.
Art. 1248. Unless there is an express
stipulation to that effect, the creditor
cannot be compelled partially to receive
the prestations in w/c the obligation
consists.
Neither may the debtor be
required to make partial payments.
However, when the debt is in
liquidated & in part unliquidated,
creditor may demand & the debtor
effect the payment of the former
waiting for the liquidation of the latter.

part
the
may
w/o

BALANE CASE:
NASSER V. CUEVAS [188 S 812] - There
is nothing in the cited proviso to justify the
reading that the petitioner would give to it.
The par. in w/c it is found does no more
than establish "on all the properties of the
Estate, real & personal, herein adjudicated
& other properties not yet adjudicated, a
charging lien xxx to secure the payment of
(Canlas') attorney's fees;" this, w/ the
express agreement of all the signatories.
The proviso that "upon full payment of the
corresponding liability of a party the lien on
his/her share is extinguished," evidently
contemplates the probability that the heirs
obliged to pay Canlas' fees would pay at
different times, & denotes nothing more
than that if one of the obligors separately
343

pays his share in Canlas' fees, the lien on his


share of the estate is thereby extinguished-a quite obvious proposition, to be sure. The
clause cannot be construed as granting to
any of the obligors, by implication, the option
to pay in installments, or as impliedly binding
on the obligee to accept payment by parts.
xxx
Art. 1249.
The payment of debts in
money shall be made in the currency
stipulated, & if it is not possible to deliver
such currency, then in the currency w/c is
legal tender in the Philippines.
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.
In the meantime, the action derived fr.
the original obligation shall be held in
abeyance.

TIBAJA V. CA
Facts: Tan obtained a jmt v. the Tibaja
spouses for pmt of sum of money. To prevent
execn of garnished funds deposited w/ RTC in
connxn w/ another case, the Tibajas delivered
to the sheriff the total money jmt partly in
cash & a greater part in a Cashiers Check,
w/c Tan refused to accept.
Issue: WON there is valid tender of pmt
Held: Under Sec. 63 of RA 265, checks
representing deposit money do not have
legal tender power & their acceptance in the
pmt of debts, public or private, is at the
option of the Cr, provided that a check w/c
has been cleared & credited to the account of
the Cr shall be equiv to a delivery to Cr of
cash. In PAL v. CA & RC Bishop of Mla v. IAC, a
check, WON Mgrs or ord, is not legal tender
& an offer of a check in pmt of a debt is not a
valid tender of pmt & may be refused receipt
by the Cr.
BALANE CASES:
KALALO V. LUZ [34 S 337] - Under RA 529,
if the obligation was incurred prior to the

enactment in a particular kind of coin or


currency other than the Phil. currency the
same shall be discharged in Phil. currency
measured at the prevailing rate of
exchange at the time the obligation was
incurred. RA 529 does not provide for the
rate of exchange for the payment of the
obligation incurred after the enactment of
said Act. The logical conclusion is that the
rate of exchange should be that prevailing
at the time of payment for such contracts.
PONCE V. CA [90 S 533] - It is to be
noted that while an agreement to pay in
dollars is declared as null & void & of no
effect, what the law specifically prohibits is
payment in currency other than legal
tender. It does not defeat a creditor's claim
for payment, as it specifically provides that
"every other domestic obligation xxx
whether or not any such provision as to
payment is contained therein or made w/
respect thereto, shall be discharged upon
payment in any coin or currency w/c at the
time of payment is legal tender for public &
pvt. use." A contrary rule would allow a
person to profit or enrich himself
inequitably at another's expense.
NEW PACIFIC TIMBER V. SENERIS [101
S 686] - It is to be emphasized that the
check deposited by the petitioner in the
amount of P50,000 is not an ordinary check
but a Cashier's check of the Equitable
Banking Corp., a bank of good standing &
reputation. It was even a certified crossed
check. It is well known & accepted practice
in the business sector that a Cashier's
check is deemed as cash.
Moreover, since the said check has been
certified by the drawee bank, by the
certification, the funds represented by the
check are transferred fr. the credit of the
maker to that of the payee or holder, & for
all intents & purposes, the latter becomes
the depositor of the drawee bank, w/ rights
& duties of one in such situation. Where a
check is certified by the bank on w/c it is
drawn, the certification is equivalent to
acceptance. Said certification "implies that
the check is drawn upon sufficient funds in
the hands of the drawee, that they have
been set apart fort its satisfaction, & that
they shall be so applied whenever the
check is presented for payment. It is an
understanding that the check is good then,
& shall continue good, & this agreement is
as binding on the bank as its notes in
circulation, a certificate of deposit payable
to the order of the depositor, or any other
obligation it can assume. The object of
certifying a check, as regards both parties,
is to enable the holder to use it as money."
When the holder procures the check to be
certified, "the check operates as an
assignment of a part of the funds to the
creditors." Hence, the exception to the rule
enunciated under Sec. 63 of the CB Act to
the effect that "a check w/c has been
cleared & credited to the account of the
344

creditor shall be equivalent to a delivery to


the creditor in cash in an amount equal to the
amount credited to his account" shall apply in
this case.
BISHOP OF MALOLOS V. IAC [191 S 411]
Since a negotiable instrument is only a
substitute for money & not money, the
delivery of such an instrument does not, by
itself, operate as payment. A check, whether
a manager's check or ordinary check, is not
legal tender, & an offer of a check in
payment of a debt is not a valid tender of
payment & may be refused receipt by the
obligee or creditor.
DBP V. SIMA WEI
[219 S 736]
Notw/standing the above, it does not
necessarily follow that the drawer Sima Wei is
freed fr. liability to petitioner bank under the
loan evidenced by the p/n agreed to by her.
Her allegation that she has paid the balance
of her loan w/ the 2 checks payable to
petitioner Bank has no merit for xxx these
checks were never delivered to petitioner
Bank.
And even granting, w/o admitting,
that there was delivery too petitioner Bank,
the delivery of checks in payment of an
obligation does not constitute payment
unless they are cashed or their value is
impaired through the fault of the creditor.
None of these exceptions were alleged by
resp. Sima Wei.
PALANCA V. CA [238 S 593] - In the case
at bar, the clear understanding of the parties
is that there should be an upward adjustment
of the purchase price the moment there is a
deterioration of the Phil. vis-a-vis the US
dollar. This is the "monetary fluctuation"
contemplated by them as would justify the
adjustment. Under this scenario, it is an idle
task to determine whether the contract has
been visited by an "extraordinary inflation" as
to trigger the operation of Art. 1250. While
the contract may contain an "escalator
clause" providing that in the occurrence of
certain events, the contract price shall be
increased to a fixed percentage of the base
price, still the autonomy of the parties to
provide such escalator clauses may be
limited by law.
The petition should be
dismissed on the ground that the stipulation
of the parties is in violation of RA 529, as
amended.
We cannot grant the petition but not on the
grounds relied upon by the trial court & the
CA that there should be an "extraordinary
inflation" before a stipulation for an upward
adjustment of the purchase price can be
enforced.
1. xxx The petition should be dismissed on
the ground that the stipulation of the parties
is in violation of RA 529, aka, Cuenco Law.
The Court cited Sec. 1 of the said law.

xxx [T]he said law prohibits two things in


all domestic contracts: (1) giving the
obligee the right to require payment in a
specified currency
other than Phil.
currency; & (2) giving the obligee the right
to require payment "in an amount of
money of the Philippines measured
thereby."
When the parties stipulated that in the
event of monetary fluctuation, the unpaid
balance account of the herein vendee on
the aforesaid subdivision lot shall be
increased proportionately on the basis of
the present value of peso to the US dollar,
the obligee was given the right to demand
payment of the bal. of the purchase price
"in an amount of money of the Phils.
measured" by a foreign coin or currency.
xxx Congress passed RA 529, having in
mind the preservation of the value of the
Phil. peso.
A currency has value bec.
people are willing to accept it in exchange
for goods & services & in payment for
debts. xxx If instead of the Phil. currency,
the people would use a foreign currency as
the mode of payment or as basis for
measuring the amount of money to be paid
in Phil. currency, such usage would
adversely affect the confidence of the
public on the Phil. monetary system.
2.
The liberalization of the foreign
exchange regulations on receipts &
disbursements of residents arising fr. both
non-trade & trade transactions did not
repeal or in any way amend RA 529. In
essence, said CB Circulars merely allowed
the free sale & purchase of foreign
exchange outside the banking system &
other
transactions
involving
foreign
currency previously subject to CB control.
Tolentino:
Legal tender: such currency w/c in a given
jurisdiction can be used for the pmts of
debts, public & private, & w/c cannot be
refused by the Cr
Since pmt must be in money that is legal
tender, pmt in check even when good
may be validly refused by Cr
Pmt by Check: WON MgrC or ordinary is
NOT a valid tender of pmt
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 obligation shall be the
basis of payment, unless there is an
agreement to the contrary.

345

Baviera: This article applies to contracts


only. EXTRAORDINARY means unusual
or beyond the common fluctuation, not
foreseen
Tolentino: Does NOT apply where oblig to
pay arises fr law, independent of Ks, like the
taking of private prop by the govt in the
exercise of its pwr of emt domain
FIL. PIPE & FOUNDRY CORP. V. NAWASA
Facts: In 67, CFI ordered NAWASA to pay
FPFC the balance of the purchase price of
cast iron pressure pipes. N failed to pay. In
71, FPFC filed another complaint seeking an
adjustment of the unpaid balance. TC
dismissed the complaint holding that the
inflation was a worldwide occurrence & that
there was no proof of extraord inflation in the
sense contemplated by Art. 1250.
Issue: WON there was extraord inflation
Held: None. Extraord inflation exists when
there is a decrease or increase in the
purchasing pwr of the Phil currency w/c is
unusual & w/c cld not have been reasonably
foreseen or was manifestly beyond the
contemplation of the parties at the time of
the est of the obligation. In CAB, the decline
of the purchasing pwr of the currency cannot
be considered extraord. It was due to oil
embargo crisis the effect of w/c was
worldwide.
BALANE CASES:
VELASCO V. MERALCO [42 S 556] - From
the employment of the words "extraordinary
inflation or deflation of the currency
stipulated" in Art. 1250, it can be seen that
the same envisages contractual obligations
where a specific currency is selected by the
parties as the medium of payment; hence it
is inapplicable to obligations arising fr. tort &
not fr. contract. Besides, there is no showing
that the factual assumption of said article has
come into existence.
COMMISSIONER OF PUBLIC HIGHWAYS V.
BURGOS [96 S 831] - Art. 1250 does
applies only to cases where a contract or
agreement is involved. It does not apply
where the obligation to pay arises fr. law,
independent of contracts.
The taking of
private property by the govt in the exercise of
its power of eminent domain does not give
rise to a contractual obligation.

DEL ROSARIO V. SHELL [164 S 556] - In


the case at bar, while no express reference
has been made to metallic content, there
nonetheless is a reduction in par value or in
the purchasing power of Phil. currency.
Even assuming there has been no official
devaluation as the term is technically
understood, the fact is that there has been
a diminution or lessening in the purchasing
power of the peso, thus there has been a
"depreciation" (opposite of "appreciation.")
Moreover, when laymen unskilled in the
semantics of economics use the terms
"devaluation"
or
"depreciation"
they
certainly mean them in their ordinary
signification-- decrease in value. Hence,
as contemplated by the parties herein in
their
lease
agreement,
the
term
"devaluation" may be regarded as
synonymous w/ "depreciation," for certainly
both refer to a decrease in the value of the
currency. The rentals should therefore, by
their
agreement,
be
proportionately
increased.
SANGRADOR V. VALDERAMA [168 S
215] - Since petitioners failed to prove the
supervening of extraordinary inflation bet.
4/6/84 & 12/7/84-no proofs were
presented on how much, for instance, the
price index of goods & services had risen
during
the
intervening
period-an
extraordinary inflation cannot be assumed;
consequently, there is no reason or basis,
legal or factual, for adjusting the value of
the Phil. peso in the settlement of
respondents' obligation.
(not in Baviera's outline)

Art. 1251. Payment shall be made in


the place designated in the obligation.
There being no express stipulation & if
the undertaking is to deliver a determinate
thing, the payment shall be made wherever
the thing might be at the moment the
obligation was constituted.
In any other case the place of payment
shall be the domicile of the debtor.
If the debtor changes his domicile in
bad faith or after he has incurred in delay,
the additional expenses shall be borne by
him.
These provisions are w/o prejudice to
venue under the Rules of Court.

Four Special Kinds of Payments:


346

1.
2.
3.
4.

Dacion en pago (Art. 1245.)


Application of payments (Subsection 1.)
Payment by cession (Subsection 2.)
Consignation (Subsection 3.)

Balane Discussion:
1. Dacion en pago
Art. 1245. Dation in payment, whereby
property is alienated to the creditor in
satisfaction of a debt in money, shall be
governed by the law of sales.

Balane:
Dacion en pago (In Roman law, called "datio
in solutum", in French, "dation en paiement,"
in Spanish, "dacion en pago.") Dation in
payment is possible only if there is a debt in
money.
Instead of money, a thing is
delivered in satisfaction of the debt in money.
Dation in payment is governed by the law on
sales bec. it is as if the creditor is now the
vendee, & the debtor becomes now the
vendor.
Dation en pago is explained in the case of
Filinvest v. Phil Acetylene, supra.
There are two ways at looking at dacion en
pago:
Classical way where dacion en pago is
treated as a sale.
Modern concept w/c treats dacion en pago as
a novation.
Castan has another view-- Both are
wrong. A dacion en pago is not a sale bec.
there is no intention to enter into a contract
of sale. It is not also a novation bec. in
novation, the old obligation is extinguished &
a new obligation takes its place. But here,
the old obligation is extinguished.
What
takes its place? Nothing. So what is it? It is
a special form of payment w/c resembles a
sale.
There are two more things to
remember in the cases of Filinvest v. Phil.
Acetylene, supra. & Lopez v. CA, 114 SCRA
671:
Dacion en pago can take place only if both
parties consent.
To what extent is the obligation extinguished?
Up to the value of the thing given (the
thing must be appraised) unless the
parties agree on a total extinguishment.
(Lopez. v. CA, supra.)

2. Application of Payment
Balane:
Application of payment (Imputacion
in Spanish) is the designation of a debt w/c
is being paid by the debtor who has several
obligations of the same kind in favor of the
creditor to whom the payment is made
(quoting Tolentino.)
Rules where the amount sent by the debtor
to the creditor is less than all that is due.
First rule: Apply in accordance w/ the
agreement.
Second rule:
Debtor may apply the
amount (an obvious limitation bec. of the
principles of indivisibility & integrity) where
there would be partial payment.
Third rule:
application.

Creditor

can

make

the

Fourth rule: Apply to the most onerous


debt. (Art. 1252, par. 1.)
What are the rules to determine w/c is the
most onerous debt?
If one is interest paying & the other is not,
the debt w/c is interest paying is more
onerous.
If one is a secured debt & the other is not,
the secured debt is more onerous
If both are interest free, one is older than
the first, the newer one is more onerous
bec. prescription will take longer w/
respect to the newer debt.
Fifth rule: Proportional application if the
debts are equally onerous.
Art. 1252. He who has various debts of
the same kind in favor of one & the same
creditor, may declare at the time of making
the payment, to w/c of them the same
must be applied. Unless the parties so
stipulate, or when the application of
payment is made by the party for whose
benefit the term has been constituted,
application shall not be made as to debts
w/c are not yet due.
If the debtor accepts fr. the creditor a
receipt in w/c an application of the
payment is made, the former cannot
complain of the same, unless there is a
cause for invalidating the contract.
347

Tolentino:
Nec that obligs must all be due
Only in case of mutual agreement, or upon
consent of the party in whose favor the
term was est, that pmts may be applied
to obligs w/c have not yet matured
Art. 1253. If the debt produces interest,
payment of the principal shall not be deemed
to have been made until the interests have
been covered.
Art. 1254. When the payment cannot be
applied in accordance w/ the preceding rules,
or if application can not be inferred fr. other
circumstances, the debt w/c is most onerous
to the debtor, among those due, shall be
deemed to have been satisfied.
If the debts due are of the same nature &
burden, the payment shall be applied to all of
them proportionately.

Baviera: The ff. Are the rules for applicn


of pmts:
The first choice belongs to the Dr.
If the Dr did not choose, the Cr may
choose, w/c he will manifest in a
receipt.
If neither specified the applicn, pmt
shall be made to the most onerous
debt.

TRADERS V. DY ENG GIOK


Facts: As of Aug 51, Dy (Ee of Destileria Lim
Tuaco) had an outstanding running acct of
P12, 848.61. That same mo & yr, a surety
bond was issued in favor of the Co. for
P10,000 w/ Dy as principal & Traders as
surety to guarantee the full pmt of Dys oblig
w/c was not to exceed the above sum,
effective Aug51 to Aug 52. Then Dy as
principal
w/
Lopez
&
Dy-Liaco
as
counterbondsmen, issued an indemnity
agreemt in favor of Traders. From Aug 51 to
Aug 52 , Dy Ked obligs in favor of the Co.
amting to P41,864+ for w/c Dy made
remittances. However the Co. applied such
to Dys outstanding balance prior to Aug 51.
The Co. then sought reimbursement. From

Traders for
the remaining balance of
P12,464. Traders paid P10,000 & in turn
sought reimb fr. Dy, et. al.
Issue: WON Dy, et. al. has any liability
Held: The remittance by Dy shld have
been applied to his oblig Ked fr. Aug 51 &
Aug 52, when the surety + bond was
issued. Hence, Traders & Dy, et. al. did not
incur any liab in favor of the Co. The 1st
reason is that, in the absence of express
stip, a guaranty or suretyship operates
prospectively & not retro; that is to say, it
secures only debts Ked after the guaranty
takes effect. The 2nd reason is that any
partial pmts made by the Dr shld be
imputed or applied to debts that were
guaranteed, since they are regarded as
more onerous debts, fr. Drs standpt. (A
1254). Debts covered by a guaranty are
deemed more onerous to the Dr than the
simple obligs coz in their case, the Dr may
be subjected to axn not only by the Cr, but
also by the guarantor, & this even b4 the
guaranteed debt is pd by the guarantor (A
2071); hence pmt of the guaranteed debt
relieves the Dr fr. liab to the Cr, as well as
to the guarantor, while pmt of the
unsecured debt only discharges him fr.
possible axn by only one party, the
unsecured Cr.
REPARATIONS COMM. V. UNIV. DEEP
Facts: Univ. Deep (UD) was awarded 6
trawl boats by Rep. Comm.(RC). The boats
were delivered in twos. For all deliveries,
UD & Mla Surety (MS), to guarantee faithful
compliance, executed a performance bond
of P53,643 in favor of RC. When UD failed
to pay, RC filed a suit v. UD & MS. TC
ordered UD & MS to pay jointly & severally.
MS now claims that the TC erred in not
applying the amt of P10,000 pd as
downpmt by UD to RC to the guaranteed
indebtedness, so that the oblig of MS will
only be P43,643. ( Full purchase price was
P53,643)
Issue: WON downpmt as application to
MS oblig is proper
Held: No. The rules contained in A 125254 apply to a person owing several debts of
the same kind to a single Cr. They cannot
be made applicable to a person whose
oblig as a mere surety is both contingent &
348

singular, w/c in this case is the full & faithful


compliance w/ the terms of the K of condl
purchase & sale of reparations goods. The
oblig included the pmt not only of the 1 st
installment but also of the 10 installments. It
is liable for the debt or more, but cld be less;
still, its liab does not cease until there is pmt
of whole debt.
(not in Baviera's outline)
Subsection 2.-- Payment by Cession
Balane:
Concept
of
payment
by
cession.-Property is turned over by the debtor to the
creditor who acquires the right to sell it &
divide the net proceeds among themselves.
Why is payment by cession a special form of
payment?-- Bec. there is no completeness of
performance (re: integrity.) In most cases,
there will be a balance due.
Difference between dacion en pago &
payment by cession.-- In dacion en pago,
there is a transfer of ownership fr. the debtor
to the creditor. In payment by cession, there
is no transfer of ownership. The creditors
simply acquire the right to sell the properties
of the debtor & apply the proceeds of the
sale to the satisfaction of their credit.
Does payment by cession terminate all debts
due?-- Generally, no. But only to the extent
of the net proceeds. The extinguishment of
the obligation is pro tanto. This is to be
distinguished fr. Legal cession where the
extinguishment of the obligation is total.
Legal cession is governed by the Insolvency
Law.
Art. 1255. The debtor may cede or assign
his property to his creditors in payment of his
debts.
This cession, unless there is
stipulation to the contrary, shall only release
the debtor fr. responsibility for the net
proceeds of the thing assigned.
The
agreements w/c, on the effect of the cession,
are made between the debtor & his creditors
shall be governed by special laws.

B. Tender of Payment &


Consignation

Subsection 3.-- Tender of Payment &


Consignation
Balane:
The title of the subsection is wrong. It
should have been Consignation only bec.
that is the special mode of payment & not
the tender of payment. It is a special mode
of payment bec. payment is made not to
the creditor but to the court.
Consignation is an option on the part of the
debtor bec. consignation assumes that the
creditor was in mora accipiendi (when the
creditor w/o just cause, refuses to accept
payment.)
Consequence when the creditor w/o just
cause, refuses to accept payment-- The
debtor may just delay payment.
But
something still hangs above his head. He
is therefore, given the option to consign.
Distinguish this fr. BGB (German Civil Code)
w/c
states
that
mora
accipiendi
extinguishes the obligation.
Art. 1256. If the creditor to whom
tender of payment has been made refuses
w/o just cause to accept it, the debtor shall
be released fr. responsibility by the
consignation of the thing or sum due.
Consignation alone shall produce the
same effect in the following cases:
(1) When the creditor is absent or
unknown, or does not appear at the place
of payment;
(2) When he is incapacitated to receive
the payment at the time it is due;
(3) When, w/o just cause, he refuses to
give a receipt;
(4) When two or more persons claim
the same right to collect;
(5) When the title of the obligation has
been lost.

Tolentino:
Tender of pmt b4 consign is required by
the present Art only in case where the
Cr refuses to accept it w/o just cause
Effect on INTEREST: When tender made in
form that Cr cld have immdtly realized
pmt, followed by a prompt attempt of
Dr to make consignn., the accrual of
interest will be suspended fr. the date
of such tender. But when tender is not
accompanied by means of pmt, & the
Dr did not take any immdte step to
349

consign, then interest is not suspended fr.


the time of such tender
For requiremts of consignn : SEE SOCO V.
MILITANTE CASE BELOW !
BALANE CASES:
SOCO V. MILITANTE
[123 S 160]
Consignation Defined.-- Consignation is the
act of depositing the thing due w/ the court or
judicial authorities whenever the creditor
cannot accept or refuses to accept payment
& it generally requires a prior tender of
payment.
Requisites of a Valid Consignation.-- The
debtor must show (1) that there was a debt
due; (2)
that the consignation of the
obligation had been made bec. the creditor to
whom tender of payment was made refused
to accept it, or bec. he was absent or
incapacitated, or bec. several persons
claimed to be entitled to receive the amount
due; (3)
that previous notice of the
consignation had been given to the person
interested in the performance of the
obligation (Art. 1257); (4) that the amount
due was placed at the disposal of the court
(consignation proper); (5)
that after the
consignation had been made the person
interested was notified thereof (second
notice.) Failure of any of these requirements
is enough ground to render a consignation
ineffective.
ALFONSO V. CA [168 S 545] - Such
rejection rendered the proposal of free rental
w/o force & effect. Def. therefore was duty
bound to pay the rentals as they fall due in
order to abort any ejectment proceedings
against him.. If the lessor refuses to accept
the payment, as in the case at bar, def. had a
remedy provided for by law, namely
consignation in court or deposit in a bank in
the lessors name w/ due notice to the lessor.
Unfortunately, it is of record that def. did not
avail of such remedy so that when plaintiffs
filed the ejectment proceedings against him,
the rentals corresponding the mo. of April to
July 1984 had not yet been paid by def.
Tender of payment is not enough-consignation must follow in order to
extinguish the debt. Otherwise, failure to
comply w/ the requirements provided for
under Sec. 5, par. (b), PB 25 is a ground for
ejectment. Delayed consignation or deposit
will not do.
TAYAG V. CA [219 S 480] - xxx [P]etitioners
argue that there was no valid tender of
payment nor consignation of the sum of
P18,520 w/c they acknowledge to have been
deposited in court on 1/22/81 five years after
the amount of P27,000 had to be paid. xxx
Against this suggestion ignores the fact that
consignation alone produced the effect of
payment in the case at bar bec. it was

established that 2 or more heirs of Juan


Galicia, Sr. claimed the same right to
collect.
MANILA REMANANT V. CA [231 S 272] xxx [U]pon consignation by the Ventanillas
of the sum due, the trial court may enter
judgment canceling the title of the
petitioner over the property & transferring
the same to the respondents.
This
judgments shall have the same force &
effect as a conveyance duly executed in
accordance w/ the requirements of the law.
Art. 1257.
In order that the
consignation of the thing due may release
the obligor, it must first be announced to
the persons interested in the fulfillment of
the obligation.
The consignation shall be ineffectual if
it is not made strictly in consonance w/ the
provisions w/c regulate payment.
Art. 1258. 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, & the announcement of the
consignation in other cases.
The consignation having been made,
the interested parties shall also be notified
thereof.

Tolentino:
Notice: The reqmt is fulfilled by the service
of summons upon the Def together w/ copy
of complaint
Art.
1259.
The
expenses
of
consignation, when properly made, shall be
charged against the creditor.

Tolentino: Proper when (1) Cr accepts


consignn after deposit w/o protest though
Dr failed to comply w/ reqs. Or (2) Ct.
declares cons as validly made
Art. 1260. Once the consignation has
been duly made, the debtor may ask the
judge to order the cancellation of the
obligation.
350

Before the creditor has accepted the


consignation, or before a judicial declaration
that the consignation has been properly
made, the debtor may w/draw the thing or
the sum deposited, allowing the obligation to
remain in force.

Tolentino:
Effects of Consignation:
Dr is released in the same manner as if he
had performed the oblig
Accrual of INTEREST is suspended
Deterioration or loss of thing or amt
consigned w/o fault of Dr must be borne
by Cr
Any increment ir increase in value of thing
inures to the benefit of Cr
SC: When money is deposited in ct under the
provs of the law on cons, it is in custodia
legis & therefore exempt fr. Attachmt &
execution (Manejero v. Lampa)
Art. 1261. If, the consignation having
been made, the creditor should authorize the
debtor to w/draw the same, he shall lose
every preference w/c he may have over the
thing. The co-debtors, guarantors & sureties
shall be released.

Baviera:
Q: When is there a need to tender pmt?
A: (a) upon demand & (b) when due
Q: There are 2 or more claims. What will Cr
do after consignation?
A: File INTERPLEADER.
Q: Why tender first?
A: Coz no need to consign if Cr accept pmt.
We can only know this through tender.
Q: B4 & after consignn, there is a need to
notify the Cr. Why?
A: So that the Cr can get the money fr. the
Clerk of ct & avoid costs of litigation.
Q: D consigns. Hearing. B4 the ct cld
approve, the City Hall burned + money. Shld
D pay again?
A: No. When money is consigned, it is no
longer generic. It becomes specific. Cr bears
the loss bec. although it was due to a
fortuitous event, there was delay on his part
when he refused to accept pmt.

Special Kinds of Pmt:


Consignation
Dacion en pago
Cession by pmt ( Assignmt of all assets of
Dr to Cr; an act of insolvency)
Q: K of Sale w/ pacto de retro. The vendor
tendered pmt w/in the 3-yr pd by vendee
refused to accept. Axn for spec perf by Vr.
Accdg to Ve, since money was not
consigned, Vr cannot claim rt of
repurchase. Tenable argument?
A: No. As long as the was tender, no need
to consign.
But in one case of a co-owner wanting to
redeem
at
reasonable
price
(was
exorbitant), the court held that reasonable
price is det accdg to the circs. So if you
want to redeem, consign the full amt in ct
&
ask
it
to
fix
the
reasonable
compensation.
C. Loss or Impossibility of
Performance
Balane:
Applicable provisions.-- In an obligation to
give a determinate thing (Art. 1262); in an
obligation to give a generic thing (Art.
1263); in an obligation to do (Art. 1266.)
There are two kinds of impossibility
of performance:
(1)
an original
impossibility
&
(2)
supervening
impossibility.
The kind of impossibility
talked
about
here
is
supervening
impossibility.
An original impossibility
makes the obligation void. It will be case of
an obligation w/o a cause (see Art. 1409,
no. 2 "those where the cause or object did
not exist at the time of the transaction"-the phrase "did not exist at the time of the
transaction" is inaccurate; it is possible to
enter into contracts where the object did
not exist at the time of the transaction,
e.g., contract over a future thing; the
phrase should have been "could not exist")
A contract whose prestation is impossible
at the beginning is not the concern of loss
of thing due/ impossibility of performance.
Art. 1262. An obligation w/c consists in
the delivery of a determinate thing shall be
extinguished if it should be lost or
destroyed w/o the fault of the debtor, &
before he has incurred in delay.
When by law or stipulation, the obligor
is liable even for fortuitous events, the loss
of the thing does not extinguish the
obligation, & he shall be responsible for
351

damages. The same rule applies when the


nature of the obligation requires the
assumption of risk.

Balane:
Art. 1262 is the same as fortuitous event in
Art. 1174. The effect is the same: The
obligation is extinguished if the obligation is
to deliver a determinate thing.
If the
obligation is t deliver a generic thing, the
obligation is not extinguished.
Genus
nunquam perit ("Genus never perishes." This
is the general rule. But what is not covered
by this rule is an obligation to deliver a
limited generic (something in bet. specific &
generic thing), e.g., "For P3,000, I promise to
deliver to you one of my watches." This
obligation does not really fall under either
Art. 1262 or Art. 1263. But this obligation
really falls under Art. 1262. In this case, the
obligation may be extinguished by the loss of
all the things through fortuitous event.
Art. 1263. In an obligation to deliver a
generic thing, the loss or destruction of
anything of the same kind does not
extinguish the obligation.
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.
Art. 1265. Whenever the thing is lost in
the possession of the debtor, it shall be
presumed that the loss was due to his fault,
unless there is proof to the contrary, & w/o
prejudice to the provisions of article 1165.
This presumption does not apply in case of
earthquake, flood, storm, or other natural
calamity.
Art. 1165. When what is to be delivered
is a determinate thing, the creditor, in
addition to the right granted him by article
1170, may compel the debtor to make the
delivery.
If the thing is indeterminate or generic, he
may ask that the obligation be complied w/ at
the expense of the debtor.
If the obligor delays, or has promised to
deliver the same thing to two or more
persons who do not have the same interest,
he shall be responsible for any fortuitous
event until he has effected the delivery.

Art. 1170.
Those who in the
performance of their obligations are guilty
of fraud, negligence, or delay, & those who
in any manner contravene the tenor
thereof are liable for damages.
Art. 1266. The debtor in obligations to
do shall also be released when the
prestation becomes legally or physically
impossible w/o the fault of the obligor.

Balane:
Objective & Subjective Impossibility.-In objective impossibility, the act cannot be
done by anyone. The effect of objective
impossibility is to extinguish the obligation.
In subjective impossibility, the obligation
becomes impossible only w/ respect to the
obligor. There are 3 views as to the effect
of a subjective impossibility: (1) One view
holds
that
the
obligation
is
not
extinguished.
The obligor should ask
another to do the obligation. (2) Another
view holds that the obligation is
extinguished. (3) A third view distinguishes
one prestation w/c is very personal & one
w/c are not personal such that subjective
impossibility is a cause for extinguishes a
very personal obligation but not an
obligation w/c is not very personal.
BALANE CASES:
PEOPLE V. FRANKLIN [39 S 363] Appellant now contends that the lower
court should have released it fr. all liability
under the bail bond posted by it bec. its
failure to produce & surrender the accused
was due to the negligence of the Phil. Govt
itself in issuing a passport to said accused,
thereby enabling her to leave the country.
In support of this contention, the provisions
of Art. 1266 are invoked.
HELD: Art. 1266, NCC does not apply to a
surety upon a bail bond.-- Art. 1266 does
not apply to a surety upon a bail bond, as
said Art. speaks of a relation bet. a debtor
& creditor, w/c does not exist in the case of
a surety upon a bail bond, on one hand, &
the State, on the other. For while sureties
upon a bail bond (or recognizance) can
discharge themselves fr. liability by
surrendering their principal, sureties on
ordinary bonds or commercial contracts, as
a general rule, can only be released by
payment of the debt or performance of the
act stipulated.
IMMACULATA V. NAVARRO [160 S 211]
- We hereby grant said alternative cause of
352

action or prayer.
While the sale was
originally executed something in Dec. 1969, it
was only on Feb. 3, 1974 when, as prayed for
by prvt. res, & as ordered by the court a quo,
a deed of conveyance was formally executed.
Since the offer to redeem was made on
3/24/75, this was clearly w/in the 5-yr. period
of legal redemption allowed by the Public
Land Act.
PNCC V. NLRC [193 S 401] - An obligor
shall be released fr. his obligation when the
prestation has become legally or physically
impossible w/o fault on his part..-- Petitioner
cannot be held liable for breach of contract
for three reasons. xxx The second reason is
found in the rule that an obligor shall be
released fr. his obligation when the prestation
has become legally or physically impossible
w/o fault on his part.
The supervening
impossibility of performance, based upon
some factor independent of the will of the
obligor, releases the obligor fr. his obligation
after restitution of what he may have
received, if any, in advance fr. the other
contracting party; the obligor incurs no
liability for damages for his inability to
perform.
Art. 1267. When the service has become
so difficult as to be manifestly beyond the
contemplation of the parties, the obligor may
also be released therefr., in whole or in part.

Baviera: Ordinarily, on a K for a piece of


work, an increase in prices will nor
relieve the Kor bec. such circ was
already considered by the parties when
they entered into the K. But Bar Q:
What if the prices rose so high as to be
beyond the contemplation of the parties
due to the oil crisis? Released.

Balane:
Rebus sic stantibus.-Literally means
"things as they stand." It is short for clausula
rebus sic stantibus ("agreement of things as
they stand.")
This is a principle of
international law w/c holds that when 2
countries enter into a treaty, they enter
taking into account the circumstances at the
time it was entered into & should the
circumstances change as to make the
fulfillment of the treaty very difficult, one
may ask for a termination of the treaty. This
principle of international law has spilled over
into Civil law.
This doctrine is also called the
doctrine of extreme difficulty & frustration of
commercial object.

It has four (4) requisites:


1. The event or change could not
have been foreseen at the time of the
execution of the contract.
2. The event or change makes the
performance extremely difficult but not
impossible.
3. The event must not be due to an
act of either party.
4.
The contract is for a future
prestation. If the contract is of immediate
fulfillment, the gross inequality of the
reciprocal prestation may involve lesion or
want of cause.
In the case of Naga, the court did
not consider the 4th element as an
element.
The attitude of the courts on this
doctrine is very strict. This principle has
always been strictly applied. To give it a
liberal application is to undermine the
binding force of an obligation.
Every
obligation is difficult.
The performance
must be extremely difficult in order for
rebus sic stantibus to apply.
BALANE CASES:
LAGUNA V. MANABAT [59 S 650] - Art.
1680, it will be observed is a special
provision for leases of rural lands. No other
legal provision makes it applicable to
ordinary leases. xxx
Even if the cited article were a general rule
on lease, its provisions nevertheless do not
extend to petitioners. One of the requisites
is that the cause of the loss of the fruits of
the leased prop. must be an "extraordinary
& unforeseen fortuitous event."
The
circumstances of the case fail to satisfy
such requisite. xxx [T]he alleged causes
for the suspension of operations on the
lines leased, namely, the high prices of
spare parts & gasoline & the reduction of
the dollar allocations, "already existed
when the contract of lease was executed."
The cause of petitioners' inability to
operate on the lines cannot, therefore, be
ascribed
to
fortuitous
events
or
circumstances beyond their control, but to
their own voluntary desistance.
xxx
Performance is not excused by
subsequent inability to perform, by
unforeseen difficulties, by unusual or
unexpected expenses, by danger, by
inevitable accident, by the breaking of
machinery, by strikes, by sickness, by
failure of a party to avail himself of the
benefits to be had under the contract, by
weather conditions, by financial stringency,
or by stagnation of business. Neither is
performance excused by the fact that the
contract turns out to be hard &
353

improvident, unprofitable or impracticable, illadvised or even foolish, or less profitable, or


unexpectedly burdensome.

who should receive it, the latter refused


w/o justification to accept it.

OCCENA V. JABSON
[73 S 637]
Respondent's complaint seeks not release fr.
the subdivision contract but that the court
"render judgement modifying the terms &
conditions of the contract... by fixing the
proper shares that should pertain to the
herein parties out of the gross proceeds fr.
the sales of subdivided lots of subject
subdivision." Art. 1267 does not grant the
courts this authority to remake, modify, or
revise the contract or to fix the division of
shares bet. the parties as contractually
stipulated w/ the force of law bet. the parties,
so as to substitute its own terms for those
covenanted by the parties themselves.

Art. 1269. The obligation having been


extinguished by the loss of the thing, the
creditor shall have all the rights of action
w/c the debtor may have against third
persons by reason of the loss.

Balane: In this case the interpretation of the


court is too literal. According to the court, it
can release a debtor fr. the obligation but it
cannot make the obligation lighter. But if you
look at Art. 1267, partial release is permitted.

Tolentino:
When Dr tenders pmt & Cr
refuses to accept w/o just cause, Dr W/ 2
alternatives: (1) to consign or (2) to just
keep the thing in his possn, w/ the oblig to
use due diligence, subj to the gen rules of
obligs, but no longer to the spec liab under
Article 1268
D. Condonation or
Remission
Balane:

NAGA TELEPHONE V. CA [230 S 351] The term "service" should be understood as


referring to the "performance" of the
obligation.-- Art. 1267 speaks of "service"
w/c has become so difficult. Taking into
consideration the rationale behind this
provision, the term "service" should be
understood as referring to the "performance"
of the obligation. In the present case, the
obligation of prvt. resp. consists in allowing
petitioners to use its posts in Naga City, w/c
is the service contemplated in said article.
Furthermore, a bare reading of this article
reveals that it is not a requirement
thereunder that the contract be for future
service w/ future unusual change. Accdg. to
Tolentino, Art. 1267 states in our law the
doctrine of unforeseen events. This is said to
be based on the discredited theory of rebus
sic stantibus in public international law; under
this theory, the parties stipulate in the light of
certain prevailing conditions, & once these
conditions cease to exist the contract also
ceases to exist. Considering practical needs
& the demands of equity & good faith, the
disappearance of the basis of a contract gives
rise to a right to relief in favor of the party
prejudiced.

Condonation or remission is an act of


liberality by virtue of w/c, w/o receiving any
equivalent,
the
creditor
renounces
enforcement of an obligation w/c is
extinguished in whole or in part.
This has four (4) requisites:
Debt that is existing. You can remit a
debt even before it is due.
Renunciation must be gratuitous. If
renunciation is for a consideration,
the mode of extinguishment may be
something else. It may be novation,
compromise of dacion en pago.
Acceptance by the debtor
Capacity of the parties.
The form of donation must be
observed.
If the condonation involves
movables, apply Art. 748. If it involves
immovables, apply Art. 749. But note that
the creditor may just refuse to collect (w/o
observing any form.) In this case, the
obligation will be extinguished not by virtue
of condonation but by waiver under Art. 6.

Balane: The Court went too far in this case.


It even went to the extent of stipulating for
the parties in the name of equity.

Art. 1270. Condonation or remission is


essentially gratuitous, & requires the
acceptance by the obligor. It may be made
expressly or impliedly.

Art. 1268. When the debt of a thing


certain & determinate proceeds fr. a criminal
offense, the debtor shall not be exempted fr.
the payment of its price, whatever may be
the cause for the loss, unless the thing
having been offered by him to the person

One & the other kind shall be subject to


the rules w/c govern inofficious donations.
Express condonation shall, furthermore,
comply w/ the forms of donation.

354

1. Modes of Condonation
a. By Will

Art. 935. The legacy of a credit against a


third person or of the remission or release of
a debt of the legatee shall be effective only
as regards that part of the credit or debt
existing at the time of the death of the
testator.
In the first case, the estate shall
comply w/ the legacy by assigning to the
legatee all rights of action it may have
against the debtor. In the second case, by
giving the legatee an acquittance, should he
request one.
In both cases, the legacy shall
comprise all interests on the credit or debt
w/c may be due the testator at the time of his
death.
Art. 936. The legacy referred to in the
preceding article shall lapse if the testator,
after having made it, should bring an action
against the debtor for payment of his debt,
even if such payment should not have been
effected at the time of his death.
The legacy to the debtor of the thing
pledged by him is understood to discharge
only the right of pledge.

b. By Agreement

The donation shall be inofficious in all


that it may exceed this limitation.
Art.
750.
The donation
may
comprehend all the present property of the
donor, or part thereof, provided he
reserves, in full ownership or in usufruct,
sufficient means for the support of himself,
& of all relatives who, at the time of the
acceptance of the donation are by law
entitled to be supported by the donor.
Without such reservation, the donation
shall be reduced on petition of any person
affected.
Art. 748. The donation of a movable
may be made orally or in writing.
An oral donation requires the
simultaneous delivery of the thing or of the
document representing the right donated.
If the value of the personal property
donated exceeds five thousand pesos, the
donation & the acceptance shall be made
in writing. Otherwise, the donation shall be
void.
Art. 749. In order that the donation of
an immovable may be valid, it must be
made in a public document, specifying
therein the property donated & the value of
the charges w/c the donee must satisfy.
The acceptance may be made in the
same deed of donation or in a separate
public document, but it shall not take effect
unless it is done during the lifetime of the
donor.

Art. 1270. Condonation or remission is


essentially gratuitous, & requires the
acceptance by the obligor. It may be made
expressly or impliedly.
One & the other kind shall be subject
to the rules w/c govern inofficious donations.
Express condonation shall, furthermore,
comply w/ the forms of donation.

If the acceptance is made in a separate


instrument, the donor shall be notified
thereof in an authentic form, & this step
shall be noted in both instruments.

Art. 746.
Acceptance must be made
during the lifetime of the donor & of the
donee.

Balane: Articles 1271 & 1272 refer to a


kind of implied renunciation when the
creditor divests himself of the proof credit.
According to De Diego, this provision is
absurd & immoral in that it authorizes the
debtor & his heirs to prove that they paid
the debt, when the provision itself assumes
that there has been a remission, w/c is
gratuitous. (Tolentino.)

Art. 752. The provision of article 750


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

2. Presumption of
Condonation

355

Art. 1271.
The delivery of a private
document, evidencing a credit, made
voluntarily by the creditor to the debtor,
implies the renunciation of the action w/c the
former had against the latter.
If in order to nullify this waiver it
should be claimed to be inofficious, the
debtor & his heirs may uphold it by providing
that the delivery of the document was made
in virtue of payment of the debt.

Limited to Private Document.-- Art. 1271 has


no application to public documents bec. there
is always a copy in the archives w/c can be
used to prove the credit.
Private document refers to the original
in order for Art. 1271 to apply. (Trans-Pacific.
v. CA, supra.)

BALANE CASE:
TRANS-PACIFIC V. CA [234 S 494] - It may
not be amiss to add that Art. 1271 raises a
presumption, not of payment, but of the
renunciation of the credit where more
convincing evidence would be required than
what normally would be called for to prove
payment.
The rationale for allowing the
presumption of renunciation in the delivery of
a private instrument is that, unlike that of a
public instrument, there could be just one
copy of the evidence of credit. Where several
originals are made out of a private document,
the intendment of the law would thus be to
refer to the delivery only of the original rather
than to the original duplicate of w/c the
debtor would normally retain a copy. It would
thus be absurd if Art. 1271 were to be applied
differently.

Art. 1272.
Whenever the private
document in w/c the debt appears is found in
the possession of the debtor, it shall be
presumed that the creditor delivered it
voluntarily, unless the contrary is proved.
Rule 131, Sec. 5 (b), (j), (k), Rules of
Court.
Rule 131, Sec. 5.
Disputable
presumptions.-- The following presumptions
are satisfactory if uncontradicted, but may be
contradicted & overcome by other evidence:
xxx
(b) That an unlawful act was done w/ an
unlawful intent;

xxx
(j) That a person found in possession of
a thing taken in the doing of a wrongful act
is the taker & doer of the whole act;
otherwise, that things w/c a person
possesses, or exercises acts of ownership
over, are owned by him;
(k) That a person in possession of an
order on himself for the payment of money,
or the delivery of anything, has paid the
money or delivered the thing accordingly;
xxx
Under the 1985 Rules of Court, as
amended
Rule 131, Sec. 3.
Disputable
presumptions.-The
following
presumptions
are
satisfactory
if
uncontradicted, but may be contradicted &
overcome by other evidence:
xxx
(c) That a person intends the ordinary
consequences of his voluntary act;
xxx
(f) That money paid by one to another
was due to the latter;
(g) That a thing delivered by one to
another belonged to the latter;
(h) That an obligation delivered up to
the debtor has been paid;
(i) That prior rents or installments had
been paid when a receipt for the later ones
is produced;
(k) That a person in possession of an
order on himself for the payment of they
money, or the delivery of anything, has
paid the money or delivered the thing
accordingly;
xxx

VELASCO V. MASA
Facts: Velasco filed a complaint for the
recovery of a sum of money he gave to
Masa as a loan, as contained in a private
doc. V claims that while he was imprisoned
during the Jap occupation, M coerced &
tricked Vs wife into surrendering the doc to
M. V filed a crim case b4 v. M w/c was
dismissed for lack of juris. M contends that
doc was voluntarily delivered to him
through Osmena. TC dismissed the axn.
Issue: WON there was condonation

356

Held: Yes.
No satisfactory proof as to
allegation of coercion & trickery on Vs wife.
It is an unquestionable fact that the instru
proving the debt now claimed passed to the
possession of the Dr. For this reason, unless
the contrary is proven, it must be presumed
that in accdance w/ the provisions of the law,
that delivery was voluntarily made. This fact
implies a renunciation of the axn w/c Cr had
for the recovery of his credit. It shld be noted
that the doc is of a private nature, the only
case subj to the provs of Articles 1187 to
1189 OCC, so that a tacit renunciation of the
debt may be presumed, in the absence of
proof that the doc was delivered for some
other reason than the gratuitous waiver of
the debt & the complete extinction of the
oblig to pay.

Balane:
The accesory obligation of
pledged is extinguished bec. pledge is a
possessory lien. The presumption in this
case is that the pledgee has surrendered
the thing pledged to the pledgor. This is
not a conclusive presumption according to
Art. 2110, par. 2.
Art. 2093. In addition to the requisites
prescribed in article 2085, it is necessary,
in order to constitute the contract of
pledge, that the thing pledged be placed in
the possession of the creditor, or of a third
person by common agreement.
Art. 2105. The debtor cannot ask for
the return of the thing pledged against the
will of the creditor, unless & until he has
paid the debt & its interest, w/ expenses in
a proper case.

3. Effect of Partial Remission

Art. 1273.
The renunciation of the
principal debt shall extinguish the accessory
obligations; but the waiver of the latter shall
leave the former in force.
Art. 2076. The obligation of the guarantor
is extinguished at the same time as that of
the debtor, & for the same causes as all other
obligations.
Art. 2080. The guarantors, even though
they be solidary, are released fr. their
obligation whenever by some act of the
creditor they cannot be subrogated to the
rights, mortgages, & preferences of the latter.

E. Confusion or Merger of
Rights

Art.
1275.
The
obligation
is
extinguished fr. the time the characters of
creditor & debtor are merged in the same
person.

Balane:
Confusion is the meeting in one person of
the qualities of the creditor & debtor w/
respect to the same obligation.

&

There are two (2) requisites:


It must take place between the creditor &
the principle debtor (Art. 1276.)
The very same obligation must be involved.

Art. 2085. The following requisites are


essential to the contracts of pledge &
mortgage:
(1) That they be constituted to secure the
fulfillment of a principal obligation;
xxx

Rationale.-You become your own


creditor or you become your own debtor.
So how can you sue yourself.
What may cause a merger or confusion?-(1)
Succession, whether compulsory,
testamentary or intestate; (2) Donation;
(3) Negotiation of a negotiable instrument.

Art. 1274.
It is presumed that the
accessory obligation of pledge has been
remitted when the thing pledged, after its
delivery to the creditor, is found in the
possession of the debtor, or of a third person
who owns the thing.

Because of its nature, confusion/


merger may overlap w/ other causes of
extinguishment. For example, I owe Ms.
Olores P100,000. She bequeath to me that
credit. And then she died. In this case,
there is extinguishment both by merger.
But in this case, merger could overlap w/
payment.

(Provisions
Mortgage)

Common

to

Pledge

Balane: Art. 1276 ( below) is perfectly in


consonance w/ Art. 1275.
357

1. Principal Parties
Art. 1276. Merger w/c takes place in the
person of the principal debtor or creditor
benefits the guarantors. Confusion w/c takes
place in the person of any of the latter does
not extinguish the obligation.

Tolentino:
Extinguishment of the principal oblig through
confusion releases the guarantors, whose
oblig is merely accessory
When merger takes place in the person of the
guarantor, oblig is NOT extinguished.
2. Among guarantors
(Effects of Guaranty as Between CoGuarantors)

Art. 2073. When there are two or more


guarantors of the same debtor & for the
same debt, the one among them who has
paid may demand of each of the others the
share w/c is proportionally owing fr. him.
If any of the guarantors should be
insolvent, his share shall be borne by the
others, including the payer, in the same
proportion.
The provisions of this article shall not be
applicable, unless the payment has been
made in virtue of a judicial demand or unless
the principal debtor is insolvent.

3. Joint Obligations
Art. 1277. Confusion does not extinguish
a joint obligation except as regards the share
corresponding to the creditor or debtor in
whom the two characters concur.

4. Solidary Obligations
Art. 1215.
Novation, compensation,
confusion or remission of the debt, made by
any of the solidary creditors or w/ any of the
solidary debtors, shall extinguish the

obligation, w/o prejudice to the provisions


of article 1219.
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.
Article 1219. The remission made by
the creditor of the share w/c affects one of
the solidary debtors does not release the
latter fr. his responsibility towards the codebtors, in case the debt had been totally
paid by anyone of them before the
remission was effected.
Art. 1216. The creditor may proceed
against any of 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 w/c 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 w/c
offer to accept.
He who made the payment may claim
fr. his co-debtors only the share w/c
corresponds to each, w/ 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.
When one of the solidary debtors
cannot, bec. of his insolvency, reimburse
his share to the debtor paying the
obligation, such share shall be borne by all
his co-debtors, in proportion to the debt of
each.

5. Indivisible Obligations
Art. 1209. If the division is impossible,
the right of the creditors may be prejudiced
only by their collective acts, & 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.
358

Art. 1224. A joint indivisible gives rise to


indemnity for damages fr. the time anyone of
the debtors does no comply w/ 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 w/c the
obligation consists.

F. Compensation
Balane:
Definition
of
Compensation.-Compensation is a mode of extinguishing, to
the concurrent amount, the obligations of
those persons who in their own right are
reciprocally debtors & creditors of each other.
(Castan.)
Perhaps,
next
to
payment,
compensation is the most common mode of
extinguishing an obligation.
Distinguished fr. Confusion.-In
compensation, there are 2 parties & 2 debts,
whereas in confusion, there are 2 debts &
only 1 party.
Art. 1278. Compensation shall take place
when two persons, in their own right, are
creditors & debtors of each other.

ground that the govt owes him an amount


equal to or greater than the tax being
collected. The collection of a tax cannot
await the results of a lawsuit against the
govt.
A claim for taxes is not such a debt,
demand, contract or judgment as is
allowed to be set-off xxx The general rule
based on grounds of public policy is wellsettled that no set-off admissible against
demands for taxes levied for general or
local governmental purposes. The reason
on w/c the gen. rule is based, is that taxes
are not in the nature of contracts bet. the
party & party but grow out of duty to, & are
the positive acts of the govt to the making
& enforcing of w/c, the personal consent of
individual taxpayers is not required. xxx
(Republic v. Mambulao Lumber.)
In Cordero v. Gonda, we held that: "xxx
internal revenue taxes can not be the
subject of compensation: Reason: govt &
taxpayer 'are not mutually creditors &
debtors of each other under Art. 1278 & a
"claim for taxes is not such a debt,
demand, contract or judgment as is
allowed to be set-off.
Art. 1286. Compensation takes place
by operation of law, even though the debts
may be payable at different places, but
there shall be an indemnity for expenses of
exchange or transportation to the place of
payment.

1. Different Kinds of
Compensation:
BALANE CASES:
PNB V. ONG ACERO [148 S 166] - There is
no compensation where the parties are not
creditors & debtors of each other.-- The
insuperable obstacle to the success of PNB's
cause is the factual finding of the IAC that it
has not proven by competent evidence that it
is a creditor of ISABEL. The only evidence
presented by PNB towards this end consists
of 2 documents marked in its behalf. But as
the IAC has cogently observed, these
documents do not prove any indebtedness of
ISABELA to PNB. All they do prove is that a
letter of credit might have been opened for
ISABELA by PNB, but not that the credit was
ever availed of [by ISABELA's foreign
correspondent (MAN)], or that the goods
thereby covered were in fact shipped, &
received by ISABELA.
FRANCIA V. IAC [162 S 753] - [T]here can
be no off-setting of taxes against the claims
that the taxpayer may have against the govt.
A person cannot refuse to pay a tax on the

(NOTE: THIS SECTION IS ACCDG TO


BALANE OUTLINE W/C IS EASIER TO
FOLLOW.
IN BAVIERA OL: F: COMP 1.
KINDS)
Legal Compensation (Articles 1279, 1290)
w/c takes place automatically by
operation of law once all the requisites
are present. (Baviera OL: F.Comp
1.Kinds c. Legal Comp)
Art. 1279. In order that compensation
may be proper, it is necessary:
(1) That each one of the obligors be
bound principally, & that he be at the same
time a principal creditor of the other;
(2) That both debts consist in a sum of
money, or if the things due are
consumable, they be of the same kind, &
359

also of the same quality if the latter has been


stated;
(3) That the two debts be due;
(4)
That
they
be
liquidated
&
demandable;
(5) That over neither of them there by
any retention or controversy, commenced by
third persons & communicated in due time to
the debtor.

Art. 1287. Compensation shall not be


proper when one of the debts arises fr. a
depositum or fr. the obligations of a
depositary or of a bailee in commodatum.

Balane:

Art. 1288.
Neither shall there be
compensation if one of the debts consists
in civil liability arising fr. a penal offense.

Requisites under Art. 1279:


Mutual Debtors & Creditors.-- The parties
must be mutually debtors & creditors (1) in
their own right, & (2) as principals. There
can be no compensation if 1 party occupies
only a representative capacity.
Likewise,
there can be no compensation if in one
obligation, a party is a principal obligor & in
another obligation, he is a guarantor.
Fungible Things Due.-- The word consumable
is wrong. Under Art. 418, consumable things
are those w/c cannot be used in a manner
appropriate to their nature w/o their being
consumed.
In a reciprocal obligation to
deliver horses, the things due are not
consumable; yet there can be compensation.
(Tolentino.)
The proper terminology is
"fungible" w/c refers to things of the same
kind w/c in payment can be substituted for
another.
Maturity of Debts.-- Both debts must be due
to permit compensation.
Demandable & Liquidated Debts.-- Tolentino:
Demandable means that the debts are
enforceable in court, there being no apparent
defenses inherent in them. The obligations
must be civil obligations, excluding those that
are purely natural. xxx Before a judicial
decree of rescission or annulment, a
rescissible or voidable debt is valid &
demandable; hence, it can be compensated.
A debt is liquidated when its existence
& amount are determined. xxx And a debt is
considered liquidated, not only when it is
expressed already in definite figures w/c do
not require verification, but also when the
determination of the exact amount depends
only on a simple arithmetical operation. xxx
Debt must not be garnished.
(additional requirement)
Compensation is not prohibited by any
provision of law like Articles 1287, 1288 &
1794.

Neither can compensation be set up


against a creditor who has a claim for
support due by gratuitous title, w/o
prejudice to the provisions of paragraph 2
of article 301.

Art. 1794. Every partner is responsible


to the partnership for damages suffered by
it through his fault, & he cannot
compensate them w/ the profits & benefits
w/c he may have earned for the
partnership by his industry. However, the
courts
may
equitably
lessen
this
responsibility if through the partner's
extraordinary efforts in other activities of
the partnership, unusual profits have been
realized.

BALANE CASES:
REPUBLIC V. DE LOS ANGELES [98 S
103] - Compensation of debts arising
even w/o proof of liquidation of claim,
where the claim is undisputed.-- Proof of
the liquidation of a claim, in order that
there be compensation of debts, is proper if
such claim is disputed. But, if the claim is
undisputed, as in the case at bar, the
statement is sufficient & no other proof
may be required. xxx
SOLINAP V. DEL ROSARIO [123 S 640] Petitioner contends that respondent judge
gravely abused her discretion in not
declaring the mutual obligations of the
parties extinguished to the extent of their
respective amounts. He relies on Art. 1278
to the effect that compensation shall take
place when 2 persons, in their own right,
are creditors & debtors of each other. The
argument fails to consider Art. 1279 w/c
provides that compensation can take place
only if both obligations are liquidated. In
the case at bar, the petitioner's claim
against the resp. Luteros is still pending
determination by the court. While it is not
for Us to pass upon the merits of the pltff's
cause of action in that case, it appears that
the claim asserted therein is disputed by
the Luteros on both factual & legal
grounds.
More,
the
counterclaim
360

interposed by them, if ultimately found to be


meritorious, can defeat petitioner's demand.
Upon this premise, his claim in that case
cannot be categorized as liquidated credit
w/c may properly be set-off against his
obligation. Compensation cannot take place
where one's claim against the other is still
the subject of court litigation.
It is a
requirement, for compensation to take place,
that the amount involved be certain &
liquidated.
SYCIP V . CA [134 S 317] - Compensation
cannot take place where, w/ respect to the
money involved in the estafa case, the
complainant was merely acting as agent of
another. In set-off the two persons must in
their own right be creditor & debtor of each
other.-- Petitioner contends that resp. CA
erred in not applying the provisions on
compensation or setting-off debts under Art.
1278 & 1279, despite evidence showing that
Jose Lapuz still owed him an amount of more
than P5,000 & in not dismissing the appeal
considering that the latter is not legally the
aggrieved party.
This contention is
untenable. Compensation cannot take place
in this case since the evidence shows that
Jose Lapuz is only an agent of Albert Smith &/
or Dr. Dwight Dill. Compensation takes place
only when two persons in their own right are
creditors & debtors of each other, & that each
one of the obligors is bound principally & is at
the same time a principal creditor of the
other. Moreover, xxx Lapuz did not consent
to the off-setting of his obligation w/
petitioner's obligation to pay for the 500
shares.
CIA. MARITIMA V. CA [135 S 593] Compensation cannot take place where one
of the debts is not liquidated as when there is
a running interest still to be paid thereon.-More, the legal interest payable fr. 2/3/51 on
the sum of P40,797.54, representing useful
expenses incurred by PAN-ORIENTAL, is also
still unliquidated since interest does not stop
accruing "until the expenses are fully paid."
Thus, we find w/o basis REPUBLIC's allegation
that PAN-ORIENTAL'S claim in the amount of
P40,797.54
was
extinguished
by
compensation since the rentals payable by
PAN-ORIENTAL amount to P59,500 while the
expenses reach only P40,797.54. Deducting
the latter amount fr. the former, REPUBLIC
claims that P18,702.46 would still be owing
by PAN-ORIENTAL to REPUBLIC.
That
argument loses sight of the fact that to the
sum of P40,797.54 will still have to be added
the legal rate of interest "fr. Feb. 3, 1951 until
fully paid."
INTERNATIONAL CORPORATE BANK V.
IAC [163 S 296] - Requisite of legal
compensation under Art. 1279.-- Petitioner
contends that after foreclosing the mortgage,
there is still due fr. prvt. resps as deficiency
the amount of P6.81 million against w/c it has

the right to apply or set off prvt.


respondent's money market claim of
P1,062,063.83. The argument is w/o merit.
Compensation shall take place when two
persons, in their own right are creditors &
debtors of each other.
When all the
requisites mentioned in Art. 1279 are
present, compensation takes effect by
operation of law, even w/o the consent or
knowledge of the debtors. (Art. 1290.) Art.
1279 requires among others, that in order
that legal compensation shall take place,
'the two debts be due' & 'they be liquidated
& demandable.'
Compensation is not
proper where the claim of the person
asserting the set-off against the other is
not clear nor liquidated; compensation
cannot extend to unliquidated, disputed
claim arising fr. breach of contract. There
can be no doubt that petitioner is indebted
to prvt resp.
in the amount of
P1,062,063.83 representing the proceeds
of her money market investment. This is
admitted.
But whether prvt. resp is
indebted to petitioner in the amount of
P6.81 million representing the deficiency
balance after the foreclosure of the
mortgage executed to secure the loan
extended to her, is vigorously disputed.
This
circumstance
prevents
legal
compensation fr. taking place.
ONG V. CA [177 S 402] - Requisites of
Compensation.-- Fermin obviously cannot
take refuge in Art. 1279. As the resp. Court
correctly observed in holding that the
above provision was not applicable: The
instant case does not certainly satisfy the
above bec. (1) appellant is not a debtor of
appellee, it is only the latter who is
indebted to appellant; (2) the debts, even
admitting, that the delivery of the zippers
to pltff. is a debt, do not both consist in a
sum of money nor are they of the same
quality & kind. xxx
PIONEER INSURANCE V. CA [180 S 126]
- Compensation shall take place when 2
persons, in their own right, are creditors &
debtors of each other.
When all the
requisites mentioned in Art. 1279 are
present, compensation takes effect by
operation of law, even w/o the consent or
knowledge of the debtors. (Art. 1290.) Art.
1279 requires among others, that in order
that legal compensation shall take place,
the 2 debts be due & they be liquidated &
demandable. Compensation is not proper
where the claim of the person asserting the
set-off against the other is not clear nor
liquidated; compensation cannot extend to
unliquidated, disputed claim arising fr.
breach of contract.
SILAHIS MARKETING V. IAC [180 S 21] Compensation is not proper where the
claim of the person asserting the set-off
against the other is not clear nor
361

liquidated; compensation cannot extend to


unliquidated, disputed claim existing fr.
breach of contract. xxx
Undoubtedly, petitioner admits the validity of
its outstanding accounts w/ prvt. resp. in the
amount of P22,213.75 as contained in its
answer. But whether prvt. resp. is liable to
pay the petitioner a 20% margin or
compensation on the subject sale to Dole
Phils., Inc. is vigorously disputed.
This
circumstance prevents legal compensation fr.
taking place.
Art. 1280. Notw/standing the provisions
of the preceding article, the guarantor may
set up compensation as regards what the
creditor may owe the principal debtor.
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 & the
amount thereof.

Effect of Legal Compensation (Baviera


OL: F. Comp 3. Effect of L Comp)

third persons & communicated in due time


to the debtor.

BALANE CASE:
MINDANAO PORTLAND CEMENT V. CA
[120 S 930] - Automatic compensation,
requisites of, present; Extinguishment of
two debts arising fr. final & executory
judgments due to compensation by
operation of law.-- It is clear fr. the record
that both corporations, petitioner Mindanao
Portland Cement Corp. (appellant) & resp.
Pacweld Steel Corp. (appellee), were
creditors & debtors of each other, their
debts to each other consisting in final &
executory judgements of the CFI in 2
separate cases, ordering the payment to
each other of the sum of P10T by way of
attorney's fees.
The 2 obligations,
therefore, respectively offset each other,
compensation having taken effect by
operation of law & extinguished both debts
to the concurrent amount of P10T,
pursuant to the provisions of Art. 1278,
1279 & 1290, since all the requisites
provided in Art. 1279 for automatic
compensation "even though the creditors &
debtors
are
not
aware
of
the
compensation" were duly present.

Art. 1289.
If a person should have
against him several debts w/c are susceptible
of compensation, the rules on the application
of payments shall apply to the order of the
compensation.

Facultative Compensation w/c takes place


when compensation is claimable by
only one of the parties but not of the
other, e.g., Articles 1287, 1288.
(Baviera OL: F. Comp 2. Obligs W/c
cannot be compensated)

Art. 1290.
When all the requisites
mentioned in article 1279 are present,
compensation takes effect by operation of
law, & extinguishes
both debts to the
concurrent amount, even though the
creditors & debtors are not aware of the
compensation.

Art. 1287. Compensation shall not be


proper when one of the debts arises fr. a
depositum or fr. the obligations of a
depositary or of a bailee in commodatum.

Art. 1279. In order that compensation


may be proper, it is necessary:
(1) That each one of the obligors be
bound principally, & that he be at the same
time a principal creditor of the other;
(2) That both debts consist in a sum of
money, or if the things due are consumable,
they be of the same kind, & also of the same
quality if the latter has been stated;
(3) That the two debts be due;
(4)
That
they
be
liquidated
&
demandable;
(5) That over neither of them there by
any retention or controversy, commenced by

Art. 301. The right to receive support


cannot be renounced; nor can it be
transmitted to a third person. Neither can it
be compensated w/ what the recipient
owes the obligor.

Neither can compensation be set up


against a creditor who has a claim for
support due by gratuitous title, w/o
prejudice to the provisions of paragraph 2
of article 301.

However, support in arrears may be


compensated & renounced, & the right to
demand the same may be transmitted by
onerous or gratuitous title.
362

Baviera: Note that Art. 301 of the NCC is


not found in FC. Future support cannot
be compensated. Thus, a father who
paid damages for sons q-delict cannot
claim comp by not giving support to his
son. However under 301, support IN
ARREARS may be compensated &
renounced & the rt to demand the same
may be transmitted by onerous or
gratuitous title.

Balane:
The depositary cannot set up
compensation w/ respect to the things
deposited to him. But the depositor can set
up the compensation.
Art. 1288.
Neither shall there be
compensation if one of the debts consists in
civil liability arising fr. a penal offense.

Baviera : The oblig of the depositary to


return
a
spec
thing
cannot
be
compensated or substituted by delivery
of a thing of the same kind.

Q: If there is an oblig of the depositary to the


depositor for damages(already liquidated &
demandable) in case of negligence & if the
depositor owes the depositary a sum of
money, can there be set-off?
A: No since it arose out of a deposit. Not
allowed by law. Cld be a way of Cr to collect a
bad debt.
Art. 1794. Every partner is responsible to
the partnership for damaged suffered by it
through his fault, & he cannot compensate
them w/ the profits & benefits w/c he may
have earned for the partnership by his
industry. However, the courts may equitably
lessen this responsibility if through the
partners extraordinary efforts in other
activities of the partnership, unusual profits
have been realized.

ICB V. IAC

released. Subseq, F made a money market


placement w/ ICB in the amt of P1 M at
17% p.a. When F failed to pay her
mortgaged indebtedness, ICB foreclosed
the REM. After the foreclosure sale, ICB
claims that after deducting the purchase
price of P20 M, there remained a balance of
P6.81 M. ICB refused to pay the proceeds of
the money market placement on maturity
but applied the amt to the deficiency in the
proceeds of the auction sale.
Issue: WON there can be legal comp
Held: No. Art 1279 requires among others
that the debts be due & that they be
liquidated & demandable. Comp is not
proper when the claim of the person
asserting the set-off v. the other is not clear
nor liquidated; comp cannot extend to
unliquidated, disputed claim arising fr.
Breach of K. There can be no doubt that
the ICB is indebted to F in the amt of P1 M
representing the proceeds of the money
market investment.
But whether F is
indebted to ICB in the amt of P6.8 M
representing deficiency balance after the
foreclosure of the mort is vigorously
disputed. Case for annulment of foreclosure
sale is still pending. This circ prevents
legal comp fr. taking place.
Contractual/ Conventional compensation
w/c takes place when parties agree to
set-off even if the requisites of legal
compensation are not present, e.g., Art.
1282. ( Baviera OL: F. Comp 1. Kinds a.
Voluntary)
Art. 1282. The parties may agree upon
the compensation of debts w/c are not yet
due.
Tolentino: Voluntary Compensation is not
limited to obligations w/c are not yet due.
The parties may compensate by agreement
any obligations, in w/c the objective
requisites provided for legal compensation
are not present. xx
Judicial Compensation when decreed by the
court in a case where there is a
counterclaim, such as that provided in
Art. 1283. (Baviera OL: F. Comp 1. Kinds
b. Judicial)

Facts: Fajardo secured fr. ICB a P50 M loan &


made a REM (Real Est Mort) over her prop as
security. Of this loan, only P20 M was
363

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 & the
amount thereof.

GAN V. CA
Facts: In a 61 civil case between P & PR
(Lessor & Tenant, resp), PR was awarded
P500 attys fees. In 63, P notified PR that he
was increasing the rents & at the same time
demanded that PR pay all his back rentals
amting to P4, 320. In the meantime, PR was
able to obtain a WOE on the jmt for attys
fees. P pleaded comp. CA held that attys
fees cannot be subj to legal comp, it being a
trust fund for the benefit of the lawyer.
Issue: WON there can be comp
Held: No. CA erred. Accdg to CA, the reqs of
legal comp, namely that the parties must be
Crs & Drs of each other in their own rt & that
each one of them must be bound principally
& at the same time be a principal Cr of the
other , are not present in the instant case
since the real Cr w/ respect to the P500 was
PRs lawyer. Wrong! The award for attys fees
is made in favor of the litigant, not his
counsel, & is justified by way of indemnity for
damages recoverable by the former in cases
enumerated in A 2208 CC. It is the litigant,
not his counsel, who is the jmt Cr & who may
properly enforce the jmt by execn. Such
credit therefore may properly be the subj of
legal comp. Quite obviously it wld be unjust
to compel P to pay his debt of P500 when
admittedly his Cr (PR) is indebted to him for
more than P4,000.

Baviera: What is the idea behind legal


comp? To facilitate collxn of money. For
expediency.

Effect of Assignment of Credit (Baviera


OL: F. Comp 4. Effect of Assign of Cr)

Art. 1285. The debtor who has consented


to the assignment of rights made by a
creditor in favor of a third person, cannot set
up against the assignee the compensation
w/c would pertain to him against the

assignor, unless the assignor was notified


by the debtor at the time he gave his
consent, that he reserved his right to the
compensation.
If the creditor communicated
cession to him but the debtor did
consent thereto, the latter may set up
compensation of debts previous to
cession, but not of subsequent ones.

the
not
the
the

If the assignment is made w/o the


knowledge of the debtor, he may set up
the compensation of all credits prior to the
same & also later ones until he had
knowledge of the assignment.

PEREZ V. CA
Facts: Congeneric (CG) issued 2 PNs to
Mojica (M), to mature on Aug 6 & 13, 74
resp. Mever Films (MF) borrowed fr. CG
P500 T & issued a PN for such to mature on
Aug 5, 74. CG received fr. Perez (P) P200
T, so the Co. issued to her a confirmation
sale, & assigned to her all its interests in
the PN made by MF. On Aug 5 MF paid the
Co.
w/c the Co. in turn paid to P.
Meanwhile, when the 2 PNs issued to M
matured, instead of paying M the whole
oblig, the Co., paid only the interest therein
& the principal oblig were rolled over to
mature on Oct. 4 & 11. M assigned these 2
PNs to MF. Thus, MF surrendered these 2
PNs to CG in pmt of his remaining loan &
asked the Co. to compute the remaining
balance. On Oct 7, MF was served w/
garnishment by the Sheriff in 2 collxn cases
filed by CGs Crs. MF, believing that his
debt was only P79 T, tendered the same
amt to the Sheriff. P. on the basis of the
assignment made in her favor by CG, sued
MF for the recovery of P100 T. TC ruled for
P. CA reversed.
Issue: WON MF can claim comp
Held: No. Perez can collect the portion of
the PN assigned to her by CG. No comp
bec the PNs assigned to MF by M were not
yet due & demandable since the maturity
dates were rolled over to Oct 4 & 11. The
inevitable result of such was that the 2
PNs were not yet due & demandable as of
the date of their assignment by M to NF on
Sept 9 nor on Oct 9 when MF surrendered
364

both to CG. As a legal conseq, no legal comp


cld have taken place the 2 debts were not yet
due & demandable. There is another aspect
to this case. What is involved herein is a
money market transxn. The impersonal char
of the money mkt device overlooks the indivs
& the entities concerned. The issuer of a
comml paper in the mkt necessarily knows in
advance that it wld be expeditiously
transacted
&
transferred
to
any
investor/lender w/o need of notice to issuer.
In practice, no such notification. Accdgly,
there is no applicability of A 1285 3 rd par.
Rather, it is the 1st par w/c is applicable w/c
provides that, The Dr who has consented to
the assignment of rts made by the Cr in favor
of a 3P cannot set up as against the assignee
the comp w/c wld pertain to him as v. the
assignor, unless the assignor was notified by
the Dr at the time he gave his consent, that
he reserved his rt to the comp.
Balane:

any greater than the rights of the assignor,


since the assignee is merely substituted in
the place of the assignor & that the
assignee acquires his rights subject to the
equities-- i.e., the defenses-- w/c the debtor
could have set up against the original
assignor before notice of the assignment
was given to the debtor. At the time that
Delta was first put to notice of the
assignment in petitioner's favor on 7/14/81,
DMC PN NO. 2731 had already been
discharged by compensation. Since the
assignor Philfinance could not have then
compelled payment anew by Delta of DMC
PN No. 2731, petitioner, as assignee of
Philfinance, is similarly disabled fr.
collecting fr. Delta the portion of the Note
assigned to him.
(not in Bavieras outline)

Art. 1284. When one or both debts are


rescissible or voidable, they may be
compensated against each other before
they are judicially rescinded or avoided.

There are 3 situations covered in this article:


Assignment w/ the debtor's consent;
Assignment w/ the debtor's knowledge but
w/o his consent; &
Assignment w/o the debtor's knowledge (&
obviously w/o his consent.)
Rules:
Assignment w/ the debtor's consent.-Debtor cannot set up compensation
at all unless the right is reserved.
Assignment w/ the debtor's knowledge
but w/o his consent.-- The debtor can
set up compensation w/ a credit
already existing at the time of the
assignment.
Assignment
w/o
the
debtor's
knowledge.-- Debtor can set up as
compensation any credit existing at
the time he acquired knowledge even
if
it
arose
after
the
actual
assignment.
BALANE CASE:
SESBRENO V. CA
[222 S 466]
Compensation may defeat assignee's rights
before notice of the assignment is given to
the debtor.-In other words, petitioner
notified Delta of his rights as assignee after
compensation had taken place by operation
of law bec. the offsetting instruments had
both reached maturity. It is a firmly settled
doctrine that the rights of an assignee are not

G. Novation
TOLENTINOs NOTES:
Concept of Novation.-- Novation is the
extinguishment of an obligation by the
substitution or change of the obligation by
a subsequent one w/c extinguishes or
modifies the first, either by changing the
object of principal conditions, or by
substituting the person of the debtor, or by
subrogating a third person in the rights of
the creditor. (Manresa.)
Novation is the most unusual mode of
extinguishing an obligation. It is the only
mode
whereby
an
obligation
is
extinguished & a new obligation is created
to take its place. The other modes of
extinguishing an obligation are absolute in
the sense that the extinguishment of the
obligation is total (w/ the exception of
compromise.) Novation, on the other hand,
is a relative mode of extinguishing an
obligation.
Classification of Novation:
Subjective (Personal) or novation by a
change of subject
Active subjective or a change of creditor;
also known as subrogation.
Passive subjective or a change of debtor
365

Objective (Real) or novation by change in the


object or in the principal conditions.
Novation by a change in the principal
conditions is the most problematic kind of
novation bec. you have to determine
whether or not the change in the
conditions
is
principal
or
merely
incidental. For example, a change fr.
straight terms to installment terms & a
change fr. non-interest bearing obligation
to an interest bearing one are changes in
the principal conditions.
Mixed novation w/c is a combination of both
subjective & objective novation.
Requisites of Novation:
There must be a previous valid obligation;
Agreement of the parties to create the new
obligation;
Extinguishment of the old obligation. (I would
consider this an effect, rather than a
requisite of novation-- Balane);
Validity of the new obligation.
(Tiu Siuco v. Habana, 45 P 707.)
There must be CONSENT of all the parties to
the substitution, resulting in the extinction of
the old obligation & the creation of a valid
one.
Art. 1292. In order that an obligation may
be extinguished by another w/c substitute the
same, it is imperative that it be so declared in
unequivocal terms, or that the old & the new
obligations be on every point incompatible w/
each other.

TOLENTINO:
Novation is NEVER presumed.
It must be established that the old & the new
contracts are
incompatible in all points,
or that the will to novate appear by express
agreement of the parties
or in acts of equivalent import.
IMPLIED NOVATION. There is no specific
form required for an implied novation. All that
is required is INCOMPATIBILITY between the
original & the subsequent contracts.
A mere extension of the term of payment
does not result in novation, for the period
affects only the performance, not the creation
of the obligation
BAVIERA CASES:

LA TONDENA VS. ALTO SURETY


FACTS: Ferrer constituted a second
mortgage over his parcel of land in favor of
La Tondens (LT).
LT filed foreclosure
proceedings.
Sheriff
levied
on
the
mortgaged prop. but it was released when
Ferrer promised that he would satisfy the
judgment w/in 3 mos. Alto Surety later
attached the same prop. w/c was sold &
bought by it. LT filed an action against Alto
but CFI dismissed on the ground that the
judgment of foreclosure in the LT case was
novated & extinguished by the extension of
time & release of execution levy.
HELD: In order to extinguish an obli
through novation, the intent to do so
(animus novandi) must be expressed or
clearly apparent fr. the incompatibility of
the old & the new obli.
Moreover, an extension of time,
generally, does not constitute novation as
can be seen fr. the fact that extension had
to be made a special ground for the
extinguishment of the K of guaranty in Art.
1831 (now Art. 2079 of the NCC),
notw/standing that Art. 1847 (now 2076)
applies to guaranty the same grounds that
extinguish all other oblig, naturally
including novation.
MAGDALENA ESTATES VS. RODRIGUEZ
FACTS: Rodriguez spouses executed a
promissory note in favor of Magdalena
Esyayes for P5,000 w/ 9% interest p.a. R &
Luzon Surety at the same time executed a
BOND in favor of Magda, promising to pay
the purchase price of a parcel of land. The
obli became due so Luzon Surety paid to
Magda.
Magda
then
demanded
reimbursement fr. the R spouses alleged
accumulated interests. R spouses refused
to pay on the ground that there has been a
novation of the obli of the R spouses in
favor of Magda bec. the latter accepted w/o
reservation the surety bond.
HELD: Novation by presumption has never
been favored. The mere fact that the
creditor receives a guaranty or accepts
payment fr. a 3rd person does not
constitute novation in the absence of any
agreement that the first debtor shall be
366

released fr. responsibility. In the CAB, the


surety bond was not a new & separate
contract but an accessory of the PN.
MILLAR VS. COURT OF APPEALS
FACTS: Millar obtained a judgment against
Gabriel. A writ of execution was issued, on
the basis of w/c Gs Willys Ford Jeep was
seized. Subsequently, G pleaded w/ M to
release the jeep under an agreement
whereby G would mortgage the jeep in favor
of M to secure the payment of the judgment
debt. The chattel mortgage reduced the
amount to be paid by G. Issue here is WON
the mortgage K novated the judgment debt.
The TC said there was no novation bec. the
mortgage was executed only to secure the
judgment.
HELD: Where the new obligation merely
reiterates or ratifies the old obligation,
although the former effects but minor
alterations or slight modifications w/ respect
to the cause or object or conditions of the
latter, such changes do not effectuate any
substantial incompatibility bet. the 2
obligations. Only those essential & principal
changes introduced by the new obligation
producing an alteration or modification of the
essence of the old obligation result in implied
novation.
In the case at bar, the mere
reduction of the amount due in no sense
constitutes
a
sufficient
indicium
of
incompatibility, especially in the light of (a)
the explanation by the petitioner that the
reduced indebtedness was the result of the
partial payments made by the resp. before
the execution of the chattel mortgage
agreement, & (b) the latter's admissions
bearing thereon.
COCHINGYAN
S 339]

VS. R & B SURETY [151

FACTS: PAGRICO (P) submitted a surety bond


issued by R & B surety in favor of PNB. Under
the bond, PNB had the right to proceed
directly against R&B w/o going after P. In
turn, 2 indemnity agreements were entered
into w/ R&B by CCM & Joseph Cochingyan in
his capacity as CCM prexy & in his personal
capacity; & by P, PACOCO, Jose Villanueva as
Ps manager & in his personal capacity, Liu
Tua Beth, as PACOCO prexy, & in his personal
capacity. 2 years after the execution of these
documents, a TRUST AGREEMENT was
entered into bet. Jose & Susana Cochingyan,

Tomas Besa, a PNB officer, as trustee; &


PNB was the beneficiary. The trust
agreement expressly provided that it shall
not, in any manner release R&B fr. their
respective liabilities under the bond. When
P failed to pay, PNB demanded payment fr.
R%B.
R&B
in
turn
demanded
reimbursement fr. Joseph Cochingyan &
Jose V. who refused to pay on the ground
that the trust agreement had extinguished
their
oblig
under
the
Indemnity
Agreements.
HELD: Novation defined.-- Novation is the
extinguishment of an obligation by the
substitution or change of the obligation by
a subsequent one w/c terminates it, either
by changing its object or principal
conditions, or by substituting a new debtor
in place of the old one, or by subrogating a
third person to the rights of the creditor.
Novation through a change of the object or
principal
conditions
of
an
existing
obligation is referred to as objective (or
real) novation. Novation by the change of
either the person of the debtor or of the
creditor is described as subjective (or
personal) novation. Novation may also be
both objective & subjective (mixed) at the
same time. In both objective & subjective
novation, a dual purpose is achieved-- an
obligation is extinguished & a new one is
created in lieu thereof.
Novation is never presumed.-- If
objective novation is to take place, it is
imperative that the new obligation
expressly declare that the old obligation is
thereby extinguished, or that the new
obligation be on every point incompatible
w/ the old one.
Novation is never
presumed; it must be established either by
the discharge of the old debt by the
express terms of the new agreement, or by
the acts of the parties whose intention to
dissolve
the
old
obligation
as
a
consideration of the emergence of the new
one must be clearly discernible.
If old debtor is not released, no
novation occurs & the third person who
assumed the obligation becomes a codebtor or surety or a co-surety.-- Again, if
subjective novation by a change in the
person of the debtor is to occur, it is not
enough that the juridical relation bet. the
parties to the original contract is extended
to a third person. It is essential that the old
367

debtor be released fr. the obligation, & the


third person or new debtor take the place in
the new relation. IF the old debtor is not
released, no novation occurs & the third
person who has assumed the obligation of
the debtor becomes merely a co-debtor or
surety or a co-surety.
Novation is not implied when the
parties to the new obligation expressly
negated the lapsing of the old obligation.-Neither can the petitioners anchor their
defense on implied novation.
Absent an
unequivocal declaration of extinguishment of
a pre-existing obligation, a showing of
complete incompatibility bet. the old & the
new obligation (& nothing else) would sustain
a finding of novation by implication. But
where, as in this case, the parties to the new
obligation expressly recognize the continuing
existence & validity of the old one, where, in
other words, the parties expressly negated
the lapsing of the old obligation, there can be
no novation. The issue of implied n ovation is
not reached at all.
BALANE CASES:
FUA VS. YAP [74 P 287]
HELD: Although the mortgage did not
expressly cancel the old obligation, this was
impliedly
novated
by
reason
of
incompatibility resulting fr. the fact that,
whereas the judgment was for P1,538.04
payable at one time, did not provide for
attorney's fees, & was not secured, the new
obligation
is
for
P1200
payable
in
installments, stipulates for attorney's fees &
is secured by a mortgage.
The later
agreement did not merely extend the time to
pay the judgment, bec. it was therein recited
that appellants promised to pay P1,200 to
appellee as a settlement of the said
judgment. Said judgment cannot be said to
have
been
settled,
unless
it
was
extinguished.
SANDICO VS. PIGUING [42 S 322]
HELD: Novation results in 2 stipulations-one to extinguish an existing obligation, the
other to substitute a new one in its place.
Fundamental it is that novation effects a
substitution or modification of an obligation
by another or an extinguishment of one
obligation by the creation of another. In the
case at hand, we fail to see what new or
modified obligation arose out of the payment
by the resp. of the reduced amount of P4,000
& substituted the monetary liability for
P6,000 of the said resp. under the appellate
court's judgment. Additionally, to sustain

novation necessitates that the same be so


declared in unequivocal terms-- clearly &
unmistakably shown by the express
agreement of the parties or by acts of
equivalent import-or that there is
complete & substantial incompatibility bet.
the 2 obligations.
NPC VS. DAYRIT [125 S 849]
HELD: Novation is never presumed but
must be explicitly stated; No novation in
the absence of explicit novation or
incompatibility on every point between the
old & the new agreements of the parties.-In the case at bar, there is nothing in the
May 14, 1982 agreement w/c supports the
petitioner's contention. There is neither
explicit novation nor incompatibility on
every point bet. the "old" & the "new"
agreements.
BALILA V. IAC [155 S 262]
HELD: Subsequent mutual agreements &
actions
of
petitioners
&
private
respondents allowing the former extension
of time to pay their obligations & in
installments novated & amended the
period of payment decreed by the trial
court in its judgement by compromise.-The fact therefore remains that the amount
of P84,000 payable on or before May 15,
1981 decreed by the trial court in its
judgment by compromise was novated &
amended by the subsequent mutual
agreements & actions of petitioners & prvt.
resps.
Petitioners paid the aforestated
amount on an installment basis & they
were given by prvt. resps no less than 8
extensions of time to pay their obligation.
These transactions took place during the
pendency of the motion for recon. of the
order of the trial court dated 4/26/83,
during the pendency of the petition for
certiorari before the IAC & after the filing of
the petition bef. Us. This answers the claim
of the resps. on the failure of the
petitioners to present evidences or proofs
of payment in the lower court & the
appellate court.
PEOPLE'S BANK VS. SYVEL'S
247]

[164 S

HELD: When does novation take place;


Novation is never presumed.-- Novation
takes place when the object or principal
condition of an obligation is changed or
altered. It is elementary that novation is
never presumed; it must be explicitly
stated or there must be manifest
incompatibility bet. the old & the new
obligations in every aspect.
Absence of existence of an explicit
novation nor incompatibility between the
old & the new agreements.-- In the case at
368

bar, there is nothing in the REM w/c supports


appellants' submission. The contract on its
face does not show the existence of an
explicit novation nor incompatibility on every
point bet. the old & the new agreements as
the second contract evidently indicates that
the same was executed as new additional
security to the CM previously entered into by
the parties.
Novation was not intended in the case at bar
as the REM was taken as additional security
for the performance of the contract.
BROADWAY CENTRUM
HUT 224 S 302]

VS.

TROPICAL

HELD: We start w/ the basic conception that


novation is the extinguishment of an
obligation by the substitution of that
obligation w/ a subsequent one, w/c
terminates it, either by changing its object or
principal conditions or by substituting a new
debtor in place of the old one, or by
subrogating a 3rd person to the rights of the
creditor. xxx
If objective novation is to take place, it is
essential that the new obligation expressly
declare that the old obligation is to be
extinguished or that the new obligation be on
every point incompatible w/ the old one. xxx

Whoever pays for another may demand


fr. the debtor what he has paid, except that
if he paid w/o 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 w/o the knowledge or against
the will of the latter, cannot compel the
creditor to subrogate him in his rights,
such as those arising fr. a mortgage,
guaranty, or penalty.
Art. 1835 second paragraph
A partner is discharged fr. any existing
liability upon dissolution of the partnership
by an agreement to that effect between
himself, the partnership creditor & the
person or partnership continuing the
business; & such agreement may be
inferred fr. the course of dealing between
the creditor having knowledge of the
dissolution & the person or partnership
continuing the business.

BAVIERA CASE:
2. Modes
Art. 1281. Compensation may be total or
partial. When the two debts are of the same
amount, there is a total compensation.
(Classmates, I think there was a typo error
in Maam Bubbles outline. I think this should
have been Art. 1291, reproduced below)
Art. 1291. Obligations may be modified
by:

(1) Changing their object or principal


conditions;
(2) Substituting the person of the debtor;
(3) Subrogating a third person in the
rights of the creditor.

a. Substitution of debtor--

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.

PNB VS. MALLARI


FACTS: Def borrowed fr. PNB & this loan
was secured by a chattel mortgage on his
standing crop. Mallari defaulted so the
sacks of rice deposited in a warehouse
were attached. Guanzon, defendants Er,
offered to pay the obli of the latter. This
was accepted by PNB so the attachment
was later lifted. Guanzon defaulted in his
payment so PNB sued the def on the same
obligation. The LC dismissed the comp on
the ground that there was novation brought
about by the alteration of the principal
conditions of the original obli & the
substitution of a news debtor.
HELD: The acceptance of PNB of the offer
of G to pay under the terms specified by
him constituted not only a substitution of
the debtor but an alteration or modification
of the terms & conditions of the original K.
(1) Effect of insolvency of
new debtor--

369

COJUANGCO VS. GONZALES


Article 1294. If the substitution is w/o the
knowledge or against the will of the debtor,
the debtors insolvency or non-fulfillment of
the obligation shall not give rise to any
liability on the part of the original debtor.
Art. l295. The insolvency of the new
debtor, who has been proposed by the
original debtor & accepted by the creditor,
shall not revive the action of the latter
against the original obligor, except when said
insolvency was already existing & of public
knowledge, or known to the debtor, when he
delegated his debt.

BALANE CASE:
LAND BANK V. CA

[181 S 610]

HELD: None of the requirements of novation


either of the subject matter of the bond
agreement or of subrogation of the creditor
thereunder, is visible in the instant case.-Finally, it is not easy to understand the thrust
of respondent's argument that novation had
taken place in respect of their bonds when
they had their registered bonds converted
into bearer bonds. If respondents mean to
suggest that the printed terms of the new
bearer bonds were somehow novated by the
notation they had inserted in the LBP Forms
64 so as to obligate the Land Bank to pay a
portion of the Nov. 21, 1974- May 20, 1975
interest not to the holder or bearer of such
bonds (as required by the terms thereof) but
rather to the respondents, such suggestion
must be firmly rejected.
None of the
requirements of novation either of the subject
matter of the bond agreement or of (partial)
subrogation
of
the
creditor
(obligee)
thereunder, is visible in the instant case. Of
equal importance is the fact that the
unilateral notation of the respondents was
not inserted in the new bearer bond
certificates.
The mischief implicit in the
(assumed) suggestion of the respondents is
plain to see.
b. Change of Principal
Condition or Object

FACTS: G sold his land to Jose Cojuangco


(C) w/ a rt. to repurchase the same w/in 2
years for P20,000. Simultaneously, a K of
lease was also entered into between G & C.
G neglected to pay the rent & the taxes so
the land was declared forfeited in favor of
the govt. Heirs of C paid such taxes &
consolidated their ownership over the land.
Title to said prop. was issued to the heirs of
C. Subsequently, two new contracts of
lease over the same parcel of land were
entered into between G & the heirs of C w/
an option to repurchase the same at
P60,000 provided that G would regularly
pay the rental.
HELD: There has been a novation of the
first contract. In two respects, there is
incompatibility between the original K &
the subsequent ones, namely: a) in the
purchase price (w/c was increased fr. P20
thou to P60 thou); & b) in the holder of the
title (in the orig. K, the holder of the title
was G while in the subsequent Ks, the title
of the heirs of C is established when they
consolidated their ownership over the land
& a title was issued in their name). No
specific form is required of a novation. All
that is required is incompatibility of
between the original & the subsequent Ks.
c. Subrogation/Subjective
Novation
a. In case of active
subjective novation

Art. 1300.
Subrogation of a third
person in the rights of the creditor is either
legal or conventional. The former is not
presumed, except in cases expressly
mentioned in this Code; the latter must be
clearly established in or order that it may
take effect.
Legal (Art. 1302)-- In all cases of Art. 1302,
subrogation takes place by operation of
law.
Art. 1302. It is presumed that there is
legal subrogation:
370

(1) When a creditor pays another creditor


who is preferred, even w/o the debtor's
knowledge;
(2) When a third person, not interested in
the obligation, pays w/ the express or tacit
approval of the debtor;
(3) When, even w/o the knowledge of the
debtor, a person interested in the fulfillment
of the obligation pays, w/o prejudice to the
effects of confusion as to the latter's share;
Conventional/ Contractual (Art. 1301)-Consent of the 3 parties (old creditor,
debtor & new creditor) are required.
Art. 1301. Conventional subrogation of a
third person requires the consent of the
original parties & of the third person.

Q: Is it possible for a creditor to transfer his


credit w/o consent of the debtor?
A: Yes. But this is not novation but an
assignment of rights under Art. 1624.
Assignment is also a novation but
much simpler. But is not subrogation.
1 Kinds
a Legal

Art. 1302. It is presumed that there is


legal subrogation:
(1) When a creditor pays another creditor
who is preferred, even w/o the debtor's
knowledge;
(2) When a third person, not interested in
the obligation, pays w/ the express or tacit
approval of the debtor;
(3) When, even w/o the knowledge of the
debtor, a person interested in the fulfillment
of the obligation pays, w/o prejudice to the
effects of confusion as to the latter's share;
Art. 1177. The creditors, after having
pursued the property in possession of the
debtor to satisfy their claims, may exercise all
the rights & bring all the actions of the latter
for the same purpose, save those w/c are
inherent in his person; they may also impugn

the acts w/c the debtor may have done to


defraud them.
(Conventional Redemption)
Art. 1610. The creditors of the vendor
cannot make use of the right of redemption
against the vendee, until after they have
exhausted the property of the vendor.
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 fr. the latter to the contractor at the
time the claim is made. However, the
following shall not prejudice the laborers,
employees & furnishers of materials:
(1) Payments made by the owner to the
contractor before they are due;
(2) Renunciation by the contractor of
any amount due him fr. the owner.
This article is subject to the provisions
of special laws.
(Assignment of
Incorporeal Rights)

Credits

&

Other

Art. 1629. In case the assignor in good


faith should have made himself responsible
for the solvency of the debtor, & the
contracting parties should not have agreed
upon the duration of the liability, it shall
last for one year only, fr. the time of the
assignment if the period had already
expired.
If the credit should be payable w/in a
term or period w/c has not yet expired, the
liability shall cease one year after the
maturity.
Art. 2207. If the plaintiff's property has
been insured, & he has received indemnity
fr. the insurance company for the injury or
loss arising out of the wrong or breach of
contract complained of, the insurance
company shall be subrogated to the rights
of the insured against the wrongdoer or the
person who has violated the contract. If the
amount paid by the insurance company
does not fully cover the injury or loss, the
aggrieved party shall be entitled to recover
the deficiency fr. the person causing the
loss or injury.
371

2 Effect
Art. 1304. A creditor, to whom partial
payment has been made, may exercise his
right for the remainder, & he shall be
preferred to the person who has been
subrogated in his place in virtue of the partial
payment of the same credit.
Art. 1303. Subrogation transfers to the
person subrogated the credit w/ 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.

b. Passive Subjective Novation


(Substitution of the debtor)
Art. 1293.
Novation w/c consists in
substituting a new debtor in the place of the
original one, may be made even w/o the
knowledge or against the will of the latter,
but not w/o the consent of the creditor.
Payment by the new debtor gives him the
rights mentioned in articles 1236 & 1237.
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.
Whoever pays for another may demand
fr. the debtor what he has paid, except that if
he paid w/o 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 w/o the knowledge or against the will
of the latter, cannot compel the creditor to
subrogate him in his rights, such as those
arising fr. a mortgage, guaranty or penalty.

BALANE CASE:
RODRIGUEZ V. REYES

HELD: By buying the property covered by


TCT No. 48979 w/ notice that it was
mortgaged, resp. Dualan only undertook
either to pay or else allow the land's being
sold if the mortgage creditor could not or
did not obtain payment fr. the principal
debtor when the debt matured. Nothing
else. Certainly, the buyer did not obligated
himself to replace the debtor in the
principal obligation, & he could not do so in
law w/o the creditor's consent. (Art. 1293)
The obligation to discharge the mortgage
indebtedness therefore, remained on the
shoulders of the original debtors & their
heirs, petitioners herein, since the record is
devoid of any evidence of contrary intent.
xxx
Art. 1835. xxx
A partnership is discharged fr. any
existing liability upon dissolution of the
partnership by an agreement to that effect
between himself, the partnership creditor &
the person or partnership continuing the
business; & such agreement may be
inferred fr. the course of dealing between
the creditor having knowledge of the
dissolution & the person or partnership
continuing the business.

Balane:
Passive Subjective Novation-- Articles 1293
& 1295
Art. 1293 talks of expromission (not
upon the old debtor's initiative. It could be
upon the initiative of the creditor or of the
new debtor.)
Art. 1295 talks of delegacion
(change at the old debtor's initiative.)
In expromission, the change in the
person of the debtor is not upon the
initiative of the old debtor, whether or not
he gave his consent. As soon as a new
debtor & creditor agree, novation takes
place.
In both cases, the intent of the
parties must be to release the old debtor.
What is the difference in effect
between expromission & delegacion?
In expromission, the release of the old
debtor is absolute (even if it turns out
that the new debtor is insolvent.)
In delegacion, the release of the old debtor
is not absolute. He may be held liable
372

(1)
if the new debtor was already
insolvent at the time of the delegacion; &
(2) such insolvency was either known to
the old debtor or of public knowledge.
Cases of expromission are quite rare.
Effect of Novation

Art. 1296. When the principal obligation


is extinguished in consequence of a novation,
accessory obligations may subsist only
insofar as they may benefit third persons who
did not give their consent.

A. General Rule

Art. 1356. Contracts shall be obligatory,


in whatever form they may have been
entered into, provided all the essential
requisites for their validity are present.
However, when the law requires that a
contract be in some form in order that it
may be valid or enforceable, or that a
contract be proved in a certain way, that
requirement is absolute & indispensable.

Tolentino
Balane:
Effect of novation as to accessory
obligations.-- Accessory obligations may
subsist only insofar as they may benefit third
persons who did not give their consent, e.g.,
stipulation pour atrui
General rule: In a novation, the accesory
obligation is extinguished.
Exception: In an active subjective novation,
the guarantors, pledgors, mortgagors are not
released.
Look
at
Art.
1303,
accessory
obligations are not extinguished. So there is
a conflict. How do you resolve? According to
commentators, Art. 1303 is an exception to
Art. 1296.
Art. 1297. If the new obligation is void,
the original one shall subsist, unless the
parties intended that the former relation
should be extinguished in any event.
Art. 1298. The novation is void if the
original obligation was void, except when
annulment may be claimed only by the
debtor, or when ratification validates acts w/c
are voidable.
Art. 1299. If the original obligation was
subject to a suspensive or resolutory
condition, the new obligation shall be under
the same condition, unless it is otherwise
stipulated.

Art. 1356 provides for TWO CASES where


form is absolute & indispensable, namely:
When the form is essential to the validity of
the K
When the K is unenforceable unless it is in
a certain form, such as those under the
Statute of Frauds (SOF)
GENERAL RULE: A K having the essential
requisites of Art. 1318 will be valid as
between the parties whatever the form it
may have been entered into
Requisites under Art. 1318
1. Consent of the contracting parties
2. Object certain w/c is the subject matter
of
litigation
3.
Cause of the obligation w/c is
established
The formalities required by law
classified into three groups:

are

those w/c are required for the validity of


the K ad esentia, ad solemnitatem
those required to make the K effective as
against 3rd parties, such as those
mentioned in Arts. 1357 & 1358
those required for the purpose of proving
the existence of a K, or formalities ad
probationem, such as those provided in
the SOF
BAVIERA CASES:
CARANTE VS. CA

CONTRACTS
I. Form of Contracts

FACTS: The Govt. wanted to expropriate


part of a land originally owned by the
deceased Mateo for the construction of the
Loakan airport. The heirs of Mateo
373

executed a contract, denominated as


Assignment of Right to Inheritance in favor
of petitioner, one of the children of Mateo. P
then sold the lot to the govt. & he was able
to secure a TCT in his name for the remaining
portions of the land. Eighteen years later, the
other heirs brought this action, alleging that
they were made to believe that the document
merely authorized P to convey a portion of
the lot to the Govt. in their behalf to facilitate
the transaction. The lower court dismissed
the complaint on the ground of prescription.
HELD: SC upheld the TC. It is the total
absence of consideration w/c renders a K
absolutely void & inexistent. In the CAB, the
action of the private respondents (the other
heirs) is not to declare the inexistence of a K
for lack of consideration. Here, the
consideration was not absent. The sum of
P1.00 appears in the document as one of the
considerations for the assignment of
inheritance. In addition, the document recites
that private resps. acknowledge that the lot
rightly & exclusively belonged to petitioner
bec. Mateo considered him to be the real
owner.
Even if we consider the K here as
voidable on the ground that consent was
procured thru fraud, such action prescribes in
FOUR YEARS fr. the discovery of the fraud.
Since the registration of the lot is
constructive notice to the whole world, the
same is barred bec. it is filed 18 years after
such registration. Even if we consider that an
implied trust was created between petitioner
& private resps., an action based on implied
trust prescribes in 10 years. Thus, it is also
barred.
DBP VS. ADIL
FACTS: Spouses Confesor & Villafuerte
borrowed fr. DBP for w/c they executed a PN,
promising to pay in 10 equal yearly
installments. The debt remained unpaid even
after 10 years. Later, C executed a 2nd PN,
expressly acknowledging
the debt &
promising to pay or before June 15, 61.
Spouses again failed to pay so DBP filed a
comp for payment of the loan. The LC ruled
for DBP but it was reversed by the CA on the
ground that the action has already
prescribed.

HELD: It is true that prescription has set in


w/ regards to the 1st PN. However, when C
executed a 2nd PN whereby he promised to
pay the loan, C effectively renounced &
waived his right to the prescription of the
action covering the 1st PN. This is not a
mere case of acknowledgment of a debt
that has prescribed by a new promise to
pay the debt.
A new express promise to pay a
debt barred will take it out of the operation
of the statute of limitations. Since a
statutory limitation merely bars the remedy
& does not discharge the debt, there is
something more than a mere moral obli to
support a promise, & this is the pre-existing
debt w/c is a sufficient consideration for the
new promise. The new promise to pay
constitutes a new cause of action.
BAGNAS VS. CA
FACTS: Mateum died w/ no descendants or
ascendants but he left a considerable
estate. Part of such estate is the subject of
the present case. It appears that a deed
was executed wherein petitioners allegedly
sold to private resps. TEN parcels of land
for P1.00 & in consideration of past,
present & future services rendered by the
private respondents. Ps seek to annul the
said deed on the ground that it is fictitious,
fraudulent & falsified.
HELD: The K is absolutely void. The
stipulated price of P1.00 is grossly
disproportionate to the valuable real
estate. Moreover, PRs failed to prove the
services
constituting
the
principal
consideration of the K. Hence, bec. there
was total absence of consideration, the K is
void ab initio. Therefore, the props. subject
thereof remained part of the estate of
Mateum w/c is recoverable by his heirs.
Neither can it be said that the K is
one of donation bec. the same involved
real properties & was not executed in or
accepted in a public document.
B. Form essential to its
validity

374

Art. 749. In order that the donation of an


immovable may be valid, it must be made in
a public document, specifying therein the
property donated & the value of the charges
w/c the donee must satisfy.
The acceptance may be made in the
same deed of donation or in a separate public
document, but it shall not take effect unless it
is done during the lifetime of the donor.
If the acceptance is made in a separate
instrument, the donor shall be notified
thereof in an authentic form, & this step shall
be noted in both instruments.

Tolentino:
If the donation of an immov was not made in
a public instrument, the donee cannot
bring an action to compel the donor to
execute a public instrument of donation
under Art. 1357.
Art. 1357 applies only to Ks w/c validly exist,
& cannot be held applicable to a case
where the form is required in order to
make it valid
A public instrument is not necessary in cases
of onerous donations bec. they are
governed by the rules on contracts.
Title to immov prop. does not pass fr. the
donor to the donee until & unless:
it has been accepted in a public instrument--whether in the deed of donation itself or
on a separate public instrument. Solemn
words of acceptance are not necessary.
The donor was duly notified thereof--Necessary that formal notice is given to the
donor & the fact that due notice has been
given must be noted in the instruments
containing the offer to donate & that showing
the acceptance. Then & only then is the
donation perfected
The acceptance must be made during the life
of the donor; if not made before the donors
death, it is w/o effect.
In so far as the donor is concerned, the
donation is not accepted unless he/she is
notified of such acceptance.
Art. 748. x x x
If the value of the personal property
donated exceeds five thousand pesos, the
donation & the acceptance shall be made in
writing. Otherwise, the donation shall be void.

Tolentino:
A donation of personal prop. exceeding P5
thou in value must ALWAYS be made in
writing, & accepted also in writing.
The document of donation & the
acceptance need not be public
instruments but may simply be private
documents.
When the value does not exceed P5 thou,
a donation may be mare orally or in
writing.
If donation is made orally, there must be
simultaneous delivery.
If there is no simultaneous delivery, the
donation is void unless made in writing.
BUT in this case, the law does not
require that that when the donation is
made in writing, the acceptance should
also be in writing.
Art. 1773. A contract of partnership is
void, whenever immovable property is
contributed thereto, if an inventory of said
property is not made, signed by the
parties, & attached to the public
instrument.
Art. 1984. The depositary cannot
demand that the depositor proves his
ownership of the thing deposited.
Nevertheless, should he discover that
the thing has been stolen & who its true
owner is, he must advise the latter of the
deposit.
If the owner, in spite of such
information, does not claim it w/in the
period of one month, the depositary shall
be relieved of all responsibility by returning
the thing deposited to the depositor.
If the depositary has reasonable
grounds to believe that the thing has not
been lawfully acquired by the depositor,
the former may return the same.
Art. 2134. The amount of the principal
& of the interest shall be specified in
writing;
otherwise,
the
contract
of
antichresis shall be void.
Art. 83---Family Code
These donations are governed by the
rules on ordinary donations established in
Title III of Book III of the Civil Code, insofar
as they are not modified by the following
articles.
375

C. Form essential to its


enforceability
Art. 1403 . The following contracts are
unenforceable, unless they are ratified:
NOTES:
***This list is EXCLUSIVE
(1) x x x
(2) Those that do not comply w/ 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, &
subscribed by the party charged, or by his
agent; evidence, therefore, of the agreement
cannot be received w/o the writing, or a
secondary evidence of its contents:

BAVIERA:
*** When the law states in writing,
this need not be a public document.
***It is sufficient that it was SIGNED by
the party sought to be charged

(a) An agreement that by its terms is not


to be performed w/in a year fr. the making
thereof;

BAVIERA:
*** rationale of this: bec. of memory
lapse

Tolentino:
The time begins fr. the day the K is entered
into, & not fr. the time that performance
of it is entered upon
It must appear that the parties intended
when they made the K that it should not
be performed w/in a year.
Where no time is fixed by the parties for
performance, & there is nothing in the
agreement itself to show that it cannot be
performed w/in a year according to its
terms & the understanding of the parties,
the agreement is NOT w/in the SOF.

(b) A special promise to answer for the


debt, default, miscarriage of another;

BAVIERA:
***Examples of this are guaranty &
surety contracts
Tolentino:
This has been defined as an undertaking by
a person, not before liable, for the
purpose of securing or performing the
same duty for w/c the original debtor
continues to be liable.
The test as to whether a promise is w/in
the statute has been said to lie in the
answer to the question whether the
promise is an original or a collateral
one:
PROMISE
IS
ORIGINAL
OR
INDEPENDENT
If
the
promisor
becomes primarily
liable
for
the
payment of a debt,
the promise is not
w/in the statute

PROMISE
COLLATERAL

IS

If the promise is
collateral
to
the
agreement
of
another
&
the
promisor
becomes
thereby merely a
surety, the promise
falls w/in the SOF &
hence, it should be
in writing

(c)
An
agreement
made
in
consideration of marriage, other than a
mutual promise to marry;

BAVIERA:
*** Examples of this would be a
marriage
settlement,
donation
propter nuptias
***A
mutual
promise
to
marry,
whether
or
not
in
writing,
is
unenforceable bec. it is a personal
act.

Tolentino:
When the marriage is a mere incident, &
not the end to be attained by the
agreement, the contract is not in
consideration of marriage, & oral
evidence can prove the agreement
376

Even when marriage is a consideration, but in


addition thereto, there is some other
consideration sufficient to support the
oral agreement, this may be proved by
w/o a writing.
(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 & receive part of such goods &
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 sake is made by auction & entry is made by
the auctioneer in his sales book, at the time
of the sale, of the amount & kind of property
sold, terms of sale, price, names of the
purchasers & person on whose account the
sale is made, is a sufficient memorandum;

BAVIERA: ***Choses in action refer to


incorporeal property

Tolentino:
The requirement of a written instrument or a
memo for sales of personal prop. for a
price not less than P500, covers both
TANGIBLE & INTANGIBLE personal prop.
To bring a sales transaction w/in the
operation of the SOF, the price of the
prop. sold must be at least P500.
A K for the sale of goods, chattels or things in
action is removed fr. the operation of the
SOF where the buyer ACCEPTS &
RECEIVES part of such goods & chattels.
Neither will the SOF apply where there has
been part payment of the purchase price.
Evidence to prove an oral K of sale of real
estate must be disregarded if timely
objections are made to its introduction.
A consummated sale of real prop. is not
covered by the SOF (OO na...OO na...)

BAVIERA:
Q: What is the ratio for the SOF?
A: To prevent fraud. The problem w/ oral
contracts is that they are easy to fabricate
& perjure the witnesses.
Q: An oral contract for the lease of property
for 2 years. What is the status of the K?
A:
Enforceable
for
the
1st
year,
unenforceable for the 2nd year
Q: An oral K for the sale of land. The buyer
suffered damages when the seller refused
to comply w/ his promise even if the buyer
offered to pay. B consigned the payment.
So whats up?
A: Acceptance of benefits (even if it was
just an earnest money) takes it away w/in
the ambit of the Statute of Frauds. To allow
a K w/c has been partially performed to
become unenforceable would be to allow a
party to perpetrate fraud.
Q: When is there a waiver of the SOF?
A: In the ff. instances:
When there has been acceptance of
benefits
When there is failure to object to the
introduction of oral evidence
Q: Seller has advertised a specific object
for sale. A buyer comes to buy (sus...eh
ano pa nga bang ginagawa ng buyer?).
Seller says Bukas ka na lang bumalik, alas
7:00 na eh! To show good faith, buyer
deposits P500.00 as earnest money. Is the
sale enforceable even if theres no
compliance w/ the SOF?
A: OO naman.
Tolentino
Ration of the SOF: Oral contracts lead to
fraud in the fulfillment of obligations, or to
false testimony.
SOF applies only to EXECUTORY & not to
completed or executed Ks.

(e) An agreement for the leasing for a


longer period than one year, or for the sale of
real property or of an interest therein;

A K falling under the SOF cannot be proved


w/o the writing or a memorandum thereof.

(f) A representation as to the credit of a


third person.

SOF simply provides for the manner in w/c


Ks under it shall be proved. It does not
make such Ks invalid if not executed in
writing, but only makes ineffective the
action for specific performance.

Tolentino:
The representations are limited to those w/c
operate to induce the person to whom they
are made to enter into contractual relations
w/ the third person, but not to those
representations tending to induce action for
the benefit of the person making them.

Where one party has entirely performed his


obli under an oral K, equity would agree
that all evidence be admitted to prove the
alleged agreement. Performance takes it
out of the operation of the statute.

377

During trial, if the parties to the action make


no objection to the admissibility of oral evid
to support the K covered by the statute, &
thereby permits such K to be proved orally, it
will be just as binding upon the parties as if it
had been reduced to writing.
In order that a NOTE/MEMORANDUM shall
meet the requirements of the SOF, it must
contain:
the names of the parties
the terms & conditions of the agreement
a description of the subject matter sufficient
to render it capable of identification
the date & place of the making of the
agreement
signature of the party assuming the
obligation
Art. 1443. No express trusts concerning
an immovable or any interest therein may be
proved by parol evidence.

BAVIERA:
***This provision is not very clear as to
the meaning of parol. Strictly, parol
evidence rule presupposes a written
agreement. It is much better to make it
unenforceable.

Family Code Provisions


Art. 77. The marriage settlements & any
modification thereof shall be in writing,
signed by the parties & executed before the
celebration of the marriage. They shall not
prejudice third persons unless they are
registered in the local civil registry where the
marriage contract is recorded as well as in
the proper registries of property.
Art. 83. These donations are governed by
the rules on ordinary donations established in
Title III of Book III of the Civil Code, insofar as
they are not modified by the following
articles.

CRUZ VS. TUAZON & CO.


FACTS: Tuazon availed of the services of Cruz
to act as an intermediary w/ the Deudors in
achieving an amicable settlement in a civil
case between Tuazon & the Deudors. In
consideration for Cs services, T promised to
convey 3,000 sq. ms. of land to C. C

performed his services as a result of w/c a


compromise agreement was reached. C
then asked for the payment but T refused.
C then filed this comp w/c was dismissed
by the TC on the ground that it involves an
interest in real prop. & therefore, under Art.
1403, such agreement is unenforceable
unless in writing.
HELD: Reversed. The SOF refers to specific
kinds of transactions & it cannot apply to
any K that is not enumerated therein. In
the CAB, the K cannot be considered a sale
of real prop. or any interest therein since
what C is trying to enforce is the delivery to
him of a parcel of land w/c T promised to
him as consideration for his services as
mediator or intermediary. Not all dealings
involving interest in real prop. come under
the SOF.
Moreover,
the
agreement
in
question has already been partially
executed. It is a fundamental principle
governing the application of the SOF that
the contract in dispute must be purely
executory on the part of both parties to a
K.
WESTERN MINDANAO LUMBER CO. VS.
MEDELLA
FACTS: WM entered into a right-of-way
agreement w/ Hernandez over Lot 2136. By
virtue of this agreement, WM constructed &
maintained a road through Lot 2136. Later,
this lot was purchased by the Medalles,
who did not oppose but instead allowed the
continued use & maintenance of the road
by WM & the public. Later, the Ms sent WM
a notice of their intention to close said
road. WM filed a comp, praying for a writ of
preliminary injunction to restrain the Ms fr.
closing the road & to recognize & respect
the right-of-way agreement. The Medalles
filed a MTD on the ground that the claim
on w/c the action is founded is
unenforceable under the provisions of the
SOF.
HELD:
An
agreement
creating
an
easement of right-of-way is not one of
those contracts covered by the SOF since it
is not a sale of real prop. or of an interest
therein. The trial court, therefore, erred in
dismissing the case upon the claim of the
Ms that the right-of-way agreement is
378

unenforceable under the SOF. Also, the claim


may be viewed as a demand for the
establishment of an easement of right-ofway, if none exists, in view of WMs offer to
pay reasonable compensation for the use of
the land.
D. WHEN FORM NOT ESSENTIAL TO
VALIDITY OR ENFORCEABILITY

ART. 1358. The ff. must appear in a public


instrument:
Acts & contracts w/c 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 are governed by Articles
1403, No. 2 & 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 w/c has for its object an act
appearing or w/c should appear in a public
instrument, or should prejudice a third
person;
The cession of actions or rights
proceeding fr. 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 & 1405.
NOTES: Purpose of form in A1358 is to
prejudice or to affect third persons.
ART. 1772. Every contract of partnership
having a capital of three thousand pesos or
more; in money or property shall appear in a
public instrument w/c must be recorded in
the Office of the SEC.
Failure to comply w/ the requirements of
the preceding paragraph shall not affect the
liability of the partnership & the members
thereof to third persons.

NOTES: Purpose of form in A1772; for


licensing
ART. 2125. In addition to the requisites
stated in article 2085, it is indispensable, in
order that a mortgage may be validly
constituted, that the document in w/c it
appears be recorded in the Registry of
Property. If the instrument is not recorded,
the mortgage is nevertheless binding
between the parties.
The persons in whose favor the law
establishes a mortgage have no other right
than to demand the execution & the
recording of the document in w/c the
mortgage is formalized.
NOTES: Purpose is to prejudice third
persons
ART. 1051
The repudiation of an
inheritance shall be made in a public or
authentic instrument or by petition
presented to the court having jurisdiction
over the testamentary or intestate
proceedings.
ART. 2096. A pledge shall not take
effect against third persons if a description
of the thing pledged & the date of the
pledge do not appear in a public
instrument.
NOTES: What is the requirement as to
form, in pledge? A2096; purpose is to affect
3rd persons & to protect creditors;
otherwise, it would be easy to defraud
creditors.
1. Effect of non-compliance
w/ formality

ART. 1357.
If the law requires a
document or other special form, as in the
acts & contracts enumerated in the ff.
article, the contracting parties may compel
each other to observe that form once the
contract has been perfected. This right
may be exercised simultaneously w/ the
action upon the contract.

II. STIPULATIONS CONTRARY TO LAW

379

ART. 1306. The contracting parties may


establish such stipulations, clauses, terms &
conditions as they may deem convenient,
provided they are not contrary to law, morals,
good customs, public order or public policy.

CUI
V.
(1961)]

ARELLANO

[112 PHIL 135

Facts: Plaintiff was a scholar at the Arellano


law School. When he was in his 4 th year he
transferred to Abad Santos Law School. When
he was about to take the Bar, Def-Arellano
refused to release his transcript unless he
paid back the P1,033 given to him as
scholarship grants. D bases its claim for
reimbursement fr. the ff. stipulation in their
agreement:
In consideration of the scholarship
granted to me by the University. I hereby
waive my right to transfer to another school
w/o having refunded to the university the
equivalent of my scholarship in cash.
HELD: The contract stipulation is contrary to
public policy, hence, NULL & VOID. In order to
declare a contract void as against public
policy, the court must find that the Ks
consideration contravenes some established
interest of society, or inconsistent w/ sound
public policy & good morals or tends clearly
to undermine the security of individual rights.
Scholarships are awarded in recognition of
merit & NOT to keep students in school to
bolster prestige. As for the Def., scholarship
award is a business scheme designed to
increase the business potential of an
educational institution.
FILIPINAS CIA. DE SEGUROS
MANDANAS 17 SCRA 391 (1966)

V.

Facts: Petr-Philippine Rating Bureau, is a


group of 39 non-life insurance companies.
Respondent is the Insurance Commissioner.
The subject of this petition is Art.22 of Ps
constitution, w/c accdg. to R is a void
stipulation specifically unlawful machination
or a combination in restraint of trade. Art. 22
provides that: members of the Bureau agree
not to represent nor to effect reinsurance w/,
nor to accept reinsurance fr., any company,
body or underwriter licensed to do business
in the Philippinesnot a member in good
standing of the Bureau. R threatened to

suspend the certificate of authority of the


companies to do business in the Phils.
Held: Art. 22 is VALID. A test as to whether
a given agreement constitutes unlawful
machination or a combination in restraint
of trade is whether under the particular
circumstances of the case & the nature of
the particular contract involved in it, the
contract is, or is not, unreasonable.
Restrictions upon trade may be upheld
when not contrary to the public welfare &
not greater than what is necessary to
afford a fair & reasonable protection to the
party in whose favor it is imposed. The
question to be determined is whether the
restraint imposed as such may suppress or
destroy the competition.
In CAB, there is nothing unlawful,
immoral or unreasonable or contrary to
public policy either in the objectives sought
to be attained by the Bureau, or in the
means availed of to achieve said
objectives, or in the consequences of the
accomplishment thereof. The purpose of
Art.22 is not to eliminate competition but
to promote ethical practices among non-life
insurance companies.
III Binding Effect

Art. 1311. Contracts take effect only


between the parties, their assigns & heirs
except in case where the rights &
obligations arising fr. the contracts are not
transmissible by their nature, or by
stipulation or by provision of law. The heir
is not liable beyond the value of the
property he received fr. the decedent.
If a contract should contain some
stipulation in favor of a third person, he
may demand its fulfillment provided he
communicated his acceptance to the
obligor before its revocation.
A mere
incidental benefit or interest of a person is
not sufficient. The contracting parties must
have clearly & deliberately conferred a
favor upon a third person.

Tolentino:
Gen. Rule: rts. & obs. under a K are
transmitted to the heirs of the parties.
380

Heirs cant be considered as 3P, bec. there is


privity of interest bet. them & their
predecessor.
Intransmissible Ks: those w/c are purely
personal, either by provision of law, such as
in cases of partnership & agency, or by the
very nature of the obs. arising therefr., such
as
those
requiring
special
personal
qualifications of the obligor.
2nd par. permits a 3P to avail himself of a
benefit extended to him by its terms.
Doctrine of stipulations pour autrui (SPA).
Requisites of SPA:
stip. in favor of 3P
stip. shld. be a part, not the whole, of the K
clearly & deliberately conferred by King
parties
not be conditioned or compensated by any
kind of ob. whatever
3P must have communicated his acceptance
to obligor before revocation
neither of the King parties bears the legal
representation or authorization of the 3P
(SPA) Acceptance by 3P: no particular form.
Before acceptance, the King parties, by
mutual agreement, may modify the K or
revoke it.
(SPA) Since 3Ps rt. is based directly on the K,
it is also subj. to all defenses available v. the
K, such as those affecting its validity.
Baviera: A consignee, though not strictly
a party in the K of transpo, can sue, on
the K, the common carrier.
Reason:
There is a stip. in his favor.
Art. 1314. Any 3P who induces another to
violate his K shall be liable to the other
contracting party.
Tolentino:
Reqs. of axn under this article:
existence of a valid K
knowledge by 3P of Ks existence
interference by 3P in the Kal relation w/o
legal justification
Whatever may be the char. of the liability w/c
a stranger to a K may incur by advising or
assisting one of the parties to evade perf.,
such stranger cant become more
extensively liable in damages for non-perf
or the K than the party in whose behalf he
intermeddles.
To hold the stranger liable for damages in
excess of those that could. be recovered

v. the immediate. party would. lead to


results grotesque & unjust.
3Ps liability. is solidary w/ non-pref. party,
bec. he commits a tortuous act or a qdelict.
FLORENTINO V. ENCARNACION
Facts: The nephews & nieces of Doa
Encarnacion Florentino filed an application
for the registration of a parcel of land in
Ilocos Sur, such land adjudicated to them
by virtue of a 1947 deed of extra-judicial
partition.
A stipulation in the deed
provided that the products of the land,
since time immemorial & after the Doas
death, had been used in answering for the
payment
of
expenses
for
religious
functions.
Miguel (nephew) asked that
such be an encumbrance on the land
sought to be registered. This was opposed
by other relatives.
Issue: WON stip. Be encumbrance on title
Held: Yes. The stipulation is part of an
extra-judicial partition duly agreed upon &
signed by the parties, hence the same
must bind the King parties & its validity or
compliance cannot be left to the well of
one of them.
The stipulation is a
stipulation pour autrui (SPA), bec. it
satisfies the necessary requisites (see
Tolentino enumeration). The evidence on
record shows that the true intent of the
parties is to confer a direct & material
benefit upon the Church. The enjoyment of
the Church of benefits flowing therefr.
acceptance by the Church of the SPA
before its revocation. The SPA is to be
annotated an encumbrance on the title.
iv. Rescissible Contracts
Tolentino:
Rescission (Rsn) in reciprocal observation
(Art. 1191) is not identical to Rsn of Ks (Art.
1380+).
Requisites of Rsn of a K:
a rescissible K, ex. under Art. 1381 & 1382
no other legal means to obtain reparation
for damages (Art. 1383)
381

person demanding Rsn must be able to


return whatever he may be obliged to restore
if Rsn granted (Art. 1385)
objects of K must not have passed legally to
possn of 3P in GF (Art. 1385)
Axn for Rsn brought w/in 4 years (Art. 1389)

this person, & (3) their Crs by virtue of it


granted under Art. 1177.

Rescindable Ks are valid until voided & cant


be attacked collaterally
as in a land
registration proceeding. Direct proceeding
necessary.

When K cant be rescinded bec. 3P in GF,


the party who caused the loss liable for the
damages

Rsn only for legal cause, as those in Art. 1381


& 1382
Lesion under Art. 1381 par. 1 & 2, to give
rise to Rsn, must be known or could have
been known at the time of making the K, &
not due to circs subseq thereto or unknown
to the parties.
Accion Pauliana: Axn to set aside Ks in fraud
of Crs. (Art. 1381 par. 3)
Requisites for Accion Pauliana:
Pff. Asking for Rsn has a credit prior to
alienation, though demandable later
Dr has made a subsequent K conveying a
patrimonial benefit to 3P
Cr/Pff has no other legal remedy to satisfy his
claim
Act being impugned is fraudulent
3P who received prop., if by onerous title, is
accomplice in the fraud
Rsn. is a subsidiary axn, w/c presupposes
that the Cr has exhausted the prop. of the Dr.
Fraudulent conveyance must be shown.
Test: WON conveyance by dr a bona fide
transxn
Badges/ Signs of Fraud:
consideration of conveyance is inadequate
transfer made by Dr after suit has begun &
while pending v. him
a sale upon credit by insolvent Dr
evidence of large indebtedness or complete
insolvency
transfer of all or nearly all of prop of Dr who is
insolvent or greatly embarrassed financially
transfer is made between father & son
failure of vendee to take exclusive possn of
prop
If alienation is gratuitous, GF of transferee
does NOT protect him O.W.
Unjust
enrichment
If alienation is by onerous title, transferee
must be a party to the fraud, to have Rsn
As a rule, Rsn benefits only Cr who obtained
Rsn. And the extent of revocation is only to
the amount of prejudice suffered by Cr. As to
the excess, the alienation is maintained
Axn for Rsn may be brought by: (1) the
person injured by the Rescue K, (2) heirs of

Rt. Of transferee to retain prop. depends


upon the nature of the transfer & upon the
complicity of the former in the fraud.

Badges
of
fraud,
&
Art.
1387:
Presumptions.
May be rebutted by
satisfactory & convincing evidence.
Art. 1388:
Cr. With axn only v.
subsequence transferees only when an axn
st
lies v. 1 transferee. If 1st Tfee in GF, no
liability. If 1st Tfee in BF, the rescissible
char. Of 2nd alienation depends upon how
2nd Tfee acquired the thing.
Art. 1191. The power to rescind obs. Is
implied in reciprocal ones, in case on of the
obligors should not comply w/ what is
incumbent upon him.
The injured party may choose between
the fulfillment & the rescission of the ds.,
w/ the payment of damages in either case.
He may also seek rescission, even after he
has chosen fulfillment, if the latter should
become impossible.
The ct. shall decree the rescission
claimed, unless there be just cause
authorizing the fixing of a period.
This is understood to be w/o prejudice
to the rts of third persons who have
acquired the thing, in accordance w/ Arts.
1385 & 1388 & the Mortgage Law.
Art. 1192. In case both parties have
committed a breach of the obligation, the
liability of the 1st infractor shall be equally
tempered bye the cts. If it cannot be det.
Which of the parties 1st violated the K, the
same shall be deemed extinguished, &
each shall bear his own damages.

Tolentino:
Similarities between Rsn under Art. 1191 &
Art. 1380+: (1) both presuppose Ks validly
entered into & existing, & (2) both require
mutual restitution when declared proper.
Differences: (1) Rsn under 1191 may be
demanded only by party to the K, under
1380+ by 3P prejudiced by the K; (2) Rsn
under 1191 may be denied when there is
sufficient reason to justify extension of time
to perform, under 1380+ such reason does
NOT affect rt. To ask for Rsn; (3) Non-perf.
382

is the only grd. For Rsn under 1191, while


there are various reasons of equity as grds.
under 1191 applies only to recip. ds. where
one party has not performed, while under
1380(+) ob. May be unilateral or reciprocal &
even when K has been fulfilled.
CENTRAL BANK VS. CA (1985)
Facts: Islands Savings Bank approved the
loan application of Tolentino for P80,000. To
secure the loan, Tolentino executed a real
estate mortgage on his 100-hectare land.
Only P17,000 was released by the Bank, for
w/c Tolentino executed a promissory note
payable w/in 3 years. The balance was not
released. In 1965, the Monetary Board of the
Central Bank issued Resolution No. 1049
prohibiting the Bank fr. doing business in the
Philippines. The Bank filed an application for
extrajudicial foreclosure of the real estate
mortgage of Tolentino for non-payment of the
promissory note for P17,000. In turn,
Tolentino filed an action for injunction,
specific performance or rescission, alleging
that the Bank failed to fulfill its obligation to
lend the balance of P63,000.
Issues:
W/N
Tolentino
can
compel
specific
performance.
W/N Tolentinos liability to pay the P17,000
covered by the promissory note subsists.
Held:
NO. The agreement is a loan
agreement, w/c is a reciprocal obligation. In
reciprocal obligations, the obligation or
promise of each party is the consideration for
that of the other; & when one party has
performed or is ready & willing to perform his
part of the contract, the other party who has
not performed or is not ready & willing to
perform incurs in delay. The promise of
Tolentino to pay was the consideration for the
obligation of the Bank to furnish the P80,000.
When Tolentino executed a real estate
mortgage, he signified his willingness to pay
the loan. From such date, the obligation of
the Bank to furnish the P80,000 accrued. The
Banks delay started in 1965, lasted for 3
years or when the Monetary Board issued
Resolution No. 967 in 1968, w/c prohibited
the Bank fr. doing further business.
Resolution No. 1049 cannot interrupt the
default of the Bank in releasing the P63,000
bec. said resolution merely prohibited the
Bank fr. making new loans. Since the Bank
was in default in fulfilling its reciprocal

obligation under the loan agreement,


Tolentino may choose between specific
performance or rescission w/ damages in
either case. But since the Bank is now
prohibited fr. doing further business, the
Court cannot grant specific performance.
Rescission is the only alternative remedy
left. However, rescission is only for the
P63,000 balance, bec. the bank is in default
only insofar as such amount is concerned.
The promissory note gave rise to
Tolentinos reciprocal obligation to pay the
P17,000 loan when it falls due. Art. 1192
provides that in case both parties have
committed a breach of their reciprocal
obligations, the liability of the first infractor
shall be equitably tempered by the Court.
The liability of the Bank for damages in not
furnishing the entire loan is offset by the
liability of Tolentino for damages, in the
form of penalties & surcharges for not
paying his overdue P17,000 debt.
SIMON VS. ADAMOS
Facts: Porciuncula sold 2 parcels of land to
Adamos & Feria. Porciunculas successorsin-interest later sought & obtained the
annulment of the sale & the cancellation of
the TCT issued in favor of Adamos & Feria.
However, while this case was pending,
Adamos & Feria sold the property to Simon.
Because of the failure of Adamos & Feria to
deliver the titles & possession of the land
to him, Simon sued them for specific
performance & won. The execution of this
decision was rendered impossible by the
previous annulment of the sale. Hence,
Simon filed an action for rescission of sale
w/ damages. Adamos & Feria claim the
fulfillment & the rescission of the obligation
in reciprocal ones are alternative remedies,
& Simon having chosen fulfillment in the
earlier civil case, she cannot now seek
rescission.
Issue:
the sale.

W/N Simon can still rescind

Held: Yes. The rule that the injured party


can only choose between fulfillment &
rescission of the obligation, & cannot have
both, applies when the obligation is
possible of fulfillment. If, as in this case, the
fulfillment has become impossible, Article
1192 allows the injured party to seek
rescission even after he has chosen
383

fulfillment. Therefore, Simon can have the


contract rescinded.
DILAG VS. IAC (1987)
Facts: Arellanos son died in a vehicular
accident involving a truck owned by the Dilag
spouses. In an action for quasi-delict, Arellano
obtained judgment against the spouses. A
writ of execution was issued & a levy was
made on Lot 288 registered in the name of
the spouses. Annotated on the title was an
adverse claim by the Dilag children who
allegedly bought the same fr. their parents in
1974. Subsequently, the lot was sold to
Arellano. However, before the corresponding
certificate of sale could be issued, the Dilag
spouses again sold the same Lot 288 to their
children, who filed an action for the
annulment of the decision in the quasi-delict
case, alleging that the levy on execution on
Lot 288 was illegal since it was made on
property no longer owned by the Dilag
spouses as judgment debtors.
Issue: W/N the Deed of Absolute Sale
executed in 1974 by the Dilag spouses in
favor of their children is a simulated or
fictitious sale.
Held: Yes. At the time the levy on execution
was made, the Dilag spouses were still the
registered owners of Lot 288. On the other
hand, the title in the name of the Dilag
children was issued several days ahead of the
deed of sale dated August 26, 1981. Clearly,
the Deed of Absolute Sale in favor of the
Dilag children executed in 1974 (after the
filing of the civil case) was a simulated &
fictitious transaction to defraud Arellano who
obtained a money judgment against the Dilag
childrens parents. The supposed sellers,
Dilag spouses, who sold the lot to their
children for an insufficient consideration
continued exercising acts of ownership over
Lot 288. Also, in securing the cancellation of
the TCT covering Lot 288 in the names of the
Dilag spouses, the Dilag children had to rely
on another deed of absolute sale supposedly
executed by their parents in 1981, instead of
relying on the first deed of sale in 1974, an
indication that they do not really consider the
1974 deed of sale valid & legal.
v. Unenforceable Contracts - Arts. 14038, 1317

ART. 1403. The following contracts are


unenforceable, unless they are ratified:
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;
Those that do not comply w/ 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, & subscribed by the party
charged, or by his agent; evidence,
therefore, of the agreement cannot be
received w/o the writing, or a secondary
evidence of its contents:
An agreement that by its terms is not to
be performed w/in a year fr. the making
thereof;
A special promise to answer for the
debt, default, or miscarriage of another;
An agreement made in consideration of
marriage, other than a mutual promise to
marry;
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 & receive part of such goods
& 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 & entry is
made by the auctioneer in his sales book,
at the time of the sale, of the amount &
kind of property sold, terms of sale, price,
names of the purchasers & person on
whose account the sale is made, it is a
sufficient memorandum;
An agreement for the leasing for a
longer period than one year, or for the sale
of real property or of an interest therein;
A representation as to the credit of a
third person.
Those where both parties are incapable
of giving consent to a contract.
ART. 1404. Unauthorized contracts are
governed by Article 1317 & the principles
of agency in Title X of this Book.
ART. 1405. Contracts infringing the
Statute of Frauds, referred to in No. 2, of
Article 1403, are ratified by the failure to
object to the presentation of oral evidence

384

to prove the same, or by the acceptance of


benefits under them.

A: Seller can refuse. He did not receive


any benefit yet.

ART. 1406. When a contract is enforceable


under the Statute of Frauds, & a public
document is necessary for its registration in
the Registry of Deeds, the parties may avail
themselves of the right under Article 1357.

Q: X saw an advertisement for the sale of


a car for P200T. X phoned Y & the latter
noted the order. Y failed to deliver the car.
Can X enforce the obligation?
A: Sale of movable > P500 should be in
writing under the Statute of Frauds or else
unenforceable.

ART. 1407. In a contract where both


parties are incapable of giving consent,
express or implied ratification by the parent,
or guardian, as the case may be, of one of
the contracting parties shall give the contract
the same effect as if only one of them were
incapacitated.
If ratification is made by the parents or
guardians, as the case may be, of both
contracting parties, the contract shall be
validated fr. the inception.
ART. 1408. Unenforceable contracts
cannot be assailed by third persons.
ART. 1317 No one may contract in the
name of another w/o 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.

BAVIERA NOTES:
Q: Authority to sell oral but sale is in writing
A: Void.
Q: Authority to sell in writing but sale of land
is not
A: Unenforceable under Statute of Frauds.
Q:
Why should loan be in writing for
antichresis to be in writing?
A: Antichresis takes a long time. Loan is valid
if not in writing but antichresis not
Donation propter nuptias: rules on ordinary
donations would apply.
Q: Buyer & seller orally agreed for Seller to
sell land. Buyer sold palay & w/ the money
fr. this sale Buyer gave to Seller. Seller
refused.

BUBBLES If person promises to lend


money to another, then refuses to lend, no
cause of action. If a bank does it,
enforceable.
Dilag vs. IAC Badges of fraud:
whether sale to children was paid
not registered until after decision in the
quasi-delict case
parents continued to exercise acts of
ownership over land
relationship between vendor & vendee.
BUBBLES This does not fall squarely
under the presumption of fraud bec. there
was a sale before judgment in 1974. If sale
was after, presumed to be fraudulent.
Q: X proposed to buy Ys house & lot. X
paid the P100T then constituted a chattel
mortgage on Ys house & lot for the unpaid
balance. Art. 1484 CC: law gives seller the
choice of remedies.
A:
Y cannot choose to rescind bec.
alternative remedy of foreclosure is
available.
TOLENTINO NOTES:
Purpose of the Statute of Frauds: To
prevent fraud & perjury in the enforcement
of obligations depending for their evidence
upon the unassisted memory of witnesses
by requiring certain enumerated contracts
& transactions to be evidenced by a writing
signed by the party to be charged.
Statute Of Frauds
simply provides for the manner in w/c
contracts under it shall be proved
such contracts are valid but effect of
noncompliance w/ the SOF is simply that no
action can be proved unless the
requirement is complied w/
not applicable to contracts either totally or
partially performed but only to executory
contracts
neither applicable to actions w/c are
neither for specific performance of the
contract nor for the violation thereof
partial performance must be duly proved
contract under SOF cannot be proved w/o
the writing or a memorandum thereof
385

note or memorandum
evidence of the agreement used to show the
intention of the parties
may consist of any kind of writing, fr. a
solemn deed to a mere hasty note or
memorandum in books & papers, may be in
ink or in pencil, typed or printed
meets requirements of Statute of Frauds if it
contains:
names of the parties
terms & conditions of the agreement
a description of the subject matter sufficient
to render it capable of identification
date & place of the making of the agreement
signature of the party assuming the
obligation
Where there is a sale of a number of
articles w/c separately do not have a price of
P500 each but w/c in their aggregate have a
total price exceeding P500, the operation of
the SOF depends upon whether there is a
single inseparable contract or a several one.
If the contract is entire or inseparable, SOF
applies. If separable, then each article is
taken separately, & the application of the
SOF depends upon its price.
oral evidence to prove a consummated
sale of real property - allowed by the Statute
of Frauds
representation as to credit of a third
person - limited to those w/c operate to
induce the person to whom they are made to
enter into contractual relations w/ the 3rd
person, but NOT to those representations
tending to induce action for the benefit of the
person making them.
An oral contract for a supplemental lease
of property for a period longer than 1 year also w/in SOF. An agreement to enter into an
agreement is also w/in the SOF & the promise
is not enforceable unless the statute is
satisfied.
Defense of the Statute of Frauds
personal to the party to the agreement
like minority, fraud, mistake, & similar
defenses w/c may be asserted or waived by
the party affected
cannot be set up by strangers to the
agreement

VI. VOID OR INEXISTENT CONTRACTS

Art. 1409 The following contracts are


inexistent or void fr. the beginning:

Those whose cause, object or purpose


is contrary to law, morals, good customs,
public order or public policy;
Those w/c are absolutely simulated or
fictitious;
Those whose cause or object did not
exist at the time of the transaction;
Those whose object is outside the
commerce of man;
Those w/c contemplate an impossible
service;
Those where the intention of the parties
relative to the principal object of the
contract cannot be ascertained;
Those expressly prohibited or declared
void by law.
These contracts cannot be ratified.
Neither can the right to set up the defense
of illegality be waived.
Art. 1410. The action or defense for the
declaration of the inexistence of a contract
does not prescribe.
Art. 1411. When the nullity proceeds fr.
the illegality of the cause or object of the
contract, & the act constitutes a criminal
offense, both parties being in pari delicto,
they shall have no action against each
other, & both shall be prosecuted.
Moreover the provisions of the Penal Code
relative to the disposal of the effects or
instruments of a crime shall be applicable
to the things or the price of the contract.
This rule shall be applicable
only when one of the parties are guilty; but
the innocent one may claim what he has
given, & shall not be bound to comply w/
his promise.
Art. 1412. If the act in w/c the unlawful
or forbidden cause consists does not
constitute a criminal offense, the following
rules shall be observed:
When the fault is on the part of both
contracting parties, neither may recover
what he has given by virtue of the contract,
or demand the performance of the others
undertaking;
When only one of them is at fault, he
cannot recover what he has given by
reason of the contract, or ask for the
fulfillment of what has been promised him.
The other, who is not at fault, may demand
the return of what he has given w/o any
obligation to comply w/ his promise.
386

Art. 1413. Interest paid in excess of the


interest allowed by the usury laws may be
recovered by the debtor, w/ interest thereon
fr. the date of payment.

Art. 1422. A contract w/c is the direct


result of a previous illegal contract, is also
void & inexistent.

Art. 1414.
When money is paid or
property delivered for an illegal purpose, the
contract may be repudiated by one of the
parties before the purpose has been
accomplished, or before any damage has
been caused to a third person. In such case,
the courts may, if the public interest will thus
be subserved, allow the party repudiating the
contract to recover the money or property.

RODRIGUEZ VS. RODRIGUEZ


1967

Art. 1415. Where one of the parties to an


illegal contract is incapable of giving consent,
the courts may, if the interest of justice so
demands, allow recovery of money or
property delivered by the incapacitated
person.
Art. 1416. When the agreement is not
illegal per se but is merely prohibited & the
prohibition by the law is designed for the
protection of the plaintiff, he may, if public
policy is thereby enhanced, recover what he
has paid or delivered.
Art. 1417. When the price of any article
or commodity is determined by statute or by
authority of law, any person paying any
amount in excess of the maximum price
allowed may recover such excess.
Art. 1418.
When the law fixes, or
authorizes the fixing of the maximum number
of hours of labor, & a contract is entered into
whereby a laborer undertakes to work longer
than the maximum thus fixed, he may
demand additional compensation for service
rendered beyond the time limit.
Art. 1419.
When the law sets or
authorizes the setting of minimum wage for
laborers, & a contract is agreed upon by w/c
a laborer accepts a lower wage, he shall be
entitled to recover the deficiency.
Art. 1420. In case of divisible contract, if
the illegal terms can be separated fr. the
legal ones, the latter may be enforced.
Art. 1421. The defense of illegality of
contracts is not available to third persons
whose interests are not directly affected.

JULY 31,

Facts: Plaintiff was a widow who owned a


fishpond.
Subsequently, she married
Domingo Rodriguez, a widower, whose
children fr. the first marriage are
defendants in this case.
During the
marriage, she transferred title to the above
property to her daughter, fr. her first
marriage, who in turn sold the same to the
couple. Both transfers were evidenced by
a deed of sale.
Apparently, it was a
scheme devised to go around the
prohibition on marital donations. Plaintiffs
husband then died intestate. As a result of
an extrajudicial settlement of his estate,
the fishponds ownership was divided into
two: 1/2 in favor of the wife as her conjugal
share, & 1/2 to the defendants. The heirs
then granted a lifetime usufruct to the
plaintiff over their 1/2 share, w/c in effect
made her in charge of the entire property
once again. After a few years, relations
became strained so the heirs decided to
terminate the lifetime usufruct. Plaintiff
brings this action alleging that the deed of
transfer of conjugal partnership was null &
void bec. the deceased husband had
employed duress & the two transfers as
abovestated were w/o consideration &
simulated.
Issue: WON transfers were void
Held: Duress is merely a vice or defect of
consent & action based upon it must be
brought w/in 4 years fr. cessation. Present
action was brought 21 years after
intimidation & 9 years after the death of
the perpetrator of the alleged duress.
Contract is not simulated. A simulated
contract is a fictitious one, where said
contract is not intended or desired to
produce any legal effect, e.g. where a
debtor wishes to place his properties
beyond his creditors reach, transfers it to
his mother yet in actuality he maintains
ownership. In CAB, it is clear that the
plaintiff intended to transfer the title of said
fishpond to the conjugal partnership & said
387

contracts or deeds of sale were the means to


achieve said desired result. Fact that said
contracts were used to circumvent a specific
legal
prohibition
(donations
between
spouses) does not make the contract
simulated. Pltff is also barred by the doctrine
of in pari delicto, since she herself became
part of a contract whose cause was illegal.
She cannot now bring an action to recover
the same.

by a deed of sale w/c they didnt register.


Another deed of sale was executed by
Garan in favor of Menil, but this time it was
made & registered beyond the 5-year
prohibitive period. A new TCT was then
issued in favor of Menil. A few years later, a
dispute arose as to who the actual owner of
the land was. The conflict mainly centered
on whether the two deeds above were valid
& binding.

BASIC BOOKS VS. LOPEZ & KINTANAR


FEB. 28, 1966

Issue: WON subsequent registration of the


deed of sale
beyond the 5-year prohibitive period made
the sale valid.

Facts: For failure to account for books


received on consignment fr. BBI, Lopez was
charged w/ estafa.
Subsequently, an
agreement was made between BBI, Lopez &
a certain Kintanar whereby it was stipulated
that Lopez would pay the debt in 15 monthly
installments, that Kintanar would be jointly &
severally liable w/ Lopez for the full amount
of the debt, that default in payment for two
months would result in the debt becoming
due & demandable, & that BBI would petition
the court to dismiss the criminal case once
Lopez & Kintanar put up a surety bond. No
payment was made. BBI brought action to
recover amount fr. L & K. K denies liability on
the ground that contract was void bec. it was
based on an illegal consideration, w/c was to
stifle Lopez prosecution for estafa.
Issue: WON contract was void for being
contrary to public policy
Held: NO. Kintanars obligation under the
agreement was not based on an illegal
consideration.
Cause is the essential
reason w/c moves the contracting parties to
enter into it. It is the immediate, direct &
proximate reason w/c justifies the creation of
an obligation through the will of the
contracting parties.
The cause
of the
agreement in the CAB would be the existing
account of Lopez w/ BBI. For Kintanar, it was
mere liberality or gratuitousness on his part
that moved him to oblige severally w/ Lopez.
Though it may be inferred that Kintanars
motive was to help save Lopez fr. the criminal
case, motives are different fr. the cause
thereof.
MENIL V. CABRAL, 84 SCRA 413
Facts: Garan, a holder of a homestead
patent, sold the same w/in the 5-year
prohibitive period, to Menil. It was evidenced

Held: No. Sale was void & illegal having


been made w/in the said 5-year prohibitive
period. The law does not make any
distinction as between executory sales &
consummated sales. To allow such a
distinction is to put asunder the purpose of
the prohibition : to preserve its ownership
for 5 years w/ the beneficiary an his family.
To give validity to petitioners
(Menil)
contention contract of sale was a valid
executory contract is to open the door wide
open to fraudulent subterfuge & schemes
that would effectively render useless the
entire homestead concept. Neither may it
be claimed that there are two contracts:
the first one void & the second one valid
since such was made beyond the
prohibitive period. There is only one
contract , the second one merely a
confirmatory deed of sale of the first one,
Since the first one was clearly prohibited by
law, it cannot be confirmed nor ratified.
BAVIERA: Doctrine of Pari Delictu was
not applied in this case for to do so
would be nugatory to the declared
public policy of the law of giving land
to the landless.

UNITED
GENERAL
INDUSTRIES
PALER 112 SCRA 404

V.

Facts: Paler bought a TV set fr. Plaintiff


United General Industries securing the
same w/ a chattel mortgage over the TV.
Paler violated the terms of the CM., thus
United filed a criminal action for estafa. The
same
case
was
however
settled
extrajudicially, when Paler & De la Rama
executed a promissory note in favor of
United. Notw/standing, the defendants
388

failed to pay the same. In a suit filed by


United based on the PN, defendants denied
their liability by raising as a defense the
illegality of the cause (of the PN ) w/c was the
abatement of criminal prosecution.
Issue: WON the agreement to settle the
criminal case is valid.
Held: No. However, Paler alone is still liable
to pay United.
An agreement to stifle the prosecution of
a crime is manifestly contrary to public policy
& administration of justice & may never be
enforced in a court of law. There can be no
recovery on the PN for such is vitiated by the
illegality of the cause.
There can be no recovery against Jose de
la Rama who incidentally appears to be an
accommodation signer only of the PN w/c is
vitiated by the illegality of the cause.
Paler, on the other hand, is still liable since
his obligation is independent of the assailed
PN. To deny his liability would be tantamount
to unjust enrichment at the expense of
another.
BAVIERA:
United is different fr. Basic Books. In Basic
Books, the cause was not the dismissal of the
crim. Complaint, but rather was merely a
particular motive. Here, the cause was
exactly that, the dismissal of a criminal
complaint. Basis? In Basic Books, the case
was not extrajudicially settled; it was not
dismissed despite agreement. In United, the
case was dismissed in view of the agreement.
MARIN V. ADIL, 130 SCRA 406
Facts: There were two sets of cousins, one
residing in Gen,. Santos & the other in Iloilo.
In anticipation of their hereditary rights over
certain properties, they executed a deed of
exchange w/ quitclaim. In said agreement,
the group residing in Gen. Santos would
transfer any property located in Iloilo, w/c
they would eventually inherit, in favor of their
cousins in Iloilo & vice versa. A number of
disputes arose between & among the cousins
w/c eventually led to the filing of this
rescissory action on the said deed of
exchange.

Issue: WON the deed of exchange is void


or inexistent.
Held: Deed is void or inexistent.
The DoE was invalid. The intention of
the parties relative to the lots to be
exchanged
cannot
definitely
be
ascertained. This circumstance renders the
exchange void or inexistent. ( Art. 1378. 2 nd
par, Art. 1409, 6th par.)
Several paragraphs in the agreement
are irreconcilable. One par, contemplates
that the properties are still to be awarded
while another stipulation presumes that the
parties already have control of the same
properties referred to in the first one. Also,
the court decide that this rescissory action
may be treated as an action to declare void
the deed of exchange, hence defense of
prescription does not lie.
NOTES: Intention of parties relative to
principal object of contract cannot be
ascertained.
CABRAL V. CA, 130 SCRA, 498
Facts: The San Diegos sold a parcel of
land (1/6) to the Cabrals on Aug. 14, 1948.
However, the SD's claim that the deed of
sale was fabricated. A criminal action for
\falsification was filed in court. It was
dismissed on the ground of prescription
bec. the information was filed only on Sept,
24, 1974.
On May 2, 1974, or 25 years later, SD
spouses filed an action to nullify the title of
the Cabrals on the theory that the sale was
falsified. This case was dismissed by TC on
the ground of res judicata bec. the order of
dismissal in the criminal case bars the
present civil case. On appeal, the CA
reversed. Cabrals appeal to the SC, raising
the defenses of prescription & res judicata.
Issue: WON the cause of action of the SD
is imprescriptible.
Held: Yes. The action of the SDs being
one to declare the inexistence of a contract
(deed of sale), the same does not
prescribe.

389

The order of dismissal in the crim.


complaint cannot be considered as res
judicata as to bar the civil action of PR
against the Cabrals.
YANAS V. ACAYLAR
FACTS:
Yanas had been occupying a piece
of land since 1926. It was subsequently
awarded to him by a judicial decree in June
1954. On Dec 1954, Acaylar was able to
have the land transferred in his name. Such
a transfer was premised on an alleged deed
of sale executed in 1950, w/c Yanas had
supposedly thumbmarked, being illiterate.
Yanas seeks the declaration of inexistence
of the deed of sale alleging that the
document he thumbmarked for Acaylar was a
deed of acknowledgment of his debt.
ISSUE:
Whether or not the contract is void
& inexistent. Yes!
HELD:
Several badges of fraud & fictitiousness
were present:
Deed of Sale was in English when the vendor
is illiterate;
Wife of vendor did not join in the sale;
Inadequacy of the price;
Notarization was made the following day, &
not on the same moment when the sale was
consummated;
Failure to state boundaries;
Governor approved the sale 2 years later;
Sale was registered 3 years after.
Defense of prescription w/o merit, since an
action to declare void & inexistent a contract
does not prescribe under Art. 1410.

ART. 1307. Innominate contracts shall be


regulated by the stipulations of the parties,
by the provisions of Titles I & II of this Book
(Obligations & Contracts), by the rules
governing the most analogous nominate
contracts, & by the customs of the place.

DIZON V. GABORRO
FACTS:
Dizon is the owner of 3 parcels of
land, w/c were subject to a 1st mortgage lien
in favor of DBP & a 2 nd mortgage lien in favor

of PNB. Having defaulted in the payment


of his debt, DBP foreclosed the mortgage.
A corresponding Certificate of Sale was
executed in favor of the said bank.
Subsequently, Dizon & Gaborro executed
a Deed of Sale w/ Assumption of
Mortgage covering Dizons. As stated in
the Deed, Gaborro assumed the entire
mortgage indebtedness of Dizon, in return
for the transfer of such lots in his name.
Gaborro then has been in actual possession
of the 3 parcels of land. He has been
actually cultivating the lots, paying realty
taxes thereon, & appropriating all the fruits
produced & other income of said lots.
Less than a year later, Dizon offered to
reimburse Gaborro of what he paid to the
banks & demanded an accounting of the
income of the property, contending that
the transaction they entered into was one
of antichresis. Dizon contended that their
real agreement was not an absolute sale
but merely an equitable mortgage or
conveyance by way of security for the
reimbursement by Dizon to Gaborro of
what the latter may have paid on account
of the mortgage debts.
ISSUE:
Whether or not the contract
entered into by Dizon & Gaborro is an
absolute sale. NO!
Held:
The Deed of Sale w/ Assumption
of Mortgage cannot be legally considered
a real & unconditional sale of the parcels of
land.
Firstly, there was absolutely no
money
consideration
therefor.
The
stipulated sum of P131,831.91 mentioned
in the document as the consideration was
not actually paid. Secondly, the properties
had already been previously sold by the
sheriff to DBP at the foreclosure sale,
thereby divesting Dizon of his full right as
owner thereof to dispose & sell the lands.
The true intention of the parties is that
Gaborro would assume & pay the
indebtedness of Dizon to DBP & PNB, & in
consideration therefor, Gaborro was given
the possession, enjoyment & use of the
lands until Dizon can reimburse fully
Gaborro for the amount paid by the latter
to DBP & PNB.
those

Agreement between the 2 is one of


innominate contracts under Art.
390

1307, whereby Dizon & Gaborro agreed to


give & to do certain rights & obligations
respecting the lands & the mortgage debts of
Dizon, but partaking of the nature of
antichresis insofar as the principal parties,
Dizon & Gaborro, are concerned.

children fr. the land & neither may she


force them to give up the harvests.
After Clemente's death, Pf failed this action
for reconveyance against his children
herein Ds. The lower court dismissed the
case on the ground that it has prescribed.

The instrument must, therefore, be


reformed in accordance w/ the intention &
legal rights & obligations of the parties
Dizon, Gaborro & the banks.

Issue: Whether
constituted?

BAVIERA:
This does not come squarely
under an innominate contract that is
analogous to a contract of antichresis.
It simply is a usufruct in return for the
assumption of the mortgage.

TRUSTS
I. EXPRESS TRUSTS

Art.1444.
No particular words are
required for the creation of an express trust,
it being sufficient that a trust is clearly
intended.
Art.1445. No trust shall fail bec. the
trustee appointed declines the designation,
unless the contrary should appear in the
instrument constituting the trust.
Art.1446. Acceptance by the beneficiary
is necessary. Nevertheless, if the trust
imposes no onerous condition upon the
beneficiary,
his
acceptance
shall
be
presumed, if there is no proof to the contrary.

JULIO V. DALANDAN
Facts: Victoriana had a daughter, herein Pf.
It appeared that Victoriana owned a parcel of
riceland w/c was posted as security by
Clemente for an obligation. Since Clemente
failed to fulfill said obligation, the riceland
was foreclosed. Because of this, Clemente
executed a document wherein he promised Pf
that he would replace the land foreclosed w/
another w/c consists of 4 hectares. But he
expressed that Pf
should not evict his

or

not

trust

was

HELD :Yes. A reading of the document


would show that the Ds are merely
usufructuaries for an undetermined length
of time. For so long as that period has not
been fixed & has not elapsed, they hold the
property in trust for Pf. It is clear that by
the deed. Clemente has divested himself of
the ownership of the land & transferred
said ownership to Pf, leaving only the right
of usufruct to his children.
As it appears that while Ds refuse to
deliver the land, they also acknowledge
that they hold the property not as their
own but in trust for the Pf. Given the
fiduciary relation w/c according to the
complaint is recognized by Ds, the latter
may not invoke the statute of limitations as
a bar to Pf's action.
II. RESULTING OR IMPLIED trust.

Art.1447. The enumeration of the


following cases of implied trust does not
exclude others established by the general
law of trust, but the limitation laid down in
article 1442 shall be applicable.
Art. 1448. There is an implied trust
when property is sold, & the legal estate is
granted to one party but the price is paid
by another for the purpose of having the
beneficial interest of the property. The
former is the trustee while the latter is the
beneficiary. However, if the person to
whom the title is conveyed is a child,
legitimate or illegitimate, of the one paying
the price of the sale, no trust is implied by
law, it being disputably presumed that
there is a gift in favor of the child.
Art.1449.
There is also an implied
trust when donation is made to a person
but it appears that although the legal
estate is transmitted to the dense, he
391

nevertheless is either to have no beneficial


interest or only a part thereof.
Art.1450.
If the price of a property is
loaned or paid by one person for the benefit
of another & the conveyance is made to the
lender or payor to secure the payment of the
debt, trust arises by operation of the law in
favor of the person to whom the money is
loaned or for whom it is paid. The latter may
redeem the property & compel conveyance
thereof to him.
Art.1451.
When the land passes by
succession of any person & he causes the
legal title to be put in the name of the other,
a trust is established by implication of law for
the benefit of the true owner.
Art. 1452. If two or more persons agree
to purchase property & by common consent
the legal title is taken in the name of one of
them for the benefit of all, a trust is crested
by force of law in favor of the others in
proportion to the interest of each.
Art. 1453. When property is conveyed to
a person in reliance upon his declared
intention to hold if for, or transfer it to
another or the grantor, there is an implied
trust in favor of the person whose benefit is
contemplated.
Art. 1454. If an absolute conveyance of
property is made in order to secure the
performance of an obligation of the grantor
toward the grantee, a trust by virtue of law is
established. If the fulfillment of the obligation
is offered by the grantor when it becomes
due, he may demand the reconveyance of
the property to him.
Art. 1457.
An implied trust may be
proved by oral evidence.

CUAYCONG V. CUAYCONG
Facts:
Hacienda Bacayan was owned
by the CPG of Eduardo & his wife. E's desire
was to divide said hacienda among his bros.
& sisters. He asked them to pay his wife's
share but they were unable to do so through
stealth & strategy, herein Ds were able to
buy the hacienda. So what H did was to tell
the Ds to hold in the trust what might belong
to his bros. & sisters as a result of the

arrangement & deliver to them said shares


when the time comes. When H died, his
bros. & sisters (Pfs) filed an action to
recover their shares against Ds.
Issue: Whether the trust is express or
implied?
HELD:
The trust created herein is an
express one, & since it involves real
properties, it may not be proved by parole
evidence.
The Civil Code defines an express
trust as one created by the intention of the
trustor or of the parties, & an implied trust
as one that comes into being by operation
of law. Express trusts are those created by
the direct & positive acts of the parties, by
some writing or deed or will or by words
evidencing an intention to create the trust.
On the other hand, implied trusts are those
w/c, w/o being express, are deducible fr.
the nature of the transaction by operation
of laws as matters of equity, independently
of the particular intention of the parties.
Thus, if the intention to establish a trust is
clear, the trust is express; if the intent to so
establish is to be taken fr. circumstances or
other matters indicative of such intent,
then the trust is implied. In the case at bar
H has expressed such intent to create a
trust.
DE BUENCAMINO V. MATIAS
Facts: Hilaria & Fulgencio had a son ,
Luis, who was married to Maria. But he
kept a mistress w/ whom he begot five
children. H & F believing that should their
properties pass to L, that he would give
them to his illegitimate children, disposed
the properties to one of L's legitimate
children, Teodora & her husband. But after
the death of H & F, Teodora excluded her
own mother & brothers & sisters fr. said
land. They thus filed an action to recover
said properties. The lower court ruled for
them so Teodora filed this appeal
contending that the action is barred by
extinctive prescription.
Issue: Whether or not there was an implied
trust?
HELD: The contention that the action for
reconveyance, w/c was brought 17 years
after the execution of the disputed
document, was barred by prescription,
392

cannot be sustained. The execution of the


deed & the consequent registration of the
lands in the name of Teodora & her husband
created an implied trust in favor of Teodora's
brothers & sisters. And while implied or
constructive trust prescribes in ten (10)
years, the rule does not apply where a
fiduciary relation exists & the trustee
recognizes the trust. Continuous recognition
of a resulting trust precludes any defense of
laches in a suit to declare & enforce the trust.
As it does not appear when Teodora
repudiated the existence of the fiduciary
relations between her & her brothers &
sisters, the same shall be taken to have been
made only upon the filing of her answer to
the complaint. The action, therefore, has not
yet prescribed.
ESCAY V. COURT OF APPEALS
Facts: Emilio & Jose Escay are brothers.
During his lifetime, Emilio procured a loan fr.
PNB for w/c he mortgaged his properties. He
died w/o paying his debt so PNB moved to
foreclose said mortgaged. Pending such suit,
Jose agreed to assume Emilio's indebtedness
in consideration of the said properties, but
gave the widow of Emilio the right to
repurchase the same w/in five years.
However, later widow filed an action to
recover the ownership & possession of the
said land on the theory that an implied trust
was created between her & Jose. Later, on
MFR, she changed her theory, stating that
the trust was an express one.
Issue: Whether or not there was an express
trust?

In any case, even if it were an


express trust, since it involves immovable
properties, it cannot be proved by parole
evidence, & actions based on express trust
also prescribe & the property held in trust
may be acquired by adverse possession fr.
the moment the trust is repudiated by the
trustee.
Therefore,
the
defense
of
extinctive & acquisitive prescription is
available to Jose.
III. CONSTRUCTIVE TRUSTS

Art. 1455. When a trustee, guardian or


other
person
holding
a
fiduciary
relationship uses trust funds for the
purchase of property & causes the
conveyance to be made to him or to a third
person, a trust is established by operation
of law in favor of the person to whom the
funds belong.
Art. 1456.
If property is acquired
through mistake or fraud, the person
obtaining it is, by force of law, considered a
trustee of an implied trust for the benefit of
the person fr. whom the property comes.
Art. 1807. Every partner must account
to the partnership for any benefit, & hold
as trustee for it any profits derived by him
w/o the consent of the other partners fr.
any
transaction
connected
w/
the
formation, conduct, or liquidation of the
partnership or fr. any use by him of its
property.(n)

HELD: Settled is the rule that is partly may


not change his theory on appeal. It is very
clear that the contract executed was one of
assumption of mortgage indebtedness, the
consideration being the transfer of ownership
of subject properties in favor of Jose Escay.
The widow, therefore, cannot recover said
properties.

MIGUEL V. COURT OF APPEALS

Assuming that said trust exists, such


trust was not an express one. Since an
implied trust prescribes in ten years, the
present action has already prescribed having
been filed long after the execution of the
contract.

Issue: Whether or
constructive trust?

Facts: Elloy has been in possession of the


land subject of the controversy since 1894.
His lawyer
was able to secure a
homestead patent over the parcel of land &
registered the same in the name of his
wife. Eloy filed an action for reconveyance.
not

there

is

HELD: Ps have proven by preponderance


of evidence the fraud perpetrated by PR &
her husband. This makes the action clearly
for the enforcement of a constructive trust,
393

the ultimate object is for the reconveyance of


property lost through breach of fiduciary
relations &/or fraud. Therefore, it can be filed
w/in the four years fr. the discovery of the
fraud. The fraud was discovered in 1950, &
this action was commenced in 1953, hence,
not time-barred.
DIAZ V. GORRICHO
Facts: Francisco died leaving his wife & 3
children. He left two parcels of land. Now, a
judgment was rendered against W & a WoE
was issued & her share in these two lots were
levied upon. The judgment creditor was the
successful bidder & a final deed of sale was
executed in her favor for, the whole parcels
of land, instead of W's share only. Fifteen
years later, W's children filed this action to
compel the creditor to execute a deed of
conveyance over the half-interest belonging
to them on the ground that a constructive
trust arose when she took advantage of the
mistake of sheriff. The lower court dismissed
the case on the ground that it has prescribed.
Issue: Whether cause of action is barred?
HELD: Affirmed. Constructive trust may be
barred by laches unlike an express one thus,
they can no longer lay claim on the half of
the land.
There is a distinction between express
trusts created by the intention of the parties,
& the implied or constructive trusts that are
exclusively created by law, the latter not
being trusts in their technical sense. The
express trusts disable the trustee fr. acquiring
for his own benefit the property committed to
his management or custody, at least while he
does not openly repudiate the trust, & makes
known his repudiation to the beneficiary or
cestui que trust. But in constructive trusts,
the rule is that laches constitutes a bar to
actions to enforce the trust, & repudiation is
not required, unless there is a concealment of
the facts giving rise to the trust.
Time runs fr. the moment that the law
creates the trust, w/c is the time when the
cause of action arises.
The reason for the difference in treatment is
obvious. In express trust, the delay of the
beneficiary is directly attributable to the
trustee who undertakes to hold the property
for the former, or who is linked to the

beneficiary by confidential or fiduciary


relations. The trustee's possession is,
therefore, not adverse to the beneficiary,
until & unless the latter is made aware of a
repudiation. But in constructive trusts,
there in neither a promise nor a fiduciary
relation, the so-called trustee does not
recognize any trust & has no intent to hold
for the beneficiary. Therefore, the latter is
not justified in delaying the action to
recover his property. It is his fault if he
delays, hence, he may be estopped by his
owned laches.
ASUNCION V. PINEDA
Facts: Filemonowned 3.5 hectares of land.
To expedite Macario's application for a
homestead patent, Filemon agreed to
consolidate the possession & cultivation of
their respective lands in the name of
Macario. The heirs of Filemon filed this
action for reconveyance against the heirs
of Macario, alleging that an implied trust
was created between the two.
Issue: Whether or not action for
reconveyance for enforcement of the trust
is subject to prescription?
HELD: An action for reconveyance for the
enforcement of an implied trust is subject
to prescription under Art. 496. In the case
at bar, the OCT was issued in the name of
Macario in 1917, or almost 60 years before
the filing of this complaint. Even if the case
here is one of express trust, since it
involves real property it cannot be proved
by parole evidence.
NAKPIL V. IAC
Facts: Jose & Charlie were best friends. C
became the lawyer, accountant & auditor &
financial consultant of J. However, J died &
since then things have changed. J's widow
filed an action for reconveyance against C
on the ground that prior to J's death, J
requested C to purchase Pulong Maulap &
to register the same in his (C's) name. After
J's death, C suppressed all information on
this trust agreement.
Issue: Whether there was an implied trust?
HELD:
A constructive trust under Art.
1450 exists between J & C. Art 1450
presupposes a situation where a person,
394

using his own funds, purchases a certain


piece of land in behalf of another who, in the
meantime, may not have sufficient funds to
purchase the land. The property is then
transferred in the name of the trustee, the
person who paid for the land, until he is
reimbursed by the beneficiary, the person for
whom the land is purchased. It is only after
the beneficiary reimburses the trustee of the
purchase price that the former can compel
conveyance of the purchased property fr. the
latter.
Based on the evidence before the trial
court. C purchased the property in behalf of J.
Consequently, C is estopped fr. claiming that
he bought Pulong Maulap for himself. Not
merely in trust for the late J. However, J's
widow cannot as yet redeem & compel
conveyance of the property for C must first
be reimbursed for the advances he made on
the disputed property, such reimbursement
being a condition
sine qua non for
compelling conveyance under Art. 1450.
The period w/in w/c to compel
conveyance is not imprescriptible. The rule is
well settled that an action for reconveyance
based on the implied trust prescribes in ten
years. But in the case at bar, since C did not
repudiate the trust, the prescriptive period is
not deemed to have commenced until after C
excluded Pulong Maulap fr. the inventory of
J's properties since it is fr. that time that C is
deemed to have repudiated the trust.

dispose of them as if he were the true


owner thereof;
The validity of any contract of sale
under statutory power of sale or under the
order of a court of competent jurisdiction;
Purchases made in a merchants store,
or in fairs, or markets, in accordance w/ the
Code of Commerce & special laws.
Notes:
Art. 1505, 1st par. states the general rule.
The exceptions are:
Estoppel by conduct of vendor
Art. 1505, number 1.
Art. 1505, number 2.
Art. 1505, number 3.
Land Registration Act protects buyers of
immovable property by requiring them to
buy it fr. registered owners only.
Art. 559 embodies the rule on caveat
emptor the owner of lost or unlawfully
deprived movable property can recover
them even against innocent purchasers for
value
Art. 1506. Where the seller of goods
has a voidable title thereto, but his title has
not been 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, & w/o notice of the sellers
defect of title.
:
Baviera sez that Arts. 1505(3) & 1506
refer to innocent purchasers for
value.

SPECIAL CONTRACTS
SALES

Art. 1505. Subject to the provisions of


this Title, where goods are sold by a person
who is not the owner thereof, & who does not
sell them under authority or w/ the consent of
the owner, the buyer acquires no better title
to the goods than the seller had, unless the
owner of the goods is by his conduct
precluded fr. denying the sellers authority to
sell.
Nothing in this Title, however, shall affect:
The provisions of any factors act,
recording laws, or any other provision of law
enabling the apparent owner of goods to

Art. 1544. If the same thing should


have been sold to different vendees, the
ownership shall be transferred to the
person who may have first taken
possession thereof in good faith, if it should
be movable property.
Should it be immovable property, the
ownership shall belong to the person
acquiring it who in good faith first recorded
it in the Registry of Property.
Should there be no inscription, the
ownership shall pertain to the person who
in good faith was first in the possession; &,
in the absence thereof, to the person who
presents the oldest title, provided there is
good faith.
395

Notes:
According to the SC, the 2nd & 3rd paragraphs
of Art. 1544 do not apply to unregistered
land.
The title referred to in the 3rd paragraph
does not refer to ownership bec. ownership
only passes upon delivery; this refers to the
oldest document.
CARBONELL VS. CA
Facts: Carbonell, Poncio, & Infante were
neighbors in San Juan. Both Carbonell &
Infante offered to buy Poncios lot. Poncio
offered it to Carbonell & the latter accepted.
However, when the day of the signing of the
deed of sale arrived, Poncio informed
Carbonell that he is no longer selling the land
to her since Infante gave a better offer.
Carbonell registered her adverse claim, so
that when a TCT was issued to Infante,
Carbonells adverse claim was annotated
thereon. Carbonell then filed this case for the
annulment of the sale to Infante.
Issue: Who has better right to the land?
Held: Carbonell has the better right. To
merit the protection of Art. 1544, it is
essential that the buyer of the realty must act
in good faith in registering his deed of sale.
Here, when Carbonell bought the lot fr.
Poncio, she was in good faith, & this good
faith subsisted when she recorded her
adverse claim prior to Infantes registration.
Munoz-Palma, dissenting: When Carbonell
registered her adverse claim, she had already
been told about the sale to Infante & had
seen the wall that Infante built, & she had no
registerable document of sale at the time.
Note: Baviera disagreed w/ the majority
decision in this case.

BERICO VS. CA
Facts: In 1961, delos Santos sold a parcel of
land to PRs Flores & Bareja. In 1963, delos
Santos sold the same parcel of land to
petitioner Berico, who was aware of the prior
sale to PRs. Despite such knowledge, Berico
caused the registration of the deeds of sale in
his favor in 1968. It was only in 1978 that
PRs tried to register their deeds of sale. They

then filed an action for annulment of title.


The LC ruled in PRs favor.
Held: Affirmed. The rights conferred by
Art. 1544, NCC upon one of the two
purchases of the same real property who
has registered his title in the registry of
deeds do not come into being if the
registration is not made in good faith.
Otherwise stated, in order that a purchaser
of realty may merit the protection of Art.
1544(2), the said purchaser must act in
good faith in registering his deed of sale.
Good faith is the fundamental premise of
the preferential rights established in the
said article. Hence, mere registration is not
enough; good faith must concur w/ it.
Since Berico was in bad faith when
he registered the land, the registration of
the deed of sale was ineffectual & vested
upon him no preferential rights to the
property in derogation of the rights of the
PRs. Accordingly, since it has been proven
that the PRs were the anterior possessors
in good faith, ownership of the questioned
land vested in them in accordance of Art.
1544(3).

Art. 1484. In a contract of sale of


personal property the price of w/c is
payable in installments, the vendor may
exercise any of the following remedies:
Exact fulfillment of the obligation,
should the vendee fail to pay;
Cancel the sale, should the vendees
failure to pay cover two or more
installments;
Foreclose the chattel mortgage on the
thing sold, if one has been constituted,
should the vendees failure to pay cover
two or more installments. In this case, he
shall have no further action against the
purchaser to recover any unpaid balance of
the price. Any agreement to the contrary
shall be void.

TAJANLAJIT V SOUTHERN MOTORS


Facts:
T bought fr. SM 2 tractors &
executed a PN as a security for the balance
of the purchase price. They also executed
a chattel mortgage on the tractors. When
T failed to pay, SM sued on the PN &
396

obtained judgment in its favor.


The
properties were sold at public auction but
there remained a balance of P10T for w/c SM
obtained an alias WoE. The sheriff levied on
T's certain real prop. To prevent such sale, T
brought this suit.
Issue: WON SM is precluded fr. levying on
the real prop of T to recover the deficiency.
Held: NO. T's contention that 1484(3) is
untenable bec there has been no foreclosure
of the CM nor a foreclosure sale.
The
prohibition vs. further collection does not
apply. It is true that there was CM on the
goods sold. But SM elected to sue on the PN
exclusively. It had the rt. to select among the
3 remedies established in 1484. In choosing
to sue on the PN, it was not thereby limited to
the proceeds of the sale on execution of the
mortgaged goods.
Baviera: Will the ruling in this
circumvent the prohibition vs.
of deficiency in case of
mortgaged property?
NO bec if the creditor files a
action, he waives the lien on
Debtor can then dispose the
pending the litigation.

case not
recovery
sale of
personal
the CM.
property

CRUZ V FILIPINAS INVESTMENT


Facts: C purchased on installments fr. FEMC
one unit of bus. C delivered a PN & a CM in
favor of the seller over the vehicle. C also
gave an additional security of a REM
executed by a 3rd person in favor of FEMC.
FEMC assigned its rts to Filinvest.
C
defaulted.
F foreclosed the bus.
The
proceeds of the foreclosure sale of the bus
were not enough to cover the debt so F
requested the Prov Sheriff to take possession
& sell the land subj to REM. C & 3rd person
filed an axn for cancellation of the REM.
Issue: WON def may extrajudicially foreclose
the REM constituted by the 3rd person as
additional security after it has extrajud
foreclosed the CM.
Held: NO. Remedies under 1484 have been
recognized as alternative, that the exercise of
one wld bar the exercise of the other. The
foreclosure & actual sale of CM bars further
recovery by the vendor of any balance on the
vendee's outstanding oblig not satisfied by

the sale. The principal object of this is to


remedy
the
abuses
committed
in
connection w/ the foreclosure sale for a low
price & then bringing suit vs. the
mortgagor for a deficiency judgment. The
result of this was that the mortgagor found
himself minus the prop & still owing
practically the full amount of his orig debt.
INDUSTRIAL FINANCE CORP. V TOBIAS
Facts:
P filed a complaint vs. Alcoba
denominated as replevin w/ damages bec
Alcoba failed to pay the purchase price of
the car he bought fr. P & w/c was secured
by a CM on the car. LC issued a writ of
replevin but the sheriff was not able to
seize the mortgaged car.
Thereafter,
judgment was rendered vs. Alcoba to pay P
a sum of money. WoE was issued but was
returned unsatisfied. A second alias WoE
was issued, & the car was levied upon &
sold at public auction. After the sale, there
remained a balance of P250. P asked for
3rd alias WoE w/c LC denied.
Issue:
WON Alcoba
deficiency.

can recover the

Held: YES. It is clear that there was no


extrajudicial foreclosure of mortgage in this
case. Under 1484, it is only when there
has been a foreclosure that the mortgagor
is not liable for any deficiency.
P's
action
is
for
specific
performance or fulfillment of the oblig &
not for judicial foreclosure. It levied upon
the car by virtue of an execution & not as
an incident of a foreclosure proceeding.
The rule is that in installment sales, if the
action instituted is for specific performance
& the mortgaged property is subsequently
attached & sold, the sale thereof does not
amount to a foreclosure of mortgage.
Hence, the seller creditor is entitled to
deficiency judgment & consequently to an
alias WoE for the portion of the judgment
that has not been satisfied.
FILINVEST VS. PHIL. ACETYLENE
FACTS: Phil. Acetylene Corp. (PAC) bought
on installment basis a car fr. Filinvest (F).
PAC executed a promissory note & a chattel
mortgage over the car. PAC defaulted so F
wrote a demand letter, asking the latter to
397

either pay or return the car. PAC opted to


return the car, but F told PAC that it cannot
sell the car due to unpaid taxes. When PAC
failed to pay, F filed an action for collection of
a sum of money against it..

Amounts adjudged in favor of Universal


were not part of the unpaid balance of the
price, or in the concept of a deficiency
judgment, but were for expenses of the
suit.

HELD: Judgment for F. Under the law, the


delivery of possession of the mortgaged prop.
to the mortgagee can only operate to
extinguish PACs liability if F had actually
caused the foreclosure sale of the mortgaged
prop.

This case is for delivery of personal


prop. under Rule 60 of the ROC. The mere
fact that appellee has secured possession
of the truck does not necessarily mean that
it will foreclose the mortgage. Indeed, there
is no showing at all that appellee is causing
the sale thereof at public auction or in even
preparing to do so.

It is the fact of foreclosure & actual


sale of the mortgaged chattel that bar the
recovery by the vendor of any balance of the
purchasers
outstanding
obligation
not
satisfied by the sale.
If the vendor desisted, on his own
initiative, fr. consummating the auction sale,
such desistance was a timely disavowal of
the remedy of foreclosure, & the vendor can
still sue for specific performance. This is
exactly what happened in the instant case.
UNIVERSAL MOTORS VS. VELASCO
FACTS: Velasco bought on installment basis a
Mercedes-Benz truck fr. Universal Motors
(UM). He executed a PN for the balance as
well as a chattel mortgage over the truck. He
defaulted in his payments so UM asked him
to surrender the truck but he failed/refused to
do so. UM instituted an action to recover the
truck preparatory to foreclosure of the CM. A
writ of replevin was issued so UM
repossessed the truck. TC held that UM is
entitled to the possession & V was ordered to
pay UM the costs of suit plus atty.s fees.
However, it held that all these sums may be
enforced only against the proceeds of the
sale of the truck on the ground that, in
proceedings for foreclosure of mortgages
executed on chattels w/c have been sold on
installment, the mortgagee is limited to the
property included in the mortgage. Hence,
this appeal by UM.
HELD: Velasco should be made to pay the
costs of suit & atty.s fees independently of
the proceeds of the auction sale of truck. Art.
1484 is inapplicable in the CAB for two
reasons:
The action instituted in the court a quo was
not foreclosure of the chattel mortgage, but
for replevin

As held in the Tajanlajit & Manila


Motors case, it is the actual sale of the
mortgaged chattel that would bar the
creditor fr. recovering any unpaid balance.
DE LA CRUZ VS. ASIAN CONSUMER
FACTS: Spouses de la Cruz purchased on
installment basis one unit Hino truck fr.
Benter Motor Sales. They executed a CM
over the vehicle & a PN payable in 30 mo.
installments. Benter then assigned its
rights & interest over the vehicle in favor of
Asian Consumer. The spouses defaulted on
more than 2 installments. Asian then filed a
petition for extrajudicial foreclosure of the
CM. The sheriff attempted to repossess the
vehicle but the spouses son refused to
surrender the same. De la Cruz then
brought the vehicle to the Asian office for
inventory & inspection. Asian did not sell
the prop. at a public auction. Asian then
filed an ordinary action for collection of the
balance of the purchase price. TC ruled in
favor of Asian. CA affirmed.
HELD: While Asian eventually succeeded in
taking possession of the mortgaged
vehicle, it did not pursue the foreclosure of
the mortgage as shown by the fact that no
auction sale of the vehicle was ever
conducted.
It is the fact of foreclosure & actual
sale of the mortgaged prop. that bar
recovery by the vendor of any balance of
the purchasers outstanding obli. not
satisfied by the sale. If the vendor desisted
on his own initiative fr. consummating the
auction sale, such desistance was a timely
disavowal of the remedy of foreclosure, &
the vendor can still sue for specific
performance.
398

The three remedies provided for in the


Recto Law , namely, Art. 1484 of the CC, are
alternative & not cumulative. The exercise of
one would preclude the other.

Q: Why?
A: Bec. it was NOT the chattel mortgage
that was foreclosed. The extrajudicial
foreclosure of the REM is equivalent to a
specific performance & therefore, what you
will do is to file an action for specific
performance.

ROMERO VS. COURT OF APPEALS


FACTS: Romero needed a lot on w/c to build
a warehouse in MM. Flores offered a parcel of
land. R & F then agreed that should R pay
P50,000 to eject the existing squatters on the
lot, the prop. would be sold to him. Flores
then filed an ejectment suit against the
squatters & won. However, the writ of
execution was issued beyond the 60-day
period agreed upon by the parties. F sought
to return the P50,000 to R, w/c the latter
refused. F then filed an action to rescind the
contract, contending that the Deed of
Conditional Sale is null & void for her failure
to evict the squatters & she has decided to
retain the prop.
HELD: The K is already a perfected contract
of sale. The ejectment of the squatters is a
condition the operative act of w/c sets into
motion the period of compliance by R to pay
the balance of the purchase price.
Fs failure to comply w/ this condition
gives to R the right to either refuse to
proceed w/ the agreement or waive the
condition. This option belongs to R, & not to F.
In the CAB, R chose to waive the condition.
Moreover, Fs action for rescission is
not warranted as she is not the injured party.
She is the one who failed in her obli.
BAVIERA:

Art. 1479. A promise to buy & sell a


determinate thing for a price certain is
reciprocally demandable.
An accepted unilateral promise to buy
or to sell a determinate thing for a price
certain is binding upon the promissor if the
promise is supported by a consideration
distinct fr. the price.

SANCHEZ VS. RIGOS


caveat: Maam Bubbles said that there is a
very recent SC decision w/c reverted to the
ruling in the Southwestern Molasses case,
w/o however, expressly declaring that this
case has been abandoned.
FACTS: Rigos (R) promised to sell to
Sanchez (S) a parcel of land for P1,500.
This was embodied in a document called an
Option to Purchase. In pursuant to the
agreement, S made several tenders of
payment but these were all rejected by R. S
then deposited the money w/ the CFI &
commenced the present action for specific
performance & damages. In defense, R said
that the K was a unilateral promise to sell,
w/c,
being
unsupported
by
any
consideration, was null & void, pursuant to
Art. 1479 of the NCC. LC ruled in favor of
S. Hence this appeal by R.

Q: When you foreclose the CM & there is


deficiency, can you still ask for a deficiency
judgment?
A: Nope.

HELD: Affirmed. Although a unilateral


promise to sell is not binding as a K in itself
for lack of a separate consideration, it
nevertheless generated a bilateral contract
of purchase & sale upon acceptance.

Q: If a real estate mortgage is constituted


over a 3rd persons land as security for the
performance of an obli, what is the nature of
this K?
A: A contract of guaranty

Since plaintiff accepted the offer


before the w/drawal of the offer, a bilateral
K to buy & to sell ensued.

Q: In the case of Cruz, if, instead of


foreclosing the chattel mortgage, they chose
to foreclose the real estate mortgage over a
parcel of land, can he still go after the buyer
for a deficiency judgment?
A: Yes.

In the case of Atkins vs. Chua Hian


Tek, the SC saw no distinction between
Arts. 1324 & 1479 of the CC. Art. 1324
applies to a unilateral promise to sell
similar to the one in the CAB. As Justice
Bengzon explained, an option is unilateral:
399

a promise to sell at the price fixed whenever


the offeree should decide to exercise his
option w/in the specified time. After accepting
the promise & before he exercises his option,
the holder of the option Is not bound to buy.
He is free either to buy or not to buy
later...however,
upon
accepting
herein
petitioners offer, a bilateral promise to sell &
to buy ensued, & the resp. ipso facto
assumed the obligation of a purchaser. He did
not just get the right subsequently to buy or
not to buy. It was not a mere option then; it
was a bilateral K of sale.
If the option is given is given w/o a
consideration, it is a mere offer of a contract
of sale, w/c is not binding until accepted. If
however, acceptance is made before a
w/drawal, it constitutes a binding K of sale,
even though the option was not supported by
a sufficient consideration.
BAVIERA:
Q: Distinguish between Art. 1479 & 1324?
1479
Applies if K has NOT
been ACCEPTED
A
consideration
other
than
the
purchase price is
required to make
the
unilateral
promise binding

1324
This is the GENERAL
RULE
on
CONTRACTS:
If
ACCEPTED,
the
agreement becomes
BINDING
(WON
there
is
a
consideration other
than the purchase
price)

CRONICO VS. TUAZON


FACTS: J.M. Tuazon & Co. (JM) owns a parcel
of land. Cronico (C) & a certain Claudio
Ramirez (R) offered to buy the lot so JM
notified both parties of the terms &
conditions of the sale. C then offered a check
as downpayment to JM. This check was
issued by one Venturanza. Her check was
refused & she was told that the decision on
whose offer will be accepted will be made by
JM after the registry return cards have been
received by it. R sent a reply letter on Mar. 23
while C sent a letter to JM only on Mar. 27.
The lot was then sold to R.

C now alleges that she has a


preferential right to buy the lot bec. she is
the successor-in-interest of one Deusor (D)
who executed a compromise agreement w/
JM wherein the latter bound itself to sell the
lot to the successor-in-interest of D. C
seeks to annul the sale on the ground that
she was the first to accept the terms of the
sale & that the promise to sell is supported
by a consideration aside fr. the selling
price, w/c is the compromise agreement
between D & JM.
HELD: The offer is not binding on JM. The
offer by JM is not supported by a
consideration distinct fr. the price. The
compromise agreement relied upon by C
has already been rescinded & set aside in a
prior case. Hence, the promise to sell by
the corp. has no other consideration
separate fr. the selling price of the lot.
In order that a unilateral promise
may be binding upon the promissor, Art.
1479 requires the concurrence of the
condition that the promise be supported
by a consideration distinct fr. the price.
Accordingly, the promisee cannot compel
the promisor to comply w/ the promise,
unless the former establishes the existence
of said distinct consideration. The promisee
has
the
burden
of
proving
such
consideration. C has not established the
existence of a consideration distinct fr. the
price of the lot in question.
RIGHT OF FIRST REFUSAL
PARANAQUE KINGS ENTERPRISES VS.
CA
FACTS: Santos is the owner of 8 parcels of
land w/c were originally being leased to
Chua then to Bing. B assigned his rights &
interest in the prop. to Paranaque King
(PK). Par. 9 of the lease K provides that in
case the prop. are sold, the lessee shall
have the FIRST OPTION or PRIORITY to buy
the prop. S, in violation of the terms of the
K of lease, sold the prop. to Raymundo for
P5 M. Realizing her error, S had the prop.
reconveyed to her & then she offered it to
PK for P15 M. PK counter-offered for P5 M.
S, w/o answering the counter offer of PK,
executed another deed of sale in favor of R
400

for P9 M. S then informed PK that the new


owner of the prop. is R.
HELD: We hold that, in order to have full
compliance w/ the contractual right granting
PK the first option to purchase, the sale of the
properties for P9 M, the price for w/c they
were finally sold to R, should have likewise
been first offered to PK.
The basis of the right of first refusal
must be the current offer to sell of the seller
or offer to purchase of any prospective buyer.
Only after the optionee fails to exercise its
right of first priority under the SAME terms &
w/in the period contemplated, could the
owner validly offer to sell the property to a
3rd person, again, under the same terms as
offered to the optionee.
SANCHEZ V. RIGOS
FACTS: On April 3, 1961, Sanchez & Rigos (P
& D, respectively), executed an "Option to
Purchase" whereby D promised to sell to P for
P1,500 a parcel of land w/in 2 yrs. fr. date. P
made several tenders of payment w/in such
period but as these were rejected by D, P
deposited the amt w/ the CFI & commenced
the present action for specific performance.
LC ruled for P.
HELD: Affirmed. The option did not impose
upon P the obligation to purchase D's prop. It
merely granted P an option to buy. There is
nothing in the contract to indicate that the
agmt is supported by a consideration
"distinct fr. the price" stipulated for the sale
of the land.
It should be noted that:
1. Art. 1324 applies to Ks in general,
whereas the 2nd par of Art. 1479 refers to
"sales" in particular, &, more specifically, to
an "accepted unilateral promise to buy or to
sell." Art. 1479 is controlling in the case at
bar.
2.
In order that said unilateral
promise may be binding upon the promisor,
Art. 1479 requires the concurrence of a
condition, namely, that the promise be
"supported by a consideration distinct fr. the
price. In other words, the promise, even is
accepted, may be w/drawn if there is no
consideration distinct fr. the price. (SW Sugar
case)

HOWEVER, IN THE CAB, CITING


ATKINS V. CUA HIN LEK, the cts .saw no
distinction bet. the 2 arts (harmonizing
them)
& applied the former where a
unilateral promise to sell similar to the one
sued upon here was involved, treating such
promise as an option w/c, although not
binding as a contract in itself for lack of a
separate consideration, NEVERTHELESS
GENERATED A BILATERAL CONTRACT OF
PURCHASE AND SALE UPON ACCEPTANCE.
Since P accepted the offer before
the w/drawal of the offer, a bilateral
contract to buy & to sell ensued.
NOTE: MA'M BAVIERA SAID THAT IN A
LATER
CASE,
THIS
RULING
WAS
ABANDONED, MEANING THE COURT
REVERTED TO THE OLD RULING (SW
SUGAR CASE) THAT A UNILATERAL
PROMISE, EVEN IF ACCEPTED, IS NOT
BINDING AS LONG AS THERE WAS NO
CONSIDERATION DISTINCT FROM THE
PRICE.
Art. 1482. Whenever earnest money is
given in a K of sale, it shall be considered
as part of the price & as proof of the
perfection of the K.

CIFRA V. CA
FACTS: P (Cifra) entered into an agmt w/
PR (Chua), for the sale of a real prop for 1.1
M. It is stipulated in the ADDENDUM that in
case the buyer fails to purchase the prop
after the seller formally notifies him of the
surrender of the premises by the tenant, in
addition to the forfeiture of the earnest
money, the buyer must pay the seller 20T
plus atty.s. fees & cost. On the other
hand, if the sellers do not make good their
promise to sell the prop, the seller binds
himself to return the earnest money & in
addition, to pay the buyer 20T, plus atty.'s
fees & cost.
The Chuas were not able to free the
prop fr. its tenants so they did not want to
push through w/ the sale. P filed an action
for specific performance.
HELD: The K is clear & should be applied
as it is. Under the addendum to the K, both
parties are given the freedom to back out
of the transaction provided that, in the
401

case of the seller, he must return the earnest


money in addition to being liable to the
buyer for P20T; & in case of the buyer, the
earnest money is forfeited, & he is liable to
pay the seller P20T in damages. This right is
afforded to both parties & may be availed of
by them, irrespective of WON the occupant of
the premises had vacated the same.
Consequently, the action for specific
performance must fail. For the rescission of
the K, Ps must return the P5T earnest money
& pay P20T to PR. However they are not
liable for attys fees, for it was PR who brought
the case to the ct as a result of w/c Ps
unnecessarily incurred expenses of litigation.
Baviera:
The parties could stipulate
otherwise & that the earnest money will
be forfeited, as in the CAB

When there is a right of first refusal, at the


time the offer is made, the owner still has not
yet decided to sell, but in case he does, the
holder of the right has the priority to accept
it. Distinguished fr. an option to sell, where
there is a continuing offer to sell on the part
of the owner.
Conventional redemption
Art. 1601. Conventional redemption shall
take place when the vendor reserves the
right to repurchase the thing sold, w/ the
obligation to comply w/ the provisions of Art.
1616 & other stipulations w/c may have been
agreed upon.
Art. 1616.
The vendor cannot avail
himself of the right of repurchase w/o
returning to the vend the price of the sale , &
in addition:
(1) The expenses of the contract, & any
other legitimate payments made by reason of
the sale;
(2) The necessary & useful expenses
made on the thing sold.

Baviera:
In an equitable mortgage, the property must
still first be foreclosed before ownership
passes to the seller. Distinguished fr. a pacto
de retro sale, where ownership already
passes to the buyer upon perfection of the
contract, but if the right to redeem is
exercised, then ownership reverts to the
seller.

Pacto de retro, or conventional redemption,


is favored by creditors, bec. it does away
w/ the necessity of a foreclosure, in case
the debtor fails to pay the loan. All that the
creditor has to do is to execute an affidavit
consolidating ownership in himself &
register the same in the Register of Deeds.
the price in a pacto de retro sale is
naturally lesser than that in an absolute
sale, bec. the sale is subject to a resolutory
condition, & also to facilitate redemption.
Thus, the mere fact that the price is not the
true value of the property does not justify
the conclusion that the contract is one of
mortgage.
If the seller wants to redeem, he must give
the buyer:
the price
the expenses of the contract
any other legitimate payments made by
reason of the sale
the necessary expenses made on thing
sold.
Equitable mortgage
Art. 1602.
The contract shall be
presumed to be an equitable mortgage in
any of the following cases:
(1) When the price of the sale w/ right
to repurchase is unusually inadequate;
(2) When the vendor remains in
possession as lessee or otherwise;
(3) When upon or after the expiration of
the right to repurchase another instrument
extending the period of redemption or
granting a new period is executed;
(4) When the purchaser retains for
himself a part of the purchase price;
(5) When the vendor binds himself to
pay the taxes on the thing sold;
(6) In any other case where it may be
fairly inferred that the real intention of the
parties is that the transaction shall secure
the payment of a debt or the performance
of any other obligation.
In any of the foregoing cases, any
money, fruits, or other benefit to be
received by the vendee as rent or
otherwise shall be considered as interest
w/c shall be subject to usury laws.
Art. 1603. In case of doubt, a contract
purporting to be a sale w/ right to
repurchase shall be construed as an
equitable mortgage.

Paras:
402

An equitable mortgage is one w/c, though


lacking in some formality or other
requisites demanded by law, reveal an
intention of the parties to charge a real
property as security for a debt &
constrains nothing impossible or contrary
to law.

tender of payment of the redemption price.


But if vendee refuses, then vendor may file
a suit against him & consign the amount in
court.
ARCHES V. DIAZ

Art 1606. The right referred to in Art.


1601, in the absence of an express
agreement, shall last four years fr. date of the
contract.
Should
there be an agreement, the
period cannot exceed ten years.
However, the vendor may still exercise
the right to repurchase w/in thirty days fr. the
time final judgment was rendered in a civil
action on the basis that the contract was a
true sale w/ right to repurchase.

Baviera:
An agreement to repurchase becomes
an option to buy when entered into after the
time to redeem stipulated in a pacto de retro
sale had already expired, bec. then the
vendee a retro became absolute owner of the
thing sold, & the subsequent grant of the
right to repurchase is a new agreement. But
where the period to repurchase has not
expired, & another agreement is entered into
granting the vendor a retro the right to
repurchase the object of the contract at any
time, the subsequent agreement is not a
promise to sell but is an extension of the
period to redeem, w/c cannot exceed 10
years.
Reason for the 10-year limitation: A
pacto de retro is a suspension of title, & it is
against public interest to permit such
uncertainty to continue for a long time.
Counting of 4-year period: From the
execution of the contract. But if the right is
suspended by agreement that it shall be
exercised only after a certain time or
condition arises, then the period shall be
counted only fr. the time such right could be
exercised, but not exceeding 10 years fr.
execution.
Not sufficient that a vendor a retro manifests
his desire to redeem.
This must be
accompanied by an actual or simultaneous

Facts: Maria vda. de Diaz executed in


favor of Jose Arches a deed of sale w/ pacto
de retro over a parcel of land in
consideration of P12,500. A filed a petition
for consolidation of ownership over the
property; D opposed, saying their contract
was merely a loan w/ a mortgage. TC
denied As petition on the ground that the
contract was an equitable mortgage & not
an absolute sale. CA & SC affirmed.
However, in addition to the
P12,500, A also spent during his lifetime
P1,543.70
in
connection
w/
the
reconstitution of the title in the name of the
vendor & in paying real estate taxes.
Owing to Ds refusal to reimburse the said
amounts, As heirs filed an action for
collection of the same.
TC dismissed,
saying that when A filed the petition to
consolidate title, he had two remedies: 1)to
consolidate title & ownership, & 2)to
foreclose in the event the deed of sale a
retro be declared one of equitable
mortgage. When he opted to consolidate
title, he was thereby barred fr. pursuing the
other alternative.
Issue: WoN the heir of A can still file an
action to foreclose what the court ruled
was an equitable mortgage or collect the
indebtedness of the mortgagor?
Held: YES. The decision of the court
holding that the sale w/ pacto de retro was
an equitable mortgage, & consequently
dismissing the petition to consolidate title
did not constitute an adjudication of the
right to foreclose the mortgage or collect
the indebtedness.
The law abhors injustice. It would
be unjust to allow D to escape payment of
her debt, & to rationalize such result by
claiming that she is a debtor & not a
vendor of the property in favor of A. Where
the petition of the vendee in a pacto de
retro sale is for a judicial order pursuant to
Art 1607, CC, so that consolidation of
ownership by virtue of the failure of the
vendor to redeem may be recorded in the
403

Registry of Property, the right of action to


foreclose the mortgage or to collect the
indebtedness arises fr. the judgment of the
court declaring the contract as an equitable
mortgage. Although an alternative prayer to
that effect may be made in the petition, the
same cannot be conditional, that is, only in
the event such a declaration is made,
contrary to petitioners claim & the relief
sought. Petitioners failure to make the
alternative prayer & the failure of the court to
grant it in the judgment dismissing the
petition should not be construed as a bar to
collecting the indebtedness in a proper action
for that purpose.
Capacity to contract

Art. 1491. 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 & administrators, the
property of the estate under administration;
(4) Public officers & employees, the
property of the State or of any subdivision
thereof, or of any government owned or
controlled corporation, or institution, the
administration of w/c has been entrusted to
them; this provision shall apply to judges &
government experts who, in any manner
whatsoever, take part in the sale;
(5)
Justices,
judges,
prosecuting
attorneys, clerks of superior & inferior courts,
& other officers & employees connected w/
the administration of justice, the property &
rights in litigation or levied upon an execution
before the court w/in whose jurisdiction or
territory they exercise their respective
functions; this prohibition includes the act of
acquiring by assignment & shall apply to
lawyers, w/ respect to the property & rights
w/c may be the object of any litigation in w/c
they may take part by virtue of their
profession.
(6) Any others specially disqualified by
law.

Baviera:
Nos. 1-3 are voidable contracts; nos. 4-6
are void contracts.
The reason why those enumerated under
Art. 1491 have relative incapacity to
enter into a contract of sale is that they
possess a fiduciary relationship w/ the
owner of the properties mentioned,
such that the law prevents them fr.
being tempted to take advantage of
their positions. the prohibition rests on
the fact that greed might get the better
of loyalty. The law does not trust human
nature to resist the temptations likely to
arise out of the antagonism between
the interest of the seller & the buyer.
An agent who has renounced the agency &
is a judgment creditor of his principal
may acquire the latters property in a
public sale.
The prohibition against lawyers is intended
to curtail any undue influence the
lawyer may have over his client on
account
of
their
confidential
association.
Such sales are void &
cannot be ratified. Public interest &
public policy remain paramount & do
not permit compromise & ratification.
When is a thing deemed to be the subject
of litigation?
Not only if there is some contest or
litigation in court, but also fr. the
moment it becomes subject to judicial
action.
Contingent fee- not contrary to law as it will
encourage the lawyer to work harder to
win the case in order to earn the said
fee.
thus, it is to the clients
advantage. But the court may reduce
the fee is found to be unconscionable.
DIRECTOR OF LANDS V. ABABA
Facts:
Atty. Fernandez represented
Abarquez in a civil case filed by the latter
against his sister w/ regards ownership of a
parcel of land. They agreed that in case A
wins, he will give to F 1/2 of what he may
recover in the action. A WoN, but he
refused to comply w/ his obligation under
the agreement. When F learned of As
plans to sell the property to Larrazabal, he
filed an affidavit of adverse claim w/ the
Register of Deeds, such that when the
property was sold, & a TCT issued to L,
there appeared an annotation of Fs
attorneys lien. L filed a petition for the
cancellation of the annotation in the TCT. F
opposed. LC ruled for F.
Issue: WoN the contract for a contingent
fee is prohibited under Art. 1491, NCC, &
404

Canon 13 of the Canons of Professional


Ethics?
Held: NO. Art. 1491 prohibits only the sale
or assignment between the lawyer & his
client or property w/c is the subject of
litigation. Here, the transfer of the property
as payment for attorneys fees was to take
place only after a favorable judgment is
rendered by the court. Hence, the property is
no longer the subject of litigation.
A contract for a contingent fee is not
covered by Art. 1491 bec. the transfer or
assignment of the property takes effect only
after the finality of a favorable judgment.
this is also not violative of the Canons.
Contracts of this nature are allowed bec. they
redound to the benefit of both the poor client
& the lawyer. Oftentimes, contingent fees
are the only means by w/c the poor can seek
redress for injustices. A contingent fee
contract is also subject to the supervision of
the courts w/ respect tot he stipulated
amount & may be reduced or nullified if
found to be unconscionable.
F has a better right over the land than
L.
The latter bought the same w/ the
knowledge of the adverse claim of F. Thus,
he is not a purchaser in good faith.
LAIG V. CA
Facts: Atty. Laig represented Galero in a civil
case involving ownership of a lot.
Their
agreement was that the fees of L would be
paid on a contingent basis.
G WoN.
Thereafter, 1/2 of the property was conveyed
to G as his contingent fees, while the other
half was also sold to him for P1,500. TCT
issued in name of L.
Subsequently, G was able to procure
another OCT over the property through
fraudulent means. he then sold the lot to
Verzo for P600. heirs of L filed a complaint
for annulment of the second sale or, in the
alternative, for reconveyance of the property
in their favor. V opposed, claiming there was
no double sale as the first sale to L was void
under Art 1491(5), NCC.
Issue: Was the conveyance to L a prohibited
transfer?
Held: NO. It was valid & not in violation of
Art. 1491 (5). The prohibition applies only to

a sale or assignment to the lawyer by his


client of the property w/c is the subject of
litigation. For the prohibition to operate,
the sale or assignment of the property
must take place during the pendency of the
litigation involving the property.
CAB:
The sale was made when the
decision in the civil case was already final
& executory & thus, the property was no
longer the subject of litigation.
With
respect to the other half of the property
given to L as contingent fees, the SC finds
nothing wrong w/ it. Contingent fees are
recognized in our jurisdiction under Canon
13, Canon of Professional Ethics, w/c state
that contingent fees may be a portion of
the property in litigation.

Art. 1619. Legal redemption is the right


to be subrogated, upon the same terms &
conditions stipulated in the contract, in the
place of one who acquires a thing by
purchase or dation in payment, or by any
other transaction whereby ownership is
transmitted by onerous title.

TOLENTS:
Scope of legal redemption. LR is a
right created & regulated by law by reason
of public interest, w/c is not opposed to,
but rather is in harmony w/ the interest of
private parties.
It is applicable to all transactions w/c result
in the transmission of ownership, whose
special nature does not bar subrogation,
w/c is the essence of legal redemption, but
not to barter or acquisition by hereditary
title.
A person cannot exercise the right of legal
redemption if he is not in a condition to
take the place of the vendee. The vendee
may have assumed some purely personal
obligations w/c the redemptioner cannot
perform; hence, subrogation cannot take
place. In such cases, however, the court
should carefully determine whether such
obligations are merely a subterfuge to
avoid redemption.
Distinguished fr. Pre-emption. Preemption is the power to acquire a thing for
the same price in preference over any
other buyer. It is exercised before the
stipulated sale is consummated by the
vendor, who must communicate the
proposed sale to possible redemptioners so
that they can exercise the right of pre405

emption if they so desire. Redemption is the


right to rescind the sale, subrogate oneself in
the place & to the exclusion of the buyer, &
acquire the thing at the price stipulated, so
long as this is done w/in the time & under the
circumstances provided by law. On the other
hand, redemption is exercised after the sale
is perfected & consummated; hence, it must
be brought vs. the vendor AND the vendee, &
even vs. succeeding vendees.
Art. 1620. A co-owner of a thing may
exercise the right of redemption in case the
shares of all the other co-owners or any of
them, are sold to a third person. If the price
of the alienation is grossly excessive, the
redemptioner shall pay only a reasonable
one.
Should two or more co-owners desire to
exercise the right of redemption, they may
only do so in proportion to the share they
may respectively have in the thing owned in
common.

The co-owners right of redemption


exists only where there has been a sale or
alienation, NOT in the event of a mere
lease.
Art. 1621. The owners of adjoining
lands shall also have the right of
redemption when a piece of rural land, the
area of w/c does not exceed one hectare, is
alienated, unless the grantee does not own
any rural land.
This right is not applicable to adjacent
lands w/c are separated by brooks, drains,
ravines, roads & other apparent servitudes
for the benefit of other estates.
If two or more adjoining owners desire
to exercise the right of redemption at the
same time, the owner of the adjoining land
of smaller area shall be preferred; & should
both lands have the same area, the one
who first requested the redemption.

TOLENTS:
Compared w/ Art. 1088. Art. 1088 applies
where a co-heir sells his share to a stranger
before partition or distribution or before the
determination of the portion to w/c each heir
is entitled. Once the portion corresponding to
each heir has been fixed, the co-heirs turn
into co-owners & their right of legal
redemption is governed by this art. & Art.
1624.
Object of redemption the word thing is
used in its generic sense, therefore, it
includes not only objects, whether movable
or immovable, but also all rights w/c are
susceptible of appropriation.
Who may Redeem. The right of LR given in
this art. is applicable to all who subsequently
acquire their respective shares while the
community subsists. The purpose of the law
in establishing the right of LR bet. the coowners is to reduce the no. of participants
until the community is done away w/, being a
hindrance
to
the
devt.
&
better
administration of the property, & this reason
exists while the community subsists & the
participants continue to be so whether they
be the orig co-owners or their successors.
One co-owner cannot exercise the
right of redemption alone, bec. the right
belongs to all the other co-owners in
common.
The privilege granted by this art. can
only be exercised when the purchaser is a
STRANGER to the co-ownership.

TOLENTS:
The intention of the law is to protect
agriculture, by the union of small
agricultural lands & those adjoining
under one single owner for their better
exploitation.
Redemption can be exercised only if the
land sold is one hectare or less in area.
Where several distinct & separate
pieces of land are sold to a stranger,
the fact that their total area is greater
than one hectare will not prevent
redemption, if each piece sought to be
redeemed does not exceed one hectare
in area.
LR can only be enforced vs. a stranger who
buys the property sought to be
redeemed, & not vs. another adjacent
owner who has the same interest.
Transfer by Vendee. If after a co-owner
has instituted an action to compel
redemption,
another
co-owner
voluntarily buys the land, this will not
bar the action w/c can be exercised vs.
the subsequent transferee.
The repurchase of the land by the orig
vendor cannot defeat the right of LR, &
any subsequent act of the buyer &
seller cannot prejudice the prospective
redemptioner.
Burden of Proving Existence of
Brooks, Ravines, Roads, etc. The
406

grantee or purchaser of the tenement


who wants to defeat the right of LR
sought to be exercised by the adjoining
owner, & NOT the person seeking to
exercise the right of LR, has the duty to
prove that the lands involved are
separated by brooks, etc.
Art. 1622. Whenever a piece of urban
land w/c is so small & so situated that a
major portion thereof cannot be used for any
practical purpose w/in a reasonable time,
having been bought merely for speculation, is
about to be re-sold, the owner of any
adjoining land shall have a right of
redemption, also at a reasonable price.
When two or more owners of adjoining
lands wish to exercise the right of preemption or redemption, the owner whose
intended use of the land in question appears
best justified shall be preferred.

TOLENTS:
Requisites:
The piece of urban land is so small that it
cannot be used for any practical purpose w/in
a reasonable time;
Such small urban land was bought merely for
speculation.
Art. 1623. The right of legal pre-emption
or redemption shall not be exercised except
w/in thirty days fr. the notice in writing by the
prospective vendor, or by the vendor, as the
case may be. The deed of sale shall not be
recorded in the Registry of Property, unless
accompanied by the affidavit of the vendor
that he has given written notice thereof to all
possible redemptioners.
The right of redemption of co-owners
excludes that of adjoining owners.

TOLENTS:
This art. does not provide a period of
prescription. It creates a right, & fixes the
period for the exercise of that right. The
pd. is not prescriptive, but is more a
requisite or condition precedent to the
exercise of the right of LR.
If such person has offered to redeem the
property w/in the period fixed, he has
complied w/ the condition fixed by law &

may bring an action to enforce the


redemption. If the period is allowed to
lapse before the right is made use of,
then the action to enforce the
redemption will not prosper, even if
brought w/in the ordinary prescriptive
period. The period is extinctive, so that
if the claim is not made w/in the pd.
provided, the rt. can no longer be
exercised.
This pd. is preemptory, bec. the policy of
the law is not to leave the purchasers
title in uncertainty beyond the 30-day
pd.
This pd. runs vs. minors, even if they have
no legal guardians, & more especially
so, if they have a legal guardian.
Minority
for
the
prospective
redemptioners does not suspend the
period for redemption.
The pd. must be counted fr. the date the
vendor or prospective vendor notified in
writing the prospective redemptioner or
the person w/ the right of pre-emption,
of the sale or intended sale. But the
law does not require any specific form
of the written notice.
The inability of a prospective redemptioner
to accept an offer of sale of the
property subject to redemption before
the actual sale to a 3rd person took
place,
bec.
the
offer
appeared
expensive or for lack of funds, does not
extinguish his right to redeem the same
w/in the period fixed by law.
The law does not require any previous
notice to the new owner, nor a meeting
between him & the redemptioner, much
less a previous formal tender, before
any action is began in court to enforce
the right. The important thing is to
assert it in due time & in proper form.
LEGASPI V. CA
Facts: Legaspi is the owner of Lot #267,
w/c abuts Lot #268 owned by the Pestejos.
A portion of Legaspis ancestral house was
erected on a portion of Lot 268 bec. it was
believed that the same belonged to Ls
parents. Upon agreement, the Pestejos
allowed such portion of her house to
remain on Lot 268.
In 1963, L made
representation w/ the Pestejos for her to
exercise the right of pre-emption by
offering to buy LOT 268 in the event that
they would sell it. The projected sale didnt
push through bec. the consideration asked
for was the staggering sum of P9,000 for
an area of 59 sq. m only.
407

L later found out that Lot 268 was sold


to de Aguilar for only P1,500. L demanded
that she be subrogated to the rights of de
Aguilar by reimbursing the consideration paid
by the latter, but they dishonored her
demand. L instituted a civil suit vs. the
Pestejos & de Aguilar for legal redemption &
damages.
Issue:
268?

Who has the better right over Lot

Held: Legaspi has the preferential right of


pre-emption &/or redemption.
Ratio: The 3rd par. of Art. 1622 applies.
Court took judicial notice of Pestejos
toleration of Ls possession & the fact that
when L made improvements on the said
house they allowed her to do so
unconditionally. Further proven that L offered
to buy for P3,000 but the Pestejos
deliberately refused. Therefore, the heirs of
de Aguilar shall deliver TCT over Lot 268 to
the CFI Clerk of Court who shall execute the
corresponding deed of redemption for the lot
in favor of L after depositing P1,500.
ALONZO V. IAC

IAC reversed & declared that actual


notice would not suffice as a substitute for
a written notice.
Held: Actual notice is sufficient to satisfy
the reqts. of Arts. 1088 & 1623. The law
should never be interpreted in a such a
way as to cause injustice. In requiring
written notice, Art. 1088 seeks to ensure
that the redemptioner is properly notified
of the sale & to indicate the date of such
notice as the starting time of the 30-day
period of redemption. SC was satisfied that
the other co-heirs were actually informed,
although not in writing, of the sales, &
such notice was sufficient. Between 1964
& 1976 (when the 1st comp. for redemption
was filed), the other co-heirs were actually
informed of the sale & thereafter, the 30day pd. started running & ultimately
expired. None of the heirs made a move to
redeem the properties for 13 years. The
SC is not abandoning the doctrines in the
Butte case (applying the letter of the law).
However, it adopted an exception in view
of the peculiar circumstances of this case.
BUTTE V. UY

Facts: 5 bros. & sisters inherited in equal pro


indiviso shares a parcel of land. On 3/15/63,
one of them, Celestino Padua, sold his share
to pets. Carlos & Casimira Alonzo for P550.
On 4/22/64, Eustaquia Padua sold her share
to pets. for P440. Pets. then occupied 2/5 of
said lot, enclosing it w/ a fence. In 1975,
pets. son Eduardo built a house w/in said
area.

Facts: Jose v. Ramirez (JVR) was a coowner of a house & lot issued in the name
of the ff.: Marie Garnier Vda. De Ramirez,
1/6; JVR, 1/6; Jose E. Ramirez, 1/6; Rita de
Ramirez, 1/6; & Jose Ma. Ramirez, 1/6. JVR
died.
In his last will & testament, he
bequeathed 1/3 of the free portion to
plaintiff Butte. Estate proceedings were
still pending at the time the SC rendered
this decision. BPI was appointed judicial
administrator.

On 2/25/76, Mariano Padua, one of the


heirs, sought to redeem the land but was
dismissed by the TC due to his American
citizenship. On 5/27/77, Tecla (whattaname!)
Padua filed her own complaint to redeem the
lot. TC dismissed also on the ground that the
right had lapsed, not having been exercised
w/in 30 days fr. notice of the sales in 1963 &
1964. Although there was no written notice,
it held that actual knowledge of the sales by
the co-heirs satisfied the reqt. of the law. TC
found that pets. & co-heirs were close friends
& neighbors whose children went to school
together.

ON 12/9/58, Marie Garnier, one of


the co-owners, sold her undivided 1/6
share to defendant Manuel Uy & Sons, Inc.
for P500,000. Formal notices of the sale
were sent to all possible redemptioners.
The def. sent a letter to the BPI informing it
of the sale. BPI sent this to Mrs. Butte who
received it 12/11 & 12/12. On 1/15/59,
Mrs. Butte sent a letter & a check for P500
T to the defs. Offering to redeem the 1/6
share. This tender was refused to Butte on
the same day consigned the amt. in court
& filed the corresponding action for legal
redemption.
Held: Butte can exercise the right of LR
despite the presence of the judicial
408

administrator & pending the final distribution


of her share in the testate proceedings. She
exercised the right of LR w/in the period
prescribed by the law. Arts. 1620 (1) & 1623
are applicable. The right of redemption of coowners excludes that of adjoining owners.
Buttes right of LR is clear.
As
testamentary heir of JVR, she & her co-heirs
acquired an interest in the undivided 1/6
share owned by her predecessor, fr. the
moment of JVRs death.
The right of
succession includes all the property rights &
obligations that survive the decedent.
From JVR's death, his heirs became
co-owners in the property, together w/ the
original surviving co-owners. A co-owner of
an undivided share is necessarily a co-owner
of the whole. Wherefore, any one of JVRs
heirs became entitled to exercise the right of
LR (retracto de comuneros) as soon as
another co-owner has sold her undivided
share to a stranger.
The situation is in no wise altered by
the existence of a judicial administrator of the
estate of JVR. The jud admins rights of
possession & administration under the ROC
do not include the right of LR of the undivided
share. The reason is obvious: this right only
came into existence when the sale to Uy was
perfected, 8 yrs. after JVRs death & formed
no part of his estate. The redemption right
vested on the heirs originally, in their
individual capacity, they did not derivatively
acquire it fr. their decedent, for when JVR
died, none of the other co-owners of the
property had yet sold his undivided share to a
stranger.
The period of 30 days fr. notice be it
noted, is peremptory, bec. the policy of the
law is not to leave the purchasers title in
uncertainty beyond the 30-day period. In
considering WON the offer to redeem was
timely, we think that the notice given by the
vendee should not be taken into account.
The text of Art. 1623 clearly & expressly
prescribes that 30 days for making the
redemption are to be counted fr. notice in
writing by the vendor.
Ratio for requiring that the notice
should be given by the seller, & not by the
buyer: the seller of an undivided interest is in
the best position to know who are his coowners that under the law must be notified of

the sale. Also, the notice by the seller


removes all doubts as to the fact of the
sale, its perfection; & its validity, the notice
being a reaffirmation thereof, so that the
party need not entertain doubt that the
seller may still contest the alienation. This
assurance would not exist if the notice
should be given by the buyer.
CONEJERO VS. CA APRIL 29, 1966
Facts: Enrique Torres sold his 1/2 interest
over a property co-owned w/ his sister Paz
to the Raffman spouses for P 13,000 w/ a
right to repurchase w/in one year. Seven
months later, Enrique obtained more
money fr. the Raffmans by executing a
deed of absolute sale over the same 1/2
interest for P 28,000. Paz was unaware of
such sale until one year later when Enrique
showed Paz husband a copy of the deed of
sale. Paz offered to buy back said interest
fr. the Raffmans for P 34,000 but was
refused. TC ruled in Paz favor but was
reversed by CA on the ground that there
was no valid offer to redeem since Paz
merely offered only a P 10,000 check w/
w/c to redeem the property, w/ a promise
to pay the balance afterwards. CA held
that it was not in pursuance of a legal &
effective exercise of the right of
redemption as contemplated by law.
Issue: WON a written notice of the sale is
necessary before the 30-day period for
redemption will start running
WON there was a valid tender of
payment
Held: YES.
A
written
notice
is
indispensable &, applying A1623, mere
knowledge of the sale, acquired in some
other manner by the redemptioner, does
not satisfy the statute. The purpose of the
written notice was to remove all
uncertainty as to the sale, its terms & its
validity & to quiet any doubts that the
alienation is not definitive. The statute not
having provided for any alternative, the
method of notification prescribed remains
exclusive. No form is required, so long as it
is in writing. Hence, the showing of a copy
of the deed of sale was equivalent to the
giving of a written notice. It came fr. the
vendor & made available in writing the
details & finality of the sale.

409

NO. Bona fide redemption necessarily


imports a seasonable & valid tender of the
entire purchase price, & this was not done.
There is no reason for requiring the vendee to
accept payment by installments as it would
result in an indefinite extension of the
redemption period. Purpose of the law for
the period was to avoid prolonged & antieconomic uncertainty as to the ownership of
the thing sold. The redemption price should
either be fully offered in legal tender of
validly consigned in court bec. it is only by
such means that the buyer can become
certain that the offer to redeem is one made
seriously & in good faith.

RA 6552 REALTY INSTALLMENT BUYER


PROTECTION ACT
Sec.2
Public Policy: to
protect
buyers of real estate on installment
payments against onerous & oppressive
conditions
Sec.3
Rights of Buyers who default in
payment of succeeding installments

contract by notarial act & full payment of


the cash surrender value
includes downpayments, deposits or
options on the contract
Sec. 4
Where payment is less than
two years. Seller shall give the buyer a
grace period of not less than sixty days fr.
the date the installment became due.
Failure to pay after such grace period gives
the seller the right to cancel the contract
after receipt of notice by the buyer.
Sec. 5
Buyer has a right to sell or
assign his rights under Secs. 3 & 4 to
another or to reinstate the contract by
updating the account during the grace
period & before cancellation. The deed of
sale or assignment should be done by
notarial act.
Sec. 6
Buyer has a right to pay in
advance any installment or the full unpaid
balance any time w/o interest & to have
such full payment annotated on the back of
the certificate of title over the property.

Requirements:
for all transactions or contracts involving
the sale or financing of real estate on
installment payments
includes
residential
condominium
apartments except industrial lots, commercial
buildings & sales to tenants under RA 3843,
as amended by RA 6389
buyer has paid at least two years of
installments

Notes:

Rights:
to pay w/o additional interests the unpaid
installments due w/in the grace period of one
month for every year of installment
payments made, w/c right could be exercised
only once in every five years of the life of the
contract & its extensions
if contract is canceled, the seller shall
return to the buyer the value of the payments
to the property equivalent to fifty percent of
the total payments made &, after five years
of installments, an additional five percent
every year but not to exceed 90% of the total
payments made
cancellation of contract must be made
thirty days after buyer receives notice of
cancellation or demand for rescission of the

Art. 1592 In the sale of immovable


property, even though it may have been
stipulated that upon failure to pay the price
at the time agreed upon the rescission of
the contract shall of right take place, the
vendee may pay even after the expiration
of the period, as long as no demand for
rescission of the contract has been made
upon him either judicially or by a notarial
act. After the demand, the court may not
grant him a new term.

gives a grace period for every year of


default
refers only to contracts to sell immovables
except commercial lots
does not allow stipulations w/c provide for
ipso facto cancellation
remedy of seller is to foreclose mortgage &
not to cancel the sale

Notes:
applies only to contracts of absolute sale
where ownership has already transferred
mere default leads to uncertainty as to
ownership, thus there is a need either for
410

rescission of the contract or specific


performance
there must be an action to rescind or a
notarial instrument that the contract is
rescinded; else, the buyer may still pay even
after the expiration period
if contract to sell, covered by the Maceda Law
or RA 6552
Art. 1191.
The power to rescind
obligations is implied in reciprocal ones, in
case one of the obligors should not comply w/
what is incumbent upon him.
The injured party may choose between
the fulfillment & the rescission of the
obligation, w/ the payment of damages in
either case. He may also seek rescission,
even after he has chosen fulfillment, if the
latter should become impossible.
The court shall decree the rescission
claimed, unless there be just cause
authorizing the fixing of a period.
This is understood to be w/o prejudice to
the rights of third persons who have acquired
the thing, in accordance w/ articles 1385 &
1388 & the Mortgage Law.

Notes: two remedies are alternative &


not cumulative, subject to the exception
in par. 2 where he may also seek
rescission even after he has chosen
fulfillment if the latter should become
impossible

JISON VS. CA AUGUST 15, 1988


Facts: Jison entered into a contract to sell w/
ROPSI where the latter agreed to sell to Jison
an Antipolo lot for P55T w/ 8% interest per
year. He paid ROSPI P 11T as downpayment
& fr. Oct. 1961 to May 1965, he will pay P
533.85 monthly. Jison defaulted in some
installments. After several demand letters,
ROPSI returned their checks & informed them
of the rescission of the contract. Tender for
payments were refused.
Issue: WON rescission of the contract & the
forfeiture of the payments were already paid
by pets were valid

Held: YES but forfeiture limited to 50% of


the contract price. Judicial action for the
rescission of a contract is not necessary
where the contract provides that it may be
cancelled (This was before the enactment
of RA 6552).
Petitioners were also
informed by PR that the contract was
cancelled in a letter. As RA 6552 was not
yet effective, the notice of cancellation
need not be by notarial act, the letter being
a sufficient compliance w/ the legal
requirement.
In obligations w/ a penal
clause, the judge shall equitably reduce the
penalty when the principal obligation has
been partly or irregularly complied w/ by
the debtor.
In CAB, forfeiture of the
amount was unconscionable, giving weigh
to the fact that although pets have been
delinquent in paying their amortizations, w/
the cancellation of the contract, possession
reverts to ROSPI who is free to resell it to
another.
Assignment of Credits
Art. 1624. An assignment of credits &
other incorporeal rights shall be perfected
in accordance w/ the provisions of article
1475.
Art. 1625. An assignment of a credit,
right or action shall produce no effect as
against third persons, unless it appear in a
public instrument, or the instrument is
recorded in the Registry of Property in case
the assignment involves real property.
Art. 1626.
The debtor who, before
having knowledge of the assignment, pay
his creditor shall be released fr. the
obligation.
Art. 1627. The assignment of a credit
includes all the accessory rights, such as
guaranty, mortgage, pledge or preference.
Art. 1628. The vendor in good faith
shall be responsible for the existence &
legality of the credit at the time of the sale,
unless it should have been sold as
doubtful; but not for the solvency of the
debtor, unless it has been so expressly
stipulated or unless the insolvency was
prior to the sale & of common knowledge.

411

Even in these cases he shall only be


liable for the price received & for the
expenses specified in No. 1 of Article 1616.
The vendor in bad faith shall always be
answerable for the payment of all expenses,
& for damages.
Art. 1629. In case the assignor in good
faith should have made himself responsible
for the solvency of the debtor, & the
contracting parties should not have agreed
upon the duration of the liability, it shall last
for one year only, fr. the time of the
assignment if the period had already expired.
If the credit should be payable w/in a term
or period w/c has not yet expired, the liability
shall cease one year after the maturity.
Art. 1630. One who sells an inheritance
w/o enumerating the things of w/c it is
composed shall only be answerable for his
character as an heir.
Art. 1631. One who sells for a lump sum
the whole of certain rights, rents or products,
shall comply by answering for the legitimacy
of the whole in general; but he shall not be
obliged to warrant each of the various parts
of w/c it may be composed, except in the
case of eviction fr. the whole or the part of
greater value.
Art. 1632 Should
the
vendor
have
profited by some of the fruits or received
anything fr. the inheritance sold, he shall pay
the vendee thereof, if the contrary has not
been stipulated.
Art. 1633 The vendee shall, on his part,
reimburse the vendor for all that the latter
may have paid for the debts of & charges on
the estate & satisfy the credits he may have
against the same, unless there is an
agreement to the contrary.
Art. 1634 When a credit or other
incorporeal right in litigation is sold, the
debtor shall have a right to extinguish it by
reimbursing the assignee for the price the
latter paid therefor, the judicial costs incurred
by him, & the interest on the price fr. the day
on w/c the same was paid.
A credit or other incorporeal right shall be
considered in litigation fr. the time the

complaint
answered.

concerning

the

same

is

The debtor may exercise his right w/in


thirty days fr. the date the assignee
demands payment fr. him.
Notes:
at a discount
if before litigation, can recover full
amount
if case is pending, may be terminated
by debtor by paying to assignee
only the amount he paid for in the
assignment of credit PURPOSE:
to prevent speculation in litigation
Art. 1635 From the provisions of the
preceding article shall be excepted the
assignments or sales made:
to a co-heir or co-owner of the right
assigned;
to a creditor in payment of his credit;
to the possessor of a tenement or piece
of land w/c is subject to the right in
litigation assigned.

LEASE

Art. 1649. The lessee cannot assign the


lease w/o the consent of the lessor, unless
there is a stipulation to the contrary.
Art. 1650. When in the contract of
lease of things there is no express
prohibition, the lessee may sublet the thing
leased, in whole or in part, w/o prejudice to
his responsibility for the performance of the
contract toward the lessor.
Art. 1651. Without prejudice to his
obligation toward the sub-lessor the sublessee is bound to the lessor for all acts w/c
refer to the use & preservation of the thing
leased in the manner stipulated between
the lessor & the lessee.
Art. 1652. The sub-lessee is subsidiarily
liable to the lessor for any rent due fr. the
lessee. However, the sub-lessee shall not
be responsible beyond the amount of rent
due fr. him, in accordance w/ the terms of
the sub-lessee, at the time of the extrajudicial demand by the lessor.
412

Payments of rent in advance by the sublessee shall be deemed not to have been
made, so far as the lessors claim is
concerned,
unless said payments were
effected in virtue of the custom of the place.
Art. 1653. The provisions governing
warranty, contained in the Title on Sales,
shall be applicable to the contract of lease.
In the cases where the return of the price
is required, reduction shall be made in
proportion to the time during w/c the lessee
enjoyed the thing.

BAVIERA NOTES:
Rent Control Law prohibits sublease
NCC - unless prohibited, sublease is
allowed.

MANLAPAZ VS. SALAZAR


Facts: A fishpond belonged to 3 co-owners
who had taken turns in leasing it to the same
person, Enriquez. The last lease was signed
in 1931 to last until June 1, 1967. After the
death of Enriquez, his widow subleased the
fishpond to Cruz & then to Salazar, the
sublease to the latter to commence fr. May
31, 1947 to last until May 31, 1967. In 1952,
the sole heir of the other co-owners,
Manlapaz, brought action against the sublessee Salazar to recover possession of the
fishpond, alleging that the sublease to
Salazar as well as the leases executed by his
predecessor in interest was null & void.
Issue: W/N the contract is a sublease w/c is
valid even though entered into w/o consent of
the lessors since there was no prohibition
against it in the contract of lease OR an
assignment of lease w/c is void for want of
consideration.
Held: The contract is valid sublease. To
determine whether a contract constitutes an
assignment & not a mere sublease, the test is
whether the lessee has by said contract
made an absolute transfer of his interest as
such lessee, thus disassociating himself fr.
the original contract of lease, so that his
personality disappears & there remain only in
the juridical relation two persons, the lessor &

the assignee, who is converted into a


lessee. In the case at bar, the original
lease is to last until June 1, 1957. On the
other hand, the sublease is to last only until
May 31 of that year. The sublease is thus
for a shorter period than the original lease.
A reservation of even so short a period as
the last day of the term is enough to make
the transfer a sublease. Moreover, the
terms of the sublease shows that the
lessee, now the sub-lessor, has not
disassociated herself fr. the original lease.
NAVA VS. YAPTINCHAY
Facts: Quillen owned a house w/c he
leased to Nava in April 1945, for w/c an
advance rent was paid for May 15 to Aug.
14, 1945. It was understood that the lease
was for 1 year. At about the end of April,
1945, Nava subleased the same premises
to Yaptinchay for P3,000, payable in
installments. Later, Quillen objected to the
sublease & as a consequence took control
thereof & entered into a separate
agreement w/ Yaptinchay wherein the latter
can rent the premises in his own right.
Thus, Nava filed an action against
Yaptinchay.
Issue:
W/N the contract entered into
between the parties was a sublease or an
assignment of the right to occupy the
premises.
Held: The contract is a sublease. In the
case of cession, the lessee transmits
absolutely his rights & his personality
disappears, there only remains in the
juridical relation two persons, the lessor &
the assignee who is converted into a
lessee. In order that prohibition to sublease
may be held binding upon the lessee, the
same must be contained expressly in the
contract of lease, w/c in the instant case,
did not appear; & if it did, was waived by
the owner of the premises in question
when he allowed the sub-lessee to stay in
the premises & accepted rentals fr. him.
Whether the lessee had the right to
sublease the property or assign his
leasehold right to another is not a proper
defense for the sub-lessee, not only bec.
the sub-lessee is a stranger to the lease
contract between the lessee & the owner of
the house who alone can enforce or waive
it, but also bec. the sub-lessee, being a
privy of the lessee, cannot attack the lease
413

collaterally for the simple reason that a


tenant is not permitted to deny the title of his
landlord.
BAVIERA NOTES:
Q: Distinguish the right of first refusal fr. an
option to buy.
Right of First Refusal lessor should first
offer to sell to the lessee before offering to a
third person
owner has not yet decided to sell & no offer
yet made
Option to buy a continuing offer to sell
Q: Seller of car made a contract in the form
of lease to the buyer w/ right to buy.
Q: it is actually a sale by installments. In
case the contract is canceled, the seller
cannot recover the unpaid balance.
3 kinds of leases w/ option to buy:
1. lease w/ option buy at any time where
payments are rents
but are not credited to purchase price
= still bound to pay arrears
2. lease w/ option buy at any time where
rents paid are credited to purchase price
= not bound to pay arrears
3. lease w/ option to buy w/ the condition that
at
the end of the period, lessee pays all rents
and the lessor would execute the deed of
sale = considered sale on installments
PACTO DE RETRO
ownership is already
transferred to the
buyer subject to
seller
right
of
redemption

EQUITABLE
MORTGAGE
lot should first be
foreclosed
before
ownership
transferred
excess
in
the
foreclosure sale is
returned to borrower

Q: A sold lot to B for P5M. C, lessee of As lot


offered to buy the same for P4.5 M.
A: A already offered C but C could only give
P4.5M. The right of first refusal was not
violated.
TOLENTINO NOTES:
General characteristics of lease:
temporary duration
onerous
price is fixed according to contract duration

Kinds of leases
of things - movable or immovables
of work or contract of labor
of services
household services (Arts 1689-1699)
contract for a piece of work (Arts. 17131731)
lease of service of common carriers (Arts.
1732-1763)
consumable things - cannot be the
subject of a lease UNLESS: only for display
or advertising & if it is merely an accessory
to a leased industrial establishment (e.g.,
coal in factory)
Special characteristics of lease of things:
essential purpose is to transmit the use &
enjoyment of the thing
consensual - perfected by mere consent
onerous
price fixed in relation to period of use or
enjoyment
temporary
Distinctions:
LEASE
only
use
&
enjoyment of thing
are transferred
only
for
a
determinate period
price may not only
consist of money

SALE
ownership
transferred
permanently
price generally only
money or equivalent

LEASE
generally a personal
right (real right only
by exception)
may be constituted
by person not the
owner
may be limited to
particular uses in
the contract
must
be
for
a
determinate period

USUFRUCT
always a real right
constituted only by
the owner
includes all possible
ways of using &
enjoying
the
property
may be for an
indeterminate
period of time

LEASE
onerous
involve usage
property

COMMODATUM
gratuitous
also involve usage
of property

of

aliens may lease real property - by


implication, as they are only prohibited fr.
buying the same
leases w/ option to buy - where rentals
constitute payment of price in installments,
actually sales, leases in name only
anyone w/ capacity may become lessees
414

persons disqualified to buy under Arts. 1490


& 1491 cannot become lessees of the same
GENERAL
right.

RULE. A lease is only a personal

EXCEPTION: A lease becomes a real right only


by exception; i.e., when it is registered.
Registration necessary when:
the lease is longer than one year
it is a lease of an immovable
Effect of non-registration of lease when
required lease not binding on 3rd persons.
Period of lease:
cannot be perpetual
definite - set time/ not more than 99 years,
excess is void
if lease is for a determinate time, it ceases
upon day fixed, w/o need for a demand
indefinite period - exact time not known but
certainly to terminated upon arrival of a day
certain (e.g., lease until you get a new place ,
etc.)
Obligations of a SUBLESSEE to the lessor:
subsidiarily liable to lessor for rent due fr.
lessee BUT not liable for amount in excess of
that due of him (as sub-lessee)
liable to lessor (& lessee/sub-lessor) for all act
that refer to the use & preservation of the
thing
Obligations of the LESSOR:
deliver thing in condition fit for use intended
during the lease, make necessary repairs to
keep it suitable for use intended UNLESS
theres stipulation to contrary
maintain lessee in peaceful & adequate
enjoyment of the lease for contract duration
cannot alter form of thing contrary so as to
impair intended use
sales warranties - against hidden defects,
eviction, applicable to leases also; the lessor
also warrants these
Rights & Obligations of the LESSEE:
pay rent according to terms
use thing according to stipulated use, like a
good father of a family; if use not specified,
inferred fr. nature of thing, according to
customs of the place
pay expenses for deed of lease
tolerate urgent repairs
bring to knowledge of lessor ASAP
usurpations or untoward acts of 3rd persons
advise owner of repairs needed
be liable for damages suffered by lessor
through his negligence
return thing leased at termination as he
received it
responsible for deterioration of thing leased
liable for deterioration caused by members of
his household, guests, & visitors

to suspend rentals payment if lessor fails


to make necessary repairs or maintain
lessee in peaceful & adequate possession
of the property leased
Grounds for judicial ejectment of lessee by
lessor:
expiration of lease duration - as stipulated
or by law
lack of payment of price stipulated
violations of conditions agreed upon
lessee did not use thing for intended
purpose, causing its deterioration
Where there is an implied extension of the
lease: (TACITA RECONDUCCION - tacit
renewal of lease)
Requisites:
contract of lease has ended
lessee has continued enjoying the thing
leased for 15 days
such continued enjoyment was w/ the
acquiescence of lessor
notice to contrary by either party not
previously given
no express contract entered into by parties
after old contract ended
COMMON CARRIERS

Art. 1745. Any of the following or


similar provisions shall be considered
unreasonable, unjust & contrary to public
policy:
That the goods are transported at the
risk of the owner or shipper;
That the common carrier shall not be
liable for any loss, destruction or
deterioration of the goods;
That the common carrier need not
observe any diligence in the custody of the
goods;
That the common carrier shall exercise
a degree of diligence less than that of a
good father of a family, or of a man of
ordinary prudence in the vigilance over the
movables transported;
That the common carrier shall not be
responsible for the acts or commissions of
his employees;
That the common carriers liability for
acts committed by thieves or robbers who
do not act w/ grave or irresistible threat,
violence or force is dispensed w/ or
diminished;
That the common carrier is not
responsible for the loss, destruction, or
415

deterioration of goods o account of the


defective condition of the car, vehicle, ship,
airplane or other equipment used in the
contract of carriage;
Art. 1749. A stipulation that the common
carriers liability is limited to the value of the
goods appearing in the bill of lading, unless
the shipper or owner declares a higher value,
is binding.
Art. 1750. A contract fixing the sum of
that may be recovered by the owner or
shipper for the loss, destruction or
deterioration of the goods is valid, if it is
reasonable & just under the circumstances &
has been fairly & freely agreed upon.
Art. 1753. The law of the country to w/c
the goods are to be transported shall govern
the liability of the common carrier for their
loss, destruction & deterioration.
Art. 1754. The provisions of articles 1733
to 1753 shall apply to the passengers
baggage w/c is not in his personal custody or
that of his employees. As to other baggage,
the rules in articles 1998 to 2000 to 2003
concerning the responsibility of hotel-keepers
shall be applicable.
Art. 1755. A common carrier is bound to
carry passengers safely as far as human care
& foresight can provide, using the utmost
diligence of very cautious persons, w/ due
regard for all circumstances.
Art. 1756. In case of death or injuries to
passengers, common carriers are presumed
to have been at fault or to have acted
negligently, unless they proved that they
have observed .extraordinary diligence as
prescribed in articles 1733 to 1755.
Art. 1757.
The responsibility of a
common carrier for the safety of passengers
as required in articles 1733 to 1755 cannot
be dispensed w/ or lessened by stipulation,
by the posting of notices, by statements on
tickets or otherwise.
Art. 1758. When a passenger is carried
gratuitously, a stipulation limiting the
common carriers liability for negligence is
valid; but not for willful acts or gross
negligence.

The reduction of fare does not justify


any limitation of the common carriers
liability.
Art. 1759. Common carriers are liable
for the death of or injuries tom passengers
through the negligence or willful acts of the
formers
employees,
although
such
employees may have acted beyond the
scope o their authority or in violation of the
orders of the common carriers.
The liability of the common carriers doe
not cease upon proof that they exercised
all the diligence of a good father of a
family in the selection & supervision of
their employees.
Art. 1760.
The common carriers
responsibility prescribed in the preceding
article cannot be eliminated or limited by
stipulation, or by the posting of notices, by
statements on the tickets or otherwise.
Art. 1761. The passenger must observe
the diligence of a good father of family to
avoid injury to himself.
Art. 1762. The contributory negligence
of the passenger does not bar recovery of
damages for his death or injuries, if the
proximate cause thereof is the negligence
of the common carrier, but the amount of
damages shall be equitably reduced.
Art. 1763.
A common carrier is
responsible for injuries suffered by a
passenger on account of the willful acts or
negligence of other passengers or
strangers
if
the
common
carriers
employees through the exercise of the
diligence of a good father of a family could
have prevented or stopped the act or
omission.
Art. 1764.
Damages in cases
comprised in this section shall be awarded
in accordance w/ Title XVIII of this book,
concerning damages. Article 2208 shall
also apply to the death of a passenger
caused by the breach of contract by a
common carrier.
Art. 1765.
The Public Service
Commission may, on its own motion or on
petition of any interested party, after due
hearing, cancel the certificate of public
416

convenience granted to any common carrier


that repeatedly fails to comply w/ his duty to
observe extraordinary diligence as prescribed
in this section.
Art. 1766. In all matters not regulated by
this Code, the rights & obligations of common
carriers shall be governed by the Code of
Commerce & special laws.

PHOENIX ASSOCIATION V. MACONDRAY


Facts: SS Fernbank received a shipment fr.
California, consigned to the order of
Commercial Bank, a Manila Bank w/ arrival
notice to Floro Mills. The shipment was
insured for $5,450 w/ Phoenix Co. of New
York against all risks. This shipment was
covered by a bill of lading. Printed in the
smallest type on the back of the BOL is a
stipulation limiting the carriers liability for
loss or damage to $500 per package unless
the shipper in writing declares the nature of
the goods & a higher valuation & pays
additional freightage on the basis of said
higher valuation. It also provides, that in
accepting the BOL, the shipper, owner &
consignee of the goods & the holder of the
BOL agree to be bound by all its stipulations,
exceptions & conditions whether written,
stamped or printed as fully as if they were all
signed by such shipper, consignee or holder.
The ship arrived in Manila & a carton
included in the shipment was in bad order &
was almost empty. Because of this, Floro Mills
filed a claim w/ Macondray & Co., the agent
of the vessel & agent of the insurance
company in the amount of $1,512.78 w/c is
the value of the cargo .Macondray posted as
a defense clause 17 of the BOL to limit its
liability to $500.
Issue: WON clause 17 is valid;
WON Macondray should be liable to
pay beyond $500.
Held: Clause 17 is valid. Hence, Macondray
cannot be made to pay beyond $500.
Clause 17 of the BOL is sanctioned by Sec.
4 of the Carriage of Goods by Sea Act. The
provisions on limited liability are as much a
part of the BOL as though physically in it & as
much a part thereof as though placed therein
by agreement. The court has previously
upheld stipulations limiting liability of a

carrier unlike unqualified limitations & total


exemptions.
AIR FRANCE V. CARRASCOSO SEPT. 28,
1966
FACTS: Air France, through its authorized
agent PAL, issued to Carrascoso a first class
round trip ticket fr. Mla. to Rome. The trip
involved 3 connecting flights.
In Bangkok, the manager of the
airline forced C to vacate the first class
seat claiming that a white man had a
better right thereto. A commotion ensued
as a result of the managers insistence. C
was transferred to a tourist class seat.
Hence this suit for damages.
HELD: SC could not understand how a
reputable firm like Air France could have
the indiscretion to give out tickets it never
meant to honor at all. It received the
corresponding amount in payment of first
class ticket & yet it allowed the passenger
to be at the mercy of its Ees. More so in
this case since C was a confirmed
passenger.
There was a contract to furnish C a
first class passage.
Said contract was
breached when the common carrier failed
to furnish first class transportation to
Bangkok. As to the airlines culpability
based on culpa aquiliana, a common
carrier can be guilty of culpa aquiliana
independently of its contract of carriage if
the breach of contract of carriage was
attended by (1) negligence, (2) malice &
(3) bad faith.
For this, C is entitled to both
exemplary & moral damages. The NCC
gives the court ample power to grant
exemplary damages in contracts & quasi
contracts. The only condition is that the
airline should have acted in a wanton,
fraudulent,
reckless,
oppressive
or
malevolent manner.
The manner of
ejecting C fr. his first class seat fits into this
legal precept.
SHEWARAM V. PAL
FACTS: Shewaram, a paying passenger of
PAL filed a complaint for damages against
the latter claiming that PALs
Ees
417

mistagged his luggage resulting to its nonarrival in Manila. Later, it was found that it
ended in Iligan City.
ISSUE: WON PALs liability should be limited
to the amount stated in the conditions of
carriage printed in small letters at the back of
the plane ticket (P100).
HELD. NO. PALs liability should be P373
based on evidence. Following Art. 1750, a
common carriers liability may be limited to a
fixed amount. However, the contract must
be reasonable & just under the circumstances
& has been fairly & freely entered upon by
the parties.
In the CAB, it could not be said that S
was aware of said conditions w/c are printed
at the back of the ticket in letters so small.
PAL has admitted that the passengers do not
sign the ticket.
Further, in the case of Ysmael v.
Barreto, the court held that the carrier cannot
limit its liability for injury to or loss of goods
shipped where such injury or loss was caused
by its own negligence. REASON: The natural
effect of a limitation of liability against
negligence is to induce want of care on the
part of the carrier in the performance of its
duty.
MARANAN V. PEREZ
FACTS: Corrachea, a passenger of a taxicab
owned & operated by Perez, was stabbed to
death by the driver Valenzuela. The latter
was convicted of homicide. Maranan, the
mother of the deceased filed an action for
damages against P.
P contended that it
should be absolved fr. liability based on the
doctrine laid down in Gillaco v. MRR -- that
the Er is under no absolute liability for
assaults of its Ees upon passengers.
HELD: P liable. Gillaco case different. In the
Gillaco case, the guard who killed the
passenger was not in his supposed duty post.
Furthermore, the incident happened at least
2 hours before the EE was to start his duty.
In the CAB, the killing was perpetrated
by the very driver of the cab transporting the
passenger in whose hands the carrier had
entrusted the duty to execute the contract of
carriage. It took place in the course of duty
of the Ee. Furthermore, the Gillaco case was

decided under the OCC. The NCC, unlike


the former, expressly makes the common
carrier liable for intentional assaults
committed by its Ees against passengers.
It is no defense that the act was done in
excess of authority or in disobedience to
the carriers orders.
JUNTILLA V. FONTANAR
FACTS: Juntilla was a passenger in a public
utility jeepney. In the course of its journey,
the rear tire exploded & caused J to be
thrown off. J suffered injuries. Hence, J
filed a suit for breach of contract of
carriage against the driver, the franchise
holder & registered owner.
ISSUE:
WON said incident should be
characterized as caso fortuito, therefore,
absolving the defendants fr. liability.
HELD: NOT CASO FORTUITO. In the case
of Lasam v. Smith, the elements of caso
fortuito are:
the cause of the unforeseen or unexpected
event must be independent of the human
will;
it must be impossible to foresee or if it can
be foreseen, it was impossible to avoid;
the occurrence must be as such to render
it impossible for the debtor to fulfill his
obligation in a normal manner.
The obligor must be free fr. any
participation in the aggravation of the
resulting injury to the obligee.
In the CAB, req. no. 1 is not present.
The driver was speeding at the time of the
incident. The jeepney was also overloaded
& that there were three passengers in the
front seat.
As to mechanical defects, the
preponderance of authority is that the
passenger is entitled to recover damages
fr. a carrier for an injury resulting fr. a
defect in the appliance. The rationale for
the carriers liability is the fact that the
passenger has neither the choice nor
control over the carrier in the selection &
use by the carrier.
Having no privity
whatsoever w/ the manufacturer of the
defective equipment, the passenger had no
remedy against the manufacturer while the
carrier has.

418

NOCUM VS. NOCUM


Facts: Nocum was a passenger in LTBs Bus
No. 120 who was injured of the explosion of
firecrackers contained in a box, loaded in said
bus & declared to its conductor as containing
clothes & miscellaneous items by a copassenger.
Held: LTB not liable bec. there is need for
evidence of circumstances indicating cause
or causes for apprehension that the
passengers baggage is dangerous & that it is
failure of the common carriers employee to
act in the face of such evidence that
constitutes the cornerstone of the common
carriers liability.
Since the box looked
innocuous, it would be clearly in violation of
the constitutional right of the passenger to
search his baggage.
MANILA
RAILROAD
BALLESTEROS

CO.

VS.

Facts: Ballesteros, et. al. were passengers


on MRRs bus. The auditor assigned to the
company by the General Auditing Office, took
the wheel & told the driver to sit somewhere
else. The driver tried to take the wheel to no
avail. At some point, the bus collided w/ a
freight truck, w/c caused injuries to
passengers.
Held: MRR is liable for the injuries Article
1763 of the Civil Code & Section 48 (b) of the
Motor Vehicle Law, respectively provide that:
a common carrier is responsible for injuries
suffered by a passenger on account of the
willful acts or negligence of other passengers
or strangers, if the common carriers Ees
through the exercise of the diligence of a
good father of the family could have
prevented or stopped the act or omission.
No professional chauffeur shall
permit any unlicensed person to drive the
motor vehicle under his control, or permit a
person, sitting beside him or in any other part
of the car, to interfere w/ him in the operation
of the motor vehicle, by allowing said person
to take hold of the steering wheel, or in any
other manner take part in the manipulation
or control of the car.
ONG YIU VS. CA
Facts:
Ong, a practicing lawyer & a
businessman, took the PAL fr. Cebu to Iligan,
where he was to attend a trial of a civil case.

Upon arriving at Butuan City, he claimed


his luggage but it could not be found. It
turned out that the luggage was carried
over to Manila. Inside the luggage were
documents needed for the trial.
Ong wired PAL-Cebu demanding the
delivery of the luggage. When his baggage
arrived, one of the airport drivers opened
it in the presence of a PAL employee who
looked at the contents only. He handed the
luggage to Ong & informed him that the
lock was open. Ong discovered that the
documents pertinent to the trial were
missing as well as his gifts for his parentsin-law.
Held:
PAL is to pay only P100.00 as
baggage liability. No bad faith on the part
of PAL who exerted diligent effort to locate
Ongs baggage. PALs liability is limited to
the amount stipulated at the back of the
plane ticket. The stipulation was printed in
reasonably & fairly big letters, easily
readable. Furthermore, Ong as a frequent
flyer & a lawyer, should have been fully
aware of the conditions.
Ong may not have signed the ticket
nevertheless, he is bound by such
stipulation the same being part of the
contract of carriage, valid & binding upon
the passenger regardless of lack of
knowledge or assent.
It is a contract of adhesion wherein
one party imposes a ready made contract
for the other party, the place ticket in CAB.
Such contracts are not entirely prohibited.
The one who adheres to the contract is free
to reject it entirely, if he adheres he give
consent.
ABETO VS. PAL
Facts: Judge Abeto boarded PALs plane at
Iloilo City for Manila. The plane crashed at
Mindoro killing all passengers. The widow
of Judge Abeto filed a case against PAL for
breach of contract of carriage.
Held:
Common Carriers are bound to
observe extra-ordinary diligence. In case
of death or injuries to passengers, common
carriers are presumed to have been at fault
or to have acted negligently, unless they
prove that they observed extra-ordinary
diligence as prescribed.
419

It is clear that the pilot did not follow


the designated route for his flight between
Romblon & Manila. The weather was clear &
he was supposed to cross airway Amber 1
over Romblon. Instead he made a straight
flight to Manila in violation of air traffic rules.
The court need not make an express
finding of fault or negligence on the part of
the carrier in order to hold it responsible to
pay the damages sought for by the
passenger. By the contract of carriage, the
carrier assumes the express obligation to
transport the passenger to his destination
safely & to observe to observe extraordinary
diligence w/ a due regard for all the
circumstances, & any injury that might be
suffered by the passenger is right way
attributable to the fault or negligence of the
carrier. This is an exception to the GR that
negligence must be proved.
PAL VS. CA
FACTS:
Samson, a licensed aviator was
employed by PAL as a regular co-pilot of
Capt. Bustamante. On several occasions,
Samson complained to PAL about the slow
reaction & poor judgment of Bustamante in
manning their regular flights. Notw/standing
the complaints, PAL allowed B to man its
flights.
In one flight, due to the slow reaction
& poor judgment of B, they overshot the
airfield.
Because of the impact, Samson
suffered fr. concussions & wounds on the
forehead. He was not accorded the proper
medical attention required under the
circumstances. PAL ignored Samsons plea
for expert medical assistance. Suffering fr.
periodic spells & general debility, Samson
always complained to PAL.
He was
dismissed. PAL denied liability on the ground
that the accident was due to aviational
disturbance & not Bustamantes negligence.
ISSUE: Is PAL liable? Yes
HELD: There was gross negligence on the
part of PAL in allowing B to fly on the day of
the accident. It has been a known fact to PAL
that B had always been complaining to PAL of
pain in the face particularly in the nose. This
pain is the result of a tumor. Thus, for
allowing B to man its flight, PAL is guilty of

gross negligence & should be made liable


for the resulting accident.
PAL is a common carrier, it is bound
to exercise extraordinary diligence. This
duty on the part of the common carrier is
for the safety of the passengers as well as
the crew members or its complement
operating the common carrier.
ZALAMEA VS. CA
FACTS:
Papa Zalamea bought tickets
fr. TransWorld Airlines (TWA) for Mama
Zalamea & Baby Zalamea. The ticket was
for a flight for NY to LA. The tickets of Papa
& Mama were bought at a 75% discount
while that of Baby was a full fare ticket.
The Zalameas reconfirmed their flight in NY.
When they checked in for their flight, they
were placed in the waiting list bec. the
flight was overbooked. Only Papa was able
to board the plane bec. he was mistakenly
holding Babys ticket. Baby & Mama were
left in NY. Mama was constrained to buy 2
more tickets. Upon arrival at Manila, the
Zalameas sued TWA & was awarded moral
damages. TWA raised the defense that
overbooking was an accepted practice in
the US, hence, there was no bad faith.
ISSUE: WON award of moral damages was
proper? YES
HELD: The US law or regulation allegedly
authorizing overbooking has never been
proved.
Foreign laws do not prove
themselves nor can the courts take judicial
notice of them. TWA relied solely on the
statement of its customer service agent
that the Code of Federal Regulations of the
Civil Aeronautics Board allows overbooking.
But even if said law was proved, it still is
inapplicable in the Phils in accordance w/
the principle of lex loci contractus w/c
require that the law of the place where the
ticket was issued should be applied by the
court where the passengers are residents &
nationals of the forum & the ticket is issued
in such State by the defendant airline.
Since the ticket was sold & issued in the
Phils the applicable law would be Phil law.
A contract of carriage generates a
relation attended w/ public duty a duty to
provide public service & convenience to its
passengers w/c must be paramount to selfinterest or enrichment.
Even on the
420

assumption that overbooking is allowed,


TWA is still guilty of bad faith in not informing
its passengers beforehand that it could
breach the contract even if they have
confirmed tickets if there was overbooking.

ISSUE: How much is the liability of the


carrier?

Moreover, TWA was guilty of bad faith


in not informing its passengers of its alleged
policy of giving less priority to discounted
tickets.

There is no stipulation in the Bills of


Lading limiting the liability of the carrier for
loss or destruction.
According to the
COGSA, said liability should not exceed
$500 per package BUT in no case more
than the amount of damage actually
sustained.

CARRIAGE OF GOODS BY SEA ACT

SAMAR MINING VS. NORDDEUTSCHER


LLOYD

EASTERN SHIPPING VS. IAC


FACTS: M/S Asiatica was owned by Eastern
Shipping Lines. It was loaded in Kobe, Japan
& was bound for Manila. However, en route
the vessel caught fire & sank resulting in the
total loss of the cargo & the vessel. Included
in the cargo were 28 packages consigned to
Phil Blooming Mills & 7 cases of spare parts
consigned to Central Textile Mills. Both sets
of goods were insured against marine risk for
their stated value w/ Respondent Devt
Insurance & Surety.
ISSUE: Which law should govern - COGSA or
NCC? NCC. The law of the country to w/c the
goods are to be transported governs the
liability of the common carrier in case of loss,
destruction or deterioration. In all matters
not regulated by the NCC, the rights &
obligations of CC shall be governed by the
Code of Commerce & spl. Laws.
ISSUE: Who has the burden of proof? The
common carrier has the burden of proof to
prove that it was not at fault of that it did not
act negligently (PROVE EXTRAORDINARY
DILIGENCE) The NCC provides that if loss,
destruction or deterioration is not one of
those enumerated in art 1734 (flood, storm,
earthquake, lightning & other natural
disasters) the carrier is presumed to be
negligent.
ISSUE: Was the carrier at fault? YES There
was actual fault on the part of the carrier in
that when the smoke was noticed the fire was
already big & that the same must have
started 24 hours before it was noticed. After
the cargoes were stored in the hatches, no
regular inspection was made as to their
condition during the voyage.

FACTS:
Samar imported equipment
& loaded the same on one of the ships
owned by Lloyd. Upon arrival in Manila,
the
aforementioned
importation
was
unloaded & delivered in good order &
condition to the bonded warehouse of
AMCYL. However, the goods were never
delivered to Samar. It filed a claim against
Lloyd & its agent Sharp & Co. It was
stipulated in the Bill of Lading that the
delivery of the goods to the warehouse was
part of Lloyds duty to transship the goods
fr. Manila to Davao.
ISSUE: WON Lloyd liable? NO
HELD:
Pursuant to the Bill of Lading,
Lloyds responsibility as a common carrier
ceased the moment the goods were
unloaded in Manila & in the manner of
transshipment, it acted merely as an agent
of Samar. Under 1736, the carrier may be
relieved of the responsibility for the loss or
damage to the goods upon actual or
constructive delivery of the same by the
carrier to the consignee, or to the person
who has a right to receive them.
Two
undertakings
appeared
embodied in the Bill. The first is for the
transport of goods fr. Bremen, Germany to
Manila. The second, the transshipment of
the same fr. Manila to Davao, w/ Lloyd
acting as agent of Samar. At the hiatus
between these two undertakings of Lloyd
w/c is the moment when the subject goods
are discharged in Manila, its personality
changes fr. carrier to agent of the
consignee.
Thus the character of its
possession changed fr. possession in its
own name as carrier into possession in the
name of the consignee. Such being the
case, there was actual delivery of the
goods fr. Lloyd as carrier to the same Lloyd
421

as agent of the consignee Samar. Upon such


delivery, Lloyd ceases to be responsible for
any loss or damage.
WARSAW CONVENTION

Art. 28(1).
A complaint could be
instituted only in the territory of one of the
High Contracting Parties, before:
The court of the domicile of the carrier;
The court of its principal place of
business;
The court where it has a place of business
through w/c the contract has been made; or
The court of the place of destination.

PAN AM V. RAPADAS
Facts: Rapadas was en route fr. Guam to
Manila. Pan Am Airlines handcarry control
agent ordered him to check in his attach
case. Rapada tried to get out of doing so but
was constrained to do so eventually. It was
his brother that checked in the luggage w/o
declaring its contents nor their value. When
he arrived in Mania he was handed back all
his luggage except the attach case. He filed
an action for damages of $42,403.90
representing the value of the contents. Pan
Am contended that the claim was subject to
Notice Of Baggage Liability Limitations
attached to the plane ticket & thus its liability
is limited to $180 as R did not declare a
higher valuation.
Issue: Is a passenger bound by the terms of
a ticket declaring that the limitations of
liability set forth set forth in the Warsaw
Convention as amended by the Hague
Protocol shall apply in case of loss, damage
or destruction to registered luggage of a
passenger?
Held: There is no dispute that there was a
notice on the ticket stating the applicability of
the Warsaw Convention in case of death/
injury to a passenger; loss, damage or
destruction of luggage. Such is sufficient
notice. While contracts of adhesion are not
entirely prohibited, neither is blind reliance
on them encouraged. Passengers are not
always bound by the stipulated amounts on a
ticket or printed elsewhere. The reasons

behind the stipulations limiting liability


arise fr. the difficulty, if not impossibility, of
establishing w/ clear preponderance of
evidence, the contents of a lost suitcase
unless the contents are declared. It will
always be the passengers word vs. the
airlines. The Warsaw Convention
Specifically provides it is applicable
to intl carriage defined as any carriage in
w/c, according to the agreement between
the parties, the place of departure & the
place of destination are situated either w/in
the territories of 2High Contracting Parties
or w/in the territory of a single High
Contracting Party if there is an agreed
stopping place w/in the territory of another
State.
Nowhere in the convention is such detailed
notice of baggage liability limitations
required.
It is, however, a common, safe &
practical custom for air carriers to indicate
beforehand the precise sums equivalent to
those fixed by the Convention.
SANTOS III V. NORTHWEST
Facts: Santos, a minor & resident of the
Phils., purchased in San Francisco a
Northwest (NW) ticket fr. SF to Manila via
Tokyo & back.
The scheduled departure
fr. Tokyo was De. 20 w/ no date specified
for the return to SF. Despite confirmation &
re-confirmation, when Santos checked in at
the SF airport he was informed he had no
reservation for the connecting flight fr.
Tokyo to Manila. He was waitlisted. Thus
Santos sued NW for damages in the RTCMakati.
NW filed MTD for lack of
jurisdiction based on Art. 28(1) of the
Warsaw Convention.
Issues:
WON Art. 28(1) of the WC is constl? Yes.
WON Phil. courts have jurisdiction? No.
Held: The WC is a treaty commitment
voluntarily entered by the Phil. govt & as
such has the force & effect of law. The
presumption is that this joint legislative &
executive act was first carefully studied &
determined to be constitutional before it
was adopted. The Phil. govt has done
nothing to reject the WC since it came into
existence in 1950.
422

The wording of the convention w/c


indicates where actions should be brought
shows mandatory character & not merely a
matter of venue. This is consistent w/ its aim
to regulate in a uniform manner the
conditions of international transport by air.
Furthermore, there is no provision in the WC
prescribing rules of jurisdiction other than
Art. 28(1).
In CAB,. It appearing that the Phils. is
not one of those enumerated action may be
properly filed, then Phil. courts have no
jurisdiction. The court w/c is called upon to
determine the applicability of the limitation
provision must first be vested w/ the
appropriate jurisdiction.
The action must
have been commenced properly under Art.
28(1) before Santos may avail himself of the
provisions of the WC.
MARITIME LAW
VASQUEZ V. CA
Facts: The MV Pioneer Cebu had on board
the Velasquez spouses & their minor son as
well as other families.
Due to Typhoon
Klaring the vessel struck a reef & sank
resulting in the death of the young Velasquez
& other minors & passengers. The parents of
the minors filed a claim for damages against
Filipinas Pioneer Lines (owner of the vessel)
w/c claimed force majeure & extinction of
liability due to total loss of the vessel. TC
ruled in favor of the parents, CA reversed.
Issue: WON Filipinas Pioneer Lines is liable
for damages?
Held: Yes. To constitute a caso fortuito that
would exempt a person fr. liability, it is
necessary that :
The event must be independent of human
will;
Occurrence must render it impossible to the
debtor to fulfill the obligation in a normal
manner; &
The obligor must be free of participation in, or
aggravation of, injury to the creditor.
In the CAB, the captain & crew were well
aware of the risk they were taking as the
typhoons course was posted on weather
bulletins at 6-hr. intervals.
In taking a
calculated risk the captain & crew failed to

exercise
the
extraordinary
explicitly required by law.

diligence

As to the total loss of vessel, the


liability of the shipowner is limited to the
value of the vessel or the insurance
thereon. Despite loss the insurance will
answer for the damages resulting fr. the
death of passengers.

Art. 1467. A contract for the delivery at


a certain price of an article w/c the vendor
in the ordinary course of his business
manufactures or procures for the general
market , whether the same is on hand at
the time or not, is a contract of sale, but if
the goods are to be manufactured specially
for the customer & upon his special order,
& not for the general market, it is a
contract for a piece of work.
Art. 1725. The owner may w/draw at
will fr. the construction of the work,
although it may have been commenced,
indemnifying the contractor for all the
latters expenses, work & the usefulness
w/c the owner may obtain therefr., &
damages.
Art. 1726. When a piece of work has
been entrusted to a person by reason of his
personal qualifications, the contract is
rescinded upon his death.
In this case the proprietor shall pay the
heirs of the contractor in proportion to the
price agreed upon, the value of the part of
the work done, & of the materials prepared,
provided the latter yield him some benefit.
The same rule shall apply if the
contractor cannot finish the work due to
circumstances beyond his control.

NAKPIL & SONS VS. CA


FACTS: The Phil. Bar Association (PBA)
decided to construct an office building. the
construction was undertaken by the United
Construction, Inc. on an administration
basis. The plans & specifications for the
building were prepared by the other third
party defendants Nakpil & Sons. The
building was completed in June, 1966. On
August 2, 1968, an unusually strong
423

earthquake hit Mla. & the building in question


sustained major damage. PBA commenced
an axn. for the recovery of damages arising
fr. the partial collapse of the building vs.
United Construction, Inc.
ISSUE: WON an act of God-an unusually
strong earthquake w/c caused the failure of
the building, exempts fr. liability parties who
are otherwise liable bec. of their negligence
HELD: NO. Art. 1723 of the NCC applies. The
engineer or architect who drew up the plans
& specifications for a building is liable for
damages if w/in 15 years fr. the completion of
the structure, the same should collapse by
reason of a defect in those plans &
specifications, or due to the defects in the
ground. The contractor is likewise responsible
for the damage if the edifice fags w/in the
same period on account of defects in the
construction or the use of materials of inferior
quality furnished by him, or due to any
violation of the terms of the contract. If the
engineer
or
architect
supervises
the
construction, he shall be solidarily liable w/
the contractor.
Acceptance of the building after
completion, does not imply waiver of any of
the COA by reason of any defect mentioned
in the preceding paragraph. The action must
be brought w/in ten years following the
collapse of the building.
In the CAB, the happening of the
fortuitous event or an act of God was
concurred in by negligence of the defendants
( United Construction & Nakpil & Sons) by
deviating fr. the plans & specifications &
failing to observe the requisite workmanship
in the construction as well as to exercise the
requisite degree of supervision. Hence, they
can be held liable.
PARTNERSHIP

Art. 1769. In determining whether a


partnership exists, these rules shall apply:
1. Except as provided by Art. 1825,
persons who are not partners as to each
other are not partners as to third persons;
2. Co-ownership or co-possession does
not of itself establish a partnership, whether

such co-owners or co-possessors do or do


not share any profits made by the use of
the property;
3. The sharing of gross returns does not
of itself establish a partnership, whether or
not the persons sharing them have a joint
or common right or interest in any property
fr. w/c the returns are derived;
4. The receipt by a person of a share of
the profits of a business is prima facie
evidence that he is a partner in the
business, but no such inference shall be
drawn if such profits received in payment:
a. As a debt by installments or
otherwise;
b. As wages of an employee or rent
to a landlord;
c. As an annuity to a widow or
representative of a deceased partner;
d. As interest on a loan, though the
amount of payment vary w/ the profits of
the business;
e. As the consideration for the sale
of a goodwill of a business or other
property by installments or otherwise.
Art. 1782. Persons who are prohibited
fr. giving each other any donation or
advantage cannot enter into universal
partnership.

YULO VS. YANG


FACTS: Yang (D) proposed to Yulo (P) the
formation of a partnership. Def. suggested
the operation of a theater on the land
leased by Pet. fr. the Sta. Marina sisters. So
Yang & Co. was formed & its capital was
P100,000, P20,000 of w/c was to come fr. P.
A supplementary agreement was later
made whereby it was stated that the
partnership is extended for 3 more years &
that the building shall belong to P at its
expiration. The lessors, the Sta. Marina
sisters, desiring to terminate the lease
brought an action for ejectment vs. P. TC
for the lessors. Later, when P demanded fr.
D her share in the profits of the business,
the latter refused to do so. P thus brought
this action. D, in answer claims that what
existed between the parties was an
agreement of lease w/c was made to
appear as a K of partnership to get around
the prohibition in Ps lease contract w/ the
lessors w/c prohibited P fr. subleasing the
property. For D.
424

ISSUE: WON the K was for sublease or a K of


partnership
HELD: For sublease. The ff. are requisites of a
partnership: 1. 2 or more persons who bind
themselves to contribute money, property, or
industry to a common fund 2. intention on
the part of the partners to divide the profits
among themselves. These requisites are not
present. For one, P did not furnish her P20T
capital; neither did she help in the
management of the theater; & she has never
demanded fr. D any accounting of the
business.
BAVIERA: The agreement stating that P
was to get P3T as her monthly
participation also shows that there was
no partnership agreement as she gets
the same whether or not the business
experiences a loss. Also shown by the
stipulation that P is to get the building
after the partnerships termination. If it
were really a partnership, then the
assets of the business should be
liquidated
at
termination
&
the
proceeds thereof paid to the creditors.
Only if there is an excess would the
partners get something by dividing the
excess between themselves.

Art. 1797. The losses & profits shall be


distributed in conformity w/ the agreement.
If only the share of each partner in the profits
has been agreed upon, the share of each in
the losses shall be in the same proportion.
In the absence of stipulation, the share of
each partner in the profits & losses shall be in
proportion to what he may have contributed,
but the industrial partner shall not be liable
for the losses.
As for the profits, the
industrial partner shall receive such share as
may be just & equitable under the
circumstances. If besides his services he has
contributed capital, he shall also receive a
share in the profits in proportion to his
capital.

TOLENTINO:
This relates exclusively to the settlement of
partnership affairs among the partners

themselves. It has nothing to do w/ the


liability of partners to 3rd person.
Profits & Losses. - Parties can validly
stipulate a distribution of losses
different fr. that of the profits, so long
as nobody is excluded fr. sharing in the
profits or losses. Where a partner paid
expenses representing a loss to the
partnership, & theres no income fr. the
partnership to reimburse him, he has a
right to look to the estate of his other
partners for reimbursement.
Industrial Partner. - An industrial partner
cannot claim any part of the property
contributed; he can share only in the
profits & benefits, unless the contrary is
stipulated. He cannot be held liable for
losses unless he is specifically made to
participate in the losses.
Art. 1799. A stipulation w/c excludes
one or more partners fr. any share in the
profits or losses is void.

TOLENTINO: The essence of partnership


is that the partners share in the profits &
losses.
Thus, the law prohibits the
exclusion of 1 or more partners fr. the
profits or losses.
If such a prohibited
stipulation is made, the profits & losses will
be distributed according to Art. 1797 par. 2,
i.e., as if no stipulation / agreement was
made.
Under French jurisprudence, a violation of
this article annuls the entire contract of
partnership (analogous to obligations
based on an illicit condition).
Art. 1800. The partner who has been
appointed manager in the articles of
partnership may execute all acts of
administration despite the opposition of his
partners, unless he should act in bad faith;
& his power is irrevocable w/o just or lawful
cause.
The vote of the partners
representing the controlling interest shall
be necessary for such revocation of power.
A power granted after the partnership
has been constituted may be revoked at
any time.

BAVIERA :
The theory behind irrevocable
agency (when appointment is made in the
articles) is that the partner concerned
would not have joined the partnership were
425

it not for the fact that he would be appointed


manager thereof.
Rule:
If the one managing partner is
designated in the articles of partnership, he
can bind the partnership in all acts of
administration. If the others oppose, the
remedy is to remove him.
Q: A owns 40%, B owns 40% & C owns 20%
share in a partnership. C was designated as
managing partner in the articles of
partnership. The partnership went bankrupt.
A wants to revoke Cs management. Can he
do so?
A:
No.
The law provides that such a
management is irrevocable unless there is 1)
lawful cause, &; 2) controlling interest votes
for the revocation. Although lawful cause
may be present, A by himself does not
represent the controlling interest.
TOLENTINO:
A managing partner is presumed to have all
the incidental power to carry out the
object of the partnership in the
transaction of business. Exception: when
the powers are specifically restricted.
If the articles dont specify the managing
partners powers, he has the powers of a
general agent.
SC has held that a
managing partner has the power to
contract for services, to dismiss EEs & to
issue official receipts for amounts
delivered to the partnership through him.
Art. 1801. If 2 or more partners have
been entrusted w/ the management of the
partnership w/o specification of their
respective duties, or w/o stipulation that one
of them shall not act w/o the consent of all
the others, each one may separately execute
all acts of administration, but if any of them
should oppose the acts of the others, the
decision of the majority shall prevail. In case
of tie, the matter shall be decided by the
partners owning the controlling interest.

BAVIERA: The only one who can make an


objection is a co-managing partner. This first
vote should be among the managing partners
only. If there is a tie, then all (even the nonmanaging partners) will vote. This, however,
is an internal agreement. Take note of Art.
1818.
TOLENTINO:
This deals w/ solidary
management (also found in Art. 1803).
Gen. rule: Each manager can execute any
act of administration w/o other managers
consent.

But: Each manager, however, has the right


to object to the act before it is executed.
Such opposition is enough to prevent it. If
the manager still executes the opposed
act, it will be void, even against 3rd person
who had or who could have known of the
opposition.
If the duties of the managers are
specified, each one is considered as the
sole manager as to the acts w/in the
sphere of his authority.
Art. 1802. In case it should have been
stipulated that none of the managing
partners shall act w/o the consent of the
others, the concurrence of all shall be
necessary for the validity of the acts, & the
absence or disability of one of them cannot
be alleged, unless there is imminent
danger of grave or irreparable injury to the
partnership.

TOLENTINO:
This refers to joint management.
The obligation to secure the consent of the
other partner rests on the partner
entering into the contract, not on the
3rd person bec. the 3rd person can
presume that the consent was given
unless the contrary has been previously
manifested to him. Even if made w/o
consent, if the 3rd person acted in good
faith & the transaction concerns
matters w/in the business of the
partnership, the contract cannot be
annulled.
The requirement of previous approval
refers to the execution of formal
contracts in writing, not to routine
transactions bec. they come w/in the
scope of the general authority of the
manager of a business.
Art. 1803.
When the manner of
management has not been agreed upon,
the ff. rules shall be observed :
All of the partners shall be considered
agents & whatever any one of them may
do alone shall bind the partnership, w/o
prejudice to the provisions of Art. 1801
None of the partners may, w/o the
consent of the others, make any important
alteration in the immovable property of the
partnership even if it may be useful to the
partnership. But if the refusal of consent
by the other parties is manifestly
prejudicial
to
the
interest
of
the
426

partnership, the courts intervention may be


sought.

TOLENTINO: Gen. rule: Authority granted


to each manager, or each partner when no
managers are designated, is only for acts of
administration. For acts of disposition or
modification
of
partnership
articles,
unanimous, not just majority, consent is
required.
Art. 1816.
All partners, including
industrial ones, shall be liable pro rata w/ all
their property & after all the partnership
assets have been exhausted, for the
contracts w/c may be entered into in the
name & for the account of the partnership,
under its signature & by a person authorized
to act for the partnership. However, any
partner may enter into a separate obligation
to perform a partnership contract.

BAVIERA:
This applies only
partnerships contractual obligations.

to

TOLENTINO: To enforce liability, both the


partnership & the separate partners may be
joined in the same action, but the property of
the partners cannot be taken in payment of
the partnership debt until the property of the
partnership is exhausted.
The industrial partner is also liable for
debts & obligations of the partnership,
although Art. 1797 states they are not liable
for losses. A liability is different fr. a loss.
The inability to pay a debt to a third party at
a particular time does not mean that the
partnership as a whole has been operated at
a loss.
Art. 1817. Any stipulation against the
liability laid down in the preceding article
shall be void, except as among the partners.
Art. 1818. Every partner is an agent of
the partnership for the purpose of its
business, & the act of every partner,
including the execution in the partnership
name of any instrument, for apparently
carrying on in the usual way the business of
the partnership of w/c he is a member binds
the partnership, unless the partner so acting
has in fact no authority to act for the
partnership in the particular matter, & the
person w/ whom he is dealing has knowledge
of the fact that he has no such authority.

An act of a partner w/c is not


apparently for the carrying on of business
of the partnership in the usual way does
not bind the partnership unless authorized
by the other partners.
Except when authorized by the other
partners or unless they have abandoned
the business, one or more but less than all
partners have no authority to:
Assign the partnership property in trust
for creditors or on the assignees promise
to pay the debts of the partnership;
Dispose of the goodwill of the business;
Do any other act w/c would make it
impossible to carry on the ordinary
business of a partnership;
Confess a judgment;
Enter into a compromise concerning a
partnership claim or liability;
Submit a partnership claim or liability to
arbitration;
Renounce a claim of the partnership.
No act of a partner in contravention of a
restriction on authority shall bind the
partnership to persons having knowledge
of the restriction.

BAVIERA:
Why make the liability of
partners only pro-rata & subsidiary for
contractual obligations when they are
mutual agents of each other?
TOLENTINO: The principle of agency that
one who accepts / retains benefits of the
unauthorized acts of his agents, w/
knowledge of material facts surrounding
the transaction, will be deemed to have
ratified those acts, is equally applicable to
a question of ratification of a partners
unauthorized acts.
Art. 1819. Where title to real property
is in the partnership name, any partner
may convey title to such property by a
conveyance executed in the partnership
name; but the partnership may recover
such property unless the partners act
binds the partnership under the provisions
of Art. 1818 par. 1, or unless such property
has been conveyed by the grantee or a
person claiming through such grantee to a
holder for value w/o knowledge that the
partner, in making the conveyance, has
exceeded his authority.

427

Where title to real property is in the name


of the partnership, a conveyance executed by
a partner, in his own name, passes the
equitable interest of the partnership,
provided the act is one w/in the authority of
the partner under the provisions of Art. 1818
par.1.
Where title to real property is in the name
of one or more but not all the partners, & the
record does not disclose the right of the
partnership, the partners in whose name the
title stands may convey title to such
property, but the partnership may recover
such property if the partners act doesnt bind
the partnership under the provisions of Art.
1818 par. 1, unless the purchaser or his
assignee, is a holder for value, w/o
knowledge.
Where the title to real property is in the
names of all the partners, a conveyance
executed by all the partners passes all their
rights in such property.

on the partnership, committed by or w/ the


consent of that partner.

TOLENTINO:
When notice is given to the partner while
he is a partner, the effect is the same as if
notice was had by all the partners.
Where the partner acting in the particular
matter acquired knowledge before he
became a partner, & the knowledge is then
present in his mind, the partnership should
be charge w/ knowledge.
Art. 1822. Where, by any wrongful act
or omission of any partner acting in the
ordinary course of the business of the
partnership or w/ the authority of his copartners, loss or injury is caused to any
person, not being a partner in the
partnership, or any penalty is incurred, the
partnership is liable therefor to the same
extent as the partner so acting or omitting
to act.

TOLENTINO:
The right to mortgage is
included in the right to convey under this
article.

TOLENTINO:

Art.
1820.
An admission
or
representation
made
by any
partner
concerning partnership affairs w/in the scope
of his authority in accordance w/ this Title is
evidence against the partnership.

This concerns liability for wrongful acts. On


the principle of mutual agency, the
partnership, or every member of it, is liable
for torts committed by one of the members
acting in the scope of the firm business,
even if they didnt participate in, ratify, or
have knowledge of the tort.

TOLENTINO: Where the admission is made


after dissolution & is not for the winding up of
partnerships affairs, it shouldnt affect the
partnership.
The partnership is not bound by
admissions or statements made by a former
partner after the latter has w/drawn fr. the
partnership as to what took place during the
period of partnership.
Art. 1821. Notice to any partner of any
matter relating to partnership affairs, & the
knowledge of the partner acting in the
particular matter, acquired while a partner or
then present to his mind, & the knowledge of
any other partner who reasonably could &
should have communicated it to the acting
partner, operate as notice to or knowledge of
the partnership, except in the case of a fraud

The test of liability is based on a


determination
of
WON
the
wrong
committed in behalf of & w/in the
reasonable scope of the business of the
partnership.
However, if the injury results fr. a wanton or
willful act of one of the parties, committed
outside the agency or common business,
the person doing the act & causing the
injury is alone responsible, unless it was
authorized or subsequently ratified by the
other partners.
Art. 1823. The partnership is bound to
make good the loss:
Where one partner acting w/in the
scope of his apparent authority receives
money or property of a third person &
misapplies it; &
Where the partnership in the course of
its business receives money or property of
428

a third person & the money or property so


received is misapplied by any partner while it
is in the custody of the partnership

Issue: WON dismissal of the complaint vs.


one of the gen. partners increases the joint
& subsidiary obligations of the others

Art. 1824. All partners are liable solidarily


w/ the partnership for everything chargeable
to the partnership under Arts. 1822 & 1823.

Held: No. CC provides that partners shall


be liable pro rata for contractual
obligations, i.e., each partner is not liable
for the whole debt of the partnership.
Since there are 5 general partners in CAB,
liability of each partner shall be limited to
only one-fifth (1/5) of the obligations of the
partnership. That the complaint against
Lumauig was dismissed doesnt unmake
him as a gen. partner. ISI merely condoned
Lumauigs individual liability to it.

BAVIERA:
Under Arts. 1822 (on tort
liability) & 1823 (liability for breach),
the liability is solidary. This is absurd.
Why make the liability for these cases
larger than that for contractual breach?
Q: Can 2 corporations create a partnership?
A: No. Corps. can go into joint ventures, but
not partnerships bec. partnerships require
mutual agency.
TOLENTINO:
All partners are liable jointly &
severally for everything chargeable to the
partnership by reason of a partners wrongful
act or breach of trust wherein a third person
is adversely affected.
While the liability of partners are
merely join in transactions entered into by
the partnership, the partners are liable to 3rd
persons solidarily for the whole obligation if
the case involves loss or injury caused to any
person not a partner, & misapplication of a
3rd persons money or property received by a
partner or the partnership. This is bec. the
law protect 3rd persons who in good faith
relied upon the authority, real or apparent, of
a partner.
ISLAND SALES INC. VS.
UNITED
PIONEERS
GEN. CONSTRUCTION CO.
(65 S 554)
Facts: UPGC,
a
registered
general
partnership, purchased fr. ISI a motor vehicle.
UPGC executed a promissory note for P9,440,
payable in 12 mo. installments, w/ the
condition that failure to pay of the
installments would render the whole unpaid
balance immediately demandable.
UPGC
having failed to pay, ISI sued UPGC, & the
co.s general partners: Daco, Guizona, Sim,
Lumauig & Palisoc. Later, on ISIs motion, the
complaint was dismissed against Lumauig
alone.

BAVIERA: SC here interpreted the term


pro-rata as joint, i.e., obligations
shall be divided into as many partners
as there are, w/o considering their
respective contributions.
In the Uniform Partnership Act of the
US (fr. w/c we got some provisions),
partners liability was joint.
But
joint under common law has a
different meaning.
Under common
law, a partnership has no separate
personality like it does here, so the
partners had to be sued jointly, i.e.,
as an aggregate.
Code Commission changed joint to
pro-rata, meaning the liability was
divided according to each partners
contribution.
In
doing
so,
it
manifested its ignorance of the
meaning of joint in common law.
Note that under the old CC, an
industrials partners contribution was
deemed equivalent to the smallest
contribution.

Art. 1832. Except in so far as may be


necessary to wind up partnership affairs or
to complete transactions begun but not
then finished, dissolution terminates all
authority of any partner to act for the
partnership.
1. With respect to the partners,
a) when the dissolution is not by the
act, insolvency or death of a partner or;
b) when the dissolution is by such
act, insolvency or death of a partner, in
cases
429

where article 1833 so requires;


2.
With respect to persons not
partners, as declared in Art. 1834.
Art. 1833.
Where the dissolution is
caused by the act, death or insolvency of a
partner, each partner is liable to his
copartners for his share of any liability
created by any partner acting for the
partnership as the partnership had not been
dissolved unless:
1) The dissolution being by act of any
partner, the partner acting for the
partnership had knowledge of the dissolution;
or
2) The dissolution being by the death or
insolvency of a partner, the partner acting for
the partnership had knowledge or notice of
the death or insolvency.
Art. 1834. After the dissolution, a partner
can bind the partnership, except s provided in
the third paragraph of this article:
1) By an act appropriate for winding up
partnership affairs or completing transaction
unfinished at dissolution;
2) by any transaction w/c would bind the
partnership if dissolution had not taken place,
provided the other party to the transaction:
a. had extended credit to the
partnership prior to dissolution & had no
knowledge or notice of the dissolution: or
b.
though he had not so
extended credit, had nevertheless known of
the partnership prior to the dissolution, the
fact of dissolution had not been advertised in
a newspaper of general circulation in the
place ( or in each place if more than one) at
w/c the partnership was regularly carried on.
The liability of the partner under the first
paragraph, No. 2 shall be satisfied out of
partnership assets alone when such partner
had been prior to dissolution:
1. unknown as partner to the person w/
whom the contract is made; &
2.
so far unknown & inactive in
partnership
affairs
that
the
business
reputation of the partnership could not be
said to have been in any degree due to the
connection w/ it.

The partnership is in no case bound by


any act of a partner after dissolution:
1. Where the partnership is dissolved
bec. it is unlawful to carry on the business,
unless the act is appropriate for winding up
partnership affairs: or;
2.
Where the partner has become
insolvent;
3. Where the partner had no authority
to wind up partnership affairs, except by a
transaction w/ one who
a) had extended credit to
the partnership prior to dissolution &
having no knowledge or notice of his want
of authority; or
b) had not extended credit
to the partnership prior to dissolution &
having no knowledge or notice of his want
of authority, the fact of his want of
authority has not been advertised in the
manner provided for advertising the fact of
the dissolution in the first paragraph, No. 2
(b).
Nothing in this article shall affect the
liability under Art. 1825 of any person who
after the dissolution represents himself or
consents to another representing him as a
partner in a partnership engaged in
carrying on a business.

Baviera:
A partner can w/draw
anytime fr. the partnership but he
must first notify the managing
partner.
Notice of the dissolution
must be given to third persons who
are distinguished as to whether they
have
been
creditors
of
the
partnership or not.
Those
dealing
w/
the
partnership for the first time are not
entitled to notice of the dissolution as
they are duty bound to inquire as top
the authority of the partner, that is
WON he can bind the partnership.
However, no notice is required when
the 3rd person dealing w/ a judicially
declared insolvent partner acting in
the usual way.

430

Gen. Rule: All partners have authority to act


for the partnership. In this connection, a 3rd
person dealing for the first time w/ the
partnership ( during the winding up ) can still
bind the partnership if the fact of dissolution
is not published.
CIR V. SUTER
Facts: In 1947, a limited partnership was
formed between William as gen. partner &
Spririg & Carlson as limited partners. Spirig &
William got married & Carlson sold his share
in the partnership to the spouses. The sale
was recorded w/ the SEC. In later years, the
CIR declared that William incurred a
deficiency tax.
It appears that the CIR
consolidated the income of the partnership w/
the income of the spouses. The spouses
appealed the CIR assessment.
Issue: WON the consolidation of the
partnership income w/ that of the spouses is
proper?
Held: No, it is not proper. The partnership
business of the spouses is a particular one
not a universal partnership w/c is prohibited.
The partners contributed fixed sums of
money & neither of the spouses is an
industrial partner. the marriage between the
partners did not dissolve the partnership as it
is not one of the grounds for dissolution & it
did not have the effect of converting the
partnership into a single proprietorship. The
partnership has a separate personality of its
own, thus, its income cannot be consolidated
w/ that of spouses.
DIRA V. TANEGA
Facts: In 1946, Dira, Tanega & Pagulayan
formed a partnership to last for 5 years for
the purpose of engaging in the printing
business. Each was required to contribute a
uniform sum of money to buy equipment.
Dira borrowed money fr. Pagulayan. Later,
Dira requested Tanega to pay his debt to
Pagulayan pledging his share in the
partnership. Pagulayan was paid, then he
later sold his share to Tanega. When Dira
failed to pay his debt to Tanega, the latter
foreclose the pledge thus becoming the
owner of all the shares in the partnership.
Tanega, in 1947, then changed the name of
the partnership & moved to a new place of
business. In 1961, Dira, who claimed to be
Pres. of the partnership filed this action for

acctg. of his share on the partnership. LC


dismissed on the ground of prescription.
ISSUE: WON Diras action is barred by
prescription?
HELD: YES. Art. 1829 w/c provides that a
partnership
is
not
dissolved
upon
termination but continues until the winding
up is completed is not applicable in the
case at bar. Such provision contemplates
continuation of partnership. In the CAB,
there is no more partnership. Tanega had
already repudiated the partnership as early
as 1947 w/ the knowledge of Dira.
Tanegas acts of changing the business
name & place of business are acts of
repudiation.
Tanega did not become a trustee of
Dira after the expiration of the partnership
term of 5 years in 1951. Under Art. 1132,
WON Tanega is in GF or BF, he has already
acquired through acquisitive prescription
through his uninterrupted possession for
more than 8 years the partnership. He has
already acquired ownership in 1955
counted fr. 1947 when Tanega repudiated
the partnership. This action was brought
only in 1961, the action of Dira has already
prescribed.
SINGSON V. ISABELLA SAWMILL
Facts: Garibay, Saldajeno & Tubungbanua
formed a partnership under the firm name
Isabella Sawmill. Saldajeno later field a
civil action for dissolution of the
partnership. As a consequence of the civil
action, a memorandum of agreement was
entered into between the two partners &
Saldajeno whereby the latter is released fr.
all obligations of the partnership.
A
mortgage on the partnership properties
was also executed in favor of Saldajeno.
The partnership however was continued &
no liquidation nor winding up ever took
place.
Later,
Saldajeno
caused
the
foreclosure & sale of the assets mortgaged
to her & she bought the properties. It
appears however, that the partnership
contracted w/ the plaintiff, Singson & the
partnership has not been able to pay
Singson. Singson then brought this action
to enforce he partnership liability against
the
partners
including
Saldajeno.
431

Saldajeno raised the defense that she is no


longer a part of the partnership, hence she is
not liable to Singson.
Issue:
WON under the circumstances,
Saldajeno is liable to Singson for partnership
obligations?
Held: Saldajeno is still liable for partnership
obligations. The w/drawal of Saldajeno fr. the
partnership was never published nor made
known to the public. The public therefore,
had a right to expect that whatever credit
they extended to Gariba & Tubungbanua
doing the business in the name of the
partnership Isabella Sawmill could be
enforced against the properties of said
partnership. Thus, the judicial foreclosure of
the chattel mortgage executed in favor of
Saldajeno did not relieve her fr. liability to the
creditors of the partnership.
While the partnership was technically
dissolved bec. of her w/drawal therefr., the
partnership was not terminated as it
continued
doing
business
under
the
partnership name. Saldajeno is to be blamed
for not causing the liquidation of the
partnership assets.

Art. 1844. Two or more persons desiring


to form a limited partnership shall:
(1) Sign & swear to a certificate, w/c shall
state-(a) The name of the partnership, adding
thereto the word Limited;
(b) The character of the business;
(c) The location of the principal place of
business;
(d) The name & place of residence of
each member, general & limited partners
being respectively designated;
(e) The term for w/c the partnership is to
exist;
(f) The amount of cash & a description of
the agreed value of the other property
contributed by each limited partner;
(g) The additional contributions, if any to
be made by each limited partner & the times
at w/c or events on the happening of w/c they
shall be made;
(h) The time, if agreed upon, when the
contribution of each limited partner is to be
returned;

(I) The share of the profits or other


compensation by way of income w/c each
limited partner shall receive by reason of
his contribution;
(j)
The right, if given of a limited
partner to substitute an assignee as
contributor in his place, & the terms &
conditions of the substitution;
(k) The right, if given, of partners to
admit additional limited partners;
(l) The right, if given, of one or more of
the limited partners to priority over other
limited partners, as to contributions or as
to compensation by way of income, & the
nature of such priority;
(m) The right, if given, of the remaining
general partner or partners to continue the
business on the death, retirement, civil
interdiction, insanity or insolvency of a
general partner; &,
(n) The right, if given, of a limited
partner to demand & receive property
other than cash in return for his
contribution.
(2) File for record the certificate in the
Office of the Securities & Exchange
Commission.
A limited partnership is formed if
there has been substantial compliance in
good faith w/ the foregoing requirements.
Art. 1852. Without prejudice to the
provisions of Article 1848, a person who
has contributed to the capital of a business
conducted by a person or partnership
erroneously believing that he has become
a limited partner in a limited partnership, is
not, by reason of his exercise of the rights
of a limited partner, a general partner w/
the person or in the partnership carrying on
the business, or bound by the obligations of
such person or partnership; provided that
on ascertaining the mistake he promptly
renounces his interest in the profits of the
business, or other compensation by way of
income.

Baviera: A limited partner may still be


given the right to intervene in the
articles & still have the limited
liability of a limited partner.

AGENCY
432

Art. 1883. If an agent acts in his own


name, the principal has no right of action
against the persons w/ whom the agent has
contracted;
neither have such persons
against the principal.
In such a case the agent is the one
directly bound in favor of the person w/
whom he has contracted, as if the transaction
were his own, except when the contract
involves things belonging to the principal.
The provisions of this article shall be
understood to be w/o prejudice to the actions
between the principal & the agent.

DE LEON:
KINDS OF PRINCIPAL:
1. Disclosed Principal - if at the time of the
transaction contracted by the agent, the
other party thereto has known that the agent
is acting for a principal & of a principals
identity. This is the usual type of agency.
2. Partially Disclosed Principal - if the other
party knows or has reason to know that the
agent is or may be acting for a principal but
is unaware of the principals identity. The
partially disclosed principal may enforce
against the third person the contract of the
agent like any disclosed principal. Similarly,
the third person has a right of action against
the principal.
3. Undisclosed Principal - if the party has
no notice of the fact that the agent is acting
as such for a principal.
Art. 1883 speaks of a case where the agent
(a) being authorized to act on behalf of the
principal, (b) acts instead on his own name:
GENERAL RULE: The agent is the one directly
liable to the person w/ whom he had
contracted as if the transaction were his own.
Reason for the Rule:
There is no
representation of the principal when the
agent acts in his own name. In effect, the
contractual relation is only between the
agent & the 3rd person.
Therefore, the
principal cannot have a right of action against
the third person nor vice-versa.
EXCEPTION:
When the contract involves
things belonging to the principal.

In this case, the contract is considered as


entered into between the principal & the
third person.
This exception is necessary for the
protection of the 3rd persons against
possible collusion between the agent & the
principal.
Baviera:
The general rule in this
article is based on the theory that
when the principal is undisclosed,
there is no privity of contract between
him & the third party. Hence, they
have no COA against each other.
As to the exception prov. for in
the article, the same is based on the
principals right of ownership over the
things w/c are the subject of the
contract.
But for the exception to
apply, it is required that the agent
must have acted w/in the scope of his
authority & the thing is owned by the
principal. In such a case, the nondisclosure of the principal constitutes
a mere technicality. He has a right to
vindicate his property right w/c he
was wrongfully deprived of under Art.
559.
Q: The agent (A) was authorized to
borrow money by the principal (P) but
the former borrowed in his own name
& did not turn over the proceeds to P.
Is P bound by the contract of loan?
A: No.
Q: Same facts, but this time, A gave
the money to P. P bound?
A: Still no.
The general rule is that to be
bound, the contract must have been
entered into in the name of the
principal & the agent must have acted
w/in the scope of his authority. In
such a case, the principal is bound
even if the agent misappropriates the
proceeds of the contract of loan or
does not turn over the same.

NFA VS. IAC 184 SCRA 166


Facts: Medalla, a commission agent of
Superior Shipping (SS), entered into a
contract w/ the NFA for the transportation
433

of the latters sacks of rice using the vessel of


SS, in his own name. NFA, despite a contrary
demand of SS, paid the freightage to Medalla.
As the company was not able to get the
payment fr. Medalla, an action was filed
against the latter & NFA.
Issue: Can NFA be held solidarily liable for
the payment of the freightage?

authorized to sell the same, whatever the


agent said or did to effect the sale is beside
the point. Bormaheco can only proceed
against Bengson (wrt the money). It was
Bormahecos omission w/c led Nicolas to
believe that the tractors belonged to
Bengson & thus made possible the
commission of fraud by the agent.

Held: YES. The exception in Art. 1883


applies. As the contract here in question
involved things belonging to the principal,
then SS as such undisclosed principal, can
bring an action vs. NFA despite the fact that
Medalla acted in his own name. The contract
is considered one entered into between the
principal & the third party (NFA).

Article 1927. An agency cannot be


revoked if a bilateral contract depends
upon it; or if it is the means of fulfilling an
obligation already contracted or if a partner
is appointed manager of a partnership in
the contract of partnership & his removal fr.
the management is unjustifiable.

Baviera: The exception under Art. 1883


applies in CAB as the agent was acting
w/in the scope of his authority.

Article 1930. The agency shall remain


in full force & effect even after the death of
the principal, if it has been constituted in
the common interest of the latter & of the
agent, or in the interest of a third person
who has accepted the stipulation in his
favor.

NICOLAS VS. BORMAHECO 70 O.G. NO.


20 P. 3971
Facts: Bengson transferred to BORMAHECO
3 tractors by virtue of a pacto de retro sale.
As no redemption was made, ownership was
consolidated in Bormaheco.
Later, upon
Bengsons
request,
Bormahecos
VP
Cervantes allowed the former to try to sell
the tractors to other persons. Petr Nicolas ,
who was in need of a tractor asked to see the
tractors Bengson was selling.
After
inspection, the same was bought by N who
paid Bengson P12T therefor.
Bormaheco
learned of such payment to Bengson &
refused to deliver the tractor until N paid it
P10T. Hence, this action by N for recovery of
personal property w/ damages.
Held: Under the exception of Art. 1883, the
representation of Bengson as to the
ownership
of
the
tractor
yields
to
Bormahecos being the true owner thereof, &
that, in reality & effect, the Deed of sale must
be considered as having been entered into
between N & Bormaheco.
The fact that
Benson sold the tractor as owner thereof &
that he personally executed the Deed of Sale
may only be violations of his authority to sell
it. The question is not what representation
he made &/or what he did to sell it, but what
property he sold. If the property he sold
belonged to the principal & he was

Baviera:
If the agency falls under
these articles, then it falls under the
category of contract as the same is
bilateral.
As a general rule, the
agency is constituted for the benefit
of the principal so he has the power
to revoke the same although he must
give notice to third persons.

DELA RAMA V. TAN


FACTS:
In 1940, P obtained a loan of
75 M fr. G to purchase vessels. But these
vessels were turned over to the US
Maritime Comm. for war service in 1941.
Thereafter P secured an option w/ the
Supreme Commander of the Allied Forces
to have 3 vessels constructed in Japan at
favorable prices. G thru the NDC, extended
aid to P. Bur DRS in turn assigned its right
to purchase the vessels to NDC. dRS,
under said contract, also bound itself to
give
technical
assistance
in
the
construction & maintenance of the vessels.
The K of mgt & operation also granted P an
option to purchase the vessels after 5
years but NDC after 2 years may cancel in
a years notice the general agency if it
finds the situation unsatisfactory. In case
434

of such cancellation, P would have no option


to buy. Now, before the end of the 5 years
but after 2 years into the K, P decide to
exercise its option to buy. The NDC denied
the same & canceled the contract. P sued.
HELD: The agreement is an agency coupled
w/ an interest as P transferred its right to
purchase the vessels to NDC & furnished
technical advice in the construction &
outfitting of the vessels. But the interest is
limited to 2 years. After the 2 years, the
agency became a simple agency for a fixed
term as it was no longer a contract imposing
reciprocal obligations. With regard to the
exercise of the option by P, the same was
premature.
Besides, even if its was not
premature, the offer by P was not accepted
by NDC.
Baviera: The agency is irrevocable for
the first two years as the same was
instituted for the benefit of both the
principal & agent.

PEREZ V. PNB
FACTS: On August 29, 1939, Vicente Perez
mortgaged Lot No. 286-E of the Kabankalan
Cadastre to the appellant Philippine National
Bank, Bacolod Branch, in order to secure
payment of a loan of P2,500. On October 7,
1942, Vicente Perez, mortgagor, died
intestate, survived by his widow & children
(appellees herein). At that time, there was an
outstanding balance of P1,917.00, &
corresponding interest, on the mortgage
indebtedness.
On October 18, 1956, the widow of
Perez instituted Special Proceedings No. 512
of the Court of First Instance of Occidental
Negros for the settlement of the estate of
Vicente Perez. The widow was appointed
Administratrix & notice to creditors was duly
published. The Bank did not file a claim. The
project of partition was submitted on July 18,
1956; it was approved & the properties
distributed accordingly. Special Proceedings
No. 512 was then closed.
On January 2, 1963, the Bank,
pursuant to authority granted it in the
mortgage deed, caused the mortgaged
properties to be extrajudicially foreclosed.
The Provincial Sheriff accordingly sold Lot No.
286-E at auction, & it was purchased by the
Bank. In the ordinary course after the lapse of
the year of redemption, Certificate of Title No.

T-29530 in the name of Vicente Perez was


cancelled, & Certificate T-32066, dated May
11, 1962, was issued in the name of the
Bank. The widow & heirs were not notified.
Three months later, on August 15,
1962, the widow & heirs of Vicente Perez
instituted this case against the Bank in the
court below, seeking to annul the extrajudicial foreclosure sale & the transfer of
the Certificate of Title.
HELD:
The
argument
that
foreclosure by the Bank under its power of
sale is barred upon death of the debtor,
bec. agency is extinguished by the death of
the principal, under Article 1732 of the Civil
Code of 1889 & Article 1919 of the Civil
Code of the Philippines, neglects to take
into account that The power to foreclose is
not an ordinary agency that contemplates
exclusively the representation of the
principal by the agent but is primarily an
authority conferred upon the mortgagee for
the latter's own protection. It is, in fact, an
ancillary stipulation supported by the same
causa or consideration for the mortgage &
forms an essential & inseparable part of
that bilateral agreement. As can be seen in
the preceding quotations fr. Pasno vs.
Ravina, 54 Phil. 382, both the majority &
the dissenting opinions conceded that the
power to foreclose extrajudicially survived
the death of the mortgagor, even under the
law prior to the Civil Code of the Philippines
now in force.

Baviera: This is a case of an


irrevocable agency in the sense that
the same was instituted for the
benefit of both the principal & the
agent. Also, it is a means of fulfilling
the obligation already contracted.

PHIL-AM V. RAMOS
FACTS:
Associated Reclamation &
Development Corporation executed on
March 29, 1961 a promissory note for
P11,765.00 in favor of General Acceptance
& Finance Corporation. Philippine American
General Insurance Co., Inc., on the same
date, executed a surety bond in the
amount of P11,765.00 to secure payment
of the aforementioned promissory note.
Subsequently, on April 5, 1961, the
spouses Eugenio Ramos & Pilar Miranda
435

signed a counter-guaranty agreement w/ real


estate mortgage, in favor of Philippine
American General Insurance Co., Inc., against
its liability under the surety bond. The next
day, April 6, 1961, the Ramos spouses &
Associated Reclamation & Development
Corporation
executed
an
indemnity
agreement in favor of Philippine American
General Insurance Co., Inc., thereunder
binding themselves "jointly & severally" to
indemnify the Philippine American General
Insurance Co., Inc., for whatever it may suffer
under its aforesaid surety bond.
Philippine American General Insurance
Co., Inc., on November 3, 1961, filed a
complaint in the Court of First Instance of
Bataan against the Ramos spouses. Plaintiff
alleged that Associated Reclamation &
Development Corporation failed to pay its
obligation under the promissory note, as a
result of w/c plaintiff paid its liability under its
surety bond. Defendants on January 26, 1962
filed a motion to dismiss, asserting that the
complaint stated no cause of action. It was
contended that under the Agreement of
Counter-Guaranty w/ Real Estate Mortgage,
the defendants were guarantors only so that
plaintiff must first exhaust the properties of
the principal debtor, Associated Reclamation
&
Development
Corporation,
before
proceeding against defendants.
HELD:
Schedule B, the indemnity
agreement, reads in part as follows:
KNOW ALL MEN BY THESE PRESENTS, THAT,
We,
the
undersigned
ASSOCIATED
RECLAMATION & DEVELOPMENT CORP.
represented by its President, Antonio R.
Banzon; & Eugenio B. Ramos & P. Miranda,
jointly & severally bind ourselves unto the
PHILIPPINE AMERICAN GENERAL INSURANCE
COMPANY, INC., a corporation duly organized
& existing under & by virtue of the laws of
the Philippines, w/ head office at Manila,
Philippines, hereinafter called the COMPANY,
in the consideration of it having become
SURETY upon a bond in the sum of Pesos
ELEVEN THOUSAND SEVEN HUNDRED SIXTYFIVE . . . (P11,765.00), Philippine Currency, in
favor of GENERAL ACCEPTANCE & FINANCING
CORPORATION in behalf of ASSOCIATED
RECLAMATION
&
DEVELOPMENT
CORPORATION . . . subject to the following
terms & conditions:
INDEMNITY: The undersigned agree at all
times to jointly & severally indemnify the

COMPANY & keep it indemnified & hold &


save it harmless fr. & against any & all
damages, losses, costs, stamps, taxes,
penalties,
charges
&
expenses
of
whatsoever kind & nature w/c the
COMPANY shall or may at any time sustain
or incur in consequence of having become
surety upon the bond hereinabove referred
to . . . .
xxx
xxx
xxx
OUR LIABILITY THEREUNDER: It shall not
be necessary for the COMPANY to bring
suit against the principal upon his default,
or exhaust the property of the principal,
but the liability hereunder of the
undersigned indemnitors shall be jointly &
severally, a primary one, the same as that
of the principal, & shall be eligible
immediately upon the occurrence of such
default.
It is clear fr. the foregoing that the
amended complaint sufficiently states a
cause of action against defendants. For the
creditor may proceed against any one of
the solidary debtors or some or all of them
simultaneously (Art. 1216, New Civil Code).
It should not be overlooked, also, that the
above-quoted indemnity agreement could
not have been modified by Schedule C, the
counter-guaranty agreement, since the
former was executed one day after the
latter.
Finally, even under Schedule C, the
defendants as counter-guarantors are not
entitled to demand exhaustion of the
properties of the principal debtor. For
Schedule C is a counter-guaranty w/ real
estate mortgage. It is accepted that
guarantors have no right to demand
exhaustion of the properties of the principal
debtor, under Article 2058 of the New Civil
Code, where a pledge or mortgage has
been given as a special security
BANSON V. CRUZ
FACTS:
Sta. Maria ----- debtors of PNB
Associated ------- acted as surety for Sta.
Maria
Banzon & Naval -- indemnitors of
Associated
FIRST ACTION: Associated v. Sta. Maria,
Banzon & Naval
436

Judgment was for 3 defendants to pay


jointly & severally Associated for the benefit
of PNB
SECOND ACTION: PNB v. Sta. Maria & Assoc.
Judgment in favor of PNB but debt was
collected directly fr. Sta. Maria, the principal
debtor, w/o Assoc. contributing anything at
all.
Payment to PNB prompted latter to
discharge Assoc.
THIRD ACTION:
Banzon v. Cardenas for
reconveyance of levied properties of the
former.
Sometime in 1952, Maximo Sta. Maria
obtained crop loans fr. the Philippine National
Bank (hereinafter referred as the bank).
Respondent Associated Insurance & Surety
Co., Inc. (hereinafter referred to as
Associated) acted as surety of Sta. Maria,
filing surety bonds in favor of the bank to
answer for prompt repayment of the loans.
Petitioner Antonio R. Banzon & Emilio Ma.
Naval in turn acted as indemnitors of
Associated & were obligated to indemnify &
hold harmless Associated fr. any liability thus
acting as surety of the loan. Sta. Maria failed
to pay his obligations to the bank, w/c
accordingly
demanded
payment
fr.
Associated as surety.
Instead
of
paying
the
bank,
Associated filed a complaint dated November
19, 1956 w/ the Court of First Instance of
Manila 1 against debtor Sta. Maria &
indemnitors Banzon & Naval, alleging that
the outstanding obligations of Sta. Maria w/
the bank guaranteed by it amounted to
P6,100.00, P9,346.44 & P14,811.32, or a total
of P30,257.86, excluding interest. On
December 11, 1957, the said court rendered
judgment ordering Sta. Maria, Banzon &
Naval "to pay jointly & severally unto plaintiff
for the benefit of the Philippine National
Bank" the amounts mentioned above, w/
interest thereon at 12% per annum, P593.76
for premiums & documentary stamps due, &
15% attorney's fees, "the 15% & the interest
to be paid for the benefit only of the plaintiff."
The Rizal court ordered Banzon to
surrender for cancellation his owner's
duplicates of titles to his two Caloocan City
lots w/c had been levied upon & purchased at
the execution sale by Associated in supposed
satisfaction of the Manila court's judgment.
As the above decision became final &
executory,
the
corresponding
writ
of
execution was issued & levy was made upon

the properties of the judgment debtor


Antonio R. Banzon. After the proceedings
required by law in connection w/ execution
sales, the aforesaid properties were sold,
the
judgment
creditor,
Associated
Insurance & Surety Co., Inc., having been
the highest bidder. As the period of
redemption expired on June 20, 1960 w/o
the judgment debtor or any proper party
having exercised it, the judgment creditor
& purchaser obtained in due time the
corresponding final certificate of sale, w/c
was likewise duly registered.
Despite the judgment, Assoc. never
discharged its liability to the bank & relieve
Sta. Maria. Not receiving any payment,
PNB sued the debtor Sta. Maria & Assoc.
PNB collected fr. the debtor directly w/o the
surety giving any amount at all.
PNB
released Assoc bec. of the payment made
by Sta. Maria.
Assoc
was obligated
to the
Cardenas spouses. To satisfy its obligation,
the former allowed the latter to levy on 2
parcels of land owned by Banzons.
Cardenas sought a writ of possession.
Banzon filed this action for reconveyance of
the properties since Assoc was already
released fr. liability.
HELD: The suit of Associated against
Banzon as indemnitor & the execution
against him of the judgment obtained in
trust "for the benefit of the Philippine
National Bank" were absolutely premature
& uncalled for, since Article 2071 of the
Civil Code permits the surety, even before
having paid, to proceed only "against the
principal debtor ... (4) when the debt has
become demandable, by reason of the
expiration of the period for payment" &
that "the action of the guarantor is to
obtain release fr. the guaranty, or to
demand a security that shall protect him fr.
any proceedings by the creditor & fr. the
danger of insolvency of the debtor."
Article 2071 of the Civil Code
permits the surety to file such an advance
suit against the principal debtor (not
against an indemnitor such as Banzon) only
to obtain release fr. the guaranty or
security against the danger of the debtor's
insolvency. Where the debtor directly
discharged his loan obligation to the bank
w/c in turn released Associated fr. its
suretyship liability w/o Associated having
437

incurred a centavo of liability, it is


indisputable that Associated in turn would
necessarily release Banzon as indemnitor &
the basic 1957 judgment would be inoperable
& unenforceable against Banzon.
When
Associated
nevertheless
prematurely & contrary to the intent &
condition of the basic 1957 judgment levied
in execution on the two Caloocan City lots of
Banzon the interest it acquired was clearly
impressed w/ a trust character. Such
acquisition of Banzon's properties by
Associated was effected, if not through fraud
23a on Associated's part, certainly through
mistake 23b & there Associated was "by force
of law, considered a trustee of implied trust
for the benefit of the person fr. whom the
property comes" by virtue of Article 1456 of
the Code since Associated not having paid
nor having been compelled to pay the bank
had no right in law or equity to so execute
the judgment against Banzon as indemnitor.
Had there been no fraudulent concealment or
suppression of the fact of such non-payment
by Associated or a mistaken notion just
assumed w/o factual basis that Associated
had paid the bank & was thus entitled to
enforce its judgement against Banzon as
indemnitor, the writ for execution of the
judgment against Banzon's properties would
not been issued.
Furthermore, Associateds conduct, upon
being sued by the Philippine national bank
directly w/ the principal debtor sta. Maria for
collection of the debt 23e & sentenced by the
Pampanga court of first instance in 1963 (w/c
it did not appeal) to pay the debt in the much
lesser amount of only p15,446.44, excluding
interests, in not so discharging its liability
notw/standing that it had already executed
its 1957 judgment against Banzon as
indemnitor & taken in execution Banzons two
properties, was indeed rank fraud. Associated
therefore stands legally bound by force of law
to now discharge its implied trust & return
Banzons properties to him as their true &
rightful owner.
The
obligation
imposed
upon
associated as implied trustee to so restore
Banzons properties becomes even more
compelling when it is considered that in the
premature execution sale by virtue of the
basic 1957 judgment, associated ostensibly
was the highest bidder therefor applying its
purported judgment credit of p41,000.00
when in law such judgment was not subject
to execution since the condition of associated
as surety being made to pay the bank to

make the judgment operable & enforceable


had not materialized & in fact associated
not having paid anything to the bank did
not possess such purported judgment
credit of P41,000.00, nor did it put out a
single centavo for w/c it could hold Banzon
answerable & therefore take Banzons
properties in execution & satisfaction
thereof. Actually, as already indicated
above, the principal debt of the bank's
debtor, when directly collected by the bank
six (6) years later, amounted merely to 1/2
the amount or p15,446.44 as of august,
1963, excluding interests. As already
stated above, associated did not pay even
this much lesser amount, notw/standing
the Pampanga court's judgment against it
in the suit directly filed by the bank.
Finally, it would be an outrage on
simple
justice
&
iniquitous
unjust
enrichment if a surety such as associated,
after taking title in execution to the
indemnitor's properties in order to protect
or reimburse itself fr. liability to the creditor
for the debt guaranteed by it, were to be
allowed to retain ownership of the
properties even though it did not incur or
discharge its liability at all, since it
succeeded in evading payment to the
creditor who thereafter collect the debt
directly fr. the debtor. Thus, the law (article
1456, civil code) impresses properties thus
acquired w/ trust character & constitutes
the erring surety as "trustee of an implied
trust for the benefit of the person fr. who
the property comes," in this case, Banzon
as the true & rightful owner of the
properties.
As was emphasized by Mr. Justice
Reyes for the Court in General Indemnity
Co., Inc. vs. Alvarez, while a guarantor
may under Article 2071 of the Civil Code
proceed against the principal debtor, even
before having paid, when the debt has
become demandable, "(T)he last paragraph
of this same article, however, provides that
in such instance, the only action the
guarantor can file against the debtor is 'to
obtain release fr. the guaranty, or to
demand a security that shall protect him fr.
any proceeding by the creditor & fr. the
danger of insolvency of the debtor.' An
action by the guarantor against the
principal debtor for payment, before the
former has paid the creditor, is premature."

438

Article 1927.
An agency cannot be
revoked if a bilateral contract depends upon
it; or if it is the means of fulfilling an
obligation already contracted or if a partner is
appointed manager of a partnership in the
contract of partnership & his removal fr. the
management is unjustifiable.
Article 1930. The agency shall remain in
full force & effect even after the death of the
principal, if it has been constituted in the
common interest of the latter & of the agent,
or in the interest of a third person who has
accepted the stipulation in his favor.

Baviera: If the agency falls under these


articles, then it falls under the category
of contract as the same is bilateral. As
a general rule, the agency is constituted
for the benefit of the principal so he has
the power to revoke the same although
he must give notice to third persons.

CHATTEL MORTGAGE LAW


PNB V. MANILA INVESTMENT
Facts: In a civil case, PNB was the judgment
creditor & defendant co. was judgment
debtor. Def. was ordered to pay PNB & in case
of non-payment, personal properties of Def.
covered by a chattel mortgage in favor of
PNB should be sold at public auction. Instead
of sale in a public auction, parties agreed to
have them sold & were in fact sold at a
private sale. The net proceeds were applied
to partial satisfaction of judgment. More than
5 years but less than 10 years fr. the date
when the decision became executory, PNB
filed in same court an action to revive
judgment. Def claims that the private sale
was null & void & that PNB was not entitled to
a deficiency judgment.
HELD: While the decision in the CPI was for
the sale of the mortgaged properties in a
public auction, there is nothing illegal or
against public policy in the agreement of
resorting to private sale w/c was entered into
freely & voluntarily. As held in the PNB v. de
Poli, under Art. 1306 of the NCC, the
contracting parties may stipulate that in case
of violation of the conditions of the mortgage
contract, a creditor may sell, at a public sale

& w/o previous advertisement or notice the


whole or part of the goods mortgaged for
the purposed of applying the proceeds
thereof on the payment of the debt. Said
stipulation is valid. As the disposition of the
mortgaged personalities in a private sale
was by agreement of the parties, it is clear
that they are now estopped to question it
except on the ground of duress, w/c they
failed to invoke.
It is clear that fr. Art. 2141 that the
provisions of the NCC on pledge shall apply
to a chattel mortgage only in so far as they
are not counter to any provision of the
Chattel Mortgage Law, otherwise the
provisions of the latter shall apply. The
provisions of the CM Law w/ regard to the
effects of the foreclosure of a chattel
mortgage, are precisely contrary to the
provisions of Art. 2115 w/c were applied by
the trial court. In case of a sale under a
foreclosure of a chattel mortgage, there is
no question that the mortgagee or creditor
may maintain an action or the deficiency, if
any should occur. And the fact that Act. No.
1508 permits a private sale, such sale is
not in fact, a satisfaction of the debt to any
greater extent than the value of the
property at the time of sale. The amount
received at the time of sale is only a
payment pro tanto, & an action may be
maintained for a deficiency in the debt.
ABIZA V. IGNACIO
Facts:
Def. borrowed fr. Pf a certain
amount of money, payable in 30 days. To
secure the loan, def. executed a chattel
mortgage on an Oldsmobile car. He failed
to pay on maturity, so Pf extrajudicially
foreclosed the property & sold it at public
auction. There was still a balance
remaining so Pf instituted present action.
TC dismissed the case on the ground that
under Art. 2141 on the law of pledge, the
sale of the thing pledged shall extinguish
the principal obligation, whether or not the
proceeds of the sale are more or less than
the amount due.
HELD: Pf can still collect the deficiency. It
is clear fr. Art. 2141 that the provision of
the NCC on pledge shall apply to chattel
mortgage ONLY insofar as they are not in
conflict w/ the CM Law. Here, we find the
CML w/ regard to the effects of foreclosure
precisely contrary to the provisions on
439

pledge. Sec 14 of the CML provides that xxx


the proceeds of such sale shall be applied to
the payment first, of the cost & expenses of
keeping & sale & then to the payment of the
demand or obligation secured by such
mortgage, & the residue shall be paid to the
persons holding subsequent mortgages in
that order & the balance, after paying that
mortgage shall be paid to the mortgagor or
person holding under him on demand. The TC
overlooked the fact that the chattels included
in the chattel mortgage are only given to as a
security & not as payment of the debt, in
case of failure of payment.

a public instrument is merely for the


purpose of binding third persons.

Please note this: (stated in the


decision)
Mr. Justice Kent have said that in case
of a sale under a foreclosure of chattel
mortgage, there is no question that a
mortgagee or a creditor may maintain for the
deficiency, if any should occur. And the fact
that this Act No. 1508 permits a private sale,
such sale is not in fact satisfaction of the
debt, to any greater extent than the value of
the property at the time of the sale. The
amount received at the time of sale, of
course, always requiring good faith & honest
in the sale is only a payment, pro tanto & any
action may be maintained for a deficiency of
the debt.

ART. 2035. No compromise upon the


ff. questions shall be valid:
The civil status of persons
The validity of a marriage or a legal
separation
Any ground for legal separation
Future support
The jurisdiction of courts
Future legitime

In CM, if the price of the sale in case of a


foreclosure is less than the amount of the
principal obligation, the creditor is entitled
to recover deficiency fr. the debtor,
whereas in pledge, the creditor is not
entitled to recover such deficiency.
COMPROMISE

ART. 2037. A compromise has upon the


parties the effect & authority of res judicata
but there shall be no execution except in
compliance w/ a judicial compromise.

Baviera:
The compromise must be
judicially approved.

Jurado:
Q: What is a chattel mortgage?
A: By a chattel mortgage, personal property
is recorded in the Chattel Mortgage Register
as a security for the performance of an
obligation. If the movable, instead of being
recorded, is delivered to the creditor or a
third person, the contract is a pledge & not a
chattel mortgage.
Distinguish between
chattel mortgage &
pledge.

The procedure for the foreclosure of a CM is


different fr. the procedure for the sale at
public auction of the thing pledged.

a
a

contract
contract

of
of

Chattel mortgage is a consensual contract,


whereas pledge is a real contract.
In CM, the possession of the thing mortgaged
remains w/ the debtor, whereas in pledge,
the possession of the thing pledged is vested
in the creditor.
In CM, the requirement that the contract
must be recorded in the CM register is
essential for validity, whereas in the pledge,
the requirement that the contract must be in

ART. 2041. If one of the parties fails or


refuses to abide by the compromise, the
other party may either enforce the
compromise or regard it as rescinded &
insist upon his original demand.

SAMONTE V. SAMONTE
Facts: Spouses Faustino & Bernardina
Samonte have 6 children. During their
marriage,
they
acquired
properties
consisting of 3 parcels of land. Wife died, &
the husband continued to administer the
conjugal properties fr. w/c income, Faustino
entered into long term leases of first class
fishponds in Bulacan. Later, F married
again w/o first liquidating the conjugal
properties of the first marriage & the
income
therefr..
Pltfs-the
children,
requested their father & the 2nd wife to
440

account, partition & settle what is due to


them, out of the properties brought by
products fr. the leased fishponds. Upon Fs
refusal, a complaint for issuance of
preliminary injunction was commenced. On
9/15/67, the parties assigned & executed a
compromise agreement w/c settled their
respective claims over the properties in
litigation, including the leased fishponds. The
agreement was approved by the court on
9/19/67. On 3/14/68 former pltfs filed a
motion
to
suspend
the
compromise
agreement & to maintain the status quo,
alleging that due to the misrepresentation of
their father & his 2nd wife, they were deprived
of the benefits & enjoyment of the leased
fishponds for 2 years. TC denied, Ps
appealed.
Held: AFFIRMED. It is now a well-established
doctrine that a judgment of the Court
approving a compromise agreement is final &
immediately executory. The reason for this is
that the parties, when they agree to settle
their differences to end a litigation & request
the court to render judgment on the basis of
their agreement, impliedly waives their right
to appeal fr. the judgments. But there is an
exception to this rule.
A party to a
compromise agreement may move to set it
aside on the ground of fraud, mistake, or
duress in w/c case an appeal may be taken fr.
the order denying the motion. This judgment
may be set aside not under R37 but under
R38 of the Rules of Court (Petn for Relief). It
can safely be concluded that the 6 month
period w/in w/c Pltfs could file their motion to
set aside should have started fr. 9/16/67, the
date of approval. And since they filed the
motion only on 4/10/68 , they were not only
out of the 60-day period fr. knowledge of the
jmt but also beyond the 6 month limit fr. its
rendition.
Q. What is a contract of compromise ?
A. A compromise is a contract whereby
the parties, by making reciprocal
concessions, avoid a litigation or put an
end to one already commenced. (Art.
2028 NCC)

PREFERENCE OF CREDIT
Chapter. 2 CLASSIFICATION OF CREDIT

ART. 2241. With reference to specific


movable property of the debtor; the ff.
claims or liens shall be preferred:
Duties, taxes & fees due thereon to the
State or any subdivision thereof;
Claims arising fr. misappropriation,
breach of trust, or malfeasance by public
officials committed in the performance of
their duties, on the movables, money or
securities obtained by them;
Claims for the unpaid price of movables
sold, on said movables, so long as they are
in the possession of the debtor, up to the
value of the same; & if the movable has
been resold by the debtor & the price is still
unpaid, the lien may be enforced on the
price; this right is not lost by the
immobilization of the thing by destination,
provided it has not lost its form, substance
& identity; neither is the right lost by the
sale of the thing together w/ other property
for a lump sum, when the price thereof can
be determined proportionally;
Credits guaranteed w/ a pledge so long
as the things pledged are in the hands of
the creditor, or those guaranteed by a
chattel mortgage upon the things pledged
or mortgaged, up to the value thereof;
Credits
for
the
making,
repair,
safekeeping or the preservation of personal
property, on the movables thus made,
repaired, kept or possessed;
Claims for laborers wages on the goods
manufactured or work done;
For expenses of salvage; upon the
goods salvaged;
Credits between the landlord & the
tenant, arising fr. the contract of tenancy
on shares, on the shares of each in the
fruits or harvest;
Credits for the transportation, upon the
goods carried for the price of the contract
& incidental expenses, until their delivery &
for 30 days thereafter;
Credits for the lodging & supplies
usually furnished to travelers by hotel
keepers, on the movables belonging to the
guests as long as such movables are in the
hotel, but not for the money loaned to the
guests;
Credits for seeds & expenses for
cultivation & harvest advanced to the
debtor, upon the fruits harvested;
Credits for rent for one year, upon the
personal property of the lessee existing
upon the immovable leased & on the fruits
441

of the same, but not on money & instruments


of credit;
Claims in favor of the depositor if the
depositary has wrongfully sold the thing
deposited, upon the price of the sale.
In the foregoing cases, if the movables to
w/c the lien or preference attaches have been
wrongfully taken, the creditor may demand
them fr. any possessor, w/in 30 days fr. the
unlawful seizure.

Baviera: The enumeration of liens under


this article w/ the exception of no. 1
should be satisfied pro rata.
In the case of no. 3, the vendor
loses his right when the thing is
already pledged to a third person as
possession is no longer w/ the buyer.
The same applies in case of chattel
mortgage, as constructive possession
passes to the mortgagee.

ART. 2242
With reference to specific
immovable property & real rights of the
debtor, the following claims, mortgages, &
liens shall be preferred, & shall constitute an
encumbrance on the immovable or real right;
Taxes due upon the land or building;
For the unpaid price of the real property
sold, upon the immovable sold;
Claims of laborers, masons, mechanics &
other workmen, as well as of architects,
engineers & contractors, engaged in
construction, reconstruction & repair of the
building, canals or other works, upon said
buildings, canals or other works;
Claims of furnishers of materials used in
the construction, reconstruction, or repair of
buildings, canals or other works upon said
buildings, canals or other works;
Mortgage credits recorded in the Registry
of property, upon the real estate mortgage;
Expenses for
the
preservation
or
improvement of real property when the law
authorizes reimbursement , upon the
immovable preserved or improved;
Credits annotated in the Registry of
Property, in virtue of a judicial order, by
attachment or executions, upon the property
affected, & only as to later credits;
Claims of co-heirs for warranty in the
partition of an immovable among them, upon
the real property thus divided;

Claims of donors of real property for


pecuniary charges or other conditions
imposed upon the donee upon the
immovable donated;
Credits of insurers, upon the property
insured, for the insurance premium for two
years.

Baviera: Ma'am said that under 2241


& 2242, there is no need for
insolvency proceedings. The SC erred
in ruling thus. Under this article, what
is the use of the 1st, 2nd & 3rd
mortgages on the property when the
debts will be satisfied pro rata
regardless of dates.

ART. 2243.
The claims or credits
enumerated in the two preceding articles
shall be considered as mortgages or
pledges of real or personal property or liens
w/in the purview of legal provisions
governing insolvency. Taxes mentioned in
No. 1, article 2241, & No.1, article 2242,
shall first be satisfied.
ART. 2244.
With reference to other
property, real & personal of the debtor, the
following claims or credits shall be
preferred IN THE ORDER NAMED:
Proper funeral expenses for the debtor,
or children under his or her parental
authority who have no property of their
own, when approved by the court;
Credits for services rendered the
insolvent by employees, laborers, or
household helpers for one year preceding
the commencement of the proceedings in
insolvency;
Expenses during the last illness of the
debtor or of his or her spouse & children
under his or her parental authority, if they
have no property of their own;
Compensation due the laborers or their
dependents under laws providing for
indemnity for damages in cases of labor
accident or illness resulting fr. the nature of
the employment;
Credits & advancements made to the
debtor for support of himself or herself &
family during the last year preceding the
insolvency;
Support
during
the
insolvency
proceedings & for three months thereafter;
442

Fines & civil indemnification arising fr. a


criminal offense;
Legal expenses & expenses incurred in
the administration of the insolvents estate
for the common interest of the creditors,
when properly authorized & approved by the
court;
Taxes & assessments due the national
government, other than those referred to in
articles 2241, No.1 & 2242 No.1;
Taxes & assessments due any province,
other than those referred to in articles 2241,
No.1 & 2242, No.1;
Taxes & assessments due any city or
municipality, other than those referred to in
articles 2241, No.1 & 2242, No.1;
Damages for death or personal injuries
caused by a quasi-delict;
Gifts due to public & private institutions of
charity or beneficence;
Credits w/c, w/o special privilege, appear
in a) a public instrument; or b) in a final
judgment, if they have been the subject of
litigation. These credits shall have preference
among themselves in the order or priority of
the dates of the instruments & of the
judgments, respectively.

Baviera: Under this article, there must


be actual insolvency proceedings & the
debts shall be satisfied in order of
preference, not pro rata. Sabi nga ni
Ma'am, kailangan ilibing muna bago
magbayad ng buwis. Judgment in no.
14 refers to judgment arising fr. any
breach of contract & not those awarded
in no. 12, i.e. damages from QD &
crimes.

Chapter 3 ORDER OF PREFERENCE OF


CREDITS
ART. 2245.
Those credits w/c enjoy
preference w/ respect to specific movables,
exclude all others to the extent of the value
of the personal property to w/c the
preference refers.
ART. 2247.
If there are two or more
credits w/ respect to the same specific
movable property, they shall be satisfied pro
rata, after the payment of duties, taxes &
fees due the State or any subdivision thereof.

ART. 2248.
Those credits w/c enjoy
preference in relation to specific real
property or real rights, exclude all others to
the extent of the value of the immovable or
real right to w/c the preference refers.
Art. 2249.
If there are two or more
credits w/ respect to the same specific real
property or real rights, they shall be
satisfied pro rata, after the payment of the
taxes & assessments upon the immovable
property or real right.
ART. 2250. The excess, if any, after the
payment of the credits w/c enjoy
preference w/ respect to specific property,
real or personal, shall be added to the free
property w/c the debtor may have, for the
payment of the other credits.
ART. 2251.
Those credits w/c do not
enjoy any preference w/ respect to specific
property & those w/c enjoy preference as
to the amount not paid, shall be satisfied
according to the following rules:
In the order established in article 2244;
Common credits referred to in article
2245 shall be paid pro rata regardless of
dates.

Mamay

Art. 110 (LABOR CODE) Worker


Preference in Case of Bankruptcy In the
event of bankruptcy of liquidation of an
ERs business, his workers shall enjoy first
preference as regards their wages & other
monetary claims, any provision of the law
to the contrary not w/standing.
Such
unpaid wages & monetary claims shall be
paid in full before claims of the govt &
other creditors may be paid.

Baviera:
This
applies
only
employers engaged in business.

to

CARRIED LUMBER V. ACCFA


Facts: Facoma purchased on credit fr.
Carried Lumber Co. (CLC) lumber &
materials
used
in
constructing
its
warehouse. ACCFA has earlier approved
Facomas loan of P 27,200 for the
443

construxn & as security, the lease rts,


warehoused & ricemill bldg. Were mortgaged
in ACCFAs favor. Facoma failed to pay CLC,
& the latter secured a WOE over the lease
rts., warehouse & ricemill bldg. ACCFA filed a
3P claim bec. It acquired in a prior case v.
Facoma a cert. Of sale & possession over the
mortgaged property.
Issue: WON Facomas credit is preferred
Held: No. CLC & ACCFA have concurrent
liens over Facomas prop in the proportion of
their credits. The enumeration in Art. 2242 is
NOT an order of preference. The article lists
the credits w/c may concur w/ respect to
spec. real prop. & w/c wld. Be satisfied pro
rata accdg. To Art. 2249. No dispute that the
warehouse was constructed w/ materials
supplied by CLC & that the construxn was
financed by ACCFA. It is just & proper that
the 2 creditors shld. have pro rata shares in
that warehouse. ACCFA is entitled to deduct
fr. the earnings of the warehouse or its rental
value the taxes & nec. & useful expenses it
incurred. By reason of its lien, CLC has a pro
rata share in the net earnings or rental value
of the warehouse, as it supplied materials
only for the construction of the warehouse.
ACCFA has a mort. Lien on the ricemill bldg.
w/c it had foreclosed.

morts. or pledges of real or pers. prop. or


liens w/in the purview of legal provisions on
insolvency. It shld. be emphasized that
taxes, duties & fees due to the State or any
subd. thereof & taxes due upon the
insolvents land or bldgs. stand first in pref.
in respect of the past. mov. or immov. to
w/c the tax liens have attached.
The
claims listed in Nos. 2-3 Art. 2241 & Nos. 210 Art. 2242, all come after taxes in order
of pref. Such claims enjoy their privileged
char. as liens & may be paid only to the
extent that taxes have been paid fr. the
proceeds of the spec. prop. involved, &
only in respect of the remaining balance of
such proceeds. Moreover, these other Cts.,
although liens, are to be treated on an
equal basis & to be satisfied concurrently &
proportionately.
DBP V. NLRC
Facts: The workers of ATLAS are claiming
unpaid wages fr. the latter. Atlas, in turn,
has mortgaged some of its prop. to DBP
w/c acquired such thru a foreclosure sale.
The workers then filed their claim v. Atlas &
DBP w/c NLRC w/c held the workers have
preference over the prop. under Art. 110
LC.
Issue: WON Ees have lien over Ers prop

REPUBLIC V. PERALTA
Facts:
In the voluntary insolvency
proceedings of Qlty. Tobacco Corp., the ff.
Were the claims: (1) USTC Assn. EEs &
Workers Union for separation pay, (2) Fed. De
la Industria (labor union also) for sepn pay,
(3) B of Customs claims &, (4) BIR claims.
Issue: WON Ees claims preferred
Held: Wages under Art. 110 LC may be
regarded to include severance/termination/
separation pay.
The latter is addl
remuneration to w/c Ees become entitled, to.
Art. 100 LC has to be viewed in rel. to the
Civil Code as to preference of credits. The CC
provisions classify credits v. a particular
insolvent into 3 gen. Categories: (1) spec.
preferred Cts in 2241 & 2242, (2) ord.
preferred Cts in2244 & (3) common Cts in
2245. Special pref. Cts constitutes a lien or
encumbrance on the spec. mov. or immov.
prop. to w/c they relate. Art 2243 makes it
clear that these Cts shall be considered

Held: No lien in favor of workers over the


Ers prop. Claims for unpaid wages do not
fall at all w/in the category of spec. pref.
claims est. under Arts. 2241 & 2242 cc. A
distinction shld. be made bet. a preference
of Ct & a lien. A pref. applies only to claims
w/c do not attach to spec. prop. A lien
creates a charge on a part. prop. The rt. of
1st pref. as regards unpd. wages under Art.
110 LC does NOT constitute a lien over the
prop over the insolvent debtor. It is but a
preference o Ct in the workers favor, a
pref. of applicn. It is a method adopted to
det. & specify the order in w/c Cts shld. be
paid in the final distn of the proceeds of
the insolvent assets. Monetary claims in
CAB are not involved in judicial proceeding
in rem in adjudication of Crs claims v.
debtors assets, nor such claims accrued
after effectivity of RA 6715 (amending Art.
110 LC) Hence, (1) Art. 110 LC must be
read in conjnxn w/ CC, (2) LC & CC require
judl proceedings in rem in adjudication of
Crs claims v. the debtors assets to
444

become operative, (3) RA 6715 expand


worker pref to inc. not only unpd. wages
but also the monetary claims of labors, to w/c
even govt claims must be deemed
subordinate, & (4) RA, w/c took effect 21 Mar
1989 has only prospective applicn.

445

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