Civ Golden Notes

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CIVIL LAW NOTES ADVISER:

7. Tax laws
CIVIL CODE OF THE PHILIPPINES 8. Remedial/procedural
(RA 386, as amended) XPNS to the XPNS: constitutional limits, where
Aug. 30, 1950 retroactivity would result to: (IE)
PRELIMINARIES 1. Impairment of obligation of contracts
2. Ex Post Facto Laws
Effectivity of Laws
*In case of doubt: Prospective, not retroactive
PERIOD with respect to publication (Art.2)
Compliance with the Law
Q: When do laws take effect?
A: GR: Laws shall take effect after 15 days “Ignorance of the law excuses no one from
following the completion of its publication. compliance therewith.” (Art. 3)
XPN: unless otherwise provided (period is - Presumption is:
specified) CONCLUSIVE; not rebuttable
 “Unless it is otherwise provided” – 15-day - Basis:
period may be lengthened or shortened. Principle of Necessity and Expediency
 “after 15 days” – Law shall take effect on the - Applicable to:
16th day from date of publication Domestic Mandatory or Prohibitory laws
PUBLICATION Q: Is ignorance of a foreign law a mistake of law or

 Indispensable a mistake of fact?
 Purpose: to inform the public of the passage A: Mistake of fact.
of the law
 Must be in its entirety Note: Article 3 is a consequence of the
 Non-publication: violation of due process MANDATORY provision on publication
 Must be in a Newspaper of General
Q: Differentiate Mistake of Law from Mistake of
Circulation
Fact.
A: Mistake of Fact
Q: When is a Newspaper considered of General
- Want of knowledge of some fact or facts
Circulation?
constituting or relating to the subject matter in
A: When it is:
hand.
1. Published within the court’s
- When some facts which really exist are
jurisdiction
unknown or some fact is supposed to exist which
2. At regular intervals
really does not exist.
3. For the dissemination of local
- Good faith is an excuse
news or information
4. With bona fide subscription list
Mistake of Law
of paying subscribers
- Want of knowledge or acquaintance with the
5. Not devoted to the interest or
laws of the land insofar as they apply to the act,
published for entertainment of a particular
relation, duty, or matter under consideration.
class, profession, trade, calling, race, or
- Occurs when a person having full knowledge of
religious act.
the facts come to an erroneous conclusion as to
its legal effects
RETROACTIVITY
-Not excusable, even if in good faith
Q: What are the exceptions to the rule that Laws
have no retroactive effect?
Q: What is the rule with regard to Difficult Questions
A: The exceptions are:
of Law?
1.When Expressly provided.
A: – In specific instances provided by law, mistake
2.Penal laws favorable to the accused
as to difficult questions of law has been given the
provided, accused is not a habitual criminal
same effect as a mistake of fact
3. Interpretative Statutes
(e.g. Art. 526 (3) “Mistake upon a doubtful or
4. Curative Statutes
difficult question of law may be the basis of
5. Laws creating new Rights
good faith”)
6. Emergency Laws
2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE
Academics Committee Chairperson:
Civil Law Committee Chairperson:
Vice-Chairperson:
Members:
2
2007 Team Bar-Ops Civil Law Committee
Acts or Contracts Contrary to Law Q: What are the requisites of Implied repeal:
A:
Q: What are the exceptions to the rule that Acts or 1) Laws cover the same subject matter
Contracts which are contrary to mandatory or 2) Latter is repugnant to the earlier
prohibitory laws are void?
A: The exceptions are: When the law: Interpretation of Laws
1. Expressly validates or authorizes its validity
2. Makes the invalidity depend on the Will of the 1. Q: Explain the concept of Stare decisis (Art. 8)
injured party - Adherence to judicial precedents
3. Punishes it Criminally but validates the act - Once a question of law has been
4. Invalidates the act but recognizes the Legal examined and decided, it should be deemed
effects as flowing from the invalid act. settled and closed to further argument.
Waiver of Rights *Courts are required to follow the rule established

in earlier decisions of the Supreme Court.
Q: When can there be no waiver of rights? *This doctrine, however, however is not inflexible,
A: If waiver is: so that when in the light of changing conditions, a
1. contrary to law, public order, public policy, morals rule has ceased to be beneficial to the society,
or good customs courts may depart from it.
2. prejudicial to a third party with a right recognized
by law 2. Periods
Year – 365 days
*When the act is both a right and a duty, there can Month – 30 days
also be no waiver Day – 24 hours
Nighttime – from sunset to sunrise
Q: What are the requisites of a Valid Waiver of
Rights? *Month: if designated by its name: compute by the
A: The requisites are: number of days which it respectively has.
1. Waiving party must actually have the right he is *Week: 7 successive days regardless of which day
renouncing. it would start
2. He must have full capacity to make the waiver - When computed without reference to the
3. Waiver must be clear and unequivocal calendar: begins on Sunday; ends on Saturday
4. Waiver must not contrary to law, public order, *Exclude the first, include the last
public morals, etc.
5. When formalities are required, they must be 3. Q: When may Customs be applied to cases by
complied with. the courts?
A: Customs may be applied by the courts in cases
Repeal of Laws where there is:
1. silence
Q: What is the rule on repeal of repealing laws? 2. obscurity
A: It depends upon how the old law is repealed by 3. insufficiency
the repealing law. of the applicable law in a civil case and
provided said customs are not contrary to
IF the old law is Expressly repealed and Repealing law, public morals, etc.
law is repealed: the Old law is not revived
*In a criminal case, customs cannot be applied in
BUT IF the old law is Impliedly repealed and the above circumstances because nullum crimen
Repealing law is repealed: the Old law is revived. nulla poena sine lege.
Unless otherwise provided in both cases • Must be proved as a fact, according to the rules
on evidence.
Express Repeal: Law expressly provides for such
Implied Repeal: takes place when the provisions of 4. Q: What is the presumption in case there is
the subsequent law are incompatible or inconsistent Doubt in the interpretation or application of laws?
with those of the previous law
University of Santo Tomas

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A: That the lawmaking body intended right and *Lex Nationalii applies: National law of the person
justice to prevail (Art. 10) whose succession is under consideration
Applicability of Laws 4. Laws on forms and solemnities of contracts,

will and public documents
Q: What rule governs the ff. types of laws: A: GR: Lex loci celebrationis (Art 17)
1. PENAL Laws XPNS:
Penal laws and laws of public security/safety 1. Executed before Philippine diplomatic /
consular officials – Philippine laws
A: GR: Territoriality Rule (Art. 14) 2. Prohibitive laws which cannot be rendered
ineffective:
*Obligatory to all who live or sojourn in Ex. a. void marriages under Art 35, FC
Philippine Territory b. joint wills are never valid in the Phil.
XPN: Treaty stipulations, Public International Law

principles Q: What laws govern the making of wills?
A:
2. STATUS Laws 1. As to extrinsic validity (form) - Art 17
Laws relating to family rights and duties, status, 2. As to intrinsic validity (content) – Art 16
condition and legal capacity of persons
Q: Explain the following doctrines:
A: GR: Nationality Rule (Art. 15)
*Binding upon citizens of the Philippines, even Renvoi Doctrine
though living abroad. A: Remission: Where the conflict rules of the
XPN: 1. When a Filipino citizen and a foreigner is forum refer to a foreign law and the latter refers it
validly married and the alien spouse obtains divorce back to the forum, the internal law of the forum
decree abroad capacitating him/her to remarry, applies.
Filipino spouse is also capacitated to remarry under A: Transmission theory: If the foreign law refers it
Philippine law. (Art 26, FC); to a third country, the said country’s law governs.
2. Domiciliary rule applies to stateless
persons • Doctrine of Processual Presumption
A: The foreign law, whenever applicable, should be
Rules on Personal Law proved by the proponent thereof, otherwise, such
Basis for determining personal law of an individual law shall be presumed to be exactly the same as
the law of the forum.
DOMICILIARY RULE NATIONALITY RULE
Domicile Citizenship • Doctrine of Operative Facts
A: Acts done pursuant to a law which was
3. REAL Statutes subsequently declared unconstitutional remain
Laws on Property valid, BUT not when the acts are done after the
A: GR: Lex Rei Sitae (Art 16) declaration of unconstitutionality.
- Real property as well as personal property is
subject to the law of the country where it is
situated Q: What is the rule on Prohibitive Laws?
A: The General rule is that prohibitive laws
XPN: Testate/Intestate Succession as to 3 things concerning persons, their acts, or property and laws
only: which have for their object public order, public
1. Order of succession policy or good customs are not rendered ineffective
2. Amount of successional rights by laws, judgments promulgated or conventions
3. Intrinsic validity (testate only: this agreed upon in foreign country.
presupposes the existence of a will) An exception to this rule is Art 26, par. 2 of the
FC (on mixed marriages where the foreigner
obtained a divorce decree abroad and was thereby
Vice-Chairperson:
Members:
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capacitated to remarry) regarding the nationality would not be applied to a situation where there is a
principle or lex nationalii. valid marriage between two Filipino citizens, one of
whom thereafter is naturalized as a foreign citizen
Q: Cipriano and Lady married each other. Lady and obtains a valid divorce decree capacitating him
then left for the US and there, she obtained or her to remarry, as in this case. To rule otherwise
American citizenship. Cipriano later learned all would be to sanction absurdity and injustice.
about this including the fact that Lady Miros had
divorced him in America and that she had remarried **The clear legislative intent in the case of par. 2,
there. He then filed a petition for authority to Art. 26 of the FC is to avoid the absurd situation
remarry, invoking par. 2, Art. 26 of the FC. Is where the Filipino spouse remains married to the
Cipriano capacitated to re-marry by virtue of the alien spouse who, after obtaining a divorce, is no
divorce decree obtained by his Filipino spouse who longer married to the Filipino spouse. This is so
was later naturalized as an American citizen? notwithstanding that, on its face, the said provision
A: Yes. The reckoning point for Art. 26 par. 2 of the does not appear to govern the situation presented
FC to apply is not the citizenship of the parties at by the case at hand. (Republic v. Orbecido III,
the time of the celebration of their marriage but their 472 SCRA 114)
citizenship at the time that a valid divorce is
obtained abroad by the alien spouse capacitating Human Relations
him or her to re-marry. Although said provision only
provides for divorce obtained abroad by the foreign • Please refer to notes on Torts and
spouse in a valid mixed marriage, the legislative Damages
intent would be rendered nugatory if this provision
BOOK ONE
PERSONS AND FAMILY RELATIONS
PERSONS
CIVIL PERSONALITY
Article 37, NCC JURIDICAL CAPACITY CAPACITY TO ACT (CTA)
DEFINITION Fitness to be the subject of legal relations Power to do acts with legal effect
Inherent Through the fulfillment of specific legal

ACQUISITION
(co-exists with the natural person) activities
LOSS Only through death Through death and other causes

IN RELATION TO THE
Can exist without capacity to act Cannot exist w/o juridical capacity
OTHER
LIMITATION None Art. 38, Art. 39, among others
Q: What are the restrictions on CTA: Art. 38 - Personality begins at Birth; not at conception
A: Minority, Insanity, Imbecility, XPN: Presumptive / Temporary
State of being a Deaf-mute, Prodigality, Civil - The law considers the conceived child as
Interdiction born
PROVIDED:
Q: What are the Circumstances that Modify/Limit - Only for purposes Beneficial / Favorable to
CTA: Art. 39 it; and
A: Age, Insanity, Imbecility, Deaf-Mutism, Penalty, - It is born later in accordance with law.
Prodigality, Family Relations, Alienage, Absence,
Insolvency, Trusteeship. Q: Explain the meaning of the clause:
”Born later in accordance with law”,
A: A fetus with an intra-uterine life of:
NATURAL PERSONS (Art. 40-41, NCC) >less than 7 months: Must survive for at
least 24 hours after its COMPLETE delivery from
Q: How is PERSONALITY acquired? the maternal womb
A: GR: Actual / Permanent Personality

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>At least 7 months: If born alive: succeed each other, Rule 131, Sec. 3(jj) of the
considered born, even it dies within 24 hours after Rules of Court applies.
complete delivery. *Both are to be applied only in the absence of facts.
Q: Elated that her sister who had been married for

JURIDICAL PERSONS (Art. 44, NCC )
five years was pregnant for the first time, Alma
donated P100,000 to the unborn child.
Q: What are the diff. kinds of Juridical Persons?
Unfortunately, the baby died one hour after delivery.
A:
May Alma recover the P100,000 that she had
1. State and its political subdivisions – governed by
donated to said baby before it was born considering
the laws creating or recognizing them
that the baby died? Stated otherwise, is the
donation valid and binding? Explain.
2. Public Corporations, institutions and entities –
A: The donation is valid and binding, being an act
governed by the laws creating or recognizing them
favorable to the unborn child, but only if the baby
had an intra-uterine life of not less than seven
3.Private Corporations, partnerships and
months and provided there was due acceptance of
associations for private interest or purpose to which
the donation by the proper person representing said
the law grants juridical personality – private
child. If the child had less than seven months of
corporations are governed by BP 68 and
intra-uterine life, it is not deemed born since it died
partnerships and associations are governed by the
less than 24 hours following its delivery, in which
provisions of this Code concerning Partnerships.
case the donation never became effective since the
donee never became a person, birth being
Q: How does CIVIL PERSONALITY cease?
determinative of personality. (Bar Question, 1999)
A: It depends upon the classification of persons:
Natural persons: by Death
Q: How is Civil Personality extinguished?
Juridical persons: by Termination of Existence
A: GR: Death extinguishes civil personality
XPN: unless decedent leaves an estate (Art 43,
CITIZENSHIP AND DOMICILE
NCC)
Q: Explain the SURVIVORSHIP RULE in Civil Law. • Please refer to notes on Political Law
A: If in doubt as to who died first between 2 or more
persons CALLED TO SUCCEED EACH OTHER,
THE FAMILY CODE
- Burden of Proof: Whoever alleges the death of (Executive Order No. 209)
one prior to the other shall prove the same; August 3, 1988
- Absent such proof: I. MARRIAGE

Presumption: They all died at the same time.
There shall be NO TRANSMISSION OF Q: What is Marriage according to the Family Code?
SUCCESSIONAL RIGHTS. A: MARRIAGE is a special contract of permanent
union between a man and a woman entered into in
Q: What are the presumptions on survivorship? accordance with law for the establishment of
A: When two or more persons who are called to conjugal and family life. Its nature, consequences
succeed each other, die, they shall be presumed to and incidents are fixed by law and cannot be the
have died at the same time, subject to the following subject of stipulation
conditions:
REQUISITES of MARRIAGE
1. Parties are heirs to one another
2. No proof as to who died first
3. There is doubt as to who died first Q: What are the ESSENTIAL Requisites of
marriage: (CC) (Art. 2, FC)
Q: What rule would apply in case there is doubt as A: The essential requisites are:
to who died first? 1. Capacity of parties
A: Art. 43 applies when the parties are called to AGE – at least 18yrs
succeed each other. If the parties are not called to SEX – between male and female
LACK OF LEGAL IMPEDIMENTS
Vice-Chairperson:
Members:
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2. Consent freely given in the presence of Marriage License

solemnizing officer
Q: May the civil registrar refuse to issue a marriage
license because he/she knows of an impediment of
Q: What are the FORMAL Requisites: (Art.3, FC) one or both of the parties?
A: A: No. In case of any Impediment known to the civil
1. Marriage Ceremony registrar or brought to his attention, he shall note
2. Authority of solemnizing officer down the particulars thereof and his findings
3. Valid marriage License thereon in the application BUT shall nonetheless
issue the marriage license UNLESS otherwise
Q: When may proof of age be dispensed with? ordered by a competent court.
A:
1) When the parents of the contracting parties Q: When can there be a valid marriage even
appear personally before the local civil without the required marriage license?
registrar and swear to the correctness of A: Marriages of Exceptional Character (MARCO)
their age;
2) When the local civil registrar is convinced, a. Marriages among Muslims/members of
by merely looking at the parties, that they ethnic cultural communities provided such were
have the required ages; solemnized in accordance with their customs,
3) When the party has been married, but is rites and practices (Islamic Law P.D. 1083)
widowed or divorced, or the previous b. In Articulo mortis
marriage has been invalidated. c. In Remote places
d. Cohabitation for at least 5 years
Q: What constitutes a Marriage Ceremony? provided:
A: -No legal impediment
- Contracting parties appear before the -Cohabitation must be characterized by
solemnizing officer Continuity and Exclusivity
- With their Personal declaration that they take *The five-year period of cohabitation must
each other as husband and wife have been a period of legal union had it
- In the presence of not less than 2 witnesses of not been for the absence of marriage
legal age e. Marriage solemnized Outside the Philippines
where no marriage license is required by the
Q: Who are Authorized to Solemnize: country where it was solemnized.
A:
>Any Marriage? Q: Does the age requirement (18 years old and
o Incumbent Judiciary Member above) apply also to citizens of a foreign country
Within the court’s (his) jurisdiction who wish to marry in the Philippines?
o Priest, Rabbi, Imam or minister of any A: No. However, when either or both contracting
church/religious sect duly authorized parties are Citizens of a Foreign Country, they
provided at least one of the parties should submit first a Certificate of Legal Capacity
belongs to such church or religious sect. before they can obtain a marriage license.
o Consul general, consul or vice-consul
provided both parties are Filipinos and Q: What is the rule in case a stateless person
marriage takes place abroad. wishes to contract marriage in the Philippines?
o Mayors (Arts 444 and 445 of LGC) A: For Stateless Persons, in lieu of said certificate
(cert. of legal capacity), an Affidavit stating the
>Marriages In Articulo Mortis? circumstances showing such capacity must be
o Ship Captain or airplane chief submitted.
-During voyage, even during stopovers
-Between passengers or crew members Q: What are the Authorized Venues of Marriage?
o Military commander of a unit A: GR: Must be solemnized publicly within the
jurisdiction of the authority of the Solemnizing
-In absence of chaplain
Officer:
-Within zone of military operation
1. chambers of the judge or in open court
-Between members of the armed forces
2. church, chapel or temple
or civilians
3. office of the consul-general, consul or vice-consul

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GR: Marriages solemnized outside the Philippines
XPNS: in accordance with the law of the foreign country
1. marriage at the point of death where it is celebrated, if valid there, shall be valid
2. marriage in remote places here as such.
3. marriage at a house or place designated by the XPN:
parties with the written request to the solemnizing 1. Lack of legal capacity even with
officer parental consent (e.g. party is below 18)
2. Bigamous or polygamous (except as
Q: What is the status of the marriage in case there provided in Art. 41 FC [Terminable
is an: Bigamous Marriages])
*ABSENCE of any of the Essential or Formal 3. Contracted through mistake of one
requisites? party as to the identity of the other
Marriage is VOID AB INITIO 4. Contracted following the annulment or
declaration of nullity of a previous marriage
*DEFECT in Essential requisites? but before partition
Marriage is VOIDABLE Void due to psychological incapacity
Incestuous
*IRREGULARITY in Formal requisites? Void for reasons of public policy
Marriage is VALID,
BUT party responsible for such shall be
civilly, criminally or administratively liable. NULLIFICATION / TERMINATION
Divorce
Q: What Are the other Requirements set forth by
law before one can contract marriage? Q: Suppose in a valid mixed marriage (marriage
A: If either or both parties are: between a citizen of a foreign country and a citizen
>18 & above but below 21: Parental Consent of the Philippines, the foreign spouse obtained a
>21 & above but below 25: Parental Advice divorce decree abroad and was capacitated to
>18 & above but below 25: Marriage Counseling remarry.
May the Filipino spouse remarry despite the
Q: What is the effect if a party who is required by fact that divorce is not valid in the Philippines?
law to obtain Parental Consent failed to do so? A: Yes, the Filipino spouse is capacitated to
A: Marriage is VOIDABLE remarry just as the alien spouse is capacitated,
Divorce validly obtained abroad by the alien spouse
Q: What is the effect if a party who is required by capacitating him/her to remarry will likewise allow
law to obtain Parental Advice or undergo Marriage the Filipino spouse to remarry. This is the rule laid
Counseling failed to do so? down in article 26 (2) of the Family Code.
A: Marriage is VALID
BUT issuance of marriage license is Q: Will your answer be the same if it was a valid
SUSPENDED for 3 months from the completion marriage between Filipinos?
of publication of the application for such. A: It depends. What is material in this case is the
citizenship of the spouse who obtained a divorce
Q: What is the status of the marriage if the parties decree abroad at the time the decree was obtained
get married within said 3-month period? and not their citizenship at the time the marriage
A: Marriage shall be VOID for lack of marriage was celebrated.
license. If the Filipino spouse was naturalized as a citizen of
BUT if they were able to obtain a marriage a foreign country before he/she obtains a divorce
license within said period, the marriage shall be decree and was thereafter capacitated to remarry,
valid but there may be civil and/or criminal liability. the Filipino spouse will be capacitated to remarry.
However, if the Filipino spouse remained to be a
Marriages Solemnized Abroad citizen of the Philippines when he/she obtained a
divorce decree abroad, such decree will not be
Q: What is the rule on marriages solemnized recognized in the Philippines even if that spouse is
abroad? subsequently naturalized as a citizen of a foreign
Vice-Chairperson:
Members:
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country. This is so because at the time the spouse
obtained the divorce decree, he/she was still a * It should be noted however that the foreign
citizen of the Philippines and being naturalized spouse must be capacitated to remarry before the
afterwards does not cure this defect. Filipino spouse may also be capacitated to remarry.
Q: What are the distinctions between void and voidable marriages?

A:
DISTINCTIONS VOID MARRIAGE VOIDABLE MARRIAGE
NATURE Non existent from solemnization Valid until annulled
SUSCEPTIBILITY of
Can never be convalidated Convalidated by cohabitation of parties
CONVALIDATION
Absolute Community Property
PROPERTY Co-ownership property regime
UNLESS other regime was agreed upon
GR: ILLEGITIMATE;
CHILDREN XPNS: Those conceived or born of marriages Legitimate

under Art.36 (Psychological incapacity), or Art 52
in relation to Art 53
HOW IMPUGNED Directly or collaterally Only directly
WHO MAY IMPUGN Anyone who is directly affected One of the contracting parties
PRESCRIPTIVE PERIOD Imprescriptible (Art. 39) Prescriptible; depends on ground
Not necessary
JUDICIAL DECLARATION Necessary
XPN: in case of remarriage
VOID MARRIAGES XPT: Marriages of Exceptional Character

(MARCO)
Q: What are the marriages that are void ab initio?
A: 3. Lack of LEGAL CAPACITY:
-Art. 35: ABSENCE of any of the Essential or
Formal requisites a) AGE: Contracted by any party below 18
-Art. 35: Subsequent marriages years old, even with parental consent
Void under Art. 53
-Art. 36: Psychological Incapacity b) LEGAL IMPEDIMENT:
-Art. 37: Incestuous Marriages Bigamous or Polygamous Marriages
-Art. 38: Void by reason of Public Policy GR: Marriage contracted by any person during
the subsistence of a previous marriage is VOID.
> Art. 35: ABSENCE of any of the
ESSENTIAL or FORMAL requisites: XPT: Terminable Bigamous Marriage (Art. 41)
~ Before the celebration of the subsequent
1. Lack of CONSENT: marriage, the prior spouse has been absent for 4
consecutive years (ordinary absence) or 2
Mistake in Identity: Marriages contracted consecutive years (extraordinary absence) and
through mistake of one of the parties as to the the spouse present has a well-founded belief
identity of the other. that the absent spouse is already dead and
absent spouse has been judicially declared
*Refers to the Physical identity of one of the presumptively dead.
parties and NOT with regard to merely the *Subsequent marriage will be automatically
character, health, rank, honor or chastity. terminated by the recording of the affidavit of
reappearance of the absent spouse.
2. Lack of MARRIAGE LICENSE
XPN to the XPN: subsequent marriage is void if
spouse present is in bad faith. Good faith or

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bad faith of the subsequent spouse is immaterial 3. Medically or clinically permanent or incurable
to the validity of the second marriage.
>Marcos vs. Marcos:
4. Lack of AUTHORITY OF SOLEMNIZING Totality of the Evidence Rule
OFFICER – GR: VOID; XPT: If one or both of the i. Juridical Antecedence
parties believed in good faith that said officer had ii. Gravity
authority to solemnize marriages, VALID. iii. Incurability
> Art. 35: SUBSEQUENT MARRIAGES VOID Q: What is the status of children born of marriages
under Article 53 of FC under Art. 36?
*Art. 53: A person whose marriage has been A: Those conceived or born before the decree of
annulled may remarry only after compliance with nullity of marriage are considered
the requirements provided for in Art. 52, LEGITIMATE (Art. 54)
OTHERWISE, the subsequent marriage shall be
null and void.
> Art. 37: Incestuous Marriages
*Art. 52 requires that the ff. be recorded in the (Whether legitimate or illegitimate)
appropriate civil registry or registries of property:
a) Judgment of annulment or absolute nullity; • Between ascendants and descendants of
b) Partition and Distribution of the properties of any degree
the spouses; and • Between brothers and sisters whether of the
c) Delivery of the children’s presumptive full or half blood
legitimes.
*Art. 50 (2): Final judgment shall provide for the ff: > Art. 38: Those VOID for reasons of PUBLIC
1) Liquidation, partition and distribution of the POLICY: Marriages between:
properties of the spouses;
2) Custody and support of the common • Collateral blood relatives (Legit or Illegit) up
children; and to the 4th civil degree
3) Delivery of their presumptive legitimes, • Step-parents & step-children
Unless such matters had already been adjudicated • Parents-in-law & children-in-law
in previous judicial proceedings.
• adopting parent & the adopted child
• surviving spouse of the adopting parent &
the adopted child
>Art. 36: PSYCHOLOGICAL INCAPACITY
Q: What is Psychological Incapacity? • surviving spouse of the adopted child & the
A: No exact definition but is restricted to: adopter
• adopted child & legitimate child of the
Psychological incapacity of one of the contracting adopter
parties to comply with the essential marital • adopted children of the same adopter
obligations, existing at the time of the celebration • parties where one, with the intention to marry
of the marriage. the other, kills the latter’s spouse, or his/her
spouse
Q: What are the requisites for Psychological
Incapacity to be a ground for declaration of nullity of *List is exclusive
marriage?
A: (GEM)
1. Grave enough to bring about the disability of

the party to assume the essential obligations of
marriage
2. Existing at the time of the celebration of the
marriage

Vice-Chairperson:
Members:
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VOIDABLE MARRIAGES (Art. 45)
GROUNDS PERSONS WHO MAY SUE PRESCRIPTIVE PERIOD RATIFICATION

Party whose parent's consent Free cohabitation as
was not obtained when required Within 5 years after age 21 husband and wife
by law -after 21
Lack of Parental Consent Incomplete ratification
when required by law Before party whose parent's
by Prescription
Parent whose consent was not consent was not obtained
(marriage is still
obtained when required by law
voidable but parent is
reaches 21
already barred)
Unsoundness of Mind Sane spouse w/o knowledge of Free cohabitation as
of one spouse (defective Before death of either party
the other's insanity H&W
consent)
Relatives/ Guardians/ Persons
*NOTE: if Both spouses are with legal charge of the insane Before death of either party None
insane, VOID for absence of spouse
consent
Free cohabitation as
During lucid interval or after
*Presumption: in favor of Insane spouse H&W
regaining sanity
Sanity -after coming to reason
H&W
Fraud w/in 5 years from the
injured party -w/ full knowledge of the
(NPSD) discovery of the fraud
facts constituting the
fraud
Vices of Consent w/in 5 years from the time H&W
(Force; Intimidation; Undue injured party the vice of consent (FIU) -when vice of consent
Influence) disappeared or ceased (FIU) disappeared or
ceased
Impotence (Continuous and

incurable physical incapacity w/in 5 years after the
Potent party Prescription
to consummate the marriage
marriage)
Serious and Incurable

w/in 5 years after the
Sexually-Transmitted Healthy party (party w/o STD) Prescription
marriage
Disease
Q: What are the circumstances constituting FRAUD *NOTE: Any other misrepresentation as to
under Article 45(3)? character, rank, fortune or chastity is NOT a ground
A: (NPSD) for annulment.
1. Non-disclosure of Conviction by Final Judgment
of crime involving Moral Turpitude *all must exist at the time of the celebration of the
2. Concealment by the wife of the fact that at the marriage
time of marriage, she was Pregnant by a man
other than her husband
3. Concealment of Sexually Transmitted Disease, Q: When may IMPOTENCE be a ground for
regardless of nature, existing at the time of annulment of marriage?
marriage A: Under Art 45(5) Impotence may be a ground for
4. Concealment of Drug addiction, habitual annulment of marriage provided the ff. requisites
alcoholism, homosexuality and lesbianism concur: (CPUII)

11
1. Impotence exists at the time of the
Celebration of marriage LEGAL SEPARATION
2. Impotence is Permanent (does not have to
be absolute)
3. Incurable Q: What are the GROUNDS for Legal Separation?
4. Impotence is Unknown to the other spouse (PALFAC SILA) (Art. 55)
5. Other spouse must not also be Impotent
1. Repeated Physical violence or grossly abusive
Q: What is the Doctrine of Triennial Cohabitation? conduct against petitioner, common child, child
A: If after 3 years of living together with her of petitioner
husband, the wife remained a virgin, the husband is 2. Attempt to corrupt or induce pet, common
Presumed to be impotent. child, child of pet to engage in prostitution, or
connivance in such corruption or inducement
Q: When may affliction of a SEXUALLY 3. Attempt by respondent against Life of pet
TRANSMITTED DISEASE be a ground for 4. Final judgment sentencing respondent to
annulment? imprisonment of more than 6 years
A: Under Art 45(6), affliction of STD may be a *Even if pardoned
ground for annulment provided the ff. requisites are 5. Drug Addiction or habitual alcoholism of
present: (SCSIAF) respondent
1. Either party is afflicted with a STD *Must exist AFTER celebration of marriage
2. STD must exist at the time the marriage is 6. Physical violence or moral pressure to Compel
Celebrated pet to change religious or political affiliation
3. STD must be Serious 7. Bigamous marriage Subsequently contracted
by respondent in the Philippines or abroad
4. STD must be apparently Incurable
8. Sexual Infidelity or perversion
5. The other spouse must not be Aware of the
9. Lesbianism/homosexuality of respondent
other’s affliction
(must exist AFTER celebration of marriage)
6. Injured party must be Free from STD
10. Abandonment of pet by respondent without
justifiable cause for more than 1 year
Q: Differentiate articles 45 and 46 of the family
code on STD as a ground for annulment.
Q: What are the GROUNDS for DENIAL of petition
A:
for LS: (CCCCMP-DR) (Art. 56)
ARTICLE 45 ARTICLE 46 A:
AFFLICTION of STD: The CONCEALMENT of
1. Condonation of act complained of
fact of being Afflicted is having STD: The act of 2. Consent to the commission of the offense/act
the ground for annulment Concealing is the ground 3. Connivance in the commission of the act
for annulment as it 4. Collusion in the procurement of decree of LS
constitutes Fraud 5. Mutual Guilt
6. Prescription: 5 yrs from occurrence of cause
Whether concealed or not There must be
concealment 7. Death of either party during the pendency of
the case (Lapuz-Sy vs. Eufemio)
Must be Serious and Does not have to be 8. Reconciliation of the spouses during the
Incurable serious and incurable pendency of the case
Q: What are the EFFECTS of FILING of petition for

Q: What are the special cases when subsequent Legal Separation? (Art 61)
marriage is allowed: 1. The spouses shall be entitled to live separately
A: from each other
1. Marriage between a Filipino and a foreigner and 2. In the absence of an agreement between the
procurement by the alien spouse of a valid parties, the court shall designate either the husband
divorce decree abroad, capacitating him/her to or the wife or a 3rd person to administer the absolute
remarry. community or conjugal partnership property.
2. Terminable Bigamous Marriages (Art. 41) Q: What are the EFFECTS of DECREE of Legal
Separation?
Vice-Chairperson:
Members:
12
A: (Art. 63-64) In both cases: Separation of property and any
1. Spouses entitled to live separately, forfeiture of share already effected SUBSISTS,
*marriage bond NOT severed UNLESS spouses agree to revive former property
2. ACP/CPG shall be dissolved / liquidated regime
*BUT offending spouse shall have no right
to any share of the net profits earned by the Q: What are the EFFECTS of RECONCILIATION?
AC/CP which shall be forfeited in accd. w/ art. (Art. 66)
43(2). As to the Decree:
3. Custody of minor children is awarded to the >During the pendency of the case:
innocent spouse (subject to Art 213, FC) A: LS proceedings terminated (in whatever stage)
4. Offending spouse is disqualified to inherit
from innocent spouse by intestate succession >After the issuance of the decree:
5. Provisions in will of innocent spouse which A: Final decree of LS to be set aside and the
favors offending spouse shall be revoked by order
operation of law
6. Innocent spouse may revoke donations he/she As to the Property Regime:
made in favor of offending spouse
> Prescriptive period: A: GR: With respect to separation of properties,
5 years from finality of decree of LS the same shall subsist.
7. Innocent spouse may revoke designation of XPN: The parties, however, can come into
offending spouse as beneficiary in any insurance an agreement to revive their previous regime.
policy (even when stipulated as irrevocable) Their agreement must be under oath and must
contain a list of the properties desired to be
Q: What is the purpose of the Mandatory Cooling– returned to the community or conjugal property
off-period? and those which will remain separate, a list of
A: The requirement set forth by law that an action creditors and their addresses.
for Legal Separation shall in no case shall be tried
before 6 months has elapsed since the filing of the As to capacity to succeed:
petition, is to enable the contending spouses to A: The family code does not provide for the
settle differences. In other words, it is for possible revival of revoked provisions in a will originally
reconciliation. made in favor of the offending party as a result of
the LS. This absence gives the innocent spouse
Q: May the heirs of the deceased spouse continue the right to choose whether the offending spouse
the suit (petition for decree of Legal separation) if will be reinstituted.
the death of the spouse takes place during the
pendency of the suit? As to the forfeited shares:
A: No. An action for legal separation is purely A: Those given to the children cannot be returned
personal, therefore, the death of one party to the since the spouses are no longer the owners of
action causes the death of the action itself – action such. But those given to the innocent spouse may
personalis moritur cum persona. Setting the decree be returned.
aside shall be recorded in the proper civil registries.
EFFECTS of TERMINATION of MARR IAGE

*Note: S-M =
subsequent TERMINABLE Bigamous Marriage (Art. 41) Declaration of NULLITY ANNULMENT
marriage
Spouses may remarry
PROVIDED:
Same with
Capacity to a) Final judgment of nullity
N/A declaration of
Remarry from the court;
nullity
b) Compliance w/ art. 52
(JPD)

13
GR: ILLEGITIMATE
Children
XPN: Children born of conceived or
Status of Art 43 (1): Children of the subsequent marriage marriages under arts. born before
Children conceived PRIOR to its termination: LEGITIMATE 36 (Psych.Inc.) and decree of
53 (Non-comp. w/ art. 52) annulment:
LEGITIMATE
considered LEGITIMATE
Art 43 (2): -ACP/CPG shall be dissolved & liquidated.
-Share of spouse, who contracted the S-M in Bad
Faith, in the net profits of the community property or
conjugal partnership, shall be forfeited in favor of the
Property common children, or
same Same
Relations
if there are none, the children of the guilty spouse by
a previous marriage, or
in default of children, the innocent spouse

Art 43 (3): Shall remain VALID
XPT: a) if donee contracted the S-M in Bad Faith,

Donations such donations made to said donee shall be revoked
Propter by operation of law. same Same
Nuptias
b) if both spouses to the S-marriage acted in bad
faith, all donations propter nuptias shall be revoked
by operation of law.
Art 43 (4): If one spouse acted in Bad Faith, innocent
spouse may revoke his designation as beneficiary in
Insurance same Same
the insurance policy even if such designation be
stipulated as irrevocable.
Art 43 (5): If one spouse contracted the S-M in Bad
Succession Faith, he shall be disqualified to inherit from innocent same Same
spouse by testate and intestate succession
d. Placing the W/C in Fear of Imminent Physical

REPUBLIC ACT 9262 Harm;
ANTI-VIOLENCE AGAINST WOMEN AND THEIR e. Attempting to COMPEL/COMPELLING the W/C:
CHILDREN ACT OF 2004 1. to Engage in conduct which the W/C has a
March 8, 2004 right to desist from
2. to Desist from conduct which the W/C has a
Q: In cases of legal separation, where violence as right to engage in,
specified in RA 9262 is alleged, which law shall 3. Attempting to RESTRICT/RESTRICTING
apply? the W’s/C’s freedom of movement/conduct
A: As provided for in sec 19 of RA 9262, Article 58 by actual/threatened force, physical or
of the Family Code shall NOT apply. The court other harm, or intimidation directed against
shall proceed on the main case and other the W/C.
incidents of the case as soon as possible ~ This shall include, but not limited to the
ff. acts committed with the purpose or effect
*Note: W/C = woman or her child of controlling or restricting the W/C’s
movement or conduct:
Q: What are the acts that constitute the crime of • Actual/Threatened:
violence against women and their children? (Sec. 5) >Deprivation of:
A: -Custody to his/her family
a. Causing, Threatening, Attempting to cause
PHYSICAL HARM to the W/C;
Vice-Chairperson:
Members:
14
-Financial support legally due her family Art. 73: Either spouse may practice any legitimate
or deliberately providing the woman’s profession/business, even w/o consent of the other.
children Insufficient financial support; *Other spouse may object on valid, serious and
-a Legal right; moral grounds.
>Preventing the woman from Engaging in *In case of disagreement, the court shall decide
any legitimate profession/activity, etc. whether: a. the Objection is proper; and
>Controlling the victim’s own b. Benefit has accrued to the family
money/properties, before and after the objection.
>Solely controlling the conjugal or common *The foregoing shall not prejudice right of
money/properties; creditors who acted in good faith
f. Inflicting/threatening to inflict physical harm on
ONESELF to control her actions or decision; Republic vs. CA, Molina:
g. Causing/attempting to cause the W/C to engage >Exercise the duties and enjoy the rights of parents
in any SEXUAL ACTIVITY (not rape); >Answer for civil liability arising from injuries caused
- by force/threat of force, physical harm, or by children below 18
through intimidation >Exercise parental authority over children’s
- against the W/C or his/her immediate family property
h. Engaging in purposeful, knowing, or reckless
conduct; PROPERTY RELATIONS
- personally or through another;
- that alarms or causes substantial Q: What governs the Property Relations of
emotional/psychological DISTRESS to the W/C. spouses?
~This shall include, but shall not be limited A: The Property Relations shall be governed by
to, the ff. acts: the ff. in the ff. order:
1.stalking or following the W/C in public/private 1. Marriage settlement – Future spouses
places; may agree upon the regime of ACP, CPG or
2.peering in the window or lingering outside the complete separation of property or any other
residence of the W/C; regime.
3.entering or remaining in the dwelling/property of 2. Provisions of the Family Code:
the W/C against her/his will; * Art. 75: ACP shall govern if:
4.destroying property and personal belongings a) There is No marriage settlement; OR
or inflicting harm to animals or pets of the W/C; & b) Regime agreed upon is Void
5.engaging in any form of harassment/ violence; 3. Local custom
i Causing mental/emotional ANGUISH, public
ridicule/humiliation to the W/C, including Q: What are the requisites of a VALID MARRIAGE
repeated verbal and emotional abuse, and SETTLEMENT?
denial of financial support/custody of minor A:
children / access to the W’s children 1. In writing
2. Signed by the parties
RIGHTS and OBLIGATIONS of SPOUSES 3. Executed BEFORE the celebration of
Art. 68: ESSENTIAL MARITAL OBLIGATIONS: marriage
1. Live together 4. Registration (to bind 3rd persons)
*Includes Consortium and Copulation
2. Observe mutual love, respect, fidelity **Must be in accordance with law
3. Render mutual help and support
Arroyo v. Arroyo: **The Nature, Consequences, and Effects of
~ GR: Performance of EMO under Art. 68 Marriage cannot be subject to stipulation
cannot be compelled by court because it will be
a violation of personal liberty. Q: What if a party executing the settlement is under
XPN: giving Support Civil Interdiction or any other Disability. Are there
Art. 69: Fix the family domicile any additional requirements for the validity of the
Art. 70: Jointly support the family marriage settlement?
Art. 71: Manage the household A: Yes, there are additional requirements. The
Art. 72: Not to neglect duties, or commit acts which guardian appointed by the court must be made a
tend to bring danger, dishonor, or injury to family party to the settlement (Indispensable)

15
Q: If a party is required by law to obtain Parental A: GR: Everything stipulated in the settlements or
Consent in contracting marriage, is Parental contracts in consideration of the marriage shall be
Consent also required for the Marriage Settlement rendered VOID
to be valid? XPN: Those not dependent upon or is not made
A: No. Parental consent is NOT necessary. inconsideration of the marriage SUBSISTS
Q: May a marriage settlement be modified? DONATIONS PROPTER NUPTIAS

A: Yes. For any MODIFICATION in the Marriage
Settlement to be valid: Q: When are Donations considered as Donations
a) The aforementioned requisites must be by Reason of Marriage?
present, A: When the donation is made (by the future
b) There must be judicial approval spouses or by third persons) before the
c) subject to the provisions of Articles 66, celebration of the marriage, in consideration of
67, 128, 135, & 136. the same, and in favor of one or both of the
future spouses.
Art 66: Effects of Reconciliation (Legal Separation)

Art 67: Agreement to revive former property regime Q: What are the requisites for DONATIONS
Art 128: Abandonment w/o just cause: Rights of PROPTER NUPTIAS?
aggrieved spouse A: The requisites are: that the donation is:
Art 135: Causes for judicial separation of property 1. Made Before celebration of marriage
Art 136: Voluntary dissolution of property regime 2. Made In Consideration of the marriage
3. Made In Favor of one or both of the future
Q: What laws govern the Property Relations of spouses
spouses? (Art. 80)
A: Q: What is the rule regarding Donations made:
GR: Philippine Laws, regardless of place of A:
celebration and residence of spouses > BEFORE Marriage:
A: GR: Future spouses cannot donate to each
XPN: a) Stipulation to the contrary; other more than 1/5 of their present property
b) Both spouses are aliens; (Excess shall be considered void)
c) Extrinsic validity of contracts affecting XPN: If they are governed by ACP
properties situated in a foreign country and:
-executed in the country where said > DURING Marriage:
property is located; OR GR: Every Donation or Grant of Gratuitous
-entered into in the Philippines, and the Advantage, Direct or Indirect, between
laws of said foreign country require different spouses: VOID
formalities for its extrinsic validity.
XPN: Moderate gifts on the occasion of any
Q: What is the EFFECT of NON-CELEBRATION of family rejoicing
the Marriage?
Q: Do the aforementioned rules apply to common
law spouses?
A: Yes.

Vice-Chairperson:
Members:
16
Prescriptive Period for Filing an Action for

REVOCATION of DONATIONS PROPTER NUPTIAS
PRESCRIPTIVE PERIOD
G R O U N D S (art. 86) Real Personal
property property
5 yrs from the time the marriage
1) Marriage is NOT CELEBRATED (XPT those automatically rendered void
was not solemnized on the fixed
by law)
date. (art. 1149)
2) M is JUDICIALLY DECLARED GROUND for nullity:
VOID a) Subsequent M void pursuant to
8 yrs from the
XPT: those made in marriage Art. 40 in re. to 52 and 53:
time possession
settlements which are governed by ~ Contracted before prior marriage 30 yrs
is lost (art.
Art. 81: Automatic Revocation, has been judicially declared VOID
1140)
UNLESS stipulation does not depend b) Grounds other than Art. 40 in re
upon celebration of the marriage to 52 and 53
5 yrs from the time the donor
3) M took place WITHOUT CONSENT OF PARENTS came to know that the required
When Required By Law parental consent was not
obtained.
4) M is ANNULLED and
5 yrs
DONEE acted in BAD FAITH
5 yrs
5) Upon LEGAL SEPARATION
from the time decree of LS has
DONEE being the GUILTY spouse
become final
6) Donation subject to RESOLUTORY CONDITION, 5 years from the happening of
and Condition TOOK PLACE the resolutory condition.
7) DONEE Committed an ACT OF INGRATITUDE
Such as:
a) Commission of an Offense against the person, honor or property of
the donor, his wife or his children under his parental authority 1 year
b) Imputation to the donor any criminal offense or any act involving from donor’s knowledge of the
moral turpitude commission of an act of
UNLESS the crime was committed against the donee himself, his ingratitude.
wife or his children under his authority
c) Undue refusal to support the donor when he is legally or morally
bound to give such support.
3. Property acquired before the marriage by one

Matrimonial Property Regimes for Marriage with legitimate descendants by former marriage
Settlements: and its fruits and income.
Q: What are the different Property regimes? Explain 2. Conjugal Partnership of Gains
briefly. ~ Everything Earned during marriage belongs to
A: 1. Absolute Community of Property CP.
~ Almost everything is owned in common - XPT those: (OGRE)
-XPT: 1. Brought to the marriage as his/her own;
1. Property acquired during the marriage by 2. Acquired during marriage by gratuitous title;
gratuitous title and its fruits 3. Acquired by right of redemption, barter,
XPT: if expressly provided by the donor, exchange with property belonging to either
testator or grantor that they shall form spouse; OR
part of the community property 4. Purchased with exclusive money of either
2. Property for personal and exclusive use of spouse.
either spouse
XPT: jewelry (forms part of the ACP) 3. Separation of Property
~ may be Partial or Absolute;

17
- Spouses contribute to the family expenses Capacitated or able spouse may assume
PROPORTIONATELY, but liability to the creditors SOLE powers of administration
for family expenses is SOLIDARY BUT such powers do NOT include:
Disposition;
4. Any other regime within limits provided by Alienation; or
the Family Code Encumbrance
of the conjugal or community property.
SYSTEM OF ABSOLUTE COMMUNITY Q: In case of Disagreement, whose decision shall

prevail?
Applies when the future spouses: A: The decision of the husband prevails BUT
subject to recourse to the court by the wife for
1) Adopt it in a marriage settlement; proper remedy
2) Do not choose any economic system; OR **Prescriptive period for recourse:
3) Adopted a different property regime and the - 5 years from the date of the contract
same is Invalid. implementing such decision.
Q: What consists of the community property? Q: What if the wife failed to bring the action (as
A: GR: The community property consists of all the recourse) within 5 years?
property owned by the spouses at the time of A: This failure makes the husband’s decision final.
the celebration of the marriage or acquired
thereafter. Q: In cases of alienation, disposition or
encumbrance of the community property, and one
XPNS: spouse is incapacitated or unable to participate in
1. Property acquired during the marriage by the administration of the community property, is the
gratuitous title and its fruits approval of one spouse enough for said alienation,
Except if expressly provided by the donor, disposition or encumbrance to be valid?
testator or grantor that they shall form part of the A: No. Both spouses must approve any dispositions
community property or encumbrances and consent of the other spouse
2. Property for personal and exclusive use of regarding the disposition must be in writing,
either spouse otherwise, the matter should be brought to court
Except jewelry and the court will give the authority, if proper.
3. Property acquired before the marriage by Such consent or court approval must be
one with legitimate descendants by former obtained BEFORE the alienation, etc. otherwise,
marriage and its fruits and income such will be void and obtaining such consent or
4. Those excluded by the marriage settlement court approval afterwards will not validate the act. A
void act cannot be ratified.
Q: What about property acquired during the Q: What if one spouse acts without the consent of
marriage? the other or without court approval?
A: Property acquired during the marriage is A: If one spouse acts without the consent of the
presumed to belong to the community other or without court approval, such disposition or
Unless proven otherwise by strong and encumbrance is VOID.
convincing evidence. (Art 93) However, the transaction shall be construed as a
continuing offer on the part of the consenting
ADMINSTRATION OF COMMUNITY PROPERTY spouse and the 3rd person which may be perfected
as a binding contract upon acceptance by the
Q: To whom does the right to administer the spouse or court approval.
community property belong to?
A: GR: It belongs to both spouses JOINTLY. Q: When may one spouse resort to obtaining court
XPN: If one spouse is Incapacitated or approval for any alienation, encumbrance or
otherwise Unable to participate in the administration disposition of community property?
of the common properties: A: In absence of the written consent of the other
spouse.
Vice-Chairperson:
Members:
18
(10) Expenses of litigation between the spouses
Q: Will losses in gambling be charged upon the UNLESS the suit is found to be groundless.
community property?
A: No. Art 95 specifically states that “whatever Q: What if the community property is insufficient to
may be Lost during the marriage in any game of cover the foregoing liabilities?
chance, betting, sweepstakes, or any other kind of A: The spouses shall be solidarily liable for the
gambling, whether permitted or prohibited by law, unpaid balance with their separate propertied.
shall be borne by the loser and shall not be XPT those falling under paragraph (9)
charged to the community”
However, any Winnings therefrom shall form Q: May one of the spouses dispose by will a
part of the community property. specific community property?
A: NO. Art 97 allows only the disposition by
Q: What are the CHARGES UPON THE ACP: way of a will by either spouse, his or her
A: (1) The support of the spouses, their common INTEREST in the community property. It is only
children, and legitimate children of either spouse; the Share of the spouse NOT a specific
property.
(2) All debts and obligations contracted during the
marriage by: Q: What is the rule on donating a community
a) the Designated administrator-spouse property by a spouse?
for the benefit of the community, or A: Art 98 provides that Generally, a spouse
b) by Both spouses, or cannot donate any community property without
c) by One spouse the consent of the other Except, Moderate
WITH the consent of the other; donations for charity or on occasion of family
(3) Debts and obligations contracted by either rejoicing or distress.
spouse WITHOUT the consent of the other
to the extent that the family may have been Q: If a spouse Abandons without Just Cause
benefited; his family or Fails to comply with Obligations to
(4) All taxes, liens, charges and expenses, including the family, what are the Remedies of the
major or minor repairs, upon the community Spouse Present?
property; A: Petition the court for:
(5) All taxes and expenses for mere preservation 1) Receivership;
made during marriage upon the separate property 2) Judicial Separation of Property;
of either spouse used by the family; 3) Authority to be the Sole Administrator of
(6) Expenses to enable either spouse to the absolute community
commence or complete a professional or vocational
course, or other activity for self-improvement; Q: What are the EFFECTS of SEPARATION IN
(7) Ante nuptial debts of either spouse insofar as FACT:
they have redounded to the benefit of the family; A:
(8) The value of what is donated or promised by 1) ACP is not affected;
both spouses in favor of their common legitimate 2) Spouse who Leaves the conjugal home or
children for the exclusive purpose of commencing Refuses to live therein, without just cause, shall
or completing a professional or vocational course or not have the right to be supported;
other activity for self-improvement; 3) When Consent of one spouse to any
(9) Payment, in case of absence or insufficiency transaction of the other is required by law,
of the exclusive property of the debtor-spouse, of: Judicial Authorization shall be obtained in a
summary proceeding.
a) Ante nuptial debts of either spouse 4) In case of insufficiency of community
which did NOT redound to the benefit of the property, separate property of both spouses
family; shall be solidarily liable for the support of the
b) the support of illegitimate children of family. Spouse present shall, upon proper
either spouse; petition in a summary proceeding, be given
c) liabilities incurred by either spouse by judicial authority to Administer or Encumber any
reason of a crime or quasi-delict, specific separate property of the other spouse
*the payment of which shall be considered as and use the fruits or proceeds thereof to satisfy
advances to be deducted from the share of the the latter’s share.
debtor-spouse upon liquidation of the community;
and Q: How is the ACP terminatied?

19
1. Death
2. Legal separation CONJUGAL PARTNERSHIP OF GAINS
3. Annulment
4. Judicial separation of property during Q: Explain briefly the regime of Conjugal
marriage Partnership of Gains.
A: It is the property relation formed by the
Q: What is the Applicable PROCEDURE IN CASE husband and the wife by placing in a common
OF DISSOLUTION OF ACP? fund the proceeds, product, fruits and income of
A: their separate properties and those acquired by
1. Inventory of all properties them through effort or chance.
2. Payment of community debts It applies only when the future spouses
 First, pay out of the community Adopt it in a marriage settlement.
assets. If not enough, husband and the
wife are solidarily liable for the unpaid Q: What are the EXCLUSIVE PROPERTIES of
balance with their separate properties the Spouses?
3. Delivery to each spouse of his/her A:
remaining exclusive properties 1. Those brought into the marriage as his/her
4. Equal Division of net community assets own
Unless there is: 2. Those acquired during the marriage by
a) An Agreement for a Different gratuitous title
proportion; OR 3. Those acquired by right of redemption,
b) A Voluntary Waiver of such share barter or exchange with exclusive property
5. Delivery of the presumptive legitimes of the 4. That purchased with exclusive money of
children either spouse
6. Adjudication of conjugal dwelling and
custody of common children Q: What CONSTITUTES CPG?
A:
1. Those acquired during the marriage with
Art 103: Upon Termination of marriage by Death, conjugal funds
Community property shall be liquidated in the same 2. Those obtained from labor, industry, work
proceeding for the settlement of the estate of the or profession of either or both spouse
deceased. 3. Fruits of conjugal property due or received
during the marriage and net fruits of
If no judicial proceeding is instituted, the surviving separate property
spouse shall, judicially or extra-judicially, liquidate 4. Share of either spouse in hidden treasure
the community property within 6 months from the 5. Those acquired through occupation
death of the deceased spouse. 6. Livestock in excess of what was brought to
the marriage
Q: What if the Surviving Spouse failed to liquidate 7. Those acquired by chance
the community property within 6 months from the
death of the deceased spouse contrary to Art. 103 Q: What are the CHARGES upon the CPG?
of the Family Code? A:
A: Failure to do so would render any disposition or 1. Support of the spouses, their common
encumbrance involving community property of the children and the legitimate children of either
terminated marriage VOID. spouse
2. Debts and obligations contracted by one
Q: When is the regime of Complete Separation of without the consent of the other to the
Property Mandatory? extent that the family benefited
A: When the surviving spouse contracts a 3. Debts and obligations contracted during the
subsequent marriage without compliance with the marriage by an administrator - spouse, both
foregoing requirements, a Mandatory Regime of spouses or one with the consent of the
Complete Separation of Property shall govern the other
property relations of the subsequent marriage. 4. Taxes, liens, charges, expenses upon
conjugal property
Vice-Chairperson:
Members:
20
5. Taxes and expenses for mere preservation 2) ACP or CPG is Dissolved;
of separate property 3) Prior Marriage is Dissolved due to Death of
6. Expenses for professional, vocational or one spouse and surviving spouse failed to comply
self-improvement courses of either spouse with the requirements under Art 103 (judicial or
7. Ante-nuptial debts to the extent the family extra-judicial liquidation of ACP within 6 months
has been benefited from death of deceased spouse)
8. Value of what is donated or promised to
common legit children for professional, Separation of the Property of the Spouses
vocation or self improvement courses
9. Expenses of litigation Q: Will the regime of Separation of Property apply
even in absence of an express declaration that the
Q: What are the Rules in Cases of IMPROVEMENT spouses are adopting such in the marriage
of EXCLUSIVE PROPERTY? settlement?
A: A: GR: No. In the absence of an express declaration
in the marriage settlements, the separation of
1. Reverse Accession - if the cost of the property between the spouses during the marriage
improvement and the additional value is more shall not take place.
than the value of the principal property at the
time of the improvement, the property becomes XPN: By judicial order. Judicial separation of
conjugal. property may either be voluntary or for sufficient
cause.
2. Accession - if the cost of the improvement
and the additional value is equal to or less than Q: What are the Sufficient Causes for Judicial
the value of the principal property, the entire Separation of Property?
property becomes the exclusive property of the A:
spouses 1. Civil interdiction of the spouse of
petitioner
Q: What are the Steps in the LIQUIDATION of the 2. Judicial declaration of absence
CPG? 3. Loss of parental authority as
A: The steps are: decreed by the court
1. Inventory of all the properties 4. Abandonment or failure to comply
2. Restitution of advances made to each of with family obligation
the spouses 5. Administrator spouse has abused
3. Reimbursement for use of exclusive funds authority
4. Debts and obligations of the CP are paid 6. Separation in fact for one year and
5. Delivery of exclusive properties reconciliation is highly improbable
6. Payment of losses and deterioration of
movables belonging to each of the Q: What are the Grounds for the Revival of
spouses. Former Property Regime?
7. Division of the net conjugal partnership A: When:
8. Delivery of the children’s presumptive 1.Civil interdiction of the prisoner-spouse
legitimes terminates
9. Adjudication of conjugal dwelling and 2.Absentee spouse reappears
custody of children 3.Court authorizes resumption of administration
by the spouse formerly exercising such power
ABSOLUTE SEPARATION OF PROPERTY
4.Spouse who has abandoned the conjugal home
Q: When does ABSOLUTE SEPARATION of returns and resumes common life with the other
PROPERTY Apply? 5.Parental authority is judicially restored to the
A: It applies when: spouse previously deprived thereof
6.Spouses agree to revive their former property
1) The future spouses Adopt it in a marriage regime
settlement;

21
Q: Distinguish ACP and CPG.

A:
ACP CPG
Each spouse retains his/her property before the
All the properties owned by the spouses at the marriage and only the fruits and income of such
time of marriage become community property properties become part of the conjugal properties
during the marriage
Upon dissolution and liquidation of the Upon dissolution of the partnership, the separate
community prop what is divided equally between property of the spouses are returned and only the
the spouses or their heirs is the net remainder of net profits of the partnership are divided equally
the properties of the ACP between the spouses of their heirs
Q: Distinguish Art. 147 and 148.

A:
Property Regime of
Unions without Marriage Art 147 Art 148
Presence of legal impediment-

Adulterous relationships
No legal impediment to marry Bigamous/polygamous marriages
Applicability Incestuous void marriages under Art 37
Void marriages by reason of public policy (Art 38)
Owned in equal shares Separately owned by the parties

Salaries & Wages
Belongs to party
Property Exclusively upon proof of acquisition through Belongs to such party
Acquired exclusive funds
Owned in common in proportion to their respective

Property Acquired by Governed by rules of co-ownership
contributions
Both
Property acquired while living Contributions to & respective shares over properties
together presumed obtained by their owned in common
Presumption
joint efforts, work or industry and are presumed equal
owned by them in equal shares
When only one is in GF, share of

party in BF in the co-ownership be If one of the parties is validly married to another, his/her
forfeited in favor of: share in the co-ownership shall accrue to the ACP or CPG
1. their common children existing in the marriage.
Forfeiture 2. innocent party If the party who acted in BF is not validly married to
in default of / waiver by any/all another or if both parties are in BF, such share be forfeited
common children, or by in manner provided in last par of Art 147
their descendants
Proof of actual Not necessary Necessary

contribution

Vice-Chairperson:
Members:
22
THE FAMILY Q: What does Family Relations Include?

A: Family relations include relation between:
Family Home (FH) - Husband and wife,
- Parents and children,
Q: What are the exceptions to the rule that the FH - Among other ascendants and descendants
is exempt from execution, forced sale or - Among brothers and sisters, full or half blood.
attachment?
A: The Exceptions are: (LTPM) Q: Are there any additional requirements in cases
1. Debts due to laborers, mechanics, architects, of SUITS BETWEEN MEMBERS OF THE SAME
builders, material men and others who rendered FAMILY?
service or furnished materials for the A: Yes. It should appear from the verified complaint
constitution of the building or petition that earnest efforts towards a
2. Non-payment of taxes compromise have been made but failed.
3. Debts incurred prior to constitution ~ The Allegation of “earnest efforts” is
4. Debts secured by mortgages on the family JURISDICTIONAL, if it is absent, the court can
home dismiss the case
Guidelines: Q: When is the aforementioned rule

inapplicable?
1. is deemed constituted from the time of actual A: It is inapplicable to the following cases:
occupation as a family residence a. Civil status or persons
2. must be owned by the person constituting it b. Validity of marriage or legal
3. must be permanent separation
4. same rule applies to both valid and voidable c. Any ground for legal
marriages and even to common law spouses separation
under Arts 147 and 148 d. Future support
5. it continues despite death of one or both e. Jurisdiction of courts
spouses or an unmarried head of the family for f. Future legitime
10 years or as long as there is a minor
beneficiary
PATERNITY AND FILIATION
A. Classification of Filiation
Kinds General Rule Exceptions

1.Legitimate Only those conceived OR born 1. conceived as result of artificial insemination
during a valid marriage PROVIDED:
• authorized or ratified by both parents
• in a written instrument
• executed and signed by them before birth
2. Conceived/born before judgment of absolute nullity under
Art 36 has become final & executory
3.Conceived/born of subsequent marriage under Art 53
4.Legitimated
2.Illegitimate Conceived AND born outside a
valid marriage
3.Legitimated Requisites of Legitimation:
1. no legal impediment for parents to marry at time of conception
2. valid marriage subsequent to child’s birth
4.Adopted (Please refer to related notes on Adoption laws)

23
Children by Artificial Insemination 3. If the child was born after the death of the
husband
Q: When is a CHILD CONCEIVED BY ARTIFICIAL
INSEMINATION considered legitimate? Q: What are the Grounds to Impugn Legitimacy
A: A child conceived by said method is considered of the Child?
legitimate if the following conditions are present: 1. Physical impossibility for the husband to
have sexual intercourse with his wife within
1. The artificial insemination is made on the the first 120 days of the 300 days which
wife, not on another woman immediately preceded the birth of the child
2. The artificial insemination on the wife is because of:
done with the sperm of the husband or of a a. Physical incapacity of the husband to
donor, or both the husband and a donor have sexual intercourse with his wife
3. The artificial insemination has been b. The fact that the husband and wife
authorized or ratified by the spouse on a were living separately in such a way
written instrument executed and signed by that sexual intercourse was not
them before the birth of the child and possible, or
4. The written instrument is recorded in the c. Serious illness of the husband which
civil registry together with the birth absolutely prevented intercourse
certificate of the child
2. Proved that for biological or other scientific
Q: What is the child’s filiation if the marriage is reasons, the child could not have been that
terminated and the mother contracts another of the husband, except in the case of
marriage within 300 days after the termination of children conceived through artificial
the former marriage? insemination
A: In absence of proof to the contrary, these rules
shall apply: In case of children conceived through artificial
insemination, the written authorization or
-If the child is born BEFORE 180 days after the ratification of either parent was obtained
solemnization of the subsequent marriage: through mistake, fraud, violence, intimidation
~ It is considered to have been conceived during or undue influence
the FORMER marriage,
~Provided it be born within 300 days after the
termination of the former marriage. Q: In impugning the legitimacy of the child, what are
the Prescriptive Periods?
-If the child is born AFTER 180 days following the A: 1. One year, from the knowledge of birth or
celebration of the subsequent marriage: recording in the civil registry, if husband or heirs
~ It is considered to have been conceived during lives in the same city/municipality
such SUBSEQUENT marriage 2. Two years, if residing in different
~ Even though it be born within 300 days after the city/municipality but within the Philippines
termination of the former marriage. 3. Three years, if abroad
Q: What rules govern when a child’s legitimacy is

impugned? Q: What are the different kinds of Proof of Filiation?
A: The General Rule is that only the husband can A: Proof of filiation has two kinds: Primary and
impugn the legitimacy of a child. secondary.
But as an exception to this rule, the heirs of the The Primary proof consists of the ff:
husband may impugn the child’s filiation in the a. Record of birth appearing in civil registrar
following cases: or final judgment
b. admission of legitimate filiation in public
1. If the husband dies before the expiration of document or private handwritten instrument
period for filing the action signed by parent concerned
2. If the husband dies after filing without The Secondary consists of the ff:
desisting
Vice-Chairperson:
Members:
24
a. Open and continuous possession of Q: Are brothers and sisters not legitimately related
legitimacy likewise bound to support each other?
b. Any means allowed by the Rules of A: Yes. Brothers and sisters not legitimately
Court and by special laws related, whether of the full or half-blood, are
likewise bound to support each other to the full
extent set forth in article 194,
Q: When should an action to claim legitimacy be EXCEPT only when the need for support of the
brought? brother or sister, being of age, is due to a cause
A: The period of action depends on who is bringing imputable to the claimant’s fault or negligence.
the action:
– By the child: during his Lifetime, or Q: In what Order does the liability to Support
– By his heirs: within 5 years should the child die devolve upon those obliged to do so? (SAD-B)
during minority or in a state of insanity A: It devolves upon the following persons in the
following order:
Q: What are the rights of Legitimate and illegitimate 1. Spouse
children? 2. Ascendants in the nearest degree
3. Descendants in the in the nearest degree
Legitimate Children Illegitimate Children 4. Brothers and sisters
Bear the surnames of both Bear the surname of either
parents (mother and the mother or the father under PARENTAL AUTHORITY
father) R.A. 9255
Receive support from Parental Authority vested in
parents the mother  sum total of the rights of parents over the
Legitimate and other Share is equivalent to ½ of persons and property of their child
successional rights under the share of a legitimate child
the Civil Code Q: What are the Rules as to the Exercise of
Parental Authority?
A: 1. The father and the mother shall JOINTLY
SUPPORT exercise parental authority over the persons of their
common children.
Q: What is Support comprised of? ~ In case of Disagreement, the father’s
A: Support comprises of everything indispensable decision shall prevail UNLESS there is a judicial
for: order to the contrary
1. Sustenance
2. Dwelling 2. If the child is illegitimate, parental authority is
3. Clothing with the mother.
4. Medical attendance
5. Education – includes schooling or training Q: What is meant by the Parental Preference Rule?
for some profession, trade or vocation, A: The natural parents, who are of good character
even beyond the age of majority and who can reasonably provide for the child are
6. Transportation – includes expenses going ordinarily entitled to custody as against all persons.
to and from school, or to from place of work
Note: Amount of support shall be in proportion to Q: What is the Rule on Parental Authority in case
the means of the giver and to the need of the Of Legal Separation of Parents:
recipient A: >Parental authority is exercised by the parent
designated by the court
Q: Who are Obliged to Support Each Other? >GR: No child below 7 years of age shall be
1. Spouses separated from the mother
2. Legitimate ascendants & descendants >XPN: When the court finds compelling reasons to
3. Parents and their legitimate children, and the consider otherwise
legitimate and illegitimate children of the latter >The paramount consideration in matters of
4. Parents and their illegitimate children, and the custody of a child is the welfare and well-being of
legitimate and illegitimate children of the latter the child
5. Legitimate brothers and sisters whether full or
half-blood Q: To whom is Substitute Parental Authority
vested?
A: (GOC)

25
1. Surviving Grandparent 5. Culpable Negligence of parent or person
2. Oldest brother or sister, over 21 years, unless exercising PA
unfit or disqualified 6. Compels child to Beg
3. Actual Custodian unless, over 21 years, unfit or
disqualified
*If the person exercising PA has subjected the child
Q: To whom may Special Parental Authority be or allowed him to be subjected to Sexual Abuse,
granted? he/she shall be permanently deprived of PA.
A:
1. School administrator and teachers *Parental authority and responsibility are inalienable
2. Individual entity or institution engaged in child and may not be transferred and renounced except
care in case authorized by law
Q: What are the Distinctions Between Substitute *Parents may exercise authority over their
Parental Authority and Special Parental Authority? children’s property
A:
Substitute Q: What are the kinds of Properties of a Minor?
Special Parental Authority A: a. ADVENTITIOUS
Parental Authority
It is exercised in It is exercised concurrently with Characteristics:
case of death, the parental authority of the 1. Earned or acquired by the child through his
absence, or parents and work or industry by onerous or gratuitous title
unsuitability of rests on the theory that while 2. Owned by the child
parents. the child is in the custody of 3. Child is also the usufructuary, but the child’s
Hence, it is not the person exercising use of the property shall be secondary to all
exercised by the special parental authority, collective daily needs of the family
parents of parental the parents temporarily 4. Administered by the parents
authority over the relinquish parental authority
minor children. over the child to the latter b. PROSFECTITIOUS
Characteristics:
Q: When is Termination of Parental Authority: 1. Property given by the parents to the child
A: for the latter to administer
>Permanent? (DED) 2. Owned by the parents
1. Death of parents 3. Parents are usufructuary
2. Emancipation of the child 4. Property administered by the child
3. Death of child
REPUBLIC ACT 9255
>Temporary? (AGAA-IF) “AN ACT ALLOWING ILLEGITIMATE CHILDREN
1. Adoption of the child TO USE THE SURNAME OF THEIR FATHER”
2. Appointment of general guardian (February 24, 2004)
3. Judicial declaration of Abandonment
4. Judicial declaration of Absence Section 1 – Article v176 of Executive Order No.
5. Incapacity of parent exercising PA 209, otherwise known as the Family Code of the
6. Final judgment divesting parents of PA Philippines, is hereby amended to read as follows:
Q: What are the Grounds for Suspension of PA? “Article 176 – Illegitimate children shall use the
A: (CHAIN B) surname and shall be under the parental authority
1. Gives corrupting orders, counsel and example of their mother, and shall be entitled to support in
2. Treats child with excessive Harshness and conformity with this Code. However, illegitimate
cruelty children may use the surname of their father if their
3. Subjects/allows child be subjected to Acts of filiation has been expressly recognized by their
lasciviousness father through the record of birth appearing in the
4. Conviction of crime with penalty of Civil civil register, or when an admission in public
interdiction document or private handwritten instrument is made
by the father.
Vice-Chairperson:
Members:
26
>Provided, the father has the right to institute an illegitimate child shall consist of one-half of the
action before the regular courts to prove non- legitime of a legimate child”
filiation during his lifetime. The legitime of each
ADOPTION LAWS
(N.B. A.M. # 02-6-02, effective Aug. 22, 2002 - as to the procedural aspect)
Domestic Adoption Act of 1998 Inter-country Adoption Act of 1995

(RA 8552) (RA 8043)
1.Child - person below 18 1. Child - person below 15
Definition of 2.Child legally available for adoption - child voluntarily/ 2.Legally-free child – child voluntarily/
terms involuntarily committed to the DSWD, freed of his involuntarily committed to the DSWD in
biological parents, guardians, adopters in case of accordance with the Child &Youth Welfare
rescission Code
3.Matching-judicious pairing of child &
applicant to promote mutually satisfying
parent-child relationship
Who may 1.Filipino citizen Any alien/Filipino permanently residing
adopt a. of legal age abroad if he is:
b. in position to care for his children a. at least 27 years & at least 16 yrs older than
c. good moral character child to be adopted at the time of
d. full civil capacity & legal rights application UNLESS adopter is the parent
e. not been convicted of any crime involving moral by nature of child to be adopted/spouse of
turpitude such parent
f. emotionally & psychologically capable of caring for b. if married, his spouse must jointly file for
children adoption
g. at least 16 yrs older than adoptee c. has capacity to act/assume all rights
XPNS: &responsibilities of parental authority
i. adopter is the biological parent of adoptee d. not been convicted of a crime involving
ii. adopter is the spouse of adoptee’s parent moral turpitude
e. eligible to adopt under his national law
2.Alien f. in a position to provide the proper care &
a. same qualifications as Filipino support & give necessary moral values
b. his country has diplomatic relations w/ the Phil g. agrees to uphold basic rights of the child
c. has been living in the Phils. for at least 3 continuous (UN convention of rights of child/Phil laws)
yrs prior to the application for adoption & maintains h. comes from country w/ w/c Phils has
such residence until adoption decree has been diplomatic relations & adoption is allowed
entered under his national law
XPNS: i. possesses all the qualifications & none of
i. when he is a former Fil who seeks to adopt a relative the disqualifications under the law/other
w/in the 4th deg of affinity/consanguinity applicable Philippine laws
ii. one who seeks to adopt the legit/illegit child of his Fil
spouse
iii. one who is married to a Fil & seeks to adopt jointly w/
his spouse a relative w/in the 4th deg of
consanguinity/ affinity of the Fil spouse
3. Guardian - w/ respect to his ward after termination of

guardianship & clearance of his financial
accountabilities
Husband & wife shall jointly adopt
XPNS:
i. one spouse seeks to adopt the legit child of the other
ii. one spouse seeks to adopt own illegit child
iii. spouses legally separated
Domestic Adoption Act of 1998 Inter-country Adoption Act of 1995

(RA 8552) (RA 8043)
Who may 1. Any person below 18 who has been administratively/ Only a legally-free child may be adopted
be adopted judicially declared available for adoption PROVIDED the FF are submitted

27
2. legit child of one spouse by the other spouse i. child study
3. illegit child by a qualified adopter to improve the status ii. birth certificate/foundling certificate
of said child to that of legitimacy iii. deed of voluntary commitment/decree of
4. person of legal age, if prior to adoption, said person abandonment/death certificate of parents
has been consistently considered & treated by iv. medical evaluation/history
adopters as their own child since minority v. psychological evaluation
5. child whose adoption has been previously rescinded vi. recent photo
6.child whose biological parents has died PROVIDED no  No child shall be matched to a foreign
proceedings has been initiated w/in 6 months from adoptive family unless it is satisfactorily
time of death shown that the child cannot be adopted locally
Rescis Grounds:ASAR
sion 1. Attempt on life of adoptee
(only 2. Sexual assault or violence
available to 3. Abandonment & failure to comply w/ parental
the adopted) obligations
4. Repeated physical or verbal maltreatment by adopter
Adopter CANNOT rescind decree of adoption but may
DISINHERIT adoptee

Vice-Chairperson:
Members:
1
CIVIL LAW NOTES ADVISER: ATTY. CARLA SANTAMARIA- SEÑA
1. By Nature – such as lands, roads, mines
BOOK TWO and quarries, wells and sewers (pars. 1
PROPERTY, OWNERSHIP and 8, Art. 415) regardless of any other
AND ITS MODIFICATIONS consideration.
2. By Incorporation – those which are
PROPERTY attached to an immovable in a fixed manner
considered as an integral part thereof (par.
Q: What can be considered as property? 1-3, Art. 415) irrespective of its ownership.
A: Property comprises all things which are or may 3. By Destination – placed in buildings or on
be the object of appropriation. lands by the owner of the immovable or his
agent in such a manner that it reveals the
Q: What are the requisites to be considered as intention to attach them permanently
property? thereto (pars. 4-7 and 9, Art. 415).
A: Requisites (USA): 4. By Analogy – classified by express
1. Utility – capability to satisfy a human need provision of law (par. 10, Art. 415).
2. Substantivity/Individuality – independent
existence Q: Are barong-barongs immovable property?
3. Appropriability – susceptibility to A: No. They are not of a permanent structure, and
ownership / possession just mere superimpositions on the land.
Q: Is property synonymous with thing? Q: Where buildings are sold to be demolished

A: Technically, thing is broader in scope for it immediately, are the buildings immovable or
includes both appropriable and non-appropriable movable?
objects. A: A French court has held that the sale involves
movable property. What are really sold are the
Q: What are immovable properties? materials.
A: (LaST-MAn-DoC-FM)
1. Land, buildings, roads and constructions of Q: Are trees immovable or movable?
all kinds adhered to the soil; A: Real property by NATURE, if they are the
2. Trees, plants and growing fruits, while they spontaneous products of the soil.
are attached to the land or form an integral Real property by INCORPORATION, if they
part of an immovable; have been planted thru cultivation or labor.
3. Everything attached to an immovable in a Personal property, the moment they are
fixed manner in such a way that it cannot detached or uprooted from the land.
be separated therefrom without breaking EXCEPT in the case of uprooted timber,
the material or deterioration of the object; because timber is an integral part of the
4. Statues, reliefs, paintings or other objects timber land.
for use or ornamentation, placed in
buildings or on lands by the owner of the Q: How about ungathered products?
immovable in such a manner that it reveals A: SC has held that ungathered products have the
the intention to attach them permanently to nature of personal property for purposes of
the tenements; attachment and execution, and for the purposes of
5. Machinery, receptacles, instruments or the Chattel Mortgage Law.
implements intended by the owner of the
tenement for an industry or works which Q: Distinguish Par. 3 from Par. 4
may be carried on in a building or on a A:
piece of land, and which tend directly to PAR. 3 PAR. 4
meet the needs of said industry or works; 1. Cannot be separated from 1. Can be separated from
6. Animal houses, pigeon-houses, beehives, the immovable without the immovable without
fishponds or breeding places of similar breaking or deterioration breaking or deterioration.
2. Need not be placed by 2. Must be placed by the
nature, in case their owner has placed or
the owner owner of the immovable, or
preserved them, with the intention to have his agent, express or
them permanently attached to the land, and implied
forming a permanent part of it, the animals 3. Real property by 3. Real property by
in those places are included; incorporation incorporation and
7. Fertilizer actually used on a piece of land; destination
8. Mines, quarries, and slag dumps, while the
matter thereof forms part of the bed, and Q: What are the requisites for machinery to be
waters either running or stagnant; considered real property?
9. Docks and structures which, though A: (COTE)
floating, are intended by their nature and 1. The industry or work must be Carried on in
object to remain at a fixed place on a river, a building or on a piece of land.
lake or coast; 2. Must be placed by the Owner of the
10. Contracts for public works, and servitudes tenement or his agent.
and other real rights over immovable 3. Must Tend directly to meet the needs of the
property. (Article 415) said industry or work.
Q: What are the categories of immovable property?

A: (NIDA)
Academics Committee Chairperson: Dominique Jose S. Puzon
Civil Law Committee Chairperson: Ayn Marie Grace G. Barit-Carig
Vice-Chairperson: Dexter Matias / Members: Clarissa Santos, Raphael Joseph Siares, Helen Grace Ilano, Marvin Zales,
Isaiah Asuncion, Melanie Ganaban, Angelo Grande, Bernadette Aguirre, Maria Ethelyn Adaoag, Isser Gatdula
2
4. Must be Essential and principal to the certain conditions be the subject of a transaction.
industry or work, and not merely incidental (See R.A. 7719 and R.A. 7170)
thereto.
Q: How are properties classified according to
Q: For purposes of criminal law, how are animals ownership?
classified? A: (Article 419)
A: They are to be considered as personal property 1. Public dominion - property owned by the
since they may be the object of theft or robbery. State (or its political subdivisions) in its
public or sovereign capacity and intended
Q: Are all kinds of fertilizers immovable? for public use.
A: No, only if they are actually used. 2. Private ownership – or property owned by:
a. The State in its private capacity known
Q: What happens if the mines, etc. are detached? as patrimonial property; and
A: They become minerals and are therefore b. Private persons, either individually or
movable property. collectively.
Q: Is glass water immovable? Q: In the absence of proof, how is a property to be

A: No. It is different from “waters” (sea, river, or classified?
lake) which is immovable. A: It is presumed to be State property.
Q: What are movable properties? Q: What is the purpose of property of public

A: (SSOFTS) dominion?
1. Those movables Susceptible of A: To serve the citizens and not the State as a
appropriation which are not included in Art. juridical person.
415;
2. Real property which by any Special Q: What are the kinds of property of public
provision of law is considered as dominion?
personalty, (ex: growing crops under the A: (Article 420) (USD)
Chattel Mortgage Law); 1. Those for public Use
3. Forces of nature which are brought under 2. Those which, without being for public use,
the control of science; are intended for some public Service; and
4. In general, all things which can be 3. For the Development of the national wealth
Transported from place to place without
impairment of the real property to which Q: What are the characteristics of properties of
they are fixed; public dominion?
5. Obligations and actions which have for their A: (ULEPO)
object movables or demandable sums; and 1. Outside the commerce of man .
6. Shares of stock of agricultural, commercial 2. Cannot be acquired by Prescription.
and industrial entities, although they have 3. Cannot be Levied upon by execution or
real estate. (Article 416) attachment.
4. In general, they can be Used by everybody.
Q: What are the tests to determine whether it is a 5. May Either be real or personal property.
movable property?
A: (MES) Q: What is the patrimonial property of the State?
1. Test of Exclusion - if not found under A: It is the property not devoted to public use,
Art. 415. public service, or the development of the national
2. By reason of a Special law – immovable by wealth. It is owned by the State in its private or
nature but movable for the purpose of the proprietary capacity.
special law. Ex: Growing crops for
purposes of the Chattel Mortgage Law. Q: Can property of public dominion be converted to
3. Test of Mobility – if the property is capable patrimonial property? How?
of being carried from place to place without A: Yes, through a formal declaration by the
injuring the real property to which it may in executive or legislative body that the property is no
the mean time be attached. longer needed for public use or for public service.
Q: Distinguish consumables from fungibles. OWNERSHIP

A: Consumables - those which cannot be used
according to their nature without being consumed. Q: How is ownership defined?
(Article 418) A: It is a real right to enjoy, dispose, exclude and
Fungibles - those which can be substituted by recover a thing without other limitations than those
another thing. established by law or the owner himself.
Consumability depends upon the nature of the Q: What are the kinds of ownership?
thing itself. A: (FNSC)
A thing may be fungible or non-fungible 1. Full ownership – includes all the rights of an
according to the intention of the parties. owner; Naked ownership + Usufruct
2. Naked ownership – ownership where the
Q: Is the human body real or personal property? rights to the use and to the fruits have been
A: Neither, since it cannot be appropriated. denied; Full ownership - Usufruct
However, the human body or its parts, may, under

3
Q: What is a usufruct?
A: Full ownership – Naked ownership Q: What is a hidden treasure?
A: Any hidden or unknown deposit of money,
3. Sole ownership – ownership is vested in jewelry or other precious objects, the lawful
only one person ownership of which does not appear. (Article 439)
4. Co-ownership – ownership is vested in 2 or
more persons. Q: Is oil or gold hidden treasure?
A: No, these are called natural resources.
Asl?Q: What are the rights of an owner?(Elements
of Ownership) Q: What is the meaning of “other precious objects”?
A: (pufa-vcd) A: Under the ejusdem generis rule, the phrase
1. Right to possess should be understood as being similar to money or
2. Right to use jewelry.
3. Right to enjoy fruits
4. Right to accessories Q: What is the rule regarding discovery of hidden
5. Right to vindicate or recover treasure?
6. Right to consume by its use A: GR: If the finder is the owner of the land,
7. Right to dispose or alienate building, or other property where it is found, it totally
belongs to him.
Q: What are the limitations on the right of XPNS: If the finder is different from the owner or
ownership? is a stranger (includes the lessee or usufructuary),
A: (SLOGcoCo) he is entitled to ½.
Those imposed by the:
1. State in the exercise of the power of taxation,
police power, and power of eminent domain; Requisites: (ACTA)
2. Law- ex: legal easements and the requirement of 1. Discovery was made on the property of
legitime in succession; Another, or of the State or any of its
3. Owner himself- ex: voluntary easement, political subdivisions;
mortgage, pledge, and lease; 2. Made by Chance; and
4. Grantor of the property on the grantee, either by 3. He is not a Trespasser or Agent of the
contract (e.g. donation) or by will; landowner. (Article 438 par. 2)
5. Those arising from conflicts of private rights- ex:
those which take place in accession continua; Q: May the State acquire such hidden treasure?
6. Constitution- ex: prohibition against the A: Yes, in the interest of science or the arts, at a
acquisition of private lands by aliens. just price to be divided in accordance with the
aforementioned rule. (Article 438 par. 3)
Q: What is the so-called Principle of Self help?
A: It is the right of the owner or lawful possessor to Q: Why is a trespasser not entitled to any share?
exclude any person from the actual enjoyment & A: He cannot be allowed to benefit from his
disposal of the property by the use of such force as unlawful act.
may be necessary to repel or prevent threatened
unlawful physical invasion or usurpation of his Q: What is the right of the finder employed to look
property. (Article 429) for treasure?
A: He has no share in the treasure unless agreed
Q: What are the requisites of this principle? upon. He can only ask for his wage.
A: (RONA)
1. Reasonable force Q: What is accession?
2. by the Owner or lawful possessor A: It is the right to everything which is produced by
3. with No delay after the dispossession the property or which is incorporated or attached
4. there is Actual or threatened physical thereto, either naturally or artificially. It is not a
invasion or usurpation mode of acquiring ownership but a mere incident of
which.
Q: What happens if there is delay?
A: Once delay has taken place, even if excusable, Q: Distinguish accession from accessory.
the owner or lawful possessor must resort to judicial A: 1. Accessions are the fruits of, or additions to,
process for he is no longer justified in taking the law or improvements upon, a thing (the principal).
into his own hands. Accessories are things joined to, or
included with the principal thing for the latter’s
Q: Can a person interfere with the right of embellishment, better use or completion.
ownership of another? 2. Accessions are not necessary to the
A: GR: No. principal thing; the accessory and the principal must
XPN: Art. 432 based on the doctrine of state of go together.
necessity and the principle of the ‘least evil rule’
Requisites (ID): Q: What are the classes of accession?
1) Interference is necessary to avert an A: (DC)
imminent danger and a threatened damage to the 1.Accession Discreta (fruits) (INC)
actor or a 3rd person a) Natural – spontaneous products of the
2) Damage to another is much greater than the soil; the young and other products of animals,
damage to property whether brought about by scientific means or not.
4
b) Industrial– produced by lands of any kind damages, subject to the OR
through cultivation or labor. right of OM to remove 2. Be indemnified for value
c) Civil fruits – derived from the use of of materials AND damages
property or income from the property itself. They Good Faith Bad Faith
consist of rents of buildings and the prices of leases Acquire w/o paying Lose materials w/o being
indemnity AND right to indemnified AND pay
of lands. (Article 442)
damages (ART. 449 and damages
451 by analogy)
2.Accession Continua (attachment/incorporation) Bad Faith Bad Faith
a. with respect to real property (IN) As though both acted in good faith
i. accession industrial (building, planting or (in pari delicto)
sowing)
ii. accession natural (alluvium, avulsion, 2. LAND OWNER IS NOT THE BUILDER,
change of a river course, and formation of islands) PLANTER OR SOWER
LO BPS and OM
b. with respect to personal property (SAC) Good Faith Good Faith
i. adjunction or conjunction 1. Appropriate improvements 1. Receive indemnity and
ii. commixtion or confusion after paying indemnity; OR B has the right to retain
iii. specification until paid and cannot be
2. Oblige BP to pay price of required to pay rent; OR
the land xpt if its value is
Q: To whom do the fruits belong?
considerably greater than the 2. BP pay price of the land
A: GR: To the owner. (Article 441) building etc., in which case, (or pay reasonable rent)
XPNS: BP shall pay reasonable and S pay proper rent
If the thing is (PULA): rent, and oblige S to pay
1. in possession of a possessor in good faith proper rent (ART. 448)
(Article 546) Good Faith Bad Faith
2. subject to a usufruct (Article 566) 1. Acquire improvements w/o 1. Lose improvements
3. leased or pledged (Article 1680 and Article paying (ART. 449); OR w/o being indemnified; OR
2102, par. 7) 2. Order demolition or 2. Remove the
4. in possession of an antichretic creditor removal of the improvements improvements; OR
(ART. 450); OR 3. BP pay the price of the
(Article 2132)
3. Compel BP to pay price of land S pay proper rent
the land, regardless of its
Q: What are the basic principles of accession value, or S to pay proper rent *in all cases, pay
continua? damages AND recover
A: *in all cases, collect reimbursement for
1. Accessory follows the principal damages (ART. 451) AND preservation of land
2. Union or incorporation must generally be reimburse BPS for
effected in such a manner that to separate preserving the land (ART.
the principal from the accessory would 452)
Bad Faith Good Faith
result in substantial injury to either
Indemnify BPS for 1. Receive indemnity for
3. He who is in good faith may be held
improvements AND pay improvements AND
responsible but not penalized damages receive damages; OR
4. He who is in bad faith is liable for damages (ART. 454; ART. 447 by 2. Remove them in any
5. No one shall unjustly enrich himself at the analogy) event AND receive
expense of another damages
6. Bad faith of one party neutralizes the bad Bad Faith Bad Faith
faith of the other so that they shall be As though both acted in good faith
considered in good faith. (in pari delicto) (ART. 453)
7. To the owner of the thing belongs the
extension or increases to such thing Q: What if the building is sold to pay for the value of
the land?
A: The builder becomes part-owner of the land.
RIGHT OF ACCESSION WITH
RESPECT TO IMMOVABLE 3. LAND OWNER, IMPROVER AND OWNER
PROPERTY (ARTICLES 445 - 454) OF MATERIALS ARE DIFFERENT PERSONS
LO BPS OM
1. LAND OWNER IS THE BUILDER, PLANTER Good Faith Good Faith Good Faith
OR SOWER 1. Acquire 1. Right of 1. Collect
improvements retention for value of
and pay necessary materials
Land Owner (LO) Owner of Materials (OM)
indemnity to BPS and useful primarily
and Builder, Planter or
and be expenses from BPS
Sower (BPS)
subsidiarily liable AND pay OM and
Good Faith Good Faith
to OM for value of for value of subsidiarily
Acquire building etc. after 1. Remove materials if w/o materials if BPS materials from LO if
paying indemnity for value injury to works, plantings or has no property; if AND demand former is
of materials (ART. 447) constructions; OR BPS has paid, value of insolvent
2. Receive indemnity for pay BPS the materials and 2. Remove
value of materials value of materials labor from LO only if w/o
Bad Faith Good Faith and labor; OR injury
Acquire building etc. after 1. Remove materials, w/ 2. Order demolition
paying value of materials or w/o injury AND be or removal of the
AND indemnity for indemnified for damages; improvements

5
(ART. 455) Q: What if the deposits accumulate, not through the
Good Faith Good Faith Bad Faith effects of the current of the water, but because of
*between LO and Not primarily Lose the constructions made by the owner purely for
BPS, ART. 448; liable for the materials defensive purposes against the damaging action of
ART. 449 by value of the w/o right to the water?
analogy materials AND w/ indemnity
A: The deposits are still deemed to be alluvion and
a right to AND pay
damages damages will belong to the riparian owner.
Good Faith Bad Faith Bad Faith
*between LO and *beteween BPS Q: What is the effect if all these requisites are
BPS, ART. 449-452 and OM, ART. present?
*between LO and 455 A: The riparian owner is automatically entitled to
OM, ART. 449 by the accretion.
analogy AND not
subsidiarily liable to Q: What are the reasons for granting a riparian
OM for value of owner the right to alluvion deposited by a river?
materials
A: 1. to compensate him for:
Bad Faith Bad Faith Bad Faith
Same as though both acted in good faith • danger of loss that he suffers due to the
(in pari delicto) location of his land
• for the encumbrances and other
Bad Faith Good Faith Good Faith easements on his land
*between LO *between BPS 2. to promote the interests of agriculture as he
and BPS, ART. and OM, ART. is in the best position to utilize the
454 455 accretion.
*between LO
and OM, ART.
Q: When does the alluvion start to become the
447
Bad Faith Bad Faith Good Faith property of the riparian owner?
ART. 455 If not insolvent, Collect the value of A: From the time that the deposit created by the
*between LO primarily liable materials AND current of water becomes manifest. (Heirs of
and BPS, ART. to OM for receive damages Navarro v. IAC 268 SCRA 74)
448 value of
*between LO materials to Q: Must alluvial deposits be registered?
and OM, ART. and pay A: Yes, though automatically owned by him. (Heirs
447 damages of Navarro v. IAC 268 SCRA 74)
Good Faith Bad Faith Good Faith
*between LO If not insolvent, Collect the value of Q: What is if the riparian owner fails to register the
and BPS, ART. primarily liable materials AND
449-452 to OM for value receive damages
deposits within the prescriptive period?
1. Answer of materials (ART. 447) A: The deposits are subject to acquisition through
subsidiarily to and damages prescription by third persons. (Reynante v. Court of
OM for value of Appeals 207 SCRA 794)
materials if BPS
is insolvent but Q: Distinguish accretion from alluvium?
NOT for A: Accretion is the process whereby the soil is
damages; OR deposited while alluvium is the soil deposited.
2. If BPS is not
insolvent, right
to damages
Q: What is avulsion?
(ART. 451) A: It refers to the transfer of a known portion of land
Bad Faith Good Faith Bad Faith from one tenement to another by force of the
*between LO Not primarily Forfeits materials current. (Article 459)
and BPS, ART. liable to OM AND pay damages
454 AND w/ right to to BPS Q: What are its requisites?
*between LO damages A: (CAP)
and OM, in pari 1. transfer is caused by the current of a
delicto, ART. river, creek, or torrent.
455
2. transfer is sudden or abrupt
3. the portion of the land transported is
Q: What is alluvium or alluvion? known or identifiable.
A: It is the gradual deposit of sediment by natural
action of a current of fresh water, the original Q: What if land from one tenement is transferred to
identity of the deposit being lost. (Article 457) another by forces of nature other than the river
current?
Q: What are its requisites? A: By analogy, can still be considered as avulsion.
A: (MAG)
1. Deposit is gradual and imperceptible Q: Who owns the land which has been transferred
2. Made through the effects of the current of to another tenement?
the water A: GR: Original owner retains title.
3. The land where the accretion takes place is XPNS: The land not removed shall belong to the
adjacent to the banks of the river owner of the land to which it has been adjudicated.
1. Abandonment

6
2. Expiration of 2 years, whether the failure to b. plumbatura – different metals
remove be voluntary or involuntary, and (Article 468)
irrespective of the area of the portion
known to have been transferred. Q: What are the tests to determine which one is the
principal?
Q: Distinguish alluvium from avulsion: A: (TG-vvm)
A: 1. That to which the other has been united as
ALLUVIUM AVULSION an ornament, or for its use or perfection
Gradual and imperceptible Sudden or abrupt 2. That of greater value
process 3. That of greater volume
Soil cannot be identified Identifiable and verifiable 4. That which has greater merits
Belongs to the owner of the Belongs to the owner
property to which it is from whose property it
Q: How about if the adjunction involves three or
attached was detached
Merely an attachment Detachment followed by more things?
attachment A: The court should first distinguish the principal
and apply Article 466 in an equitable manner such
Q: What happens when a river changes its course that the principal acquires the accessory,
by natural causes and its bed is formed on a private indemnifying the former owner thereof for its value.
estate?
A: It becomes of public dominion whether it is Q: When is separation of things allowed?
navigable or floatable or not. A: (Article 469) (WAB)
1. separation without injury
Q: What does navigable mean? 2. accessory is more precious than the
A: Over which commerce is or may be carried on. principal
Q: How about floatable? 3. owner of the principal acted in bad faith
A: It means capable of admitting floats. Q: What are the rules in adjunction?
A:
Q: What are the rules on ownership with regard to Owner of the Principal (OP) Owner of the Accessory (OA)
formation of islands?
A: 1. If formed on the seA: 1. Acquire accessory 1. Receive payment for value of
and pay OA for its value accessory; OR
a) W/in territorial waters – State
(Art. 466); OR 2. GR: Demand separation
b) Outside territorial waters – first country provided no injury
2. Demand separation
to occupy provided no injury (Art. XPN: If accessory is more
2. If formed on lakes or navigable/floatable 469) precious than principal, may
rivers – State demand w/ or w/o injury
3. If formed on non-navigable/floatable rivers: Good Faith Bad Faith
a) If nearer in margin to one bank – owner Acquire accessory w/o paying Lose accessory and pay damages
of nearer margin is the sole owner and receive damages (Art. 470)
b) If equidistant – island divided Bad Faith Good Faith
longitudinally in halves (Articles 464 1. Pay value of 1. Receive payment and
-465) accessory and pay damages; OR
damages; OR 2. Have accessory separated
2. Have the things w/ or w/o injury to principal and
RIGHT OF ACCESSION WITH RESPECT TO receive damages
separated, even though
MOVABLE PROPERTY (ARTICLES 466-475) may damage principal
and pay damages (Art.
Q: What is adjunction? 470)
A: The process by virtue of which two movable Bad Faith Bad Faith
things belonging to different owners are united in Same as though both acted in Same as though both acted in good
such a way that they form a single object and each good faith faith
of the things united preserves its own nature.
(Article 466) Q: How is the indemnity made?
A: 1. delivery of a thing equal in kind and value; or
Q: What are its characteristics? 2. payment of its price including the sentimental
A: (2BUS) value. (Article 471)
1. 2 movables
2. belonging to different owners Q: What is a mixture?
3. united forming a single object A: It is the combination of materials where the
4. separation would impair their nature or respective identities of the component elements are
result in substantial injury to either thing lost either voluntarily or by chance. (Article 472-
473)
Q: What are the kinds of adjunction?
A: (PEWWS) Q: What are the kinds of mixtures?
1. painting A: (COM-CON)
2. engraftment 1. Commixtion – mixture of solids
3. writing 2. Confusion – liquids
4. weaving
5. soldering Q: What are the rules regarding mixtures?
a. ferruminacion - principal and Owner 1 (O1) Owner 2 (O2)
accessory are of the same metal By Will of Both

7
1. Right is subject to 1. Same; OR 1. There is an apparently valid or effective
stipulations; OR 2.Same instrument.
2. Right is in proportion to the 2. But such instrument is in truth invalid,
part belonging to him (Co- ineffective, voidable, or unenforceable, or
ownership arises) Art. 472 has been extinguished or terminated, or
By Will of Only 1 Owner/ By
has been barred by extinctive prescription.
Chance
3. Such instrument may be prejudicial to the
1. Have things separated Same; OR title.
provided no injury; OR Same
2. If cannot be separated w/o Q: What are the requisites for an action to quiet
injury, acquire interest on title?
mixture in proportion to his A: (LCDR)
part (co-ownership) Art. 473 1. Plaintiff must have a legal or equitable title
Bad Faith (caused the mixture) Good Faith to, or interest in the real property which is
Lose his part on the mixture and Acquire entire mixture the subject matter of the action;
pay damages to O2 and receive damages 2. There must be a cloud in such title;
Bad Faith Good Faith (caused the 3. Such cloud must be due to some
mixture)
instrument, record, claim, encumbrance or
As if both in gf, because the in a way, it’s a
owner in gf was the one who ratification.
proceeding which is apparently valid but is
caused the ratification, in truth invalid, ineffective, voidable or
unenforceable, and is prejudicial to the
Q: What is specification? plaintiff’s title; and
A: It is giving new form to another’s material 4. Plaintiff must return to the defendant all
through the application of labor (labor is the benefits he may have received from the
principal) (Article 474) latter or reimburse him for expenses that
may have redounded to his benefit.
Q: What are the rules regarding specification? Q: What is legal title?
A: Art. 474 A: It consists in full or naked ownership which is
Maker (M) Owner of Materials (OM) registered in the name of the plaintiff.
Appropriate thing Receive payment for value of Q: What is equitable title?
transformed and pay OM materials A: It refers to the beneficial interest in the property
for value of materials the legal title of which belongs to another.
If Material is more
precious than the Thing Q: What are the prescriptive periods?
transformed A:
Good Faith Good Faith 1. Plaintiff in possession – imprescriptible
1. Receive payment for 1. Appropriate new thing
2. Plaintiff not in possession – 10 years
value of his work; OR and pay M for the work; OR
2. Appropriate new thing 2. Receive payment for (ordinary) or 30 years (extra-ordinary)
and pay OM materials
Bad Faith Good Faith Q: What if the action is filed within the period of
1. Lose new thing and pay 1. Appropriate new thing w/o limitations, may it still be barred?
damages to OM; OR paying and receive damages A: Yes, by laches. (See Articles 1431, 1433,
2. Pay value of material (not available if new thing is 1437)
and damages to OM more valuable than materials
for scientific or artistic Q: What is the purpose of an action to remove
reasons) ; OR cloud?
2. Receive payment for value of A: It is intended to procure cancellation, delivery of,
materials and damages
release of an instrument, encumbrance, or claim
constituting a claim on plaintiff’s title, and which
QUIETING OF TITLE (ARTICLES 476- 480) may be used to injure or vex him in the enjoyment
of his title.
Q: What is an action to quiet title?
A: -It is an action for the purpose of putting an end Q: Differentiate an action to quiet title from an
to vexatious litigation in respect to the action to remove cloud on title.
propertyinvolved. A:
-A suit quasi in rem, an action in personam ACTION TO QUIET TITLE ACTION TO REMOVE
concerning real property where judgment CLOUD ON TITLE
therein is enforceable only against the defeated 1. purpose is to put an end 1. for the removal of a
party and his privies. to troublesome litigation possible foundation for
in respect to the a future hostile claim
Q: What is a cloud on title? property involved
A: It is a semblance of title, either legal or equitable, 2. a remedial action 2. A preventive action to
or a claim or a right in real property, appearing in involving a present prevent a future cloud
some legal form but which is, in fact, invalid or adverse claim on the title
which would be inequitable to enforce.
CO-OWNERSHIP
Q: What are the requisites for existence of a cloud?
A: (ATP) Q: What is co-ownership?
8
A: It is that state where an undivided thing or right 1. To use the thing according to the purpose
belongs to two or more persons. (Article 484) intended provided that:
a. It is w/o prejudice to the interest of the co-
Q: What are its requisites? ownership; and
A: (POL) b. W/o preventing the use of other co-owners.
1. Plurality of owners (Art. 486)
2. Object of ownership must be a 2. To share in the benefits in proportion to his
thing or right which is undivided interest, provided the charges are borne in the
3. Each co-owner’s right must be same proportion. (Art. 485)
limited only to his ideal share of the physical 3. Each co-owner may bring an action in ejectment.
whole (Art. 487)
4. To compel other co-owners to
Q: What are the sources of co-ownership? contribute to expenses for preservation of the
A: (DOCSFL) thing(Art. 488)
1. Contract To oppose to any act of alteration (Art. 491)
2. Law - ex. easement of party walls (Article 6. To protect against acts of majority which are
658) prejudicial to the minority (Art. 492, par. 3)
3. Succession- ex. heirs of undivided property 7. To exercise legal redemption
before partition 8. To ask for partition (Art. 494)
4. Donation inter vivos or mortis causa
-ex. where the donor prohibits partition of the Q: May benefits be distributed according to
property for a certain period of time stipulations in a contract and not in proportion to
5. Fortuitous event or by chance - ex. hidden their interests?
treasure A: No. A contrary stipulation is void. It is contrary to
6. Occupancy - ex. when two persons gather forest the essence of co-ownership.
products.
Q: What if the co-ownership is created other than
Q: Distinguish co-ownership from joint tenancy by a contract (by will or donation)?
A: A: The share of the co-owners need not be
Co-ownership Joint Ownership proportionate to their respective interests.
(Tenancy in common) (Joint Tenancy)
1. Each co-owner is the 1. Each joint owner owns Q: What does an action in ejectment cover?
owner of his own ideal the whole thing. A: (FURRPQ)
share. a. Forcible entry
2. Each co-owner may 2. Joint owner must obtain b. Unlawful detainer
dispose of his undivided the consent of all the c. Accion publiciana
share WITHOUT the rest.
d. Accion reinvindicatoria
other co-owners’
consent. e. Quieting of title
3. Upon the death of a co- 3. Upon the death of a f. Replevin
owner, his ideal share joint owner, his share
goes to his heirs. goes to the other joint Q: When one co-owner brings an action, does it
owners by accretion. benefit the others?
4. In case of a minor who is 4. The legal disability of A: Yes, it is deemed instituted for the benefit of all.
a co-owner, this does one joint owner
not benefit the others; benefits the others; Q: But if the case does not prosper, are the other
prescription will prescription will not co-owners bound by the judgment?
continue to run against run against them.
A: GR: No.
them
XPN: They were also served with summons,
even as unwilling plaintiffs.
Q: Distinguish co-ownership from partnership.
Co-ownership Partnership (ordinary)
Q: Can it be brought by one co-owner against
1. No legal personality 1. W/ legal personality
2. By contract, will, etc. 2. By contract only
another co-owner?
3. For collective enjoyment 3. For profit A: No, since the latter has a right to possess; the
4. Agreement to exist for 4. No term limit set by law only effect of the action will be to obtain recognition
more than 10 years is void of the co-ownership.
5. No mutual representation 5. There is mutual
representation Q: What are the expenses which the co-owners can
6. Not dissolved by the 6. Dissolved by death or be compelled to contribute?
death/incapacity of a co- incapacity of a partner A: Only necessary expenses. Useful expenses and
owner those for pure luxury are not included.
7. A co-owner can dispose of 7. A partner cannot be
his share w/o the consent substituted w/o the Q: When may acts of preservation be made?
of the others consent of the others
A: At the will of one of the co-owners, but he must,
8. Profits of a co-owner 8. Profits may be
depend on his stipulated upon (for if practicable, first notify the others of the necessity
proportionate share e.g., profit-sharing of such repairs.
agreements)
Q: Who shall decide regarding expenses for the
Q: What are the rights of each co-owner as to the improvement or embellishment of the thing?
thing owned in common?
A: (USACOPEP)

9
A: The majority co-owner representing the 3. pay for the loss and damages the
controlling interest in the object of the co- community property or other co-owners
ownership. (Article 489) may have suffered.
Q: May a co-owner opt not to contribute? How? Q: Whose shares may a co-owner redeem?
A: GR: Yes, by renouncing his undivided interest A: The shares of all or any other co-owner if sold to
equal to the amount of contribution. a third person.
XPN: If the waiver or renunciation is prejudicial
to the co-ownership. (Article 488) Q: What if the price of the alienation is grossly
excessive?
Q: Is the failure or refusal of a co-owner to A: The redemptioner shall pay only a reasonable
contribute pro rata to his share of expenses one.
tantamount to renunciation?
A: No. Q: What if 2 or more co-owners want to redeem?
A: They may do so in proportion to the shares they
Q: What is the nature of said renunciation? may respectively have.
A: It is in effect a dacion en pago since there is a
change of the object of the obligation (i.e. sum of Q: When does an action to request partition
money to interest in the co-ownership). Hence, the prescribe?
consent of the other co-owners is necessary. A: It does not, as long as the co-ownership exists.
Q: Can the renunciation be made without the Q: What are the XPNS to the right to demand
consent of any unpaid creditor? partition?
A: No, for it is in effect a novation by substitution. A: (CLIPUT)
a. When the co-owners agree to keep the
Q: Distinguish acts of administration from acts of property undivided for a period of time but
alteration. not > 10 yrs
A: b. Prohibited by the transferor (donor/testator)
ACTS OF ACTS OF ALTERATION but not > 20 yrs
ADMINISTRATION c. Prohibited by law by reason of their origin or
1. Refer to the 1. Acts, by virtue of w/c, a co- juridical nature- ex. party walls and fences
enjoyment, owner, in opposition to the d. When a co-owner possessed the property
exploitation, expressed or tacit agreement
as an exclusive owner for a period sufficient
alteration of the of all the co-owners, and in
thing w/c do not violation of their will,
to acquire it through prescription
affect its substance, changes the thing from the e. When partition would render the thing
form, or purpose state in which the others unserviceable or the thing is essentially
believe it would remain, or indivisible
withdraws it from the use to
which they believe it is Q: Does the law favor co-ownership?
intended A: No, it is not conducive to the development of the
2. Transitory in 2. Permanent community property esp. when it involves real
character property.
3. Do not affect the 3. Relates to the substance or
substance or form essence of the thing
Q: Is there a permanent renunciation of the right to
4. In relation to the 4. Requires the consent of ALL
right of a co-owner, co-owners ask for partition?
they require the A: No, such is VOID.
consent of the
majority Q: Can prescription run in favor of or against a co-
5. Can be exercised 5. Must be exercised by the co- owner?
by the co-owners owners themselves A: GR: No, so long as he expressly or impliedly
through others recognizes the co-ownership because the
possession of one co-owner is not adverse to the
Q: Is alteration limited to physical or material others.
changes to the thing? XPN: If the co-owner repudiates the co-
A: No, but includes any act of ownership. ownership, in w/c case, prescription begins to run
from the time of repudiation.
Q: What is the reason for requiring the consent of ex. of acts of repudiation- filing of an action to
the other co-owners? quiet title or recovery of ownership
A: Because alteration is an act of ownership and
not of mere administration. Q: Should creditors and/or assignees be notified of
the proposed partition?
Q: What is the liability of a co-owner who makes an A: The law does not expressly provide that a
alteration without the express or implied consent of notification be given but:
the others? 1. If notice is given- it is their duty to appear to
A: He shall: (LDP) concur /oppose
1. lose what he has spent; 2. If no notice- creditors and/or assignees may
2. be obliged to demolish the improvements still question the partition made
done; and

10
Q: Can a partition already executed or implemented Q: What are common areas?
be still impugned? A: The entire project excepting all units separately
A: GR: No. granted or held or reserved.
XPNS: 1. Existence of fraud, notified or not and
whether or not they opposed Q: What is the effect of any transfer of a unit?
2. Partition was made over their A: It includes the transfer of the undivided interest
objection even if no fraud (Article 497) in the common areas or, in a property case, the
membership or shareholdings in the condominium
Q: What are those rights not affected by partition? corporation.
A: (MRS.P)
1. Rights of: Q: Where the common areas in the condominium
1. mortgage are held by the owners of separate units as co-
2. servitude owners thereof, to whom can the units therein be
3. any other real rights existing before conveyed?
partition A: GR: Only to Filipino citizens.
2. Personal rights pertaining to third persons XPN: In cases of hereditary succession.
against the co-ownership (Article 499)
Q: Can the common areas be divided?
Q: What are the remedies when the thing is A: GR: No, there can be no judicial partition.
essentially indivisible? (Article 498) XPNS: A partition shall be made only upon a
A: (AS) showing: (COURE)
1. Co- owners may agree that it be allotted to A. That 3 yrs after damage to the
one of them who shall indemnify the others; project which rendered a material part
OR thereof unfit for its use prior thereto, it has
2. If they cannot agree, may sell the thing and not been Repaired substantially to its state
distribute the proceeds prior to said damage; or
B. That damage to the project has
Q: What are the obligations of co-owners upon rendered 1/2 or more of the units therein
partition? Untenantable and owners holding in
A: (WARD) aggregate > 30% interest in the common
1. Mutual accounting for benefits received, areas are opposed to the repair; or
fruits and other benefits C. That the project has been in
2. Mutual reimbursements for expenses existence for > 50 yrs, Obsolete and
3. Indemnity for damages caused by reason uneconomic, and owners holding in
of negligence/fraud aggregate > 50% interest in the common
4. Reciprocal warranty for defects of title and areas are opposed to the repair or
quality of the portion assigned to the modernizing; or
co-owner (Articles 500-501) D. That the project or a material part
thereof has been condemned or
Q: How is co-ownership extinguished? Expropriated, the project is no longer
A: (CALSTEP) viable and owners holding in aggregate >
1. Consolidation or merger in one co-owner 70% interest in the common areas are
2. Acquisitive prescription in favor of a third opposed to continuation of the
person or a co-owner who repudiates condominium after such expropriation or
3. Loss or destruction of thing co-owned condemnation; or
4. Sale of thing co-owned E.That the Conditions for such partition by
5. Termination of period agreed upon sale have been met.
6. Expropriation
7. Judicial or extra-judicial Partition POSSESSION
THE CONDOMINIUM ACT Q: What is possession?

(R.A. No. 4736, as amended) A: It is the holding of a thing or the enjoyment of a
right. (Article 523)
Q: What is a condominium?
A: An interest in real property consisting of a Q: Which may be the object of possession?
separate interest in a unit in a residential, industrial A: Only things and rights which are susceptible of
or commercial building and an undivided interest in being appropriated may be the object of
common, directly or indirectly, in the land on which possession. (Article 530)
it is located and in other common areas of the
building. Q: What are the elements or requisites of
possession?
Q: What is a unit? A: (HIP)
A: Any part of the condominium project intended for 1. Holding or control of a thing or right
any type of independent use or ownership. 2. Deliberate Intention to possess (animus
possidendi)
Q: What is a project? 3. Possession by virtue of one’s own right
A: The entire parcel of real property divided or to be
divided in condominiums, including all structures Q: What are the degrees of possession?
thereon. A: (NJurJusSim)

11
1. Possession w/ no right/title- possessor knows provisions/doctrines, and not to the ignorance of the
that his possession is wrongful, e.g. possession of a law. (Article 526, par. 3)
thief or a usurper of land
Q: What are the rights of a possessor?
2. W/ juridical title- possession peaceably acquired A:
and will never ripen into full ownership as long as Good Faith Bad Faith
there is no repudiation of the concept under which As to fruits received
property is held. ex. possession of a tenant, Entitled while possession Reimburse fruits received
depositary, agent. is in good faith or w/c lawful possessor
would have received
As to pending fruits
3. W/ just title or title sufficient to transfer
Liable w/ lawful No right
ownership, but not from the true owner- ripens to possessor for expenses of
full ownership by the lapse of time. ex. The cultivation and shall share
possession of a buyer of a piece of land from one in net harvest to time of
who pretends to be the owner thereof. possession
As to expenses
4. W/ a title in fee simple- springs from ownership; (Necessary expenses)
highest degree of possession. Right of reimbursement Right of reimbursement
and retention
Q: What are the classes of possession? (Useful expenses)
A: (OVALCGHBC) Right of removal None
1. In one’s Own name – possessor Deterioration/Loss
claims the thing for himself No liability, unless due to Always liable
his fault/negligence
2. In the name of Another – held by
the possessor for another
Q: What are the ways of acquiring possession?
3. Voluntary – by virtue of an agreement
A: (FAMS)
4. Legal – by virtue of law; ex. possession in
1. By material occupation/exercise of a right
behalf of incapacitated
2. By subjection of the thing/right to our will
3. In the Concept of an owner –
3. By proper acts and legal formalities
possessor, by his actions, is believed by
established for acquiring such right
others as the owner, whether he is in good
(Article 531)
or bad faith
4. In the concept of a Holder –
Q: What if the decedent was in bad faith, will the
possessor holds it merely to keep or enjoy
heir suffer the consequences of the wrongful
it, the ownership pertaining to another; ex.
possession?
usufructuary
A: No, bad faith is personal to the decedent and is
5. Possession in Good faith
not deemed transmitted to the heirs.The heir suffers
6. Possession in Bad faith
such consequences only from the moment he
7. Constructive possession- does not mean
becomes aware of the flaws affecting decedent’s
that a man has to have his feet on every
title. The effects of good faith of the heir should be
square meter of ground.
counted only from the date of decedent’s death.
(Article 534)
Q: What is a possessor in good faith?
A: One who is not aware that there exists in his title
Q: What are the acts which do not give rise to
or mode of acquisition any flaw which invalidates it.
possession?
(Article 526)
A: (VFAT)
1. Force or intimidation as long as there is a
Q: What is a possessor in bad faith?
possessor who objects thereto
A: One who is aware that there exists in his title or
(Article 536)
mode of acquisition any flaw which invalidates it.
2. Acts executed clandestinely and without
the knowledge of the possessor which
Q: When is good or bad faith material? Immaterial?
means that:
A: It is important in connection to the receipt of
a. acts are not public
fruits, indemnity for expenses, and acquisition of
b. unknown to the owner or possessor
ownership by prescription. It becomes immaterial
3. Mere Tolerance by the owner or the
when the right to recover is exercised. (Article 539)
possessor.
4. Acts executed by Violence. (Article 537)
Q: What are the requisites to constitute possession
in good faith or in bad faith?
Q: Why do acts merely tolerated not give rise to
A: 1. possessor has a title/mode of acquisition
ownership?
2.there is a flaw or defect in said title/mode
A: Because it is not adverse and therefore, no
3.the possessor is aware or unaware of the flaw
matter how long continued, cannot ripen to
or defect
ownership by prescription.
Q: What is mistake upon a doubtful or difficult
Q: What are the rules in case of conflict of
question of law? May it be the basis of possession
possession?
in good faith?
A: (A2DE)
A: It refers to the honest error in the application or
1. Present/actual possessor shall be preferred
interpretation of doubtful or conflicting legal
12
2. If there are 2 possessors, the one longer in A: He forfeits the right to be indemnified in any
possession other manner. (Article 545, par. 3)
3. If the dates of possession are the same,
the one with a title Q: What are necessary expenses?
4. If all the above are equal, the fact of A: Those made for the preservation of the property
possession shall be judicially determined, or those without which, the thing would deteriorate
and in the meantime, the thing shall be or be lost. Ex. Those incurred for ordinary repairs
placed in judicial deposit. (Article 538) required by the wear and tear due to the natural use
of the thing.
Q: What are the rights of every possessor?
A: (RPR) Q: What are the rights of a possessor w/ regard to
1. to be respected in his possession necessary expenses?
2. to be protected in said possession by legal A:
means Good Faith Bad Faith
3. to secure in an action for forcible entry the 1. Right to refund Right to refund
proper writ to restore him in his possession 2. Right of retention
(Article 539) - during its existence, not
obliged to pay rent nor
damages for refusing to
Q: What kind of possession can serve as a title for vacate the premises.
acquiring dominion?
A: Only the possession acquired and enjoyed in the
concept of owner. (Article 540) Q: Why is there no right of retention in case of bad
faith?
Q: Is payment of taxes proof of ownership? A: As punishment for his bad faith.
A: Yes, payment of realty tax coupled with actual
possession in the concept of an owner is a positive Q: Is there right of removal?
indicium of claim of ownership. (Republic v. CA A: None, whether in good faith or bad faith.
258 SCRA 712)
Q: Why is there no right of removal?
Q: What are the different kinds of title? A: Because necessary expenses affect the
A: (CPJ) existence or substance of the property itself.
1. Just title - sufficient to transfer ownership
w/o the need of possessing the property Q: What are useful expenses?
for a period necessary for acquiring title by A: Those which add value to a thing or augment its
prescription. The title is true and valid. income to increase its usefulness or better serve
(titulo verdadero y valido) the purpose for which it is intended. Ex. In leveling
2. Colorable title (titulo colorado) - one which the ground, cutting down the trees and removing
a person has when he buys a thing in good the shrubbery.
faith from one who is not the owner but
whom he believes to be the owner. Q: What are the rights of a possessor w/ regard to
3. Putative title (titulo putativo)- one which a useful expenses?
person believes he has, but in fact he has A:
not because there was no mode of Good Faith Bad Faith
acquiring ownership as when one is in 1. Right to No right
possession of a thing in the mistaken belief refund
that it had been bequeathed to him. 2. Right of
retention
Q: When are fruits considered received? 3. Right of
A: (Article 544) removal,
provided:
1. Natural and industrial fruits - from the
• w/o damage to the
time they are gathered or severed principal thing
2. Civil fruits - from the time of their accrual • subject to the superior
and not their actual receipt. right of the prevailing party
to keep the improvements
Q: What if there are natural or industrial fruits at the by paying the expenses or
time good faith ceases? the increase in value of the
A: The possessor shall share in the expenses of thing
cultivation, net harvest, and charges in proportion to
the time of possession. (Article 545) Q: What are expenses for pure luxury or mere
pleasure?
Q: What are the options of the owner in case there A: Those which are not necessary for the
are pending fruits at the time good faith ceases? preservation of a thing nor do they increase its
A: 1. to pay the possessor in good faith indemnity productivity, but merely to embellish the thing and
for his cultivation expenses and charges for its enjoyment and convenience. Ex. Water
and his share in the net harvest; OR fountains in gardens.
2. to allow him to finish the cultivation and
gathering of the growing fruits. Q: Must the objects be incorporated to the principal
thing that their separation must necessarily reduce
Q: What if the possessor refuses, for any reason, to the value of the thing not curable by ordinary
finish the cultivation and gathering? repairs?

13
A: Yes. b. Acquired at public sale in good faith
– w/ reimbursement
Q: What are the rights of a possessor w/ regard to c. Law enabling the apparent owner
expenses for pure luxury? to dispose as if he is owner
A: d. Sale under Order of the court
Good Faith Bad Faith e. Purchases made at merchant
Right of removal, proided: same rights, but liable only stores, fairs or markets
• w/o injury to principal for the value of the ornaments f. Negotiable document of title
thing at the time he enters into
• successor in possession possession, in case he prefers
Q: What is the right of a possessor who acquires
does not prefer to refund to retain
movable claimed by another?
amount expended
A: (Article 559)
1. bad faith - no right
Acquisitive Prescription
2. good faith- presumed ownership. It is
equivalent to title.
Q: What are the prescriptive periods?
A: 1. Movable
Q: What is the doctrine of irrevindicability?
• 4 years- good faith A: The possession of movable property acquired in
• 8 years- bad faith good faith is equivalent to title. This is merely
2. Immovables presumptive as it can be defeated by the true
• 10 years- good faith owner. (Art. 559)
• 30 years- bad faith
Q: What are the exceptions to the Doctrine of
Q: Does acquisitive prescription apply to registered Irrevindicability?
lands? A: 1. When the owner has lost; or
A: No. 2. Has been unlawfully deprived of a movable
-the possessor cannot retain the thing as
Q: How is possession lost? against the owner, who may recover it without
A: (PRADA) paying any indemnity,
1. Possession of another subject to the
provisions of Art. 537, if the new possession Q: What is the exception to the exceptions?
lasted longer than 1 year (real right to possess A: Where movable is acquired in good faith at a
is not lost until after the lapse of 10 years) public sale, the owner must reimburse to recover.
2. Abandonment (Article 559 par. 2)
• Voluntary renunciation of all rights over
a thing Q: What is a public sale?
• There must be an intention to abandon A: One where there has been a public notice of the
• Effect: the thing is converted into res sale where anyone is allowed to bid.
nullius
• Not applicable to registered lands USUFRUCT
3. Recovery of the thing by the legitimate owner
4. Destruction or total loss of the thing Q: What is usufruct?
Assignment - complete transmission of the A: It is the right to enjoy the property of another
thing/right to another by any lawful manner. temporarily, including both the jus utendi (right to
use) and the jus fruendi (right to the fruits) w/ the
Q: When is a thing considered lost? obligation of preserving its form and substance,
A: A thing is lost when: unless otherwise provided.
• it perishes
• goes out of commerce Q: What are the characteristics of usufruct?
• disappears in such a way that its A: (PORTT)
existence is unknown or if known, 1. constituted on Property- real/ personal,
cannot be recovered. consumable/ non-consumable, tangible/
intangible
Q: What is the difference of assignment from 2. Ownership of which is vested in another
abandonment? 3. Real right
A: The former may either be gratuitous or onerous 4. Temporary duration
while abandonment is always gratuitous. 5. Transmissible
Q: When is possession not considered lost? Q: Is the usufructuary bound to preserve the form
A: (WER) and substance of the thing in usufruct?
1. When for the time being he may not know A: GR: Yes.
its whereabouts (movable) XPN: In abnormal usufruct, whereby the law or
2. When agent encumbered property without the will of the parties may allow the modification of
express authority – except when ratified the substance of the thing.
3. When possession may still be recovered:
(PULMON) Q: Differentiate usufruct from lease.
a. Unlawfully deprived or lost A: (CRONEC)
Usufruct Lease
Nature of Real Personal
14
right a. To alienate (or mortgage) the right of usufruct
Creator of Owner or his agent May not be the (Art 572) xpt parental usufruct (Arts 225, 226
right owner, as in the FC)
case of a sub-lessor b. In a usufruct to recover property/real right, to
or a usufructuary
bring the action and to oblige the owner thereof
Origin By law,contract,will of By contract
to give him the proper authority and the
testator or by
prescription necessary proof (Article 578)
Extent of All fruits, uses and Only those uses c. In a usufruct of part of a common property, to
enjoyment benefits stipulated exercise all the rights pertaining to the co-owner
Cause A passive owner who An active owner with respect to the administration and collection
allows the usufructuary who makes the of fruits or interests.
to enjoy the object of lessee enjoy
usufruct Q: What are the rights of the usufructuary as to
Repairs and Usufructuary pays for Lessee is not advances and damages?
taxes ordinary repairs and obliged to pay for A: (ITD)
taxes on the fruits repairs/taxes
a. To be reimbursed for indispensable
extraordinary repairs made by him in an
Q: What are the kinds of usufruct? amount equal to the increase in value
A: (Article 564) (ENES) (Art 594)
1. As to extent of object: b. To be reimbursed for taxes on the capital
a. total – constituted on the whole thing advanced by him
b. partial – constituted only on a part (Art 597, par. 2)
2. As to number of beneficiaries: c. To be indemnified for damages caused
a. simple – 1 usufructuary by him by the naked owner (Art 581)
b. multiple – several usufructuaries w/c may
be: Q: What are the rights of a usufructuary to pending
1. simultaneous – at the same time natural and industrial fruits?
2. successive – one after another A:
3. As to effectivity or extinguishment: 1. Fruits growing at beginning of usufruct -
a. Pure – no term/condition belong to the usufructuary who is not bound
b. W/ a term – there is a period w/c may be to refund to the owner the expenses of
either suspensive or resolutory cultivation and production
c. Conditional – subject to a condition w/c 2. Fruits growing up to the termination of
may be either suspensive or resolutory usufruct - belong to the owner but he is
4. .As to subject matter: bound to reimburse the usufructuary of the
a. over things – involves tangible property ordinary cultivation expenses (Article 545)
b. over rights – involves intangible property out of the fruits received (Article 443)
Q: Can the right to receive support be the subject Q: What if the expenses exceed the proceeds of
matter of usufruct? the growing fruits?
A: No, because the rights must not be strictly A: The owner has no obligation to reimburse the
personal or intransmissible to be subject of difference. (Article 567)
usufruct.
Q: May the usufructuary lease the thing in usufruct
Q: What are the rights of the usufructuary as to the even w/o the owner’s consent
thing and its fruits? A: Yes, but not being the owner, he cannot
A: (RISERI) alienate, pledge or mortgage the thing itself.
a. To receive the fruits of the property in
usufruct and half of the hidden treasure he Q: May the usufructuary alienate, pledge, or
accidentally finds on the property (Arts 566, mortgage the right of usufruct, even by gratuitous
438) title?
b. To enjoy any increase which the thing in A: Yes, he, being the owner of the right itself.
usufruct may acquire through accession (Art (Article 572)
571)
c. To personally enjoy the thing or lease it to Q: What is the usufructuary liable for?
another (Arts 572-577) A: For the damages suffered by reason of his fraud
d. To make on the property such improvements or negligence.
or expenses he may deem proper and to
remove the improvements provided no damage Q: What is he not liable for?
is caused to the property (Art 579) A: a. For deterioration due to wear and tear
e. To set-off the improvements he may have b. For deterioration due to a fortuitous event
made on the property against any damage to
the same (Art 580) Q: What are the rights and obligations of the
f. To retain the thing until he is reimbursed for usufructuary with respect to consumable things?
advances for extraordinary expenses and taxes A: The usufructuary shall have the right to make
on the capital (Art 612) use of the consumable thing. At the termination of
the usufruct, he must:
Q: What are the rights of the usufructuary as to the 1. pay its appraised value
usufruct itself? 2. if no appraisal:
A: (ARC) a. return the same quantity and quality;or

15
b. pay its current price at such termination Q: What are the exemptions to the obligation to
give security?
Q: What if the damages exceed the value of the A: (SND)
improvements? 1. No one will be injured by the lack of the
A: The usufructuary is liable for the difference as bond
indemnity. 2. Donor reserved the usufruct of the property
donated
Q: What if the improvements exceed the amount of 3. Usufruct is subject to caucion juratoria
damages?
A: He may remove the portion of the improvements Q: When does the usufructuary start to have a right
representing the excess in value if it can be done to the proceeds and benefits after the security has
without injury; otherwise, the excess in value been given?
accrues to the owner. A: He shall have a right to all the proceeds and
benefits from the day on which he should have
Q: Why do improvements accrue to the owner? commenced to receive them. (Retroactive effect of
A: Because there is no indemnity for improvements. giving security) (Article 588)
Q: What are the obligations of the usufructuary? Q: What are ordinary repairs?
A: A: Such as are required by the wear and tear due
Before During At termination to the natural use of the thing and are indispensable
usufruct for its preservation. (Article 592)
Make an Take care of Return the thing
inventory property in usufruct to the Q: What are extraordinary repairs?
naked owner
A:
unless there is a
right of retention 1) Those required by the wear and tear due to
Give security Replace the Pay legal interest the natural use of the thing but not
young of animals for the time that indispensable for its preservation.
that die or are the usufruct lasts 2) Those required by the deterioration of or
lost when the damage to the thing caused by exceptional
usufruct is circumstances and are indispensable for its
constituted on preservation.
flock or herd of
livestock Q: Who pays for extraordinary repairs?
Make ordinary Indemnify the
A: Depends on the kinds of extraordinary repairs:
repairs naked owner for
any losses due to (Article 594)
his negligence or 1. If made by the owner- he can make them but
of his transferees to his expense and he shall have the right to
Notify the owner demand of the usufructuary legal interest on
of urgent extra- the amount expended during the duration of
ordinary repairs the usufruct.
Permit works & 2. If made by the usufructuary- GR: the
improvements by usufructuary may make them but he is not
the naked owner entitled to indemnity because they are not
not prejudicial to
needed for the preservation of the thing.
the usufruct
Pay annual taxes XPN: He shall have the right to demand the
and charges on payment of the increase in value at the
the fruits termination of the usufruct provided that:
Pay interest on
taxes on capital 1. He must notify the owner of the urgency of
paid by the the repairs
naked owner 2.The owner failed to make repairs
Pay debts when notwithstanding such notification
usufruct is 3.The repair is necessary for the preservation
constituted on
of the property.
the whole
patrimony
Secure the Q: Does the usufructuary have the right of retention
naked even after the termination of the usufruct?
owner’s/court's A: Yes, until he is reimbursed for the increase in
approval to value of the property caused by extraordinary
collect credits in repairs for preservation.
certain cases
Notify the owner Q: How is the increase in value determined?
of any prejudicial A: It is the difference between the value of the
act committed by
property before the repairs were made and the
3rd persons
Pay for court
value after.
expenses and
costs Q: What is caucion juratoria?
A: The usufructuary, being unable to file the
required bond or security, files a verified petition in
16
the proper court asking for the delivery of the house 5. Indivisible- not affected by the division
and furniture necessary for himself and his family of the estate between two or more persons
without any bond or security. (Article 587) (Article 618)
6. A right limited by the Needs of the
Q: How is usufruct extinguished? dominant owner or estate, without
A: (PTTDERM) possession.
1. Acquisitive prescription- use by a third 7. It Cannot consist in the doing of an act
person and not the non-use by the unless the act is accessory in relation to a
usufructuary real easement.
2. Termination of right of the person 8. A Limitation on the servient owner’s
constituting the usufruct rights of ownership.
3. Total loss of the thing- if the loss is only
partial, the usufruct continues with the Q: What do you mean by “easement established
remaining part. only on immovable?”
4. Death of the usufructuary- unless a A: The term “immovable” must be understood in its
contrary intention appears. Reason: common and not in its legal sense.
Usufruct is constituted essentially as a
lifetime benefit for the usufructuary or in Q: Distinguish easement from usufruct.
consideration of his person. A:
5. Expiration of the period or fulfillment of the Easement Usufruct
resolutory condition On real property Real or personal
6. Renunciation by the usufructuary- it Limited to a particular or Includes all uses and fruits
partakes of a condonation or donation, it specific use of the servient
must comply with the forms of donation. estate
Non-possessing right over an Involves a right of possession
7. Merger of the usufruct and ownership in the
immovable in an immovable or movable
same person who becomes the absolute Not extinguished by death of Extinguished by death of
owner thereof. (Article 1275) dominant owner usufructuary
Real right whether or not Real right whether or not
Q: What if the naked owner died? registered registered
A: It does not terminate the usufruct. His rights are Transmissible Transmissible
transmitted to the heirs.
Q: Distinguish easement from lease.
Q: Is renunciation an assignment of right? A:
A: No, it is really an abandonment by the Easement Lease
usufructuary of his right and does not require the Real right whether or not Real right only when
consent of the naked owner but it is subject to the registered (whether real or registered OR on real
rights of creditors. personal) property, duration exceeds 1
yr
EASEMENTS OR SERVITUDES Only on real properties Real or personal
There is limited right to the Limited right to both
use of real property of another possession and use of
Q: What is an easement or servitude? but w/o right of possession another’s property
A: It is an encumbrance imposed upon an
immovable for the benefit of another immovable
Q: What are the classifications of easements?
belonging to a different owner or for the benefit of a
A:
community or one or more persons to whom the
1. As to recipient of the benefit:
encumbered estate does not belong by virtue of
a) Real – easement is in favor of another
which the owner is obliged to abstain from doing or
immovable.
to permit a certain thing to be done on his estate.
b) Personal – easement is in favor of a
(Articles 613, 614)
community, or of one or more persons to
whom the encumbered estate does not
Q: Differentiate easement from servitude.
belong.
A:
2. As to source:
Easement Servitude
a. Legal
An English law term Used in civil law countries
Real Real or personal
b. Voluntary
The right enjoyed Burden imposed upon another c. Mixed
Q: What are characteristics of easement? a. Legal – established by law for public use or
A: (RAINCLEI) for the interest of private persons.
1. A Real right but will affect third persons 1.Public Legal Easements – for
only when registered public or communal use.
2. Enjoyed over Another immovable never 2.Private Legal Easements – for the
on one’s own property interest of private persons or for
3. Involves 2 neighboring Estates: the private use.
dominant estate to which the right belongs
and the servient estate upon which an i. Waters
obligation rests. (BWARDN)
4. Inseparable from the estate to which it 1. natural drainage (Article 637)
is attached - cannot be alienated 2. drainage of buildings (Article 674)
independently of the estate (Article 617)

17
3. easement on riparian banks for
navigation, floatage, fishing, salvage, and Q: Can a dominant owner demand a driveway for
towpath (Article 638) his automobile?
4. easement of a dam (Article 639, 647) A: Yes, due to necessity of motor vehicles in the
5. easement for drawing water or for present age.
watering animals (Article 640-641)
6. easement of aqueduct (Articles 642- Q: Who is responsible for repairs and taxes?
636) A: Dominant owner is liable for necessary repairs.
- the right to make the water flow thru or under A proportionate share of the taxes shall be
intervening or lower estates reimbursed by said owner to the proprietor of the
servient estate. This applies only to permanent
Q: What are the requisites? easements. (Article 654)
A:
1. owner of the dominant estate has the iii. Party wall
capacity to dispose of the water
2. water is sufficient for the use intended - a common wall which separates two estates,
3. proposed right of way is the most convenient built by common agreement at the dividing line
and the least onerous to third persons such that it occupies a portion of both estates
4. pay indemnity to the owner of the servient on equal parts; a kind of compulsory co-
estate (Article 643) ownership
Q: How is the easement of aqueduct considered? Q: Distinguish party wall from co-ownership.
A: For legal purpose, it is considered continuous A:
and apparent even though the flow of water may Party Wall Co-ownerhsip
not be continuous or its use depends upon the Shares of co-owners cannot Can be divided physically; a
needs of the dominant estate or upon a schedule of be physically segregated but co-owner cannot point to any
alternate days or hours. (Article 646) they can be physically definite portion of the
identified property belonging to him
No such limitation None of the co-owners may
ii. Right of Way
use the community property
for his exclusive benefit
- right to demand that the owner of an estate because he would be invading
surrounded by other estates be allowed to pass the rights of the others
thru the neighboring estates after payment of Any owner may free himself Partial renunciation is allowed
proper indemnity. from contributing to the cost
of repairs and construction of
Q: What are the requisites? a party wall by renouncing
A: ALL his rights
1. Claimant must be an owner of enclosed
immovable or with real right Q: Who spends for the cost of repairs and
2. There must be no adequate outlet to a public construction of party walls?
highway A: Part-owners shall contribute in proportion to their
3. The right of way must be absolutely necessary respective interests.
not mere convenience
4. The isolation must not be due to the claimant’s Q: May an owner refuse to contribute?
own act A: GR: Yes, any owner may free himself by
5. The easement must be established at the point renouncing his rights in the party wall.
least prejudicial to the servient estate XPN: When the party wall actually supports his
6. There must be payment of proper indemnity building. (Article 662)
Q: What does “least prejudicial” mean? Q: What if the owner of a building supported by a
A: The shortest way and the one which will cause party wall desires to demolish the building?
the least damage. A: He may also renounce his part-ownership of the
wall. He shall bear expenses of repairs and work
Q: What if these 2 circumstances do not concur? necessary to prevent any damage which demolition
A: The way which will cause the least damage may cause to the party wall. (Article 663)
should be used even if it will not be the shortest.
Q: May an owner increase the height of a party
Q: How much is the proper indemnity? wall?
A: If the passage is continuous and permanent – A: Yes, provided:
the indemnity consists of the value of the land 1. He must do so at his own
occupied plus the amount of damages caused to expense
the servient estate. 2. He must pay for any damage caused even
If temporary – indemnity consists in the if it is temporary
payment of the damage caused 3. He must bear the cost of maintaining the
portion added
Q: How big should the easement be? 4. He must pay the increased cost of
A: The width of the easement shall be that which is preservation of the wall (Article 664)
sufficient for the needs of the dominant estate. 5. He shall be obliged to reconstruct the wall
(Article 651) at his expense if necessary for the wall to
18
bear the increased height and if additional 2. Outlet must be at the point where egress is
thickness is required, he shall provide the easiest and establishing a conduit for
space therefore from his own land. drainage
3. Proper indemnity
iv. Light & view
Q: Can there be a stipulation or testamentary
• Easement of light (jus luminum) provision allowing excavations that could cause
-The right to admit light from neighboring danger to an adjacent land or building?
estate by virtue of the opening of a window A: No, the same shall be void. (Article 685)
or the making of certain openings.
• Easement of View (jus prospectus) Q: What should be done first before making an
-The right to make openings or windows to excavation?
enjoy the view thru the estate of another. A: Any proprietor who intends to make any
excavation shall notify all owners of adjacent lands.
Q: What is the prescriptive period for acquisition of
easement of light and view? b. Voluntary – established by the will of the
A: 10 years. owners.
Voluntary easements are governed by:
Q: From when does the prescriptive period start to 1. Title (in its existence)
run? 2. Prescription
A: Reckoning period depends on where the 3. Civil Code (in default of the above)
opening is made:
• If made on one’s own wall and the wall 3. As to its exercise:
does not extend over the property of a) Continuous Easements – the use of which
another – easement is negative. are, or may be, incessant without the
Reason: the owner merely exercises his intervention of any act of man. Ex. right of
right of dominion and not of an easement. aqueduct
Negative easement is not automatically
vested as formal prohibition is required. b) Discontinuous Easements – used at intervals
Period of prescription- starts from the time and depend upon the acts of man. Ex. right of
formal prohibition is made. way when it is physically impossible that man
shall continually pass over the way.
• If made thru a party wall or on one’s own
wall which extends over the neighboring 4. As to whether or nor its existence is indicated:
estate – easement is positive. a) Apparent Easements – made known and are
Reason: owner of the latter estate who has continually kept in view by external signs that
a right to close it up allows an reveal the use and enjoyment of the same.It
encumbrance on his property. is not necessary that its sign be seen; as long
Period of prescription – starts from the time as it may be seen or known on inspection.
the window is opened. b) Non-apparent Easements – show no external
indication of their existence
Q: How about with regard to openings at height of
ceiling joists? 5. As to the duty of the servient owner:
A: The owner of a wall which is not a party wall may a) Positive – imposes upon the owner of the
make an opening to admit light and air, but not view servient estate the obligation of allowing
subject to the ff: something to be done or doing it himself. Ex.
1.The size must not be >30 centimeters square right of way-imposes the duty to allow the use
2.The opening must be at the height of the of said way.
ceiling joists or immediately under the ceiling b) Negative – prohibits the owner of the servient
3.There must be an iron grating imbedded in estate from doing something which he could
the wall lawfully do if the easement did not exist. Ex.
4.There must be wire screen Easement of light and view where the owner
is prohibited from obstructing the passage of
Q: What if a wall becomes a party wall? light.
A: A part-owner can order the closure of the
opening. No part-owner may make an opening thru Q: What are the rights of the dominant owner?
a party wall without the consent of the others. A: (ARME)
1. Exercise all the rights necessary for the
Q: Does non-observance of the distances provided use of the easement (Article 625)
in Article 670 give rise to prescription? 2. Make on the servient estate all works
A: No, this refers to a negative easement as the necessary for the use and preservation of
window is thru a wall of the dominant estate. the servitude (Article 627 par. 1)
3. Renounce the easement if he desires
Q: Define drainage of buildings to exempt from contributing necessary
A: It is the right to divert the rain waters from one’s expenses (Article 628)
own roof to the neighbor’s estate. 4. Ask for mandatory injunction to prevent
impairment of his right. (Resolme v. Lazo,
Q: What are the conditions for drainage of 27 Phil 416)
buildings?
A: 1. No adequate outlet Q: What are the obligations of the dominant owner?

19
A: 7. Condition that the
1. He cannot alter the easement or render easement cannot be used
it more burdensome. (Article 627 par. 1) 8. Resolution of the
2. He shall notify the servient owner of right of grantor to create the easement (as
works necessary for the use and when the vendor a retro redeems the land)
preservation of the servitude. (Article 627 Expropriation of the servient estate
par. 2) 10. Waiver by the
3. He must choose the most convenient dominant owner gathered from positive acts
time and manner in making the necessary
works as to cause the least inconvenience NUISANCE
to the servient owner.
4. He must contribute to the necessary Q: What is a nuisance?
expenses if there are several dominant A: Any act, omission, establishment, business or
estates in proportion to the benefits derived condition of property or anything else which
from the works (Article 628 par. 1) (ISAHO):
1. Injures/dangers the health or safety of
Q: What are the rights of the servient owner? others
A: (RMC) 2. Shocks, defies or disregards decency or
1. Retain the ownership of the portion of morality
the estate on which easement is imposed 3. Annoys or offends the senses
2. Make use of the easement (Article 628 4. Hinders or impairs the use of property or
par. 2), unless there is an agreement to the 5. Obstructs or interferes with the free
contrary. passage to any public highway or street or
3. Change the place or manner of the use body of water
of the easement, provided it be equally
convenient (Article 629, par. 2) Q: What are the classes of nuisance?
A: (SAPuPri)
Q: What are the obligations of the servient owner? 1. Nuisance Per Se- nisance at all times and
A: (IC) under all circumstances regardless of
1. He cannot impair the use of the location and surrounding. Ex. house of
easement. prostituion
2. Contribute to the necessary expenses 2. Nuisance Per Accidens – nuisance by
in case he uses the easement, unless reason of circumstances, location or
otherwise agreed upon surroundings. Any nuisance other than
(Article 628 par. 2) nuisance per se. Ex. Raising and breeding
pigs in a house within city limits
Q: How are easements acquired? 3. Public Nuisance – affects the community or
A: (PARFT) a considerable number of persons.
1. By title – All easements: 4. Private Nuisance – affects only a person or
a. Continuous and apparent easements a small number of persons.
b. Continuous non-apparent easements
and discontinuous easements, whether Q: May a nuisance be both public and private?
apparent or non-apparent A: Yes, it is called mixed nuisance. Ex. A house
2. By prescription of ten years – continuous washed on to a street railway track: private
and apparent easements. nuisance to the railway company and a public
3. By deed of recognition nuisance because it obstructs the street.
4. By final judgment
5. By apparent sign established by the owner Q: Distinguish nuisance from trespass.
of the two adjoining estates A:
Nuisance Trespass
Q: How is the prescriptive period computed? Use of one’s own property Direct infringement of
A: positive easement- the period is counted from w/c causes injury to another another’s right or property
the day when the owner of the dominant estate Injury is consequential Injury is direct and immediate
begins to exercise it
Negative- from the day a notarial prohibition is Q: What is an attractive nuisance?
made on the servient estate A: It is a dangerous instrumentality or appliance
which is likely to attract children at play.
Q: How are easements extinguished?
A: (REMAINCREW) Q: What is the doctrine of attractive nuisance?
Redemption agreed upon A: One who maintains on his estate or premises an
2. Expiration of the term attractive nuisance without exercising due case to
or fulfillment of the resolutory condition prevent children from playing therewith or resorting
3. Merger of ownership thereto, is liable to a child of tender years who is
of the dominant and servient owner injured thereby, even if the child is technically a
Annulment of the title to the servitude trespasser in the premises.
Impossibility to use the easement
Non-user : 10 years Q: What is the basis for liability?

20
A: The attractiveness is an invitation to children.
Safeguards to prevent danger must therefore be set Q: Does the right to question the existence of a
up. nuisance prescribe?
A: No. It is imprescriptible.
Q: Is a swimming pool an attractive nuisance?
A: GR: A swimming pool or water tank is not an BOOK THREE
attractive nuisance, for while it is attractive, it is DIFFERENT MODES OF ACQUIRING
merely an imitation of the work of nature. Hence, if OWNERSHIP
small children are drowned in an attractive water
tank of another, the owner is not liable even if there Q: Differentiate mode from title.
be no guards in the premises (Hidalgo v. A:
Balandan). Mode Title
XPN: Swimming pool with dangerous slides Directly and immediately Serves merely to give the
produces a real right occasion for its acquisition
Q: Is a gift-wrapping counter an attractive or existence
nuisance? cause means
Proximate cause Remote cause
A: Yes, full of ribbons and colors. (Jarco Marketing
Essence of the right which Means whereby that
v. CA) is to be created or essence is transmitted
transmitted
Q: What are the elements of attractive nuisance?
A: 1. It must be attractive Q: Differentiate real from personal right.
2. Dangerous to children of tender years. A: Real right (jus in re) is the power of a person to
obtain certain financial or economic advantages
Q: What are the remedies against nuisance? over a specific thing; a power enforceable against
A: the whole world whether or not he possesses the
Public Private
thing. While personal right (jus in personam) is the
Civil action Civil Action
power of a person to demand from another the
Abatement w/o judicial Abatement w/o judicial
proceedings proceedings fulfillment of a prestation to give, to do, or not to do.
Prosecution under
RPC/local ordinance Q: Whate are the modes of acquiring ownership?
A: (OLD TIPS)
Q: What is abatement? 1. Occupation
A: It is the removal or destruction of a nuisance. 2. Law
3. Donation
Q: What are the requisites of extra-judicial 4. Tradition
abatement? 5. Intellectual creation
A: 6. Prescription
1. The nuisance must be specially Injurious to 7. Succession
the person affected.
2. No breach of peace or unnecessary injury Q: What are the requisites of occupation?
must be committed A: (SCSWI)
3. Demand must first be made upon the 1. There must be seizure of a thing,
owner or possessor of the property to abate 2. which must be a corporeal personal
the nuisance. property,
4. Demand is rejected 3. which must be susceptible of appropriation
5. Abatement is approved by the district by nature
health officer and executed with the 4. The thing must be without an owner
assistance of the local police, and 5. There must be an intention to appropriate
6. Value of destruction does not exceed
P3,000 Q: Distinguish occupation from possession.
A:
Q: Distinguish nuisance per se from nuisance per Occupation Possession
accidens. Mode of acquiring Merely raises the
ownership presumption of ownership
A:
when exercised in the
Nuisance Per Se Nuisance Per Accidens
concept of owner
As a matter of law As a matter of fact
Involves only corporeal Any kind of property
Need only be proved in any Depends upon its location and personal property
locality surroundings, the manner of
Requires that the object be The property may be
its conduct or other
without an owner owned by somebody
circumstances
There must be an intent to May be had in the concept
May be summarily abated May be abated only with
acquire ownership of a mere holder
under the law of necessity reasonable notice to the
May not take place w/o May exist w/o occupation
person alleged to be
some form of possession
maintaining or doing such
nuisance Short duration Generally longer
Cannot lead to another May lead to another mode-
mode of acquisition prescription
Q: Can the owner of the thing abated recover
damages?
A: Yes, if the thing is found by the court not to be a
Q: What are the requisites of tradition?
nuisance.
A: (PJICM)

21
1. Right transmitted should have previously A: Because the donee may not want to accept
existed in the patrimony of the grantor the donor’s liberality or if donation is onerous, he
2. Transmission should be by just title may not agree with the burden imposed.
3. Grantor and grantee should have intention
and capacity to transmit and acquire Q: Who may accept donations made to conceived
4. Transmission should be manifested by and unborn children?
some act which should be physical, A: These may be accepted by persons who
symbolical or legal legally represent them if they were already born
(Article 742).
Q: What are the kinds of tradition?
A: Q: What is the status of donations made to
1. Real Tradition incapacitated persons?
2. Constructive Tradition (S LBC QPI) A: These donations made to incapacitated
a. Traditio symbolica – parties make use of a persons shall be void though simulated under the
token or symbol to represent the thing guise of another contract or thru a person who is
delivered interposed (Article 743).
b. Traditio longa manu – by mere consent of Q: Who are incapacitated persons?
the parties if the thing sold cannot be A: Persons specially disqualified by law to become
transferred to the possession of the donees and not persons without capacity to act.
vendee at the time of the sale
c. Traditio brevi manu – when the vendee Q: What rules govern donations of the same thing
already has possession of the thing sold to different donees?
by virtue of another title A: These are governed by provisions on double
d. Traditio constitutum possessorium – when sale as set forth in Article 1544 (Article 744).
the vendor continues in possession of
the thing sold not as owner but in some Q: Who qualifies as a donor?
other capacity A: He must have capacity to contract and capacity
e. Quasi-tradition – exercise of the right of the to dispose of his property (Article 735).
grantee with the consent of the grantor
f. Tradicion por ministerio de la ley – delivery by Q: Why is there a need for capacity to contract?
operation of law A: Because donation inter vivos are contractual in
g. Tradition by public instrument nature and are mode of alienation of property.
Q: What is donation? Q: When should the donor have this capacity?

A: Donation is an act of liberality whereby a person A: His capacity shall be determined as of the tine of
disposes gratuitously of a thing or right in favor of the making of donation. (Article 737) Making of
another who accepts it. (Article 725) donation shall be construed to mean perfection.
Q: When is donation perfected? Q: Who may qualify as donees?

A: Donation is perfected from the moment the A: All those who are not specially disqualified by
donor knows of the acceptance by the donee law.
(Article 734). Once a donation is perfected, it
cannot be revoked without the consent of the donee Q: What are the kinds of donation?
except on grounds provided by law (Articles 760, A:
764, 765) A. According to motive or cause: (SRMO)
1. Simple
Q: What are the requisites of donation? • Cause: pure liberality
A: (CIDA) • Form: that of donations
1. Donor must have capacity to make the 2. Remuneratory (1st kind)
donation • Purpose: to reward past services
2. He must have donative intent (animus • The services do not constitute a
donandi) demandable debt
3. There must be delivery • Form: that of donations
4. Donee must accept or consent to the 3. Remuneratory (2nd kind) or
donation during the lifetime of the donor and Conditional/Modal donation
of the donee in case of donation inter vivos • Purpose:
(Article 746); whereas in case of donation a) Reward future services; or
mortis causa, acceptance is made after b) Because of future charges or
donor’s death because they partake of a will burdens to be imposed on the donee
(Article 728)
• The value of the future services,
charges or burdens is LESS than the
Q: Who must make the acceptance?
value of the donation.
A: Acceptance may be made by the donee
himself or thru an agent with special power of • Form: onerous- that of contracts
attorney otherwise, donation shall be void. Simple- that of donations
(Article 745) • Illegal or impossible conditions in
simple and remuneratory donations
Q: Why is there a need for an acceptance? shall be considered as not imposed
(Article 727)
22
4. Onerous donation 8. To a physician, surgeon, nurse, health officer or
• Burdens, charges or services are equal druggist who took care of the donor during
in value to that of the donation. his/her last illness;
• This is not really a donation. 9. By individuals, associations or corporations not
• Form: that of contracts. permitted by law to make donations; and
10. By spouses to each other during the marriage
B. According to the time of taking effect: or to persons of whom the other spouse is a
1. Inter vivos (Article 729) presumptive heir. (Articles 745, 752, 753,
2. Mortis causa (Article 728) 754a)
Q: Distingusih donation inter vivos from mortis Q: What are the forms of donation?
causa. A: 1. Of movable property:
A: a. With simultaneous delivery of property
Donation Mortis donated:
Donation Inter Vivos Causa - P 5,000 or < - may be oral/written
1. Takes effect during the Takes effect upon donor’s - > P 5,000 – written in public or private
lifetime of the donor, death document
independently of the his b. Without simultaneous delivery
death - The donation and acceptance must be
2. Cause is donor’s pure In contemplation of donor’s written in a public or private instrument
generosity death w/o intention to (Statute of Frauds), regardless of value.
dispose of the thing in Otherwise, donation is UNENFORCEABLE
case of survival
3. Valid if donor survives the Void if donor survives
donee
2. Of immovable property:
4. Generally irrevocable Always revocable at any a. Must be in a public instrument specifying
except for grounds time and for any reason the property donated and the burdens
provided for by law before the donor’s death assumed by the donee
5. Must comply with the Must comply with the b. Acceptance may be made:
formalities of donations formalities of a will - In same instrument or
6. Acceptance during After donor’s death - In another public instrument,
donor’s lifetime notified to the donor in authentic form,
7. Property completely Property retained by the and noted in both deeds. Otherwise,
conveyed to the donee donor while he is still alive donation is VOID.
8. Donor’s tax Estate tax
Q: What may donation cover?
Q: What are the limitations upon property which A: Donation may cover all present property.
may be donated inter vivos? Donation cannot comprehend future property.
A: (RFM) (Article 751)
1. Donor must reserve sufficient means for his
support and for his relatives who are entitled Q: Can future inheritance or the inchoate right to
to be supported by him (Article 750) inherit be donated?
2. Donation cannot comprehend future A: No, because it is future property.
property except future husband and wife (See
Article 84 FC) Q: May property, the acquisition of which is subject
3. No person may give by way of donation to suspensive condition be donated?
more than he may give by will A: Yes, because once the condition is fulfilled, it
retroacts to the day the contract is constituted.
Q: What are the donations prohibited by law? (Article 1187 par 1)
A: (CP WARP PANS)
1. By persons guilty of adultery or concubinage at Q: May ownership of property may be donated to a
the time of donation; (Article 739) person and usufruct to another?
2. Between persons found guilty of the same A: Yes, provided all the donees are living at the
criminal offense in consideration thereof; time of donation. (Article 756)
3. To a public officer or his/her spouse,
descendants or ascendants in consideration of Q: What are the rights and actions of the donor and
his/her office; donee? (Article 754)
4. To the priest who heard the confession of the A: The donee is subrogated to the rights and
donor during the latter’s last illness, or the actions which in case of eviction would pertain to
minister of the gospel who extended spiritual the donor. If the donation is simple or remunerative,
aid to him during the same period; donor is not liable for eviction or hidden defects
5. To relatives of such priest, etc. within the 4th because the donation is gratuitous, unless the
degree, or to the church to which such priest donor acted in bad faith. If the donation is onerous,
belongs; the donor is liable on his warranty but only to the
6. By a ward to the guardian before the approval extent of the burden.
of accounts;
7. To an attesting witness to the execution of Q: What are the rules regarding the liability of the
donation, if there is any, or to the spouse, donee to pay the debts of donor?
parents or children or anyone claiming under A:
them; 1) where donor imposes obligation
upon the donee: (Article 758)

23
a. Donee is liable to pay only debts Property
previously contracted subsist
(Art.
b. Liable for debts subsequently contracted
766)
only when there is an agreement
c. Not liable for debts in excess of the value
of donation received, unless the contrary is
intended.
2) where there is no stipulation
regarding the payment of debts: (Article 759)
a. Donee is generally not liable to pay
donor’s debts
Rules on Reduction
b. Donee is responsible only if donation has
been made in fraud of creditors which is Grounds Prescrip- Transmiss Effect of Rights to
always presumed when the donor has not tion of ibility of reduction fruits
left sufficient assets to pay his debts, at the action action
time of donation 1. Failure Any time Not Donation Donee is
c. Not liable beyond the value of donation of the by the transmissi- reduced to entitled to
received. donor to donor or by ble (duty to extent the fruits
reserve relatives give and necessary as owner
sufficient entitled to right to to provide of the
RULES ON DONATION means for support receive support property
support during the support are (Art. 750) donated
Rules on Revocation (Art. 750) donor’s personal (Art. 441)
lifetime (Art. 195,
Grounds Prescrip- Transmi- Effect of Liabili (Art. 750) FC)
tion of ssibility of Revocat ty for 2. Inoffi- Within 5 Transmissi Donation Donee
Action Action ion fruits ciousness years after ble to effective appropriate
1. Birth, W/in 4 To children Property Donee for being the donor’s donor’s during the s fruits
appearance years from & descen- must be must in x’ss of death heirs as donor’s (Art. 441)
or adoption birth of 1st dants of returned return what the (Art. 771, donation lifetime
of a child child, donor upon or its those donor can 1149) shall be subject to -retum
(Art. 760) legitimation his death value if accruin give by reduced as reduction those from
(recognitio (Art. 763, sold, or g from will (Art. regards the only upon filing of
n),adoption 2) redeem the 750, 771) x’ss at his death complaint
, judicial the filing of donor’s with regard
declara- mortgag the death (Art. to the x’ss
tion of e with a complai 771) (Art. 771)
filiation or right to nt 3. Birth, Same as in Same as in Same as in Donee
receipt of recover (Art. appea- #1 #1 #1 appropriate
info of the 768,1) rance or Revocation Revocation Reduction s fruits not
existence property adoption affected by
of the child (Art. of a child reduction
believed to 762, 1-2) (Art. (Art. 441),
be dead 760) but with
(Art. 763, regard to
1) the x’ss,
2. Non- W/in 4years To donor’s Property Donee liable only
compliance from heirs and shall be must for fruits
with non- may be returned, return accruing
conditions compliance against the alienatio those from the
(Art. 764) (Art. 764, donee’s ns and receiv filing of the
- can be last par) heirs mortgag ed complaint
renounced; (Art. 764, es are after (Art 768,
contractual last par) void non- 1)
in nature subject compli 4. Fraud Within 4 To Property Fruits shall
to the ance against years from creditor’s returned be returned
rights of (Art. creditors perfection heirs or for the (Art. 1387)
innocent 768, (Art. of donation successors benefit of in case
3rd 2) 759) or from -in-interest creditors donee
persons knowledge (Art. 1178) subject to acted in
(Art. by the the rights bad faith; if
764, 2) creditor of of innocent impossible
3. Act of W/in 1 year Genereally Property Same the 3rd persons to return,
ingratitude from donor’s not to be as in donation (Art. 1387) indemnify
(Art. 765) knowledge transmitted returned; #1 (Art. 1389) the donor’s
of the act of to heirs of but creditor for
ingratitude the donor alienatio damages
(Art. 769) nor filed ns & (Art. 1388,
against the mortgag 1)
doneee’s es
heirs (Art. before PRESCRIPTION
770) notation
of Q: What are the kinds of prescription?
complain
t in the A: 1. Acquisitive prescription - one acquires
Registry ownership and other real rights through the lapse of
of

24
time in the manner and under the conditions laid 8 years 30 years
down by law.
a. Ordinary – requires the possession of Q: What are the rules for the computation of time
things in good faith and with a just title for the time necessary for prescription?
fixed by law A: (Article 1138)
b. Extraordinary – does not require good 1. The present possessor may complete the period
faith or just title but possession for a period longer necessary for prescription by tacking his
than ordinary acquisitive prescription possession to that of his grantor or predecessor in
2. Extinctive prescription – loss of property rights or interest.
actions through the possession by another of a 2. It is presumed that the present possessor who
thing for the period provided by law or failure to was also the possessor at a previous time, has
bring the necessary action to enforce one’s right continued to be in possession during the
with in the period fixed by law. intervening time, unless there is proof to the
contrary.
Q: What are the requisites of extraordinary 3. The first day shall be excluded and the last day
prescription? included.
A: (GLASC)
a. capacity of the possessor to acquire by Q: Who are the persons against whom prescription
prescription runs?
b. susceptibility of object to prescription A: (MAPJ)
c. adverse possession of the character 1. Minors and other incapacitated
prescribed by law persons who have parents,
d. lapse of time required by law guardians or other legal
e. good faith of the possessor or proof of representatives.
just title 2. Absentees who have
Q: Differentiate acquisitive from extinctive administrators.
prescription. 3. Persons living abroad who
A: have managers or
Acquisitive Prescription Extinctive Prescription administrators
1. requires possession by a 1. inaction of the owner of 4. Juridical persons, except the
claimant who is not the possession or neglect of state and its subdivision
owner his right to bring an action
2. applicable to ownership 2. applicable to all kinds of Q: Who are the persons against whom prescription
and other real rights rights whether real or
does not run?
personal
3. vests ownership and 3. produces the extinction
A: (B- SPG)
other real rights in the of rights or bars a right of 1. Between spouses, even
occupant action though there be a
4. results in the acquisition 4. results in the loss of a separation of property
of ownership or other real real or personal right or agreed upon in the
rights in a person as well bars the cause of action to marriage settlements or
as the loss of said enforce the right by judicial decree.
ownership or real rights in 2. Between parents and
another children, during the
5. can be proven under the 5. should be affirmatively
minority or insanity of the
general issue without its pleaded AND proved to bar
being affirmatively pleaded the action or claim of the latter.
adverse party 3. Between guardian and
6. the possessor is the 6. neglect of the owner is ward during the
actor considered continuance of the
guardianship
Q: Distinguish prescription from laches.
A: Q: What are the prescriptive periods provided under
Prescription Laches the law?
1. fact of delay 1. effect of delay A:
2. question of time 2. question of inequity Prescriptive Period Actions
3. statutory 3. not statutory a.) Imprescriptible 1. to declare an inexistent
4. applies at law 4. applies in equity or void contract
2. to quiet title
5. cannot be availed unless 5. need not be specifically
it is especially pleaded as pleaded; the court mat 3. to demand right of way
an affirmative allegation consider it on its own (Article 1143)
initiative 4. to bring an action for
6. based on a fixed time 6. not based on a fixed abatement of public nuisance
(Article 1143)
time
5. to demand partition in co-
ownership
Q: What are the periods of prescription with regard 6. to enforce a trust
to movables and immovables? 7. probate of a will
A: 8. to recover possession of a
Movables Immovables registered land under the
Land Registration Act by the
Good Faith
registered owner
4 years 10 years
Bad Faith b.) 30 years real actions over immovables

25
without prejudice to the acquisition i.) 2 years action to impugn legitimacy of a
of ownership or real rights by child if the husband or his heirs
acquisitive prescription (Article are not residing in the city or
1141) municipality of birth
c.) 10 years 1. actions j.) 1 year 1. action to impugn legitimacy of a

upon a written contract child if the husband or his heirs
(Article 1144) are residing in the city or
2. actions municipality of birth
upon an obligation created by 2. forcible entry and unlawful
law (Article 1144) detainer
3. Defamation
3. upon a
4. Revocation of donation on the
judgment from the time it
ground of ingratitude
becomes final (Article 1144)
5. Rescission or for damages if
4. actions
immovable is sold with an
among co-heirs to enforce
apparent burdens or servitude
warranty against eviction in
6. action for warranty of solvency
partition
in assignment of credits
5. action in 7. actions for loss or damage to
mortgages (Article 1142) goods under the COGSA
k.) 6 months actions for warranty against hidden
d.) 8 years action to recover movables without defects or encumbrances over the
prejudice to acquisition of title for a thing sold
shorter period or to possess title l.) 40 days redhibitory action based on faults
under Arts. 559, 1505, 1133 (Art. or defects of animals
1140)
e.) 6 years 1. actions

SUCCESSION
upon oral contracts (Article
1145) Art. 774. Succession is a mode of acquisition by
2. actions virtue of which the property, rights and obligations
upon quasi-contracts (Article to the extent of the value of the inheritance of a
1145) person are transmitted through his death to another
or others either by his will or by operation of law.
f.) 5 years 1. action for annulment of
marriages (except if the ground
is insanity) and for legal Q: What is succession?
separation reckoned from A: Succession is a mode of acquisition where
occurrence of cause property, rights, and obligations of a person (to the
2. actions against the co-heirs for extent of value of the inheritance) are transmitted
warranty of solvency the debtor through his death to another/others either by will or
in credits assigned in partition
3. action for the declaration of the
operation of law (Article 774, NCC).
incapacity of an heir
4. all other actions whose periods Q: What are the requisites of succession?
are not fixed by law counted A:
from the time the right of action 1. Death of decedent
accrues 2. Transmissible estate
3. Existence and capacity of successor,
g.) 4 years 1. action to revoke donations due
to non-compliance of conditions designated by decedent or law
(Art. 764) 4. Acceptance of successor
2. action to rescind partition of
deceased’s estate on account of Q: What are the characteristics of succession?
lesion A:
3. action to claim rescission of
contracts (Art. 1389)
1 It is a mode of acquisition
4. annulment of contracts for vice 2 The property, rights and obligations to the
of consent (Art. 1391) extent of the value of the inheritance
5. actions upon a quasi-delict transmitted
(Art. 1146) 3 The transmission takes place only at the
6. actions to revoke or reduce time of death.
donations based on birth,
appearance or adoption of a child 4 The transmission takes place either by will
(Art. 763) or by operation of law.
7. actions upon an injury to the
rights of the plaintiff not arising
from contracts (Art. 1146) Important Principles of Succession:
h.) 3 years 1. actions under the eight hour
labor law
2. actions to recover losses in  1. Mortis Causa.--Succession can not take
gambling place while the owner is alive. The
3. money claims as a heir/successor has a mere expectancy right
consequence of employer- to the property of the decedent, during the
employee relationship
4. action to impugn legitimacy of a
lifetime of the latter.
child if the husband or his heirs  2. The interest of the family may override the
reside abroad will of the decedent because of compulsory
heirs. A will cannot impair the legitime.
26
 3. The estate passes or devolves to the family 1. Usufruct
unless the decedent expressly orders 2. Legal Support
otherwise in a will. Family covers spouse, 3. Parental authority
ascendants, descendants, and collateral 4. Personal Easements
relatives. 5. Partnership rights
 4. The family cannot be entirely deprived of 6. Agency
the estate because of the system of
legitime. C. Obligations- A distinction must be made
 5. Within the family, heirs of equal degree/ between monetary and non-monetary obligations.
proximity inherit in equal shares. There is
presumption of equality. 1. Non-monetary obligations are transmitted
 6. The State has a share in the inheritance to the heirs.
through taxes. 2. Monetary obligations are not transmitted to
the heirs.
 7. The heirs are not liable for the debts of the
estate beyond their share in the inheritance.
Estate is liable for the debts left by the  The heirs are not personally liable with their
decedent. own individual properties for the monetary
obligations/debts left by the decedent.
Art. 776. The inheritance includes all the property,  Estate pays for the debts left by the decedent.
rights and obligations of a person which are not  However, if the debts are not paid in
extinguished by his death. settlement proceedings, the heirs could be
liable only to the extent of what they
received.
Q: What is transferred by death in succession?
A: The property, rights and obligations not General rule: Contracts or obligations are binding
extinguished by death are transmitted to the heirs. upon the parties, their heirs or heirs.
Exceptions: Those which are made
Q: Distinguish between succession and inheritance. intransmissible:
A: 1. by their nature;
Succession Inheritance 2. by stipulation; or
The legal mode by The universality of all the 3. by provision of law (Art 1311, NCC)
which property, rights property, rights and
and obligations are obligations constituting the Q: Is a contract of guaranty extinguished by death?
transmitted. patrimony of the decedent A: No, a contract of guaranty does not fall in any of
which are not extinguished the exceptions under Art. 1311. A guarantor’s
by his death and are obligation is basically to pay the creditor if the
transmitted to the successor principal debtor cannot pay. Payment does not
require any personal qualifications. The personal
Q: Distinguish between inheritance and patrimony. qualifications become relevant only at he time the
A: obligation is incurred but not so at the time of
Inheritance Patrimony discharge or fulfillment of the obligation.
That portion of the The aggregate of all
patrimony of a person juridical relations of a Q: Suppose an action for legal separation was filed
which is not extinguished person susceptible of in court by the wife. During the pendency of the
by death. economic valuation. action, the wife died. The children, however, would
want to continue the action because their father is
Q: What is the extent of inheritance? really guilty of concubinage. They petitioned the
A: Inheritance includes the: court to allow them to be substituted for their
1. Property existing at the time of his death deceased mother. They argued that the action
2. Transmissible rights and obligations existing at should be allowed to continue because it would
the time of his death determine whether or not their father would be
A. Property- includes real and personal properties inheriting or not. Decide.
owned by the decedent. A: The children cannot be substituted in an action
for legal separation upon the death of their mother
B. Rights- Some rights are extinguished by death, who filed the case. An action for legal separation is
some are not. purely personal on the part of the innocent spouse
because such an action affects the marital status of
Q: What rights are not transmissible upon the death the spouses.
of a person?
A: Q: Is an action to quiet title extinguished by death?
1. Purely personal rights- A: No, an action to quiet title is not extinguished by
2. Rights which are made intransmissible by the death of the decedent, it being a patrimonial
stipulation of the parties. right. Hence, the heirs have the right to be
3. Rights which are intransmissible by substituted to the action even before their having
provision of law. declared as heirs.
 All other rights are transmissible to the heirs
upon the death of a person Q: What is the status of the rights of the heirs to the
inheritance prior to the decedent’s death or during
Examples of Rights or Obligations Extinguished his lifetime?
by Death by Operation of Law

27
A: The nature of the right of the heirs to the
inheritance prior to the death of decedent is merely
an expectancy or inchoate.
Q: What is the status of the rights of the heirs to the Inherit an undetermined Are always given a
inheritance at the moment of death of the quantity whose exact determinate thing or a
decedent? amount cannot be known a fixed amount
A: Rights to succession vest at the moment of priori and which cannot be
death, not upon the filing of petition for testate/ fixed until the inheritance is
liquidated
intestate proceedings, not upon the declaration of
heirship or upon settlement of the estate. Succeed to the remainder of Only succeed to the
the properties after all the determinate thing or
debts and all the legacies quantity which is
Q: Can the heir enter to a contract of sale, and devisees have been mentioned in the legacy
conveyance or any disposition pertaining to his paid or devise
interest in the inheritance even pending the
Can exist whether the Only in testamentary
settlement of the estate? succession be testate or succession
A: Yes, because his hereditary share/interest in the intestate
decedent’s estate is transmitted or vested
In case of preterition, the The legacies and
immediately from the moment of decedent’s death. institution of an heir is devises remain valid
This is, however, subject to the outcome of the entirely annulled. insofar as they are not
settlement proceedings. inofficious.
In case of imperfect or The legacies and
Q: What is the nature of the transaction entered into defective disinheritance, the devisees remain valid
by the heir pertaining to his hereditary share in the institution of an heir is insofar as they are not
estate pending the settlement of the estate? annulled to the extent that inofficious.
A: The effect of such transaction is to be deemed the legitimes are impaired.
limited to what is ultimately adjudicated to the heir.
However, this aleatory character of the contract Q: Suppose a person is named to succeed to an
does not affect the validity of the transaction. entire estate. The estate, however, consists of only
one parcel f land. Is he an heir or a devisee?
Q: What are the kinds of succession? A: It depends on the manner of his designation in
A: the will. Here, because he is called to inherit the
1. Testate or voluntary- Succession by virtue entire estate, he is therefore an heir.
of a will.
2. Intestate or legal- Succession by operation Q: Can the remains of the decedent be inherited?
of law, in accordance with the presumed will of A: No. The remains of a person is beyond the
the decedent. commerce of men hence, may not be lawfully
3. Compulsory- Succession by operation of appropriated. Only properties which can be the
law; succession to the legitime. object of appropriation may be inherited.
4. Mixed- Succession partly by will and partly
by operation of law. TESTAMENTARY SUCCESSION
Q: Who is an heir? Q: What is a will?

A: An heir succeeds to the whole or to an aliquot A: A will is an act whereby a person is permitted,
portion of the inheritance either by will or by with the formalities prescribed by law, to control to a
operation of the law. certain degree the disposition of his estate, to take
effect after his death (Article 783, NCC).
Kinds of Heirs:
1. Voluntary-by virtue of the will of Q: What are the characteristics of a will?
the testator A: A will is:
2. Compulsory- called by law to 1. Statutory act- The making of a will is only
succeed to a portion of the testator’s estate a statutory not a natural right. Hence, a will
known as legitime. should be subordinated to both the law and
3. Legal or Intestate-by operation of public policy.
law through intestate succession. 2. Unilateral act- No acceptance by the
transferees is needed during the lifetime of the
Q: Who is a devisee?legatee? testator.
A: A devisee succeeds to a specific real property. 3. Strictly personal act- It is strictly personal
A legatee succeeds to specific personal property. in all matters that are essential.
4. Ambulatory- A will is essentially revocable
Q: What are the distinctions between heirs and during the lifetime of the testator.
legatees/devisees? 5. Free from vices of consent- A will must
A: have been executed freely, knowingly and
Heirs Devisees/Legatees voluntarily, otherwise, it is disallowed.
Represent the juridical Never represent the 6. Individual act- A will must be executed
personality of the deceased personality of the only by one person. A joint will is not allowed in
and acquires his rights with deceased no matter the Philippines.
certain exceptions to his how big is the legacy or
obligations devise
28
7. Solemn or formal act- A will is executed in 2. A description of which no person or
accordance with formalities prescribed by law. property exactly answers
Q: What is meant by “strictly personal act”? B. Patent ambiguities- Those which are apparent
A: It means that in the making of a will preparation on the face of the will:
thereof cannot be wholly or partially entrusted to a 1. Uncertainty which arises upon the face of
third person or made through an agent or attorney. the will as to the application of any of its
It refers to the disposition of property. This is so provisions (Article 789, NCC).
because the essence of making a will is the
disposition of property, hence, it cannot be Steps in resolving the ambiguities:
delegated to another. 1. Examine the will itself;
2. Refer to extrinsic evidence or the surrounding
Q: Does it mean that the testator himself, make the circumstances, except oral declarations of the
draft of the will without consulting a lawyer? testator as to his intention.
A: No, the mechanical act of drafting the will may Reason: Because the testator can no longer refute
be entrusted to another, as long as the disposition whatever is attributed to him.
of property expresses the testator’s desires. Rules in the Construction of Wills:
1. Words of the will are to be taken in their
Q: What cannot be delegated to the discretion of a ordinary and grammatical sense unless there is
third person? a clear intention to use them in another sense
A: The following cannot be delegated to third can be gathered and ascertained.
person because they comprise the disposing power 2. Technical words are to be taken in their
of the testator: technical sense, unless:
1. Duration or efficacy of designation of heirs, a. The context clearly indicates a contrary
legatees, or devisees. intention or
2. Determination of the portions which are to b. It satisfactorily appears that he was
receive when referred to by name. unacquainted with such technical sense.
3. Determination as to whether or not a 3. The invalidity of one of several dispositions
disposition is to be operative. contained in a will does not result in the
invalidity of the other dispositions unless it is to
Q: What, on other hand, may be entrusted to third be presumed that the testator would not have
persons? made such other dispositions if the first invalid
A: The following may be entrusted to third persons: disposition had not been made.
1. Distribution of specific property or sums of 4. Every devise or legacy shall cover all the
money that the testator may leave in general to interest in the property disposed of unless it
specified classes or causes clearly appears from the will that he intended to
2. Designation of the persons, institutions or convey a less interest.
establishments to which such property or sums
are to be given or applied. Validity of Wills/ Governing Law
Reason: Here, there is really no delegation
because the testator has already set the Kinds of Validity of Wills:
parameters required by law, namely:
a. The specification of property or sums of 1. Extrinsic validity – refers to the forms and
money solemnities required by law.
b. The specification of classes or causes. a. As to time- the law in force at the
In effect, the third person will only be carrying time of the making of the will.
out the will of the testator as determined by these b. As to place- The will can be
parameters. executed in accordance to the
formalities of the testator’s
Q: What aspects of succession (testate or intestate) citizenship, domicile residence or
are governed by the national law of the decedent? the place where the will was
A: executed.
1. The order of succession
2. The amount of successional rights 2. Intrinsic validity – refers to the legality of
3. The intrinsic validity of testamentary provisions in the will.
provisions a. As to time- the law in force at the
4. The capacity of the heir, legatee or devisee time of the decedent’s death
to succeed. b. As to place- The national law of the
testator governs the intrinsic validity
Ambiguities in a Will of the will regardless of the place of
execution.
Q: What are the kinds of ambiguities in a will?
A: Q: What are the requisites of testamentary
A. Latent ambiguities – Ambiguities which are not capacity?
apparent on the face of a will but to A:
circumstances outside the will at the time the will 1. All persons not expressly prohibited
was made. Examples: by law
1. If it contains an imperfect description of 2. At least 18 years of age
person or property 3. Sound mind

29
Q: What are the two kinds of wills? the language in the said locality. (Abangan
A: vs. Abangan)
1. Ordinary or Notarial will  The fact that the testator knew the language
2. Holographic will need not appear on the face of the will. This
fact may be proven by extrinsic evidence.
Q: What are the common requirements that apply
to the two kinds of wills? Third Requirement: Subscribed by the testator
A: himself or by the testator’s name written by some
1. In writing other person in his presence and under his express
2. In a language or dialect known to the testator direction at the end thereof, at the presence of
witnesses
Q: What constitutes soundness of mind?  A testator can sign with his thumb mark.
A: Soundness of mind requires that at the time of  When somebody else writes the testator’s
making will, testator knows the: name for him, the mere placing by the
a. nature of estate to be disposed testator of a cross after his name, without a
b. proper objects of his bounty statement in the will that somebody had
c. character of the testamentary act signed for him is not sufficient.
Reason: A cross cannot be constituted as the
 Supervening incapacity does not invalidate an testator’s signature because it does not have the
effective will nor is the will of an incapable trustworthiness of a thumb mark.
validated by the supervening capacity.  Somebody else may sign the testator’s name
for the latter, provided this is done in the
Q: What are the formalities in the execution of a latter’s presence and the latter’s express
notarial will? direction.
A: Requirements of a notarial will:  The person signing for the testator does not
1. In writing have to put his own name.
2. Executed in a language or dialect known to
 If the person who signs the name of the
the testator
testator is one of the subscribing witnesses,
3. Subscribed by the testator himself or by the
the will remains valid if all other requisites
testator’s name written by some other
are present (Barut vs Cabacungan)
person in his presence and under his
express direction at the end thereof, at the
Fourth Requirement: Attested and subscribed by
presence of witnesses
at least 3 credible witnesses in the presence of the
4. Attested and subscribed by at least 3
testator and of one another
credible witnesses in the presence of the
 “In the presence” does not necessarily
testator and of one another
require actual seeing, but possibility of
5. Each and every page must be signed by
seeing without any physical obstruction.
the testator or by the person requested by
him to write is name, and by instrumental
Fifth Requirement: Each and every page must be
witnesses in the presence of each other, on
signed by the testator or by the person requested
the left margin
by him to write is name, and by instrumental
6. Each and every page of the will must be
witnesses in the presence of each other, on the left
numbered correlatively in letters placed on
margin
the upper part of each page
7. Must contain an attestation clause, stating  It is immaterial where the signatures appear;
the following: it need not be in the left margin.
a. The number of pages of the will  If the last page contains only the attestation
b. Fact that the testator signed the will clause, the testator need not sign on the
and every page in the presence of margin.
witnesses, or caused some other  If the whole will including the attestation
person to write his name under his clause consists of only one page, it need
express direction not be signed on the margin because this
c. All witnesses signed the will and would serve no purpose, as the page
every page thereof in the presence already has the necessary signatures.
of the testator and of one another (Abangan vs. Abangan)
8. Must be acknowledged before a notary
public Sixth Requirement: Each and every page of the
will must be numbered correlatively in letters placed
First Requirement: In writing on the upper part of each page
 A will, whether notarial or holographic must be  Purpose: To identify and authenticate the
in writing. Oral wills are not allowed in the pages of the will to prevent the substitution
Philippines. of the pages thereof.
 Subscription – is the signing of the
Second Requirement: Written in dialect known to witnesses’ names upon the same paper for
the testator the purpose of identifying such paper as the
 If the testator resides in a certain locality, it will which was executed by the testator.
can e presumed that he know the dialect or

30
 It is necessary to number the first page, as executed and attested in substantial compliance
long as the attestation clause contains the with the law.
number of pages consisting the will.  The proof or evidence that may be admitted
should be limited to that supplied by the will
Seventh Requirement: Attestation clause itself.
 Attestation Clause - record or memorandum
of facts where the instrumental witnesses Q: What are the qualifications of witnesses?
certify that the will has been executed A: Witnesses to a will must be:
before them and that it has been executed 1. of sound mind.
in accordance with formalities prescribed by 2. at least 18 years of age.
law. It may not be in the language known to 3. able to read and write
the witnesses but must be interpreted to 4. domiciled in the Philippines
them. 5. not blind, deaf or dumb
 The attestation must contain the: 6. not have been convicted by final judgment
1. the number of pages used of falsification of a document, perjury or false
2. that the testator signed or caused testimony.
another to sign the will and every
page thereof in the presence of the  Subsequent incompetence of the attesting
instrumental witnesses witnesses does not prevent the allowance of
3. The instrumental witnesses witnessed a will.
and signed the will and all the pages  At least three witnesses are required to make
thereof in the presence of the testator a will valid. If one of the witnesses is a
and one another. notary public before whom the will is
 Attestation consists in witnessing the acknowledged, the will is VOID.
testator’s execution of the will in order to  The notary public who notarized the will
see and take note mentally that those things cannot be a witness except only in addition
are done which the law requires for the to other three witnesses.
execution of a will and that the signature of  A witness who attests the execution of a will
the testator exists as a fact. and to whom, or to whose spouse, or
 The signatures of the witnesses on the left parent, or child, or anyone claiming the right
margin cannot be treated as signature in the of said witness, spouse, parent or child, a
attestation clause. (Cagro vs. Cagro) devise or legacy is given, such shall be
Reason: The signatures in the left margin are void, unless there are three other competent
mere subscriptions. Attestation require more than witnesses to such will (Article 823, NCC).
the mere mechanical act signing.  Creditors of the estate or the testator can be
witnesses.
Eighth Requirement: Must be acknowledged
before a notary public Q: What are the formalities required in the
 Purpose: To affirm the fact that the execution execution of holographic will?
of the will is a voluntary act. A:
1. Entirely written;
 Acknowledgement need not be a
2. Dated; and
contemporaneous act.
3. Signed by testator HIMSELF
 Acknowledgement is a separate undertaking,
4. Executed in a language or dialect known to him
it s not part of the execution of a will.
 The notary public before whom the will is Insertion, Cancellation, Erasure or Alteration
acknowledged cannot be one of the three of Testamentary Provisions
instrumental witnesses. (Cruz vs. Villasor) General rule: When a number of erasures,
corrections, cancellation, or insertions are made by
Q: Is it necessary that the will is written in the the testator in the will but the same have not been
language known to the attesting witnesses? noted or authenticated with his full signature, only
A: No. The law does not require so. The content of the particular words erased, corrected, altered will
the will may not be even known to the witnesses. be invalidated, not the entirety of the will.
Exception: When the holographic will had only one
Additional formalities in case: substantial provision, which was altered by
1. Testator is Deaf/Deaf Mute – must personally substituting the original heir with another and the
read the will, if able, otherwise, he shall designate same did not carry the requisite full signature of the
two persons to read it and communicate to him testator, the entirety of the will is voided or revoked.
the contents thereof in the most practicable Reason: What was cancelled here was the very
manner. essence of the will; it amounted to the revocation of
2. Testator is Blind - will shall be read to him the will. Therefore, neither the altered text nor the
twice, once by one of the subscribing witnesses original unaltered text can be given effect. (Kalaw
and again, by the acknowledging notary public. vs. Relova)
Doctrine of Liberal Interpretation of Attestation Probate of Holographic Wills (Art. 811)
Clause (Art 809, NCC) - Absent Bad Faith, 1. If the will is uncontested, one witness is
Forgery, Fraud, Undue and Improper Pressure and enough
Influence, defects and imperfections in the form of
attestation or in the language used shall not render
the will invalid if proved that the will was in fact

31
2. If the will is contested, three witnesses National law
are required to testify on the authenticity of the Alien Foreign Place of execution
holographic will. Country National law
Place of residence
NCC
 However, the three-witness rule, in case there
is an opposition applies only when the
Codicils
opposition pertains to the authenticity of the
will itself, not when the opposition is based
Q: What is a codicil?
on the presence of undue influence.
A: A codicil is a supplement or addition to a will,
(Azaola vs. Singson)
made after the execution of a will and annexed to
 When the issue pertains to the authenticity of be taken as part thereof, by which any disposition
the holographic will, the three witness rule is made in the original will is explained, added to, or
a mandatory requirement. However, such altered (Article 825, NCC).
requirement is not simply a matter of
quantity of the witnesses but more on the
 A codicil is executed after the execution of a
quality or adequateness of their testimony.
prior will.
 In the case of Codoy vs. Calugay, six  It must be executed in accordance with all the
witnesses were presented by the
formalities required in executing a will.
proponents. SC held that although there is
compliance with Art. 811, the testimonies of
Q: What is incorporation by reference?
the six witnesses are inadequate to
A: Incorporation by reference is the incorporation
establish the existence of the holographic
of an extrinsic document or paper into a will by
will.
reference so as to become a part thereof.
Q: Can the contents and due execution of a lost
holographic will be established merely through oral  The documents or papers incorporated will be
testimonies of witnesses who allegedly seen the considered part of the will even though the
same? same are not executed in the form of a will.
A: No, the holographic will must be presented for  The doctrine of incorporation by reference is
probate, or at the very least a copy thereof. If there not applicable in a holographic will unless
is no other copy available, the will cannot be the documents or papers incorporated by
probated because the best and only evidence is the reference are also in the handwriting of the
handwriting of the testator in the said will. The law testator.
regards the holographic will itself as material proof
of authenticity since it could at any time be Q: What are the requisites of incorporation by
demonstrated to be or not to be in the hands of the reference?
testator himself. (Gan vs. Yap) Requisites:
1. Document referred to in the will must be
Q: May a holographic will which was lost or could in existence at the time of the execution of the
not be found be proved by means of a photostatic will;
copy (photocopy)? 2. The will must clearly describe and identify
A: Yes, a photostatic copy may be allowed because the same;
comparison can be made with the standard 3. It must be identified by clear and
handwritings of the testator. (Rodelas vs. Aranza) satisfactory proof as the document or paper
referred to therein;
Joint Wills 4. It must be signed by the testator and the
witnesses on each and every page, except in
Q: What is a joint will? case of voluminous books of account or
A: A joint will is one which contains in one inventories (Article 827, NCC).
instrument the will of two or more persons jointly
signed by them. REVOCATION OF WILLS
 A joint will executed by Filipinos, even if in a  A will is ambulatory; it is revocable any time
foreign country, is void. during the lifetime of the testator for any
 Reason for the prohibition: A joint will cause and for any reason or for no reason
cannot be revoked by one of the testators at all.
thereby rendering nugatory the ambulatory  The testator’s right to revoke during his
nature of wills. lifetime is absolute. It can neither be waived
nor restricted.
Formal Validity of Wills Made Either in the
Philippines or Abroad 1. Revocation by implication of law –
Revocation produced by operation of law when
Testator Place of Applicable Law certain acts or events take place after a will has
Execution been made, rendering void or useless either the
Filipino Philippines New Civil Code (NCC) whole will or certain testamentary dispositions
Filipino Foreign Place of execution therein.
Country NCC Rationale: The law presumes a change of mind
Alien Philippines NCC or on the part of the testator due to certain
32
changed circumstance pertaining to the family the efficacy of the new disposition; and if, for any
relations or in the status of the property. reason, the new will intended to be made as a
substitute is inoperative, the revocation fails and the
Examples: original will remains in full force.(Molo vs.Molo)
a. When after the testator has made a will, he Simply put, for this doctrine to operate, the
sells or donates the legacy or devise; testator must have intended that the revocation of
b. Provisions in a will in favor of a spouse who his first will is dependent on the validity of his
has given cause for legal separation shall second will. In this case the intention of the testator
be revoked by operation of law the moment is clear: He does not want to die intestate.
the decree of legal separation is granted.
c. When an heir, legatee or devisee commits Principle of Instanter
an act of unworthiness; Express revocation of the first will renders it void
d. When accredit that had been given as a because the revocatory clause of the second will
legacy is judicially demanded by the operates to revoke the previous will INSTANTLY
testator; upon the execution of the will containing it.
e. When one, some or all the compulsory
heirs have been preterited or omitted, the  Revocation of a will based on a false cause or
institution of heirs is void. an illegal cause is null and void.
 Recognition in a will of an illegitimate child
3. By some will, codicil, or other writings does not lose its legal effect even if the will
executed as provided in case of wills: is revoked.
a. Express - provides revocatory
clause REPUBLICATION AND REVIVAL OF WILLS
b. Implied - provisions are completely
inconsistent with previous will Q: What is republication?
 The testator must have the testamentary A: Republication is the act of testator where he
capacity at the time of the making of the reproduces in a subsequent will the dispositions
subsequent will. contained in a previous will which is void as to form,
 The will containing the revocatory clause must or he executes a codicil to his will
itself be valid, otherwise, there is no
revocation.  A will that is void as to its form may be
 In case of inconsistent wills, the subsequent republished by reproducing or copying all
will prevails over the prior will because it is the dispositions in the new or subsequent
the latest expression of testamentary intent will. (Re-execution)
of the testator.  A will that is valid as to form and has earlier
been revoked may be republished by
4. Burning, tearing, canceling or executing a codicil which makes reference
obliterating a will (Physical Act of Destruction) to the revoked will. (Republication by virtue
of a codicil)
Requisites of revocation by physical act of
destruction: Q: What are the effects of republication by virtue
a. Actual physical act of destruction of a codicil?
b. Testamentary capacity of the A:
testator 1. The codicil revives the previous will;
c. Intention to revoke 2. The will is republished as of the date of
d. Performed by testator himself or the codicil;
other person in the presence and express
direction of the testator. Q: What is revival?
A: Revival is the restoration to validity of a
Q: What is the doctrine of presumed previously revoked will by operation of law
revocation?
A: The doctrine of presumed revocation Examples of Revival:
provides that where it is established that the 1. When a compulsory heir is preterited, the
testator had in his possession or had access to the institution of heirs is annulled. However, if
will, but it cannot be found or located upon his the preterited heir predeceased the
death, the presumption is that he must have testator, the institution is revived, without
revoked the will by overt act. (Gago vs. Mamuyac) prejudice to the right of representation;
2. If after making a will, the testator makes a
 The presumption is, however, not conclusive second will impliedly revoking the first, the
and anyone who has proof to the contrary revocation of the second will revives the
may rebut the presumption. first will.
Doctrine of Dependent Relative Revocation ALLOWANCE AND DISALLOWANCE

Where the testator’s act of destruction is connected OF WILLS
with the making of another will, so as fairly to raise Special proceedings to
the inference that the testator meant the revocation establish validity of a will
of the old to depend upon the efficacy of the new Characteristics 1. Special proceedings
disposition intended to be substituted, the of Probate 2. Proceedings IN REM
revocation will be conditional and dependent upon Proceedings 3. Not contentious litigation
4. Mandatory

33
5. Imprescriptible There must always be Revocation can be
Questions 1. Due execution a legal cause. had with or without a
Determinable 2. Testamentary capacity cause.
in Probate 3. Identity of the will As a rule, disallowance It may be partial or
Court GR: Probate court cannot inquire into
intrinsic validity of will
is always total, except total.
XPN: Practical considerations (like when the ground of
when will void on its face) fraud or undue
Kinds of 1. ante-mortem – testator himself influence affects only
Probate petitions the court for the probate certain portions of the
of his own will will.
2. post-mortem – another person
applies for probate of the will after Q: Manuel, a Filipino, and his American wife
the testator’s death Eleanor, executed a Joint Will In Boston,
Massachusetts when they were residing in said dry.
No will shall pass either real or personal The law of Massachusetts allows the execution of
property unless it is proved and allowed in joint wills. Shortly thereafter, Eleanor died. Can the
accordance with the Rules of Court. (Art. 838) said will be probated in the Philippines for the
settlement of her estate?
Q: What is the meaning of probate? A: Yes, the will may be probated in the Philippines
A: Probate is the act of proving before a insofar as the estate of Eleanor is concerned. While
competent court the due execution of a will by a the Civil Code prohibits the execution of joint wills
person possessed with testamentary capacity, as here and abroad, such prohibition applies only to
well as the approval of the court. Filipinos. Hence, the joint will which is valid where
executed is valid in the Philippines but only with
 Probate does not deal with the intrinsic validity respect to Eleanor. Under Article 819, it is void with
of the testamentary provisions. respect to Manuel whose joint will remains void in
 Even if only one heir has been instituted, the Philippines despite being valid where executed.
there must still be a judicial order of (Bar Question, 2000)
adjudication.
 Even if a will has already been probated, if Institution of Heir
later on a subsequent will is discovered, the
latter may still be presented for probate, as INSTITUTION OF HEIRS
long as two wills can be reconciled.
 General rule: A probate court has no Q: How is institution of heir defined under Art. 840?
jurisdiction to decide questions of A: Institution of heir is an act by virtue of which a
ownership. testator designates in his will the person or persons
Exceptions: who are to succeed him in his property and
1. When the parties voluntary submit the transmissible rights and obligations (Article 840,
issue of ownership to the court; NCC).
2. When provisionally, the ownership is
passed upon to determine whether or not  Institution cannot be allowed to affect the
the property involved is part of the estate. legitime.
 The question of ownership is an extraneous  There can be an instituted heir only in
matter which the probate court cannot testamentary succession.
resolve with finality.  A conceived child may be instituted, provided
the conditions in Arts. 40 and 41 are
Q: What are the grounds for disallowance of a will? present.
1. The formalities required by law have not been Q: What are the requisites of a valid institution?
complied with; A:
2. The testator was Insane or mentally incapable 1. The will must be extrinsically valid;
of making will; 2. The institution must be valid intrinsically
3. The will was executed through force or under (the legitime must not be impaired, the heir
duress, or influence of fear or threats; must be certain or ascertainable; there should
4. The will was procured by undue and improper be no preterition);
pressure and influence, on part of the 3. the institution must be effective (no
beneficiary or some other person; predecease, no repudiation by the heir)
5. The signature of testator was procured by
fraud (Article 839, NCC). Q: What are the three principles in the institution of
heirs?
6. The testator acted by mistake or did not
A:
intend that the instrument he signed should be
1. Equality: heirs who are instructed without a
his will;
designation of shares inherit in equal parts
2. Individuality: heirs collectively instituted
Q: What are the distinctions between disallowance
are deemed individually named unless contrary
and revocation?
intent is proven
Disallowance Revocation
It is given by judicial It is a voluntary act of
order. the testator.
34
3. Simultaneity: when several heirs are
instituted, they are instituted simultaneously Q: What are the different kinds of substitution?
and not successively A:
PRETERITION (Article 854, NCC) 1. Simple/Common - takes place when the

heir instituted:
Q: What is preterition? a. predeceases testator;
A: Preterition is the omission in testator’s will of one, b. repudiates the inheritance; or
some or all of the compulsory heirs in direct line , whether c. is incapacitated to succeed
living at time of execution of will or born after death of  Simple substitution without a statement of the
testator. causes to which it refers, shall comprise the
3 above mentioned situations.
Q: What are the requisites of preterition?
A:
2. Brief/Compendious –When two or more
1. There is a total omission in the inheritance; persons are substituted for one OR one
2. The omission must be of a compulsory heir; person for two or more heirs.
3. The compulsory omitted must be in the 3. Reciprocal -one heir designated as substitute
direct line; for instituted heir while latter is simultaneously
4. The omitted compulsory heir must survive the instituted as substitute for former.
testator;
5. Nothing must have been received by the heir by  The substitute enters into the inheritance not
gratuitous title. as an heir succeeding the first heir, but as
an heir of the testator.
 If a compulsory heir is given a share in the  General rule: The substitute is subject to the
inheritance, no matter how small, there is no same charges and conditions imposed upon
preterition. the instituted heir.
 If a compulsory heir has already received a  Exceptions:
donation from the testator, there is no 1. If the testator has expressly provided the
preterition. contrary;
 Reason: A donation to a compulsory heir is 2. if the charges and conditions are
considered an advance of the inheritance. personally applicable only to the instituted
 If a compulsory heir gets less than his heir.
legitime, this is not a case of preterition. He
is, however, entitled to a completion of his 4. Fideicommissary Substitution (Indirect
legitime under Art. 906. substitution)- It is a substitution by virtue of which
 A spouse, although a compulsory heir, is not the fiduciary or first heir instituted is entrusted with
in the direct line. Hence, there is no the obligation to preserve and transmit to a second
preterition of a surviving spouse. heir the whole or part of the inheritance, shall be
 The omission of one or both parents valid and shall take effect, provided such
constitutes preterition when there are no substitution does not go beyond one degree from
legitimate children or descendants. the heir originally substituted and provided further,
that the fiduciary or first heir and the second heir
Q: What are the effects of preterition? are living at the time of death of the testator.
A:
1. Preterition annuls the institution of heirs; Q: Who are the parties to a fideicommissary
2. Devisees and Legacies are valid insofar as substitution? What are their respective obligations?
they are not inofficious;
3. If omitted compulsory heir dies before Parties Obligations
testator, institution shall be effectual , without First heir or He has the obligation to
prejudice to right of representation fiduciary preserve and transmit the
inheritance.
 The universal institution of heirs to the entire Second heir or He eventually receives the
inheritance of the testator results in totally fideicommissary property from the fiduciary.
abrogating the will because the nullification Testator
of such institution of the universal heirs-
without any other testamentary disposition Q: What are the elements/requisites of
in the will- amounts to a declaration that fideicommissary substitution?
nothing at all was written.
 In other words, the effect of annulling the 1. There must be a first heir or fiduciary.
institution of heirs will be, necessarily, the
opening of a total intestacy except that  The first heir receives property, either upon
proper legacies and devises must be the death of the testator or upon the
respected. fulfillment of any suspensive condition
imposed by the will.
Substitution of Heirs  The first heir is almost like a usufructuary with
right to enjoy the property. Thus, like a
Q: What is substitution? usufructuary, he cannot alienate the
A: Substitution is the appointment of another heir so property.
that he may enter into the inheritance in default of original  The first heir obliged to make an inventory but
heir. he is not required to furnish a bond.

35
Q: What are the distinctions between direct and
2. An absolute obligation is imposed upon indirect substitution?
the fiduciary to preserve and to transmit to a Direct Substitution Indirect Substitution
second heir the property at a given time. (Fideicommissary
Substitution)
 The obligation to preserve and transmit must When the substitute When the substitute
be given clearly and expressly by giving receives the property in receives the property
referring it as “fideicommissary substitution” default of the first heir after the heir first
or by imposing upon the first heir the instituted who does not or instituted has enjoyed the
can not receive the same. same for sometime.
absolute obligation to preserve and deliver
There are various There are two liberalities
the property to the second heir. liberalities, one that is which are both effective
 "Given time" means the time provided by the immediate and the other or but successively enjoyed.
testator; if not provided, then it is others eventual, but with
understood that the period is the lifetime of only one of them effective
the first heir. (because ultimately either
the instituted heir succeeds
or it is the substitute).
3. There is a second heir who must be one
The testator so directs the The first heir instituted is
degree from the first heir. transmission of his obliged to preserve the
property that one or more property for the benefit of
 "One degree" refers to the degree of heirs enjoy and may freely one or more succeeding
relationship, it means “one generation”. dispose of the same. heirs and his power of
 As such, the fideicommissary can only be alienation is curtailed or
either a parent or child of the first heir. at least limited.
No other purpose than to Has a further social effect
 The relationship is always counted from the prevent the succession of because it limits the free
first heir. the intestate heirs. circulation of property
 However, fideicommissary substitutions are and for such reason
also limited to one transmission. Upon the many laws prohibit the
lapse of time for the first heir, he transmits same or limit it.
the property to the second heir. In other There is only one transfer. There are 2 transfers –
words, there can only be one one to the fiduciary and
the other to the
fideicommissary transmission such that
fideicommissary.
after the first, there can be no second Has the free and absolute No absolute disposition
fideicommissary substitution. disposition and control over because it is subject to
the property. the condition that he will
4. The first and second heir must both be preserve and transmit the
living and qualified at the time of the death same to the
of the testator. fideicommissary. And
also, there is control on
 The fideicommissary inherits not from the first the property but there is a
limit to the circulation of
heir but from the testator. Thus, the
the property.
requirement that the fideicommissary be The identity of the The fideicommissary is
alive or at least conceived at the time of the substitute does not matter. limited to relatives within
testator’s death. one degree from the first
 From the moment of the death of the testator, heir or fiduciary –
the rights of the first heir and the fiduciary parent/child.
are vested.
 Both the first heir and the fideicommissary Prohibition to Alienate
inherit the property simultaneously, although Rule: The dispositions of the testator declaring
the enjoyment and possession are all or part of the estate inalienable for more
successive. than twenty years are void. (Art. 870)
 If the first heir was able to register the
property in his name, fideicommissary  The prohibition does not apply to
should annotate his claim on the land on the fideicommissary substitution. It refers to
title to protect himself against any alienation simple institution of heir, devisee or legatee.
in favor of innocent third parties.  The prohibition also does not apply to the
 When the property passes to the legitime, even if the prohibition is less than 20
fideicommissary, there is no more years.
prohibition to alienate.  Reason: The legitime cannot be burdened by
 The nullity of the fideicommissary substitution any condition.
does not prejudice the validity of the institution
of the heirs first designated; the Q: Can the prohibition to alienate go beyond 20
fideicommissary clause shall simply be years?
considered as not written. A: No, but it is valid for the first 20 years, it is void
 The provisions on fideicommissary substitution as to the excess.
also applies in a case where the testator gives
the usufruct to various persons successively.

36
CONDITIONAL TESTAMENTARY
DISPOSITIONS AND TESTAMENTARY 2. Casual- The fulfillment of the condition depends
DISPOSITIONS WITH A TERM solely on chance or on the will of a third person.
Q: What are the various kinds of institution? 3. Mixed- The fulfillment of the condition depends
A: Institution of heir may be: partly on chance and partly on the will of the heir,
1. with a condition devisee, or legatee.
2. with a term
3. for a certain purpose or cause (modal Rules for casual and mixed conditions:
institution) General rule: The condition may be fulfilled any
time, either before or after the testator's death
CONDITION unless the testator provides otherwise.
Condition is future or uncertain event or a past Reason: It is not within the heir, devisee or
event unknown to the parties, upon which the legatee's control.
performance of an obligation depends.
Kinds: Qualification: If condition is already fulfilled at the
1. Suspensive condition gives rise to the time of the execution.
right if it happens. a. Testator is unaware- The condition is deemed
2. Resolutory condition extinguishes the complied with or fulfilled.
right if it happens. b. Testator is aware- (1)If the condition can no
longer be fulfilled again, it is deemed fulfilled; (2)If
Resolutory Condition Suspensive Condition the condition can still be fulfilled, fulfill it again.
The disposition becomes The effectivity of the
effective upon the death disposition is dependent Q: What is the effect if the suspensive condition is
of the testator but is upon the fulfillment of the not fulfilled?
extinguished upon the condition. A: If the suspensive condition is not fulfilled, the
happening of the estate will be placed under administration until:
condition. 1. The condition is fulfilled, in which
case the estate should be given to the instituted
Q: What is the effect of an impossible condition on heir;
the testamentary disposition? 2. It becomes obvious that it cannot
A: If an impossible condition is imposed, the be fulfilled, in which case, the estate should be
condition is deemed not imposed. The given to the intestate heirs.
testamentary disposition becomes pure, absolute
and unconditional. Impossible conditions include TERM
those which are illegal, against public order and  A disposition with a suspensive term does not
public policy. prevent the instituted heir from acquiring his
rights and transmitting them to his heirs even
Q: What is the rule on the imposition of condition, before the arrival of the term.
charge or burden regarding the legitimes?  Reason: The right of the heir instituted subject to
A: General rule: The testator cannot impose any
a term is vested at the time of the testator's
charge, condition or substitution whatsoever upon
death- he will just wait for the term to expire.
the legitimes. If a charge condition or substitution is
 If the heir dies after the testator but before the
imposed, it shall be considered as not imposed.
term expires, he transmits his rights to his own
Exception: The testator can validly impose a
heirs because of the vested right.
prohibition against the partition of the legitime for a
period not exceeding 20 years.
Suspensive Term Suspensive Condition
Condition Prohibiting Marriage-Rules: The right of the heir The heir enters into the
1. If the condition is on the first marriage- The instituted subject to a inheritance only when he
condition is considered as not imposed. term is vested at the time is alive and qualified at
2. If the condition is imposed on the second of the testator's death. the time of the testator's
marriage – Hence, if he dies after death and when the
General rule: The condition is deemed as not the testator but before condition happens. (Art.
imposed. the term expires, he can 1034, par. 3)
Exception: The condition is valid if imposed by: transmit his rights to his
(a) deceased spouse; own heirs.
The death of the instituted The death of the instituted
(b) ascendants of the spouse;
heir before the arrival of heir before the fulfillment of
(c) descendants of the spouse. the term does not annul the the condition annuls the
institution. institution.
Q: What are the kinds of suspensive conditions?
A: Q: When the disposition is subject to a term, what
1. Purely Potestative- The fulfillment of the should be done by the instituted heirs or legal heirs
condition depends solely upon the will of the heir, so that they can enjoy possession of the property?
devisee or legatee. A: Distinguish whether the term is suspensive or
General rule: The condition must be fulfilled as resolutory.
soon as the heir learns of the testator's death. 1. Suspensive term- The legal heirs can enjoy
Exception: If the condition has already been possession of the property until the expiration of the
fulfilled and it cannot be fulfilled again, the condition period but they must put up a bond (caucion
is deemed fulfilled.

37
muciana) in order to protect the right of the
instituted heir. (Origin) M F (Reservista)
2. Resolutory term - The legal heirs can enjoy (Reservatarios)

possession of the property but when the term 3rd degree
arrives, he must give it to the legal heirs. The relatives
instituted heir does not have to file a bond. C
(Propositus)
Q: What is caucion muciana?
A: A caucion muciana is a security to be put up to
protect the right of the heirs who would succeed to Q: What are the requisites of reserve troncal?
the property in case the condition, term or mode is A: Requisites of Reserva Troncal:
violated. 1. The property was acquired by a person
Instances when caucion muciana is needed: from an ascendant of from a brother or sister by
1. Suspensive condition gratuitous title.
2. Negative potestative condition 2. Said person died without legitimate issue.
3. Mode 3. The property is inherited by another
ascendant by operation of law.
MODE 4. There are relatives within the third degree
Q: What is a mode? belonging to the line from which said property
A: A mode is an obligation imposed upon the heir to came.
do or to give something.
Q: Who are the parties in reserve troncal?
Modal Institution - statement of: A:
1.) object of the institution; 1. ORIGIN
2.) application of the property left by the testator;
3.) charge imposed by him.  The origin of the property must be an ascendant,
brother or sister.
Q: What are the distinctions between a mode and a  The origin must be a legitimate relative because
condition? reserve troncal exists only in the legitimate
Mode Condition family.
Does not suspend the Suspends the existence  The transmission from the origin to the
effect of the liberality of and demandability of the propositus must be by gratuitous title.
the testator right
Obligatory except when it Never obligatory
 While the origin owns the property, there is no
is for the exclusive reserve yet, and therefore, he has the perfect
benefit of the person right to dispose of it, in any way he wants,
concerned subject, however to the rule on inofficious
donations.
In case of doubt between a mode and a condition,
resolve in favor of mode. 2. PROPOSITUS
Q: What is a disposicion captatoria?  The propositus must be a legitimate descendant

A: A disposicion captatoraia is any disposition of the origin of the property.
made upon the condition that the heir shall make  To give rise to reserve troncal, the propositus
some provision in his will in favor of the testator or must not have any legitimate children,
of any other person shall be void. Here, both the otherwise, the reservable property will be
condition and the disposition are void. inherited by the latter
Reason for the prohibition: It is against public policy  The presence of illegitimate children of the
because it impairs the voluntariness of wills. It tends propositus will not prevent his legitimate
to make the making of the will a contractual act. parents or ascendants from inheriting the
reserved property.
RESERVA TRONCAL  The propositus is the descendant whose death
gives rise to the reserve, and from whom
Q: What is reserve troncal? therefore the third degree is counted.
A: Reserva troncal- The ascendant who inherits  While propositus is still alive, there is no reserva
from his descendant any property which the latter yet, therefore, he is the absolute owner of the
may have acquired by gratuitous title from another property, with full freedom to alienate or
ascendant, or a brother or sister, is obliged to dispose or encumber.
reserve such property as he may have acquired by
 Inasmuch as the propositus is the full owner of
operation of law for the benefit of relatives who are
the property, he may even defeat the
within the third degree and who belong to the line
existence of any possible reserve by simply
from which said property came. (Art. 891)
not giving the property involved to his
ascendant, by way of inheritance by operation
Purpose: To prevent persons who are outsiders to the
family from acquiring, by chance or accident, property
of law.
which otherwise would have remained with the said  The propositus is referred to as the “arbiter of
family. In short, to put back the property to the line from the reserva”.
which it originally came.

38
3. RESERVISTA  Relatives within the third degree from the
propositus:
 The reservista is the ascendant who inherits 1. parents;
from the propositus by operation of law. It is 2. grandparents;
he who has the obligation to reserve. 3. full and half brothers and sisters;
 The relationship between the reservista and the 4. great grandparents,
propositus must be legitimate. 5. nephews and nieces;
 If he inherited the property from the propositus,
not by legal succession or by virtue of legitime, Q: What are the causes for the extinguishment of
there is no obligation to reserve. the reserva?
 The reservista is an absolute or full owner, A:
subject to a resolutory condition. If the 1. Death of the reservista
resolutory condition is fulfilled, the reservista’s 2. Death of all the relatives within the third
ownership of the property is terminated. degree prior to the death of the reservista
 Resolutory condition: If at the time of the 3. Accidental loss of all the reservable
reservista’s death, there should still exist properties
relatives within the third degree (reservatarios) 4. Renunciation or waiver by the reserves or
of the propositus, and belonging to the line reservatarios
from which the property came. 5. Registration under Act 496 without the
reservable character being annotated if it falls
 The reservista cannot transmit mortis causa the into the hands of a buyer in good faith for value
reservable property to his own successors so 6. By prescription- reservista seeks to
long as a reservatario exists. acquire (30 years – immovable; 8 years-
 The reservista can alienate the property being movable)
the owner thereof but subject to the
reservation. LEGITIME
 He is required to furnish a bond, security or
mortgage to guarantee the safe delivery later Q: What is legitime?
on to the reservatarios of the properties A: A legitime is that part of testator’s property which
concerned, in the proper cases. he cannot dispose of because law has reserved it
 However, the bond, security or mortgage is not for certain heirs called compulsory heirs.
needed when the property has been
registered or annotated in the certificate of title  There is compulsion on the part of the testator to
as subject to reserve troncal. reserve that part of the estate which
 Upon the reservista’s death the ownership of the corresponds to the legitime.
reserved properties is automatically vested to  The testator cannot deprive the compulsory
the reservatarios who are existing. Hence, the heirs of their legitimes, except through
reservista cannot dispose the reserved disinheritance.
property by will if there are reservatarios  The law does not specify which property to
existing at the time of his death. reserve but only sets aside a fractional portion
of the estate.
4. RESERVATARTIOS/RESERVEES  There is no obligation on the compulsory heirs to
accept.
 Only the legitime is reserved. The free portion
 The reservatarios are relatives within the third may be disposed of by will.
degree (from the propositus) who will become
the full owners of the property the moment the Q: What are the limitations imposed on the testator
reservista dies, because by such death, the regarding his rights of ownership?
reserve is extinguished. A: The testator cannot make donations inter vivos
 Requisites for passing of title to the which impinge upon the legitime or which are
reservatarios are: inofficious.
a. death of the reservista; and
b. the fact that the reservatarios survived the  The prohibition does not cover an onerous
reservista. disposition (sale) because this involves an
 The reservatarios inherit the property from the exchange of values.
propositus, not from the reservista.
 The reservatarios must be legitimate relatives of Q: What re the classifications of legitimes?
the origin and the propositus. 1. fixed- legitime never changes (legitimate
 Reserva troncal is governed by the following children’s legitime is always ½ )
rules on intestate succession: (Applicable 2. variable- legitime varies
when there are concurring relatives within the
third degree) Q: What are the factors which affect the legitime?
1. Proximity- “The nearer excludes the 1. identity of the concurring compulsory heirs
farther” and;
2. “The direct line is preferred over the 2. number of concurring compulsory heirs.
collateral line”
3. “The descending line is preferred over the
ascending line” Q: What burdens or conditios can be imposed on
the legitime?

39
A: None, because the right of the compulsory heirs  However, in case of voidable marriages, if the
to the legitime is almost absolute. The only burden marriage is not annulled before the decedent
allowed to be imposed is the prohibition against died, the surviving spouse still inherits.
partition for a period not to exceed 20 years. Reason: Voidable marriages can only be attacked in
a direct proceeding, i.e. annulment proceeding.
Q: What are the classifications of compulsory
heirs? 4. Illegitimate children (Acknowledged natural
1. Primary compulsory heirs- They are not children, and natural children by legal fiction
excluded by the presence of other compulsory and other illegitimate children)
heirs.
Examples: legitimate children, surviving spouse  Under the Family Code, there is no more
2. Secondary compulsory heirs- Those who distinction between acknowledged natural
succeed only in default of the primary children and illegitimate children. They are all
compulsory heirs. considered as illegitimate.
Example: legitimate ascendants
3. Concurring compulsory heirs- They get Q: In what ways compulsory heirs inherit?
their legitimes together with the primary or A: Compulsory heirs inherit either:
secondary heirs. Neither exclude primary or 1. in their own right; or
secondary heirs nor each other. 2. by right of representation
Example: Surviving spouse and illegitimate
children. Kinds of Legitime
1. Fixed - if the amount (fractional part) does not
Q: Who are the compulsory heirs? vary or change regardless of whether there are
A: concurring compulsory heirs or not.
1. Legitimate children and descendants a. legitimate children and descendants
(LCD) b. legitimate parents and ascendants
2. Variable - if the amount changes or varies in
 “Legitimate children” includes adopted children accordance with what the compulsory heir
and legitimated children. concur.
 Under RA 8552 or the Domestic Adoption Law a. surviving spouse
adopted children has the same rights granted b. illegitimate children
to the legitimate children. Adopted children, for c. parents of the illegitimate child
all intents and purposes is considered as
legitimate children. Q: What is/are the remedy/remedies available to a
 Hence, the adopted children can already compulsory heir whose legitime has been impaired?
exclude legitimate parents/ascendants. A:
1. In case of preterition - annulment of
2. Legitimate parents and ascendants (LPA) institution of heir and reduction of devises and
legacies
 Legitimate parents and ascendants inherit in 2. In case of partial impairment - completion
default of legitimate children and descendants. of legitime
 Illegitimate children of the decedent do not 3. In case inofficious donation -collation
exclude the legitimate parents and
ascendants. Steps in the Distribution of the Estate of the
 Legitimate parents and ascendants concur with Testator:
the illegitimate children of the decedent. 1. Determine the value of the property left at
 However, if the decedent is himself illegitimate, the death of the testator. (Gross estate)
his illegitimate children excludes the 2. Deduct all debt and charges, except those
illegitimate parents and ascendants. imposed in the will from the gross estate.
 “Illegitimate parents” means parents of the 3. Add the value of all donations by the
illegitimate decedent. testator that are subject to collation.
(Net hereditary estate = Gross estate + donations)
3. Surviving spouse (SS) 4. Determine who are the compulsory heirs
and their corresponding legitimes using the
 There must be valid marriage between the table of legitimes below.
decedent and the surviving spouse. If the 5. Determine the free portion.
marriage is null and void, the surviving spouse Free portion = net hereditary estate
cannot inherit. – legitimes (total amount)
6. Imputation of donations
Q: How can the heirs of the decedent use the nullity
of marriage to prevent the surviving spouse from 7. Distribution of the remaining portion to the
inheriting? legatees and devisees.
A: The heirs can raise the issue of nullity of the
marriage in the same proceeding for the settlement  Donations inter vivos given to children shall be
of the estate. This is allowed because a marriage charged to their legitime, unless otherwise
that is null and void can be collaterally attacked. provided by the testator.
Reason: Donations to the compulsory heirs are
advances to the legitime.
40
 Donations inter vivos to strangers shall be Attempt by one parent against life of x
the other UNLESS there is
charged to the free portion.
reconciliation between parents
Spouses given cause for legal x
DISINHERITANCE separation
Q: What is disinheritance?
A: Disinheritance is the process or act, thru a DISCUSSION: Grounds for Disinheritance
testamentary disposition of depriving in a will any
compulsory heir of his legitime for true and lawful 1. Attempt against the life, etc.
cause.
 Final conviction is necessary.
 The only way in which a compulsory heir can be
 "Attempt" is a generic term which includes all
deprived of his legitime is through valid
kinds of commission, whether frustrated or
disinheritance.
consummated. Intent to kill must be present.
 Disinheritance is not automatic. There must be
evidence presented to substantiate the
2. Accusation.
disinheritance and must be for a valid and
sound cause.
 a. “Accusation” is a generic term which includes:
 Effect of Disinheritance: Total exclusion to the (i)filing of an information; (ii) presenting
inheritance, meaning, loss of legitime, right to incriminating evidence; (iii) acting as a
intestate succession, and of any disposition in witness against the ascendant.
a prior will.  b. Imprisonment of more than six (6) years
 Disinheritance, however, is without prejudice to  c. Accusation is groundless- Ascendant is
the right of representation of the children and acquitted on the finding that:
descendants of the person disinherited. (i)there is no crime; or
 BUT the disinherited parent shall not have the (ii)that the ascendant did not commit it.
usufruct or administration of the property  If the ascendant was acquitted on reasonable
which constitutes the legitime. doubt, the ascendant cannot disinherit
because the accusation is not groundless.
Q: What are the requisites of a valid
disinheritance? 3. Adultery and concubinage
A: Disinheritance must be:
1. Made in a valid will
 Conviction is required.
2. Identity of the heir is clearly established
3. For a legal cause
4. Fraud, violence, intimidation or undue
4. Expressly made
influence as regards the will
5. Cause stated in the will
6. Absolute or unconditional Total
7. Cause must be true and if challenged by the  This goes into the very essence of will-making.
heir, it must be proved to be true (proponent of
disinheritance has the burden of proof.) 5. Refusal to support without justifiable cause
Causes for Disinheritance  Refusal, itself, is not a ground; it must be

Legend: unjustified.
Children/Descendants (C/D)  Example: The person may be willing to support
Parents/Ascendants (P/A) but it is not economically feasible. There is
Spouse (S) here a justified refusal.
Testator (TR)
X – means that the ground on the left side of the table is also a 6. Maltreatment.
ground either in the disinheritance of C/D, P/A, or S
Grounds C/D P/A S
Guilty/convicted of attempt against life x x x  No conviction is required as compared to
of TR/spouse/ ascendant/descendant “attempt against the life” wherein conviction is
Accusation of a crime punishable by x x x needed.
imprisonment of more than 6 years, if  This may be proven by preponderance of
groundless, false evidence.
Causes TR to make will or change one x x x
by fraud, violence, intimidation, or 7. Leads a dishonorable life
undue influence
Unjustified refusal to support testator x x x
 "Leads" denotes habituality.
Conviction of adultery or concubinage x x
with spouse of TR  Dishonorable and disgraceful are based on the
Maltreatment of TR by word and deed x sense of the community as perceived by the
Leading a dishonorable or disgraceful x judge. It is not limited to sexual immorality.
life
Conviction of crime which carries x 8. Civil Interdiction
penalty of civil interdiction
Abandonment of children or inducing x  Conviction is required.
children to live corrupt and immoral life  Civil interdiction is an accessory penalty that
or attempted against virtue
goes with the principal penalty of reclusion
Loss of parental authority x
temporal and up.

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of donation inter vivos
9. Abandonment, etc.
 Abandonment by a parent of his children Q: What are the distinctions and similarities
 Induced their daughter to live a corrupt or between imperfect disinheritance and preterition?
immoral life- It includes grandparents to A:
granddaughters. Imperfect Preterition
 Attempt against their virtue- Mere attempt is Disinheritance
enough as long as it can be proven. DISTINCTIONS:
N.B. In all 3 cases, conviction is not required. The institution remains The institution of heirs is
valid, but must be reduced completely annulled.
insofar as the legitime has
10. Loss of parental authority been impaired.
SIMILARITIES:
 Loss of parental authority is a ground for In both cases, the omitted heir and the imperfectly
disinheritance only if there is fault on the part disinherited heir get at least their legitime
of the heir. In both, the legacies and devises remain valid insofar
as the legitime has not been impaired.
11. The spouse has given cause for legal Both refer to compulsory heirs.
separation
Q: What are the defenses that the disinherited
 A decree of legal separation is not essential nor compulsory heir may avail?
is a final judgment in a criminal case required. A:
 If there is legal separation, the testator does 1. Have the will declared void – disinheritance
need to disinherit. Disinheritance takes place depends upon a valid will OR
by operation of law. 2. If will is declared valid, contest the reason
for the disinheritance as not being one
Q: What is reconciliation? provided for by the law, or contest the
A: There is reconciliation when two persons who authenticity of cause
are at odds decide to set aside their differences and
to resume their relations. They need not go back to LEGACIES AND DEVISES
their old relation.
Legacy - testamentary disposition by virtue of
 A handshake is not reconciliation. It has to be which a person is called by testator to inherit an
something more. It must be clear and individual item of personal property
deliberate. Devise - testamentary disposition by virtue of which
a person is called by the testator to inherit an
 In disinheritance, reconciliation need not be in
individual item of real property
writing.
Q: What can be bequeathed or devised?
Q: What is the effect of reconciliation on a person’s
A: Anything within the commerce of man or which is
right to disinherit?
A: alienable.
a. If there is no will- It deprives the offended
person of his right to disinherit the offending Q: Can the testator bequeath or devise a thing or
person. property belonging to someone else?
b. If already disinherited- It sets aside A: It depends on the situations below.
disinheritance already made. First situation: The testator thought that he owned
it.
General rule: A legacy or devise of a thing
Q: What are the distinctions between a valid belonging to someone else when the testator
disinheritance and preterition? thought that he owned it is a void legacy or devise
A: because it is vitiated by mistake.
Valid Disinheritance Preterition Exception: If the testator acquires it after making
Disinheritance is always The omission may be his will.
intentional. either intentional or
unintentional. Second situation: The testator knows that he does
The cause must always be It may be with or without not own but ordered its acquisition.
stated in the will; it must be cause. If the thing given as devise or legacy is not
true and legal. owned by the testator at the time he made the will
Always intentional Intentional or but he orders his estate to acquire it, it is a valid
Unintentional legacy or devise. The testator knew that he did not
The disinherited heir Preterition annuls the own it. There is no mistake.
receives nothing. (either by institution of heirs
way of legitime or intestate
succession)
There must always be a will. It may exist with or Art. 933. If the thing bequeathed belonged to
without a will (as when the legatee or devisee at the time of the
everything has been execution of the will, the legacy or devise shall
given to only one of the be without effect, even though it may have been
compulsory heirs by way subsequently alienated by him.
42
If the legatee or devisee acquires it
gratuitously after such time, he can claim Q: Is a legacy or devise considered payment of a
nothing by virtue of the legacy or devise; but if debt, if the testator has a standing indebtedness to
it has been acquired by onerous title he can the legatee or devisee?
demand reimbursement from the heir or the A: No, legacy or devise is not considered payment
estate. of a debt because if it is, then it would be a useless
legacy or devise since it will really be paid.
Q: What is the effect if the thing or property
bequeathed or devised belonged to the legatee or Q: What is the order of payment of legacies and
devisee at the time the will was executed? devises?
A: The legacy or devise is ineffective even if the A:
legatee or devisee alienates the thing after the will 1. Remuneratory legacies or devises
is made. 2. Legacies or devises declared by testator to be
preferential
Q: Suppose the legatee or devisee acquired the 3. Legacies for support
property after the will has been executed? Suppose 4. Legacies for education
he acquired the thing by onerous title? What would 5. Legacies or devises of a specific determinate
be the effect? thing which forms part of the estate
A: If at the time the legacy or devise is made, the 6. All others pro rata
thing did not belong to the legatee or devisee but
later on he acquires it, then: Q: What are the grounds for the revocation of
legacy or devise?
a. If he acquired it by gratuitous title, then the A:
legacy or devise is void. 1. Transformation of the thing in such a
Reason: The purpose of the testator that the manner that it does not retain either the
property would go to the devisee or legatee has form or the denomination it had.
already been accomplished with no expense to 2. Alienation of the thing bequeathed.
the legatee or devisee.
 In general, the alienation of the property revokes
b. If he acquired it by onerous title, the legacy the legacy or devise notwithstanding the nullity
or devise is valid and the estate may be of the transaction.
required to reimburse the amount.  However, whether or not the legacy or devise is
revoked or not depends on the basis for the
Q: Suppose the property bequeathed or devised nullity of the contract:
has been pledged or mortgaged, who has the 1. If the nullity is based on vitiated consent, the
obligation to free the property from such legacy or devise is not revoked because there
encumbrance? was no intention to revoke.
A: As a general rule, the pledge or mortgage must 2. For all other grounds, the legacy or devise is
be paid by the estate, except if the testator provides revoked.
otherwise. However, any other charge such as
 Exception: If the sale is pacto de retro and the
easements and usufruct, with which the thing
testator reacquired it during his lifetime.
bequeathed is burdened, shall be respected by the
legatee or devisee.
3. Total lost of the thing bequeathed.
Rules on Legacy of Credit and Legacy of
 The lost of the thing bequeathed must not be
Remission
attributed to the heirs. There should be no
fault on the part of the heirs.
Q: What is a legacy of credit?
A: Legacy of credit takes place when the testator
bequeaths to another a credit against a third CAPACITY TO SUCCEED
person. In effect, it is a novation of the credit by the
subrogation of the legatee in the place of the Capacity to succeed is the ability to inherit and
original creditor. retain property obtained mortis causa
Q: What is a legacy of remission? Requisites:

A: A legacy of remission is a testamentary 1. The heir, legatee or devisee must be living
disposition of a debt in favor of the debtor. The or in existence AT TIME succession opens;
legacy is valid only to the extent of the amount of 2. Such heir, legatee or devisee must not be
the credit existing at the time of the testator's death. incapacitated or disqualified by law to
In effect, the debt is extinguished. succeed.
Rules: General rule: A thing or entity which is neither a

1. Legacy applies only to the amounts natural nor juridical person cannot inherit by will
outstanding at the time of the testator's Exceptions:
death. 1. organizations/associations for religious,
2. The legacy is revoked if the testator files an scientific, cultural, educational or charitable
action (judicial suit) against the debtor. purposes
3. It applies only to credits existing at the time 2. the poor in general
the will was made, and not to subsequent
credits.

43
INCAPACITY TO SUCCEED: 3. The will was executed during or after the
spiritual ministration.
Article1027. The following are incapable of 4. Relatives of the priest of minister of the
succeeding: gospel
1. The priest who heard the confession of the
testator during his last illness, or the Person Disqualified: Guardian
minister of the gospel who extended
spiritual aid to him during the same period;  General rule: The disqualification applies when
2. The relatives of such priest or minister of the disposition is made after the guardianship
the gospel within the fourth degree, the began or before guardianship is terminated
church, order, chapter, community, (approval of final accounts or lifting of
organization, or institution to which such guardianship.)
priest or minister may belong;  Exception: The disposition is valid when the
3. A guardian with respect to testamentary guardian is an ascendant, descendant,
dispositions given by a ward in his favor brother, sister or spouse.
before the final accounts of the
guardianship have been approved, even if Person Disqualified: Attesting witness.
the testator should die after the approval
thereof; nevertheless, any provision made
 General rule: The witness, the spouse, parent,
by the ward in favor of the guardian when
and the child of the witness are disqualified to
the latter is his ascendants, descendant,
inherit.
brother, sister, or spouse, shall be valid;
4. Any attesting witness to the execution of a  Exception: If there are three (3) other
will, the spouse, parents, or children, or any witnesses to the will.
one claiming under such witness, spouse,
parents, or children; Person Disqualified: Physician, surgeon, nurse,
5. Any physician, surgeon, nurse, health health officer or druggist.
officer or druggist who took care of the
testator during his last illness;  The persons mentioned must have taken care of
6. Individuals, associations and corporations the sick person.
not permitted by law to inherit.  Requisites:
1. The will was made during the last illness
N.B. Numbers 1 to 5 do not apply to legitimes. 2. The sick person must have been taken
cared of during his last illness. Medical
Person Disqualified: Priest attendance was made.
3. The will was executed during or after he was
 A priest is incapacitated to succeed when the being taken cared of.
confession is made prior to the making of a
will. OTHER PROHIBITED DISPOSITIONS IN
 If simultaneous, the priest is still disqualified. TESTAMENTARY SUCCESSION
Art. 1028. The prohibitions mentioned in article
 If the will is made way before such confession,
739, concerning donations inter vivos shall apply to
the priest can inherit.
testamentary provisions. (Art. 739 has been
 The disqualification applies only to testamentary
rephrased as follows:)
dispositions.
Article 739. The following dispositions shall be
Q: If the confession was made before the will was
void:
made and the priest is the son of the sick person,
1. Those made between persons who were
can the priest inherit upon the death of the sick
guilty of adultery or concubinage at the time of
person?
the making of the will;
A: Yes. He can get the legitime.
2. Those made between persons found guilty
of the same criminal offense, in consideration
Q: If the priest were a brother, same circumstances
thereof;
as above, can he inherit?
3. Those made to a public officer or his wife,
A: Yes. He can inherit by intestacy.
descendants and ascendants, by reason of his
office.
Person Disqualified: Priest or minister
UNWORTHINESS
 Despite this apparent restriction to Christian
ministers, this applies to all spiritual ministers,
Article1032. The following are incapable of
e.g., Buddhist monks.
succeeding by reason of unworthiness:
 Reason: It is conclusively presumed that the 1. Parents who have abandoned their children
spiritual minister used his moral influence to or induced their daughters to lead a corrupt
induce or influence the sick person to make a or immoral life, or attempted against their
testamentary disposition in his favor. virtues;
 Requisites: 2. Any person who has been convicted of an
1. The will was made during the last illness attempt against the life of the testator, his
2. The spiritual ministration must have been or her spouse, descendants or ascendants;
extended during the last illness
44
3. Any person who has accused the testator 5. the heir instituted is incapacitated to
of a crime for which the law prescribes succeed, except in cases provided for
imprisonment for six years or more, if the under the NCC.
accusation has been found to be N.B. The enumeration is not exclusive; there are
groundless; other still causes for intestacy which are not
4. Any heir of full age who, having knowledge included in the enumeration.
of the violent death of the testator, should Examples:
fail to report it to an officer of the law within 1. preterition;
a month, unless the authorities have 2. arrival of the resolutory term or period;
already taken action; this prohibition shall 3. fulfillment of a resolutory condition attached
not apply to cases wherein, according to to the inheritance.
law, there is no obligation to make an
accusation; Q: Can there be a valid will which does not institute
5. Any person convicted of adultery or an heir?
concubinage with the spouse of the A: Yes, a will is valid even if it contains only a
testator; provision for disinheritance or if only legacies and
6. Any person who by fraud, violence, devises are contained in the will.
intimidation, or undue influence should
cause the testator to make a will or to Q: Who are intestate heirs?
change one already made; A:
7. Any person who by the same means 1. Legitimate children or descendants
prevents another from making a will, or 2. Illegitimate children or descendants
from revoking one already made, or who 3. Legitimate parents or ascendants
supplants, conceals, or alters the latter's 4. Illegitimate parents
will; 5. Surviving spouse
8. Any person who falsifies or forges a 6. Brothers and sisters, nephews and nieces
supposed will of the decedent. 7. Other collateral relatives up to the 5th
degree
 N.B. Grounds 1, 2, 3, 5 and 6 are the same 8. The State.
grounds as in disinheritance.
 Numbers 6, 7 and 8 cover six (6) acts which Q: What is the order of preference between lines in
relate to wills: legal or intestate succession?
1. Causing the testator to make a will A: Succession takes place:
2. Causing the testator to change an existing First, in the direct descending line,
will Second, in the direct ascending line,
3. Preventing the decedent from making a Finally, in the collateral line
will
4. Preventing the testator from revoking his Q: What are the distinctions between intestate
will succession from compulsory succession?
5. Supplanting, concealing, or altering the A:
testator's will. Intestate Succession Compulsory
6. Falsifying or forging a supposed will of the Succession
decedent. (Legitime)
Merely provides for the Rules are obligatory on
FORMULA FOR APPLICATION OF presumed will of the the testator regardless of
INHERITANCE: (ISRAI) deceased. his wishes.
(The following are applied successively) Suppletory to testate Takes place whether the
succession and takes deceased has left a will
1. I – institution of an heir (bequest in case of
place only in default of or not and is therefore
legacies or devises) the latter. superior and
2. S – substitution if proper independent of
3. R – representation if applicable testamentary
4. A – accretion if applicable succession.
5. I – intestacy if all of the above are not
applicable PRINCIPLES IN INTESTATE SUCCESSION
Preference of Lines– Relatives of decedent who
LEGAL OR INTESTATE SUCCESSION are in direct descending line shall EXCLUDE those
in the direct ascending or in the collateral line, while
Q: When can legal or intestate succession take those in direct ascending line exclude those in
place? collateral line
A: Intestate succession takes place when:
1. there is no will; the will is void, or the will is Proximity – Relatives of decedent nearest in
revoked; degree EXCLUDE the more remote ones;
2. the will does not dispose all the property of presupposes the fact that all of relatives involved
the testator. (partial intestacy); should belong to the same line; still subject to
3. the suspensive condition attached to the preferences between lines, except when right of
inheritance is not fulfilled; representation takes place
4. the heir predeceased the testator or
repudiates the inheritance and no Right of Representation (RR) – Right created by
substitution and no right of accretion take fiction of law where the representative is raised to
place.

45
the place and degree of the person represented,  Rationale: The law presumes the existence of
and acquires the rights which the latter would have antagonism between the illegitimate child and
if he were living or could have inherited. the legitimate relatives of his parents.
 Representation takes place in the direct ACCRETION

descending line, but never in the ascending.
 In the collateral line - RR takes place only in Q: What is accretion?
favor of children of brothers or sisters, whether A: Accretion is a right by virtue of which, when two
full or half blood and only if they concur with at or more persons are called to the same inheritance,
least one uncle or aunt. devise or legacy, the part assigned to the one who
 An illegitimate child can represent his father, renounces or cannot receive his share, or who died
provided that the father was also illegitimate. before the testator, is added or incorporated to that
 Representation may arise either because of: of his co-heir, co-devisees, or co-legatees.
1. death,
Basis: Accretion is a right based on the presumed
2. incapacity, or
will of the deceased that he prefers to give certain
3. disinheritance.
properties to certain individuals rather than to his
legal heirs. Accretion is preferred over intestacy.
 One who repudiates cannot be represented.
 The representative himself must be capable of Q: In testamentary succession, in what instances may
succeeding the decedent. accretion take place?
 In representation, the representative does not A:
inherit from the person represented but from 1. Predecease
the testator or decedent. 2. Incapacity
 The right of representation cannot be invoked by 3. Renunciation
adopted children because they cannot 4. Non-fulfillment of suspensive condition
represent their adopting parents to the imposed upon instituted heir
inheritance of the latter’s parents. 5. Ineffective testamentary disposition
 Reason: The law does not create any
relationship between the adopted child and the Q: In intestate succession, in what instances may
relatives of the adopting parents, not even to accretion take place?
the biological/legitimate children of the A:
adopting parents. 1. Predecease of legal heir
 Under RA 8552 or the Domestic Adoption Law, 2. Incapacity of legal heir
the adopted child and the adopting parents 3. Repudiation by legal heir
have reciprocal successional rights.
 Voluntary heirs, legatees and devisees who  Accretion takes place only if there is no
predeceased the testator or renounced the representation.
inheritance cannot be represented by their  In renunciation, there is always accretion.
own heirs, with respect to their supposed Reason: There is no representation in
inheritance. renunciation.
 Representation is superior to accretion.  In intestacy, apply representation first. If there is
none, then accretion will apply.
OTHER RULES GOVERNING INTESTATE  In testamentary succession, apply substitution
SUCCESSION: first. If there is no substitution, then accretion
will apply.
 The share of an illegitimate child is ½ of the  However, in testamentary succession, the
share of a legitimate one. inheritance must not have been earmarked.
 Full blood brother or sister is entitled to double Accretion cannot take place if the inheritance
the share of half brother or sister (Art. 1006). is earmarked.
 Compulsory heirs shall, in no case, inherit ab
intesto less than their legitime as provided in ACCEPTANCE AND REPUDIATION
testamentary succession.
Acceptance and Repudiation – Acts which are
purely free and voluntary; retroacts to moment of
Q: What is the iron- curtain rule? death of decedent
A: Art. 992 provides that illegitimate children
cannot inherit ab intestato from the legitimate Inheritance deemed accepted when heir:
children and relatives of his mother or father. 1. Sells, donates, assigns his right to stranger,
Legitimate children and relatives cannot inherit in or his co-heirs or any of them
the same way from the illegitimate child. 2. Renounces same, even though
gratuitously, for benefit of one or more of
 The iron curtain rule only applies in intestate his co-heirs
succession. 3. Renounces it for price in favor of all his co-
 There is barrier recognized by law between the heirs indiscriminately
legitimate relatives and the illegitimate child so
that one cannot inherit from the other and vice Requisites of Valid Waiver of Inheritance:
versa. 1. existence of right;
46
2. knowledge of such existence;
3. intention to relinquish such right State
COLLATION
Concurrence Theory – satisfy legitime and then
Collation- the process of adding the value of thing distribute disposable portion, if any pro rata
donated to the net value of hereditary estate.
Collation is applicable to both donations to Exclusion Theory – satisfy legitime and then give
compulsory heirs and donations to strangers disposable portion, if any to the preferred heir in the
General rule: Compulsory heirs are obliged to order of intestate succession
collate.
Exceptions: TABLE OF LEGITIMES
1. when testator should have so expressly (Based on possibility of concurrence)
provided; Legend:
2. when compulsory heir repudiates his Legitimate Children or Descendants LCD
inheritance Illegitimate Children or Descendants ILCD
Legitimate Parents or Ascendants LPA
What to Collate: Illegitimate Parents or Ascendants ILPA
1. Any property/right received by gratuitous Surviving Spouse SS
title DURING testator’s lifetime
2. All that may have been received from Concurring Legitime Free
decedent during his lifetime Compulsory Heirs Portion
3. All that their parents have brought to ILCD ⅓ ⅓
collation if alive SS
⅓
ILCD ¼ ⅛
PARTITION SS
LPA ⅛
Partition and Distribution-separation, division and ½
assignment of thing held in common among those ILC ¼ ¼
to whom it may belong LPA
½
LPA ½ ¼
Q: Who can demand partition? SS
A: ¼
1. any compulsory heir ILPA ¼ ½
2. any voluntary heir SS
¼
3. any legatee or devisee ILCD
4. any person who has acquired an interest in ¼ ½
SS
the estate ¼
ILC alone ½ ½
Q: When partition CANNOT be demanded? LPA alone ½ ½
A: Partition cannot be demanded when: ILPA alone
1. Expressly prohibited by testator for a
½ ½
General Rule: SS alone ½ ½
period not more than 20 years
2. Co-heirs agreed that estate not be divided Marriage in articulo mortis,
for period not more than 10 years, testator died w/in 3 months ⅓ ⅔
renewable for another 10 yrs
Marriage in articulo mortis,
3. Prohibited by law testator died w/in 3 months
4. When to partition estate would render it but have been living as
unserviceable for use for which it was husband and wife for not ½ ½
intended less than 5 years
LCD alone ½ ½
Order of Intestate Succession One LCD ½ ¼
SS
Legitimate Child Illegitimate Child ¼
Legitimate Child and Legitimate Child and Two or more LCD ½ Dependent
Legitimate Descendants Legitimate Descendants SS (Same as on number
one LCD) of LCD
Legitimate Parents and Illegitimate Children and LCD ½ Dependent
Legitimate Ascendants Legitimate or Illegitimate ILCD on ILCD
Descendants
½of LCD
Illegitimate Children and Illegitimate Parents TABLE OF INTESTATE SHARES

Legitimate or Illegitimate (Based on possibility of concurrence)
Descendants Legend:
Surviving Spouse Surviving Spouse Legitimate Children or Descendants LCD
Illegitimate Children or Descendants ILCD
Legitimate Siblings, Illegitimate Siblings, Legitimate Parents or Ascendants LPA
Nephews, Nieces Nephews, Nieces Illegitimate Parents or Ascendants ILPA
Surviving Spouse SS
Legitimate Collateral State
Relatives
Brothers and Sisters BS
Nephews and Nieces NN

47
INTESTATE LEGITIME SHARE IN THE FREE demand satisfaction from the assets of the latter”.
HEIRS PORTION (Arias Ramos)
LCD alone ½ ½
LCD alone ½
SS
CIVIL OBLIGATION NATURAL OBLIGATION
¼ ¼ binding force is from binding force is from equity
LCD ½ Remaining portion of estate
positive law and justice
after paying legitimes
can be enforced by court Cannot be enforced in court. It
same share Legitimes to be divided equally action depends exclusively upon the
SS
as the LCD between total number of good conscience of the debtor.
children plus the SS
LCD ½ Remaining portion of estate Q: What are the elements of an obligation?
after paying legitimes
A: J.A.P.O.C.
Legitimes to be divided by the 1. Juridical/legal tie
ILCD ½ share of
the one
ratio of 2. Active subject (obligee/creditor)
2: 1 3. Passive subject ( obligor/debtor )
LCD
One LCD ½ Remaining portion of estate 4. Object – prestation; the conduct which has to be
after paying legitimes to be observed by the debtor/obligor
divided by the ratio of 2:1
5. Cause
One ILCD ½ share of One part goes to the ILCD
one LCD
Q: What is prestation?
A: It is the observance of a determinate conduct
SS ¼ Same share as a legitimate child
required for the performance of the obligation.
LCD ½ Remaining portion of estate
after paying legitimes to be Q: What are the requisites of an object?
divided by the ratio of 2:1 A: a. licit
b. possible
ILCD ½ share of One part goes to the ILCD c. determinate or determinable
one LCD
d. pecuniary value
¼ Same share as a legitimate

SS child, provided legitimes are not
Q: What are the accessory obligations?
impaired A:
LPA alone Exercise diligence / Standard of care: that of a
½ ½ Preserve the thing good father of a family –
LPA ½ unless the law or
ILCD ¼ ¼ stipulation requires higher
LPA standard of care.
½ Q: When does the right
Delivery of fruits
SS ¼ ¼ begin to exist?
LPA A: From the time to deliver
½ arises.
SS *when there is no
⅛ ⅛ term/condition – from the
ILCD perfection of the contract
¼ *when there is a
ILCD alone ½ ½ term/condition – from the
ILCD ⅓ 1/6 moment the term or
condition arises
SS ⅓ 1/6
SS ½ or ⅓ ½ or ⅓ Delivery of accessories & Req’d in an obligation to
ILPA alone accessions deliver determinate thing
½ ½
ILPA ¼ ¼
Q: Differentiate accessories from accessions.
SS ¼ ¼
A: a. Accessories - those joined to or included with
BS, NN ½ ½ the principal for the latter’s better use, perfection or
SS ½ enjoyment.
½ b. Accessions – additions to or improvements upon
NN
a thing.
BOOK FOUR Q: What are the five SOURCES OF

OBLIGATIONS? (LCQ-DQ)
OBLIGATIONS AND CONTRACTS A: (Art. 1157)
1. Law
OBLIGATIONS 2. Contracts
Q: What is obligation? Note: Contractual Obligation – it presupposes
A: “It is a juridical relation whereby a person that the contracts entered into are valid and
(creditor) may demand from another (debtor) the enforceable.
observance of a determinative conduct (the giving, 3. Quasi-contracts
doing, or not doing), and in case of breach, may 4. Delicts

48
GR: if one commits a crime, he is liable both Q: What are the forms of breach of obligations?
criminally and civilly. (Art. 1170)
XPN: No private offended party (ex. contempt) A:
5. Quasi-delict Voluntary-DR is liable for Involuntary- DR is unable
damages if he is guilty of : to perform the obligation
NOTE: a. default( mora) due to fortuitous event thus
b.fraud (dolo) not liable for damages
• The enumeration is exclusive.
c.negligence (culpa)
• Obligations arising from law does not need d.contravention of the tenor
the consent of the obligor thereof
• In order that the law may be a source of
obligation, it should be the creator of the Q: What is the concept of a good father of the
obligation itself. family?
• Obligations arising from contracts need the A: In Picart v. Smith (37 Phil. 809), the Supreme
consent of the contracting parties. Court described a good father of a family by first
stating who is not. He is not and is not supposed to
Q: What is quasi-contract? be omniscient of the future; rather, he is one who
A: A juridical relation arising from lawful, voluntary takes precautions against any harm when there is
and unilateral acts based on the principle that no something before him to suggest or warn him of the
one should unjustly enrich himself at the expense of danger or to foresee it.
another.
Q: What are the effects of breach of obligation?
Q: What are the principal forms of Quasi-Contract? A: (Arts. 1167-1168)
A: 1. NegotioriumGestio(Inofficious manager) –
arises when somebody takes charge of the Q: What is default or delay?
management of the business or property of another A: (Art. 1169)
without any power from the latter.
Q: What are the classes of default?
2. Solutio Indebiti (Unjust enrichment) – A: 1. Mora solvendi – default on the part of the
takes place when somebody received debtor/obligor
something from another without any right to 2. Mora accipiendi – default on the part of the
demand for it, and the thing was unduly creditor/obligee
delivered to him through mistake. 3. Compensatio morae – default on the part of both
the debtor and creditor in reciprocal obligations
Q: What are the rights of the creditor? (Arts. 1164-
1166) Q: What are the requisites of mora solvendi?
A: A:
Specific Obligation Generic Obligations 1. Obligation pertains to the debtor;
Specific performance specific performance 2. Obligation is determinate, due and demandable;
Damages, exclusive or in ask that the obligation be 3. Obligation has not been performed on its maturity
addition to specific complied with at the date;
performance debtor’s expense 4. There is judicial or extrajudicial demand by the
Right to demand damages creditor.
preservation of the thing, its
accessions, accessories, NOTE: Mora Solvendi does not apply to natural
and the fruits. obligations (Article 1423) and negative obligations.
right to the fruits and
interests from the time the
Q: What are the requisites of mora accipiendi?
obligation to deliver arises
A: 1. Refusal of the creditor
2. Offer of performance by a capacitated debtor
Q: What are the obligations of the debtor?
3. Offer must be to comply prestation as it
A:
should be performed.
Determinate Generic
Deliver the thing agreed deliver the thing which is
upon neither of superior nor
Q: What is the effect of mora solvendi?
inferior quality A: DR is liable for damages, his liability subsists
take care of the thing with damages in case of breach even if the object of the obligation may have been
the proper diligence of a of obligation by reason of lost or destroyed through a fortuitous event.
good father of a family delay, fraud, negligence or
contravention of the tenor Q: What is fraud?
thereof A: It is an intentional evasion of the faithful
deliver all accessions, if the object is generic but performance of the obligation.
accessories and fruits of the source is Note: Fraud must be present during the
the thing specified/delimited= performance of the obligation, not at the time of the
to preserve the source
pay damages in case of
birth of the obligation (causal or incidental fraud)
breach of obligation by
reason of delay, fraud, Q: What is negligence or fault?
negligence, contravention A: (Art. 1173)
of the tenor thereof
Q: What is the degree of diligence required?
A: 1. that agreed upon

49
2. in the absence of such, that which is required A: An obligation subject to a condition and the
by the law effectivity of which is subordinated to the fulfillment
3. in the absence of the foregoing, diligence of a or non-fulfillment of a future and uncertain event.
good father of a family
Note: Condition – is a future and uncertain event,
Q: What is fortuitous event? the happening of which, the effectivity or
A: (Art. 1174) extinguishment of an obligation (or right) subject to
it depends.
Q: What are the requisites of a fortuitous event?
A: Basis Period Condition
1. cause is independent of the will of the 1. As to time Refers to the May refer to past
debtor future event unknown to
2. the event is the parties
UNFORSEEABLE/UNAVOIDABLE 2.As to fulfillment It will happen at May or may not
3. occurrence renders it impossible for the DR an exact date or happen
to fulfill his obligation in a normal manner at an indefinite
time, but is sure
4. DR is free from any participation in the
to arrive.
aggravation of the injury to the CR.
3.As to its No effect or May give rise to
influence on the influence upon an obligation
GR: No liability for loss in case of fortuitous event. obligation to be the existence of (suspensive) or
XPNS: LaNS- PC,Bag fulfilled or the obligation the cessation of
1. Law performed but only in its one already
2. Nature of the obligation requires the demandability or existing
assumption of risk performance (resolutory)
3. Stipulation
4. the debtor has promised the same thing to SUSPENSIVE and RESOLUTORY CONDITION
two or more persons who does not have
the same interest Suspensive condition Resolutory condition
5. the debtor contributed to the loss (Tan 1. if fulfilled, obligation 1.if fulfilled, obligation is
Chiong Sian v. Inchausti & Co.) arises or becomes extinguished
6. the possessor is in bad faith (Art. 552) effective
7. the obligor is guilty o fraud, negligence or 2.if not fulfilled, no 2.if not fulfilled, juridical
delay or if he contravened the tenor of the juridical relation is relation is consolidated
obligation ( Juan Nakpil v. United created
Construction Co., Inc. v. CA ) 3.righjts are not yet 3.rights are already
acquired, but there is acquired, but subject to the
hope or expectancy that threat or danger of
Q: What are the effects of fortuitous event? they will soon be extinction
A: On determinate obligation – obligation acquired
extinguished
On generic obligation –obligation not Q: What is the meaning of constructive fulfillment of
extinguished (genus never perish) condition?
A: It means that the condition shall be deemed
Q: What are the 3 remedies in connection w/ fulfilled when the debtor actually prevents the
specific performance? fulfillment of the condition.
A: 1. exhaustion of the properties of the debtor
2. accion subrogatoria (subrogatory action) – Q: What are the effects of Potestative Condition?
an indirect action brought in the name of the debtor A:
by the creditor to enforce the former’s rights 1. If the fulfillment depends
except: exclusively upon the will of the debtor, both the
a. personal rights of the debtor condition and the obligation are VOID.
b. rights inherent in the person of the debtor Note: If the obligation is a pre-existing one,
3. accion pauliana (rescissory action) – an only the condition is VOID, leaving unaffected
action to impugn or assail the acts done or the obligation itself.
contracts entered into by the debtor in fraud of 2. If the fulfillment depends upon the
his creditor will of the creditor, the condition and obligation
are VALID.
* The remedies must be in the above order.
Q: What are the types of condition?
NOTE: GR: All rights acquired are transmissible. A:
EXCEPT: Those not transmissible by La.N.S. • Casual – the performance or fulfillment of
1. Law the condition depends upon chance and/or the
2. Nature eg. purely personal rights will of a third person
3. Stipulation of parties
• Mixed – the performance or fulfillment of
Q: What is a pure obligation?
the condition depends partly upon the will of a
A: (Art. 1179)
party to the obligation and partly upon chance
and/or the will of a third person
Q: What is a conditional obligation?
• Positive –involves the doing of an act
• Negative –involves the omission of an act
50
• Divisible –is susceptible of partial 4. subject to judicial review if availed of extra
performance judicially
• Indivisible –is not susceptible of partial 5. may be waived expressly or impliedly
performance 6. Implied to exist in reciprocal obligations therefore
• Conjunctive – there are several conditions need not be expressly stipulated upon
in an obligation all of which must be performed Note: (Resolution under Art. 1191, not Rescission
• Alternative – there are several conditions in under Arts. 1380-1381)
an obligation but only one must be performed
• Possible –is capable of fulfillment according GR: The right to rescind must be availed of
to the nature, law, public policy or good judicially.
customs. XPN: if there is an express stipulation of automatic
rescission
• Impossible –is not capable of fulfillment
according to nature, law, public policy or good
Extrajudicial Rescission:
customs (Art. 1183)
When automatic rescission is expressly
stipulated, a written notice sent to the other party is
GR: (Impossible Conditions) Annul the obligation
still necessary. The extrajudicial rescission has
which depends upon them.
legal effect where such party does not oppose it.
XPNS: P.D.Do.N.T.
Where it is objected to, a determination of the
1. Pre-existing obligation
issues by the court is still necessary.
2. Obligation is Divisible
3. in simple or remuneratory Donations
Q: What is an obligation with a period or a term?
4. in case of conditions Not to do an impossible
A: (Art. 1193) An obligation whose demandability
thing
or extinguishment is subject to the expiration of a
5. in Testamentary dispositions
period or a term.
* In the foregoing, the obligations remain valid, only
the condition is void and deemed to have not been
Note:
imposed
GR: When a period has been agreed upon for the
performance or fulfillment of an obligation, it is
Q: When will the effect of fulfillment of a condition
presumed to have been established for the benefit
retroact?
of both the creditor and the debtor
A: 1. In an obligation to give: retroacts to the day
of the constitution of the obligation
XPN: When it appears from the tenor of the period
2. In an obligation to do or not to do: the
or other circumstances that it was established for
courts shall determine whether or not there
the benefit of one of the parties.
will be a retroactive effect or when
retroactivity will take effect
Q: When may the court fix the period?
A: (Art. 1197)
Q: What are the effects of loss, deterioration and
improvement in real obligations? (During the
Q: When may a debtor lose his right to make use of
pendency of the condition and the Suspensive
the period?
condition has been fulfilled) (Art. 1189)
A: (Art. 1198)
W/ DR’S fault W/O DR’s fault
FACULTATIVE and ALTERNATIVE OBLIGATION
Loss DR pays Obligation Facultative Obligations Alternative Obligations
damages extinguished
1.fortuitous loss 1.fortuitous loss of all
Deterioration CR- choose Impairment extinguishes the obligation prestation will extinguish
b/w rescission borne by CR the obligation
of obligation or 2.culpable loss obliges the 2. culpable loss of
fulfillment (w/ debtor to deliver substitute any object due will give
indemnity for prestation without liability rise to liability to debtor
damages in to debtor
either case) 3.choice pertains only to 3.choice may pertain to
Improvement a. by the thing’s nature or by time debtor debtor, creditor or third
– inure to the benefit of the CR person
b. at the debtor’s expense-DR 4.only one object is due 4.several objects are due
shall have no right other than that 5.may be complied with by 5.may be complied with
granted to a usufractuary substitution of one that is by fulfilling any of those
due alternately due
Q: What are reciprocal obligations? 6.if principal obligation is 6.if one prestation is void,
void, the creditor cannot the others free from vices
A: (Art. 1191) compel delivery of the preserve the validity of
substitute the obligation
Q: What are the characteristics of right to rescind? 7.if there is impossibility to 7. if various prestations
A: deliver the principal thing are impossible to perform
1. can be demanded only if plaintiff is ready, willing or prestation, the except one, this one must
and able to comply with his own obligation and obligation is extinguished be delivered.
defendant is not If all prestations are
2. not absolute impossible to perform,
3. Needs judicial approval in certain cases the obligation is
extinguished

51
Note: In alternative obligations, choice takes effect DIVISIBLE AND INDIVISIBLE OBLIGATIONS
only upon communication of the choice to the other Divisible Indivisible
party and from such time the obligation ceases to susceptibility of an - non-susceptibility to be
be alternative (Art. 1205) obligation to be performed performed partially
partially -partial performance is
*Debtor cannot choose prestations which are: tantamount to non-
1. impossible performance
2. unlawful Note: The obligation to deliver a divisible thing may
3. could not have been the object of the be considered indivisible when:
obligation a. the law so provides
b. stipulation of the parties
Q: What are joint and solidary obligations?
A: (Art. 1207) Q: What is a joint indivisible obligation?
A: It is an obligation in which the object is indivisible
Q: What is the effect of joint obligation? but the liabilities of the parties are joint.
A: the entire obligation is to be paid or performed
proportionately by the debtors. Note:*enforcement of the obligation must be carried
out against all debtors
Q: What is the effect solidary obligation? * In case of breach, only the guilty debtor will
A: Each one of the debtors is obliged to pay the be liable for damages
entire obligation, and each one of the creditors has
the right to demand from any of the debtors the Q: What are obligations w/ penal clause?
payment or fulfillment of the entire obligation A: (Art. 1226)
Q: Joey, Jovy and Jojo are solidary debtors under a Q: What is a Penalty Clause?
loan obligation of P300,000.00 which has fallen A: It is an accessory obligation attached to the
due. The creditor has, however, condoned Jojo's principal obligation to assure greater responsibility
entire share in the debt. Since Jovy has become in case of breach.
insolvent, the creditor makes a demand on Joey to
pay the debt. Note: GR: The penalty fixed by the parties is a
1. How much, if any, may Joey be compelled to compensation or substitute for damages in case of
pay? breach.
2. To what extent, if at all, can Jojo be compelled by XPNS: 1. stipulation to the contrary
Joey to contribute to such payment? 2. Debtor is sued for refusal to pay the
A: 1. Joey can be compelled to pay only the agreed penalty
remaining balance of P200,000, in view of the 3. Debtor is guilty of fraud
remission of Jojo s share by the creditor. (Art. 1219,
Civil Code) Q: When may PENALTY be reduced (Judicial)?
2. Jojo can be compelled by Joey to contribute A: P.i.U.
P50,000. Art. 1217, par. 3, Civil Code provides, 1. Partial performance of the obligation
"When one of the solidary debtors cannot, because 2. irregular performance of the obligation
of his insolvency, reimburse his share to the debtor 3. penalty is unconscionable
paying the obligation, such share shall be borne by
all his co-debtors, in proportion to the debt of each." Q: What are the purposes of penal clause?
Since the insolvent debtor's share which Joey paid 1. function coercitiva o de garantia-to insure
was Pl00,000, and there are only two remaining the performance of the obligation
debtors - namely Joey and Jojo - these two shall 2. function liquidatoria-to liquidate the amount
share equally the burden of reimbursement. Jojo of damages to be awarded to the injured party
may thus be compelled by Joey to contribute in case of breach
P50,000.00. (Bar Question, 1998) 3. function estrictamente penal-to punish the
obligor in case of breach
Q: What are the kinds of solidary obligation?
A: Q: What are the modes of extinguishment of an
1. Passive– solidarity on the part of the debtors obligation?
2. Active– solidarity on the part of the creditors A: (Art. 1231)
3. Mixed– solidarity on both sides I. PAYMENT OR PERFORMANCE (Art.
1232)
Indivisibility Solidarity
1. refers to the prestation 1.refers to the vinculum Payment may consist not only in the delivery of
or object of the contract existing between the money but also the giving of a thing (other than
subjects or parties money), the doing of an act, or not doing of an act.
2.does not require plurality 2.requires the plurality of
of subjects or parties parties or subjects GR: Creditor is not bound to accept payment or
3.in case of breach, it is 3.in case of breach, the performance by a third person.
converted to one of liability of the solidary XPNS:
indemnity for damages debtors for damages 1. when made by a third person who has
and the indivisibility of the remains solidary interest in the fulfillment of the obligation
obligation is terminated 2. contrary stipulation
52
Q: What are the REQUISITES OF A VALID A: (Art. 1240)
PAYMENT?
A: C.C-P.A.D. GR: Payment to an unauthorized person is not a
1. capacity of the payor valid payment.
2. capacity of the payee XPNs:
3. propriety of the time, place, manner of 1. Payment to an incapacitated person if:
payment a. he kept the thing delivered, or
4. acceptance by the creditor b. it has been beneficial to him
5. delivery of the full amount or the full 2. Payment to a 3rd person insofar as it redounded
performance of the prestation to the benefit of the CR
3. Payment in GF to the possessor of credit
Q: What are the characteristics of payment?
A: (Integrity, Identity, Indivisibility) Q: What are the rules on monetary obligation?
A:
1. integrity of payment 1. payment in cash- must be made in the
currency stipulated, if not possible, then in the
Note: legal tender in the Philippines
GR: performance should always be in full
XPNS: 2. payment in check or other negotiable
a. substantial performance – instrument- not considered payment, they are
b. intent to comply in good faith not considered legal tender and may be refused
c. deviation must only be slight by the creditor except when:
d. estoppel or waiver – CR accepts
incomplete or irregular performance without a. when the document has been
protest or objection cashed
e. express stipulation b. when it had been impaired through
f. debt is partly liquidated and partly the fault of the creditor
unliquidated
Q: What are the special forms of payment?
2. identity A:
1. APPLICATION OF PAYMENT - the designation
Note: of the debt to which the payment must be applied
GR: thing paid must be the very thing due and when the DR has several obligations of the same
cannot be another thing even if of same quality and kind in favor of the same CR
value NOTE: the choice is given to the debtor BUT may
XPN: Dation in payment be transferred to the CR as when the DR makes
payment and does not make application and DR
3. indivisibility accepts a receipt in which the application is made
GR: debtor cannot be compelled by the creditor to Requisites:

perform obligation in parts and neither can the 1. one debtor and one creditor
debtor compel the creditor to accept obligation in 2. two or more debts of the same kind
parts 3. amount paid by the debtor must not be
sufficient to cover all debts
XPNS:
a. when partial performance has been ~ LEGAL APPLICATION OF PAYMENT -
agreed upon application by law when neither the debtor nor the
b. when part of the obligation is liquidated creditor made the application.
and part is unliquidated -the payment is applied to the most
c. when to require the debtor to perform in burdensome obligation of the debtor.
full is impractical • The More Burdensome Rule is allowed only
in legal application and neither the DR nor
Q: Who may pay the obligation? the CR can invoke it.
A: (Art. 1236) • If the debts happen to be of same nature
and burden, the payment shall be applied
Q: What are the rights of 3rd person who paid the proportionately.
debt? 2. DATION IN PAYMENT (DACION EN PAGO) –
A: (Art. 1237) property alienated by DR to CR in satisfaction of the
1. WITH knowledge and consent of the debt in money; transmission of ownership of a thing
debtor: by DR to CR as an accepted equivalent of the
a. can recover entire amount paid performance of the obligation
(absolute reimbursement ) - Consent of the CR is essential.
b. can be subrogated to all rights of the
creditor 3. PAYMENT IN CESSION – DR abandons all of
2. WITHOUT knowledge or against the will of his property for the benefit of his CRs in order that
the debtor – can recover only insofar as from the proceeds thereof, the latter may obtain
payment has been beneficial to the debtor payment of credits
( right of conditional reimbursement ) - presupposes insolvency of the DR
- all the DR’s CRs must be involved and the
Q: To whom payment should be made? consent of all CRs must be obtained

53
Dation in payment Payment in cession Note:

(Art. 1245) (Art. 1255) 1. In Determinate Obligations to Give –
1.one creditor 1.plurality of creditors
2.not necessarily in state 2.debtor must be partially GR: The obligation is extinguished when the object
of financial difficulty or relatively insolvent of the obligation is lost.
3.thing delivered is 3.universality or property XPNS:
considered as equivalent of debtor is what is ceded a. Law
of performance b. Nature of the obligation requires
4.payment extinguishes 4.merely releases debtor the assumption of risk
obligation to the extent of for net proceeds of
c. Stipulation
the value of the thing things ceded or assigned,
delivered as agreed upon, unless there is contrary d. Debtor contributed to the loss
proved or implied from the intention e. Loss the of the thing occurs after
conduct of the creditor the DR incurred in delay
5.ownership is transferred 5.ownership is not f. when DR promised to deliver the
to CR upon delivery transferred same thing to 2 or more persons who do
6.an act of novation 6.not an act of novation not have the same interest
g. when the debt of a certain and
4. TENDER OF PAYMENT AND CONSIGNATION determinate thing proceeds from a criminal
(Arts. 1256-1261) offense
TENDER OF PAYMENT- voluntary act of the DR
whereby he offers to the CR the immediate 2. In Generic Obligations to Give –
performance of the former’s obligation
GR: obligation not extinguished because the genus
Q: What is CONSIGNATION? of a thing never perish.
A: It is an act of depositing the object of the XPN:
obligation in a competent court after refusal or a. In case of generic obligations whose
inability of the creditor to accept the tender of object is a particular class or group with
payment. specific or determinate qualities (Limited
Generic Obligations)
Q: What are the requisites of consignation? b. In Obligations to Do: obligation
A: (V.P-C.P.A’S) extinguished when prestation becomes
1. Valid existing debt which is already due legally or physically impossible
2. Prior valid tender except when prior tender
of payment is dispensable III. CONDONATION – the gratuitous abandonment
3. CR unjustly refuses the tender of payment by the CR of his right (Art. 1270-1274)
4. Prior notice of consignation given to
persons interested in the fulfillment of the Q: What are the requisites of condonation?
obligation A: (G.AIDE)
5. Amount or thing is deposited at the 1. must be Gratuitous
disposal of judicial authority 2. Acceptance by the debtor
6. Subsequent notice of the fact of 3. must not be Inofficious
consignation to persons interested in the 4. Formalities provided by law on Donations must
fulfillment of the obligation be complied with
5. an Existing demandable debt
GR: Consignation shall produce effects of payment
only if there is a valid tender of payment. IV. When is there confusion or merger of rights?
XPNS: (A.R.T- i.T) A: (Art. 1275-1277)
1. CR is absent or unknown, doesn’t appear
at place of payment NOTE:
2. when w/out just cause CR refuses to give a Art. 1277 – Confusion does not extinguish a JOINT
receipt OBLIGATION except as regards the share
3. when the title of the obligation has been corresponding to the creditor or debtor in whom the
lost two characters concur.
4. CR is incapacitated to receive payment at
the time it is due Q: What are the requisites of confusion of rights?
5. when two or more persons claim the right A:
to collect 1. merger in the same person of the
characters of both a CR and d DR
II. LOSS OF THE THING DUE (Art. 1262-1269) 2. must take place in the persons of a
principal CR and a principal DR
Q: When is a thing considered lost? 3. merger is definite and complete
A: When: (d.o.p.e)
1. it disappears in such a way that its V. COMPENSATION – extinguishment in the
existence is unknown; concurrent amount of the obligation of persons who
2. it goes out of commerce; are reciprocally DRs and CRs of each other.
3. It perishes;
4. Its existence is known but it cannot be recovered. Compensation and Confusion
Compensation(Arts 1278- Confusion (Arts 1275-
54
1279) 1277) DR even w/out the consent or even against the
1. two persons who are 1. one person where will of the old DR.
mutual debtors and qualities of debtor and
creditors of each other creditor are merged 2. Delegacion – effected with the
consent of the CR at the instance of the old DR
2. at least two obligations 2. one obligation with the concurrence of the new DR.
Q: What are the kinds of compensation? Subrogation and Assignment of rights

A: Conventional Assignment of rights
1. Legal compensation –by operation of law Subrogation
2. Conventional – by agreement of the parties 1. governed by Arts. 1300- 1. governed by Arts.
3. Judicial –by judgment of the court when 1304 1624-1627
there is a counterclaim duly pleaded, and the 2.debtor’sconsent is 2.debtor’s consent is not
compensation decreed required required
3.extinguishes the 3.Does not modify or
Q: What are the debts not subject to obligation and gives rise to extinguish the obligation
compensation? a new one
A: 4.defects and vices in the 4. not cured
1. debts arising from contracts of deposit old obligation are cured
2. debts arising from contracts of 5.takes effect upon 5. as far as the debtor is
commodatum moment of novation or concerned, takes effect
subrogation upon notification
3. claims for support due by gratuitous title
4. obligations arising from criminal offenses
5. certain obligations in favor of government Note:
GR: Subrogation cannot be presumed.
VI. NOVATION XPNS:
1. CR pays another CR who is preferred,
Q: What are the requisites? w/out DR’s knowledge
A: (Art. 1292) 2. A 3rd person not interested in the obligation
1. previous valid obligation pays with the express or tacit approval of
2. an agreement by the parties to extinguish the DR
or modify the old obligation and create a new 3. Even w/o DR’s knowledge, person
one or a modified version interested in fulfillment of obligation pays
3. valid new obligation w/o prejudice to effects of confusion as to
latter’s share.
Q: What are the effects of novation?
Q: What are contracts?
A: (Article 1305)
1. extinguishment of principal ALSO
extinguishes the accessory, except:
Elements (COC) Characteristics
• stipulation to contrary (ROMA)
1. Consent 1.Relativity (1311)
• stipulation pour autrui UNLESS
beneficiary consents 2.Object or Subject Matter 2.Obligatoriness and
consensuality(1315)
2. IF the new obligation is VOID, the old
obligation shall subsist since there is nothing to 3.Cause or Consideration 3. Mutuality(1308)
novate, except: 4..Autonomy(1306)
• when the parties intended that the old
obligation be extinguished in any event. Note:
3. IF the new obligation is VOIDABLE; GR: Contracts are perfected by mere consent;
novation can take place, except: XPN: in case of REAL CONTRACTS, such as
• when such new obligation is deposit, pledge and commodatum, which are not
ANNULLED. perfected until the delivery of the obligation.
4. IF the old obligation has a condition: (Arts. 1315 and 1316 )
• if Resolutory & it occurred –old
Q: What are the stages in the life of the contract?
obligation already extinguished; no new
A:
obligation since nothing to novate
1. preparation/generation
• if suspensive & it never occurred –as if
2. perfection/birth
no obligation; nothing to novate
3. consummation/death
5. IF old obligation has condition, must be
compatible with the new obligation; if new is w/o
Q: What is relativity of contracts?
condition – deemed attached to new
A: (Art 1311)
6. IF new obligation has condition
• if resolutory: valid GR: A contract is binding not only between parties
• if suspensive & did not materialize: old but extends to the heirs, successors in interest, and
obligation is enforced assignees of the parties, provided that the contract
involves transmissible rights by their nature, or by
Q: What are the forms of substitution of DRs? stipulation or by provision of law
1. Expromission – effected with the XPNS:
consent of the CR at the instance of the new

55
1. STIPULATION POUR AUTRUI (stipulation in intelligent, spontaneous and free from all
favor of a 3rd person) – benefits deliberately vices of consent
conferred by parties to a contract upon 3rd persons 4. The conformity must be real
Requisites:
a. the stipulation must be part, not whole Note:
of the contract OFFER – may be made orally or in writing unless
b. contracting parties must have clearly & the law prescribes a particular form
deliberately conferred a favor upon 3rd ACCEPTANCE – no specified form but when the
person offeror specifies a form, such must be complied with
c. 3rd person must have communicated • Acceptance by letter or telegram does not
his acceptance bind the offeror except from the time it
d. neither of the contracting parties bears came to his knowledge.
the legal representation of the 3rd person • Offer or acceptance, or both, expressed in
electronic form, is valid, unless otherwise
2. When a 3rd person induces a party to violate the agreed by the parties (electronic contracts).
contract
Requisites: Q: Who are the persons incapacitated to give
a. existence of a valid contract consent?
b. 3rd person has knowledge of such A: (Art 1327) (D.I.M.)
contract 1. Deaf-mutes who do not know how to read and
c. 3rd person interferes without justification write
2. Insane or demented persons, unless the contract
3. 3rd persons coming into possession of the object was entered into during a lucid interval
of the contract creating real rights 3. Minors except:
4. contracts entered into in fraud of CRs
• Contracts for necessaries
Q: What is the obligatory force of contracts? • Contracts by guardians or legal
A: The parties are bound not only by what has been representatives
expressly provided for in the contract but also to the • When there’s active misrepresentation on
natural consequences that flow out of such the part of the minor.
agreement (Art 1315) • Contracts of deposit with the Postal
Savings Bank provided that the minor is
Q: What is mutuality of contracts? over 7 years of age
A: Contract must be binding to both parties and its
validity and effectivity can never be left to the will of Q: What are the vices of consent?
one of the parties (Art 1308) A:
1. MISTAKE – must refer to the substance of
Q: What is the principle of autonomy of contracts? the thing; substantial mistake and not merely an
A: The freedom of the parties to contract and accidental mistake
includes the freedom to stipulate subject to one - refers to mistake of facts and not of law
limitation (Art. 1306) 2. INTIMIDATION – an internal moral force
operating in the will and inducing performance
Q: What are nominate contracts?
of an act
A: These are contracts which have been given
3. VIOLENCE – an external physical force
particular names or denominations by law
exerted upon a person to prevent him from
doing something or to compel him to do an act.
Q: What are innominate contracts?
4. UNDUE INFLUENCE – any means
A: These are contracts without particular names
employed upon a party which, under the
and not regulated by special provision of law (Art.
circumstances could not be resisted and has
1307)
the effect of controlling his volition and inducing
him to give his consent to the contract, which
Q: How are innominate contracts regulated?
otherwise, he would not have entered into
A: (Art. 1307)
5. FRAUD – use of insidious words or
1. by the stipulation of the parties
machinations in inducing another party to enter
2. by the general principles of obligations
into the contract, which without them, he would
and contracts
not have agreed.
3. by the rules governing the most
analogous nominate contracts
Q: What is an object?
4. by the customs of the place.
A: It is the subject matter in the contract
Q: What is consent? Q: What are the requisites?
A: (Art 1319) A: (Arts. 1347-1349)
Q: What are the elements of consent? 1. determinate as to kind( even if not
A: (LM-CR) determinate, provided it is possible to determine
1. Legal capacity of the contracting parties the same without the need of a new contract)
2. Manifestation of the conformity of the 2. existing or the potentiality to exist
contracting parties subsequent to the contract
3. Parties’ conformity to the object, cause, 3. must be licit
terms and condition of the contract must be
56
4. within the commerce of man B. Real contracts that require delivery for
perfection
Q: What is a cause?
A: It is the reason why a party entered into the C. In contracts under the Statute of Frauds,
contract where the party sued makes a timely objection to
the absence of a written memorandum
Q: What are the two presumptions in contracts?
A: Q: What are the acts which must appear in a public
1. every contract is presumed to have a cause document?
2. the cause is valid A: (Art. 1358)
Q: What are the kinds of cause? Q: What is reformation of instruments?

A: A: (Art. 1359)
1. cause of onerous contracts – the prestation
or promise of a thing or service by the other Q: What are the requisites in reformation of
2. cause of renumeratory contracts- the instruments?
service or benefit renumerated 1. meeting of the minds to the contract
3. cause of gratuitous contracts –the mere 2. true intention is not expressed in the
liberality of the donor or benefactor instrument by reason of mistake, accident,
relative simulation, fraud, or inequitable
Note: conduct (MARFI)
EFFECTS on contracts 3. clear and convincing proof of MARFI
Absence of cause Confers no right and
produces no legal effect THERE IS NO REFORMATION in:
Failure of cause Does not render the (Arts. 1366-1367)
contract void 1. Simple, unconditional donations inter vivos
Illegality of cause Contract is null and void 2. Wills;
Falsity of cause Contract is void, unless 3. When the agreement is void
the parties show that 4. When an action to enforce the instrument is
there is another cause filed
which is true and lawful
Lesion Does not invalidate the Q: What are the kinds of simulation of contract?
contract, unless (1)there
A:
is fraud, mistake, or
undue influence (2)when 1. Absolute- no real transaction is intended
the parties intended a Effect: it is an inexistent contract
donation or some other
contract 2. Relative- the real transaction is hidden
Effect: the apparent contract is void but the hidden
Q: What are rules on the form of contracts? contract is valid, if it is lawful and has the necessary
A: requisites.
1. Contracts shall be obligatory, in whatever As to 3rd persons without notice, the apparent
form they may have been entered into, contract is valid on the principle of estoppel
provided all essential requisites for their validity
are present TABLE OF DEFECTIVE CONTRACTS:
2. Contracts must be in a certain form - when
the law requires that a contract be in some form Rescissible Voidable Unenforceable Void
to be: 1.defect is 1.defect is 1.defect is 1.defect is
a. valid caused by caused by caused by lack caused by
b. enforceable or injury/damage vice of of form, lack of
c. for the convenience of the parties either to one of consent authority or essential
the parties or to capacity of elements or
a 3rd person both parties illegality
3. The parties may compel each other to
reduce the verbal agreement into writing: 2.cured by 2.cured by 2.not cured by 2.not cured
prescription prescription prescription by
A: Solemn contracts such as: prescription
Donations of real estate or of movables if
the value exceeding P 5,000; 3.binding unless 3.binding 3.binding 3. not
Transfer of large cattle; Stipulation to pay rescinded until annulled unless the binding
interest in loans ; defect is raised
Sale of land through an agent (authority must against
be in writing); enforcement
Partnership to which immovables are
contributed;
Stipulation limiting carrier’s liability to less than Rescissib Voidable Unenforc Void
extra-ordinary diligence; Basis le (1380- (1390- eable (1408-
Contracts of antichresis and Sale of vessels 1389) 1402) (1403- 1423)
1408)
• In such cases, if contract is not in 1.Origin Economic Incapacity of Entered Absence
writing, it is VOID. of the Damage or one of w/out of any of
defect lesion; parties to authority essential

57
declaration give consent or in requisites 5. transfer of all his property by a DR when he
by law or vitiated excess of a is financially embarrassed or insolvent
consent thereof; contract 6. transfer is made between father and son,
non- (consent, where there are present some or any of the
complianc object, above circumstances and
e with cause)
Statute of
7. Failure of the vendee to take exclusive
Frauds; possession of the property.
Incapacity
of both Rescission and Resolution
parties to Rescission Resolution(Art 1191 )
give 1. action by the contracting 1. action only by the
consent parties even by a third party injured party
2.Damag One of To other Not Not 2. based on lesion/ fraud of 2. based on non-
es/prejudi parties or party not necessary necessary creditors fulfillment of the
ce 3rd person necessary obligation
3.Legal Valid & Valid, Inoperativ None 3. courts cannot grant periods 3. courts may grant
Effect legally binding, e until for compliance
enforceable enforceable ratified;
until until not
Q: When is there a voidable contract?
judicially judicially enforceabl
rescinded rescinded e in court A:
w/out 1. When one of the parties is incapacitated to
proper give consent
ratification 2. When consent was vitiated
4.Reme Rescission Annulment Just a Declarati
dy/actio or of contract personal on of Q: What are the causes of extinction of action to
n rescissory defense nullity of annul?
action contract A:
5.Nature Must be a Direct action Indirect Attacked 1. Prescription - the action must be
of action direct needed attack directly or commenced within 4 years from:
action allowed indirectly a. the time the incapacity ends
6.Who Contracting Generally, Must be 3rd b. the time the violence, intimidation
can file party; XPN: contracting contracting persons or undue influence ends or
the action CRs who party; XPN: party cannot c. the time the mistake or fraud is
are 3rd person unless discovered
defrauded prejudiced interests
are 2. Ratification
directly
Requisites:
affected
a. there must be knowledge of the
7.Suscep Yes but not Yes Yes No
tibilty of of
reason which renders the contract voidable
ratificatio ratification b. such reason must have ceased and
n proper c. the injured party must have
executed an act which expressly or
8.Suscep Action for Action for Action for Action for impliedly conveys an intention to waive his
tibilty of rescission annulment recovery, declaratio right
prescripti prescribes prescribes specific n of nullity
on after 4 after 4 years performan or putting 3. By loss of the thing which is the object of
years ce or of the contract through fraud or fault of the person
damages defense who is entitled to annul the contract
prescribe of nullity
(10 years does not
if basis prescribe Q: What is confirmation?
written A: Act by which a voidable contract is cured of its
contract, 6 vice or defect.
years if
unwritten) Q: What is recognition?
A: Act whereby a defect of proof is cured such as
when an oral contract is put into writing or when a
Q: What are the rescissible contracts? private instrument is converted into a public
A: (Article 1381) instrument.
Q: What are the badges of fraud? Q: What is ratification?

A: A: Act by which a contract entered into in behalf of
1. consideration of the conveyance is another without or in excess of authority is cured of
inadequate or fictitious its defect.
2. transfer was made by a DR after a suit has
been begun and while it is pending against him Q: What are the modes of ratification?
3. sale upon credit by an insolvent DR A:
4. the presence of evidence of large 1. For contracts infringing the Statute of
indebtedness or complete insolvency of the Frauds:
debtor a. expressly
58
b. impliedly- by failure to object to the prohibition is designed for the protection of
presentation of oral evidence to prove the the plaintiff
contract, or by the acceptance of benefits 5. payment of any amount in excess of the
under the contract. maximum price of any article fixed by law or
2. If both parties are incapacitated, ratification regulation by competent authority
by their parents or guardian shall validate the 6. contract whereby a laborer undertakes to
contract retroactively work longer than the maximum number of
hours fixed by law
Q: What are unenforceable contracts? 7. contract whereby a laborer accepts a wage
A: (Article 1403) lower than the minimum wage fixed by law
8. one who lost in gambling because of
*AGREEMENTS WITHIN THE SCOPE OF THE fraudulent schemes practiced on him is
STATUTE OF FRAUDS: (Article 1403 par.2) allowed to recover his losses
Q: What are void contracts? CONTRACT and INEXISTENT CONTRACT

A: (Article 1409) Void Contract Inexistent Contract
- those where all the - those where one or some
Q: What are the kinds of void contracts? requisites of a contract are of the requisites which are
1) Those lacking in essential elements: present, but the cause, essential for validity are
no consent, no object, no cause– essential object or purpose is ABSOLUTELY LACKING.
formalities are not complied with ( ex: donation CONTRARY TO LAW,
MORALS, GOOD
propter nuptias – should conform to formalities of a CUSTOMS, PUBLIC
donation to be valid ) ORDER or PUBLIC
a. Those w/c are absolutely simulated or POLICY or the contract
fictitious – no cause itself is PROHIBITED or
b. Those which cause or object did not DECLARED PROHIBITED.
exist at the time of the transaction – no - Principle of IN PARI - Principle of IN PARI
cause/object DELICTO is applicable. DELICTO is NOT
c. Those whose object is outside the applicable.
commerce of man – no object
d. Those w/c contemplate an impossible Q: What are the instances of natural obligations?
service – no object A: (Art 1423)
e. Those w/c intention of parties relative to 1. Performance after the civil obligation has
principal object of the contract cannot be prescribed
ascertained 2. Reimbursement of a 3rd person for a debt
2) Contracts prohibited by law that has prescribed
3) Illegal/Illicit contracts 3. Restitution by minor after annulment of
contract
Q: What are inexistent contracts? 4. Delivery by minor of money or fungible
A: Those which are absolutely simulated or thing in fulfillment of obligation
fictitious or those whose cause or object did not 5. Performance after action to enforce civil
exist at the time of the transaction obligation has failed
6. Payment by heir of debt exceeding value of
Q: What is the Doctrine Pari Delicto? property inherited and
A: both parties are guilty, no action against each 7. Payment of legacy after will has been
other; those who come in equity must come with declared void
clean hands; applies only to illegal contracts & not
to inexistent contracts; does not apply when a Q: What is ESTOPPEL?
superior public policy intervenes A: It is a condition or state by virtue of which an
admission or representation is rendered conclusive
IN PARI DELICTO – not only both are at fault but upon the person making it and cannot be denied or
that they are equally at fault disproved as against the person relying thereon.
Note: GR: When a void contract is such because of 1. Estoppel in Pais (by conduct)
illegality of the cause or the object and both parties a. Estoppel by silence
are at fault, the law leaves them where they are and b. Estoppel by acceptance of benefits
will not come to their aid. 2. Technical Estoppel
XPNS: a. Estoppel by deed
1. payment of usurious interest b. Estoppel by record
2. payment of money or delivery of property 3. Estoppel by judgment
for an illegal purpose where the party who 4. Laches
paid or delivered repudiated the contract Laches and Prescription
before the purpose has been accomplished Laches Prescription (1106-1155)
or before any damage has been caused to 1. concerned with effect of 1. concerned with fact of
a 3rd person delay delay
3. payment of money or delivery of property 2. inequity of permitting the 2. question of matter of time
by a party incapable of giving consent claim to be enforced
4. agreement or contract which is not illegal 3. not statutory 3. statutory
per se but is merely prohibited and the 4. applies in equity not 4. applies at law based on a
based on a fixed time fixed time

59
5. not based on a fixed time 5. based on a fixed time Q: What are the Rules to determine existence
of partnership?
Q: What are the essential elements of laches? A:
A:
1. conduct on the part of the defendant or one
under whom he claims, giving rise to the
situation complained of
2. delay in asserting the complainant’s right
after obtaining knowledge of the conduct of
defendant
3. lack of knowledge or notice on the
defendant that the complainant would assert his
right
4. injury or prejudice to the defendant in the
event relief is accorded to the complainant
PARTNERSHIP
Q: What are the requisites of a Partnership?

A: I.C.J.
1. intention to create a partnership
2. common fund obtained from contributions
3. joint interest in the profits
Contract of partnership: (B.O.N.C.C.P.P)

1. Bilateral – it is entered into by two or more
persons and the rights and obligations
arising therefrom are reciprocal;
2. Onerous – each of the parties aspires to
procure for himself a benefit through the
giving of something;
3. Nominate
4. Consensual – perfected by mere consent.
5. Commutative – the undertaking of each of
the partners is considered as the equivalent
of that of the others;
6. Principal
7. Preparatory
Q: What are the formalities needed for its creation?

a. personal property
1. < than P3,000.00 – may be oral
2. ≥ P 3,000.00 – must be
• in a public instrument
• registered in SEC
(VALID even if not registered, merely for
administration and licensing purposes –Paras)
b. real property – must be

• in a public instrument
• with an attached inventory
(VOID as b/w the parties if not complied w/ -
Art. 1773)
To be effective against 3rd parties
• partnership must be registered in the
Registry of Property of the province
where the real property contributed is
located
c. limited partnership
• must be registered as such in the SEC
(Otherwise, it’s not valid as a limited
partnership)

60
1. Both have juridical personality separate and
PART- CO-OWNER CORPO- distinct from that of the individuals composing it
NERSHIP SHIP RATION
Creation Created by a Created by Created
contract, by law by law 2. Both can only act through agents
mere
agreement of 3.Both are composed of an aggregate of individuals
the parties (except corporation sole)
Juridical Has a juridical None Has a
personalit personality juridical 4.Both distribute profits to those who contribute
y separate and personalit capital to the business (except non-stock, non-profit
distinct from y corporation)
that of each separate
partner and
distinct
5.Both can only be organized when there is a law
from that authorizing their organization
of each
corporato 6. Both are taxable as a corporation
rs
Purpose Realization of Common Depends Q: What are the effects of unlawful partnership?
profits enjoyment of on AOI A:
a thing or 1. The contract is void ab initio and the
right
partnership never existed in the eyes of the law
Duration/ No limitation 10 years 50 years
2. The profits shall be confiscated in favor of
Term of maximum maximum
existence , the government
extendibl 3. The instruments or tools and proceeds of
e to not the crime shall also be forfeited in favor of the
more government
than 50 4. The contributions of the partners shall not
years in be confiscated unless they fall under no. 3
any one
instance
Q: What are the classifications of partnership?
Disposal/ Partner may Co-owner Stockhold
A:
Transferab not dispose of may freely er has a
ility of his individual do so right to 1. as to object
interest interest unless transfer a. universal partnership of all present assets
agreed upon shares b. particular partnership
by all partners without
prior 2. as to liability of partners
consent a. general partnership
of other b. limited partnership
stockhold
ers
3. as to duration
Power to In absence of Co-owner Manage
act with 3rd stipulation to cannot ment is a. partnership at will
persons contrary, a represent vested b. partnership with a fixed period
partner may the co- with the
bind ownership Board of 4. as to legality of existence
partnership Directors a. de jure partnership
(each partner b. de facto partnership
is agent of
partnership) 5. as to representation to others
Effect of Death of Death of co- Death of a. ordinary or real partnership
death partner results owner does stockhold
b. ostensible or partnership by estoppel
in dissolution not er does
of partnership necessarily not
dissolve co- dissolve 6. as to publicity
ownership corporati a. secret partnership
on b. notorious or open partnership
Dissolutio May be May be Can only
n dissolved at dissolved be 7. as to purpose
any time by the anytime by dissolved a. commercial or trading
will of any or the will of with the b. professional or non-trading
all of the any or all of consent
partners the co- of the
owners state Q: What are the kinds of partners?
A: 1. CAPITALIST - contributes money or property
Q: What are the similarities between a partnership to the common fund.
and a corporation? 2. INDUSTRIAL - contributes only his industry or
A: personal service
3. GENERAL - one whose liability to 3rd persons
extends to his separate property
4. LIMITED - one whose liability to 3rd persons is
Partnership Corporation
limited to his capital contribution
5. MANAGING - manages the affairs or business of
the partnership

61
6. LIQUIDATING - takes charge of the winding up Y
of partnership affairs upon dissolution (reg
7. PARTNERS BY ESTOPPEL - is not really a ardl
partner but is liable as a partner for the protection of ess
WO
innocent 3rd persons
N
8. CONTINUING PARTNER - continues the they
business of a partnership after it has been wer
dissolved by reason of the admission of a new e
partner, retirement, death or expulsion of one of the obta
partners ined
9. SURVIVING PARTNER - remains after a thro
partnership has been dissolved by death of any ugh
partner the
usuf
10. SUBPARTNER - is not a member of the
ruct
partnership who contracts with a partner with cont
reference to the latter's share in the partnership ribut
11. OSTENSIBLE - takes active part and known to ed
the public as partner in the business
12. SECRET - takes active part in the business but Q: What is contract of sub-partnership?
is not known to be a partner by outside parties A: One formed between a member of a partnership
13. SILENT - does not take any active part in the and a 3rd person for a division of profits he
business although he may be known to be a partner obtained from the partnership enterprise.
13. DORMANT - does not take active part in the Q: What is the principle of delectus persaonae?
business and is not known or held out as a partner A: This refers to the rule that is inherent in every
partnership that no one can become a member of
UNIVERSAL PARTNERSHIP the partnership association without the consent of
ALL PROFITS ALL PRESENT all the partners.
PROPERTY
a. Only a. ALL NOTE: Even if a partner will associate another
US PROPERTIES actually person in his share in the partnership, the associate
UFR belonging to the partners shall not be admitted into the partnership without
UCT are CONTRIBUTED – they the consent of all the partners, even if the partner
of become common property
the (owned by all the partners
having an associate should be a manager (Art.
prop and the partnership) 1804, NCC).
ertie Q: When does a partner bind the partnership?
s of A:
the 1. when he is expressly or impliedly
part authorized
ners 2. when he acts in behalf and in the name of
bec the partnership
ome
CO
MM
Q: What are the instances of partnership tort?
ON A:
PR 1. where, by any wrongful act or omission of
OP any partner acting in the ordinary course of
ERT business of the partnership or with authority of
Y his co-partners, loss or injury is caused to any
person, not being a partner in the partnership
b. ALL b. GR: 2. where one partner, acting within the scope
PR Aside from the contributed of his apparent authority receives money or
OFI properties, ONLY the property from a third person and misapplies it
TS PROFITS of said property
acq 3. where the partnership, in the course of its
become COMMON
uire business, receives money or property and it is
PROPERTY
d by XPN: profits from misapplied by any partner while it is in the
the other sources may become custody of the partnership
IND COMMON if there is a
UST stipulation to such effect
RY GR: Properties Note: Partners are SOLIDARILY LIABLE with the
of subsequently acquired by partnership for any penalty or damage arising from
the inheritance, legacy or a partnership tort
part donation, CANNOT be
ners included in the stipulation
bec XPN: only fruits thereof can
ome be included in the DISTRIBUTION OF PROFITS AND LOSSES
CO stipulation 1. the partners share in the profits and losses
MM according to their agreement
ON 2. in the absence of such:
PR a. capitalist partner—in proportion to his
OP contribution
ERT
62
b. industrial partner—what is just and Obligations with respect to contribution to
equitable under the circumstances partnership capital:
1. Partners must contribute equal shares to
GR: stipulation excluding a partner from any share the capital of the partnership unless there is
in the profits or losses is VOID stipulation to contrary
XPN: industrial partner is not liable for losses (Art. 2. Partners (capitalist) must contribute
1797(2)). However, he is not exempted from additional capital in case of imminent loss to the
liability insofar as third persons are concerned. business of the partnership when there is no
stipulation to the contrary; refusal to do so shall
Q: What are the relations created by a contract of create an obligation on the refusing partner to
partnership? sell his interest to the other partners
A:
1. partners - partners Requisites to No. 2 above:
2. partners- partnership a. Imminent loss of the business of
3. partnership - 3rd persons with whom it the partnership
contracts b. Majority of the capitalist partners
4. partners - such 3rd persons are of the opinion that an additional
contribution to the common fund would
Q: What are the obligations of the partner? save the business
A: c. Capitalist partner refuses
Obligations with respect to contribution of deliberately to contribute (not due to
property: financial inability)
1. To contribute at the beginning of the d. There is no agreement to the
partnership or at the stipulated time the money, contrary
property or industry which he may have
promised to contribute Obligation of managing partners who collects
2. To answer for eviction in case the his personal receivable from a person who also
partnership is deprived of the determinate owed the partnership:
property contributed 1. Apply sum collected to 2 credits in
3. To answer to the partnership for the fruits of proportion to their amounts
the property the contribution of which he 2. If he received it for the account of
delayed, from the date they should have been partnership, the whole sum shall be applied to
contributed up to the time of actual delivery partnership credit
4. To preserve said property with the diligence Requisites:
of a good father of a family pending delivery to a. At least 2 debts, one where the
partnership collecting partner is creditor and the other,
5. To indemnify partnership for any damage where the partnership is the creditor
caused to it by the retention of the same or by b. Both debts are demandable
the delay in its contribution c. Partner who collects is authorized
to manage and actually manages the
Q: What is the effect of failure to contribute partnership
property promised?
A: Obligation of partner who receives share
1. Partners become ipso jure a debtor of the of partnership credit:
partnership even in the absence of any demand - To bring to the partnership capital what he has
2. Remedy of the other partner is not received even though he may have given receipt for
rescission but specific performance with his share only
damages from defaulting partner
Requisites:
Obligations with respect to contribution of a. A partner has received in whole or in part,
money and money converted to personal his share of the partnership credit
use: b. Other partners have not collected their
1. To contribute on the date fixed the amount shares
he has undertaken to contribute to the c. Partnership debtor has become insolvent
partnership
2. To reimburse any amount he may have PROHIBITION AGAINST ENGAGING
taken from the partnership coffers and IN BUSINESS
converted to his own use INDUSTRIAL CAPITALIST
3. To pay for the agreed or legal interest, if he PARTNER PARTNER
fails to pay his contribution on time or in case
he takes any amount from the common fund
and converts it to his own use
4. To indemnify the partnership for the
damages caused to it by delay in the
contribution or conversion of any sum for his
personal benefits

63
PROHIBITION cannot engage in cannot engage 2. assignee does not necessarily
business (w/n in business become a partner
same line of (with same
business with the kind of MANAGEMENT OF PARTNERSHIP
partnership) business with
unless the
partnership partnership) for Q: What are the modes of appointment of
expressly permits his own manager?
him to do so account, A:
unless there is Appointment through Appointment OTHER
a stipulation to the Articles of THAN in the Articles
the contrary Partnership
REMEDY Capitalist Capitalist Power is IRREVOCABLE Power to act is
partners may: partner in without just or lawful cause REVOCABLE ANYTIME,
1. Exclude him violation shall: Vote required for removal w/ or w/o cause (should be
from the 1. Bring to of manager done by the controlling
firm, or common 1. interest)
2. Avail fund any for
themselves profits
of the accruing
benefits to him
which he from said
may have transactio
obtained n, and
3. Damages, in 2. Bear all
either case losses
Q: What are the property rights of a partner? -

A: (S.I.M.) vo
1. right to specific partnership property
2. interest in the partnership (share in the 2. w/o
cause or
profits and surplus)
for unjust
3. right to participate in the management cause
Q: What is the nature of partner's right in specific unanimous vote
partnership property? Extent of power Extent of power
A: 1. - as long as he is a
1. Equal right to possession if he
manager, he can perform
2. Right not assignable all acts of administration (if
3. Right limited to share of what remains after others oppose, he can be
partnership debts have been paid. removed)
Q: What are the effects of assignment of partner’s
whole interest in the partnership?
A:
1. Right withheld from the assignee – such
assignment does not grant the assignee the
right:
a. To interfere in the management; -
b. To require any information or account; or he
c. To inspect partnership books.
c. if he
ACT
2. Rights of assignee of partner’s interest: S in
a. To receive in accordance with his contract BF
the profits accruing to the assigning - he cannot
partner;
b. To avail himself of the usual remedies Q: What is the rule where there are two or more
provided by law in the event of fraud in the managers?
management; A:
c. To receive the assignor’s interest in case of GR: each may separately execute all acts of
dissolution; and administration (unlimited power to administer)
d. To require an account of partnership affairs, XPN: if any of the managers opposes, decision of
but only in case the partnership is the majority prevails
dissolved, and such account shall cover the
period from the date only of the last NOTE: In case of tie
account agreed to by all the partners. **Decision of the controlling interest (who are also
managers) shall prevail.
Q: What are the effects of conveyance of a Q: What is the doctrine of marshalling assets?
partner of his interest in the partnership? A:
A: a. partnership creditors have preference in
1. conveyance of his whole interest— partnership assets
partnership may either remain or be dissolved
64
b. separate or individual creditors have creditors
preference in separate or individual b. Dispose of goodwill of
properties business
c. Anything left from either goes to the other. c. Do an act w/c would
make it impossible to
carry on ordinary
Q: What are the remedies available to creditors business of partnership
of a partner? d. Confess a judgment
A: e. Enter into compromise
a. separate or individual creditors should first concerning a partnership
secure a judgment on their credit; then claim or liability
b. apply to the proper court for a CHARGING f. Submit partnership
ORDER, subjecting the interest of the claim or liability to
debtor-partner in the partnership for the arbitration
g. Renounce claim of
payment of the unsatisfied amount of the
partnership
judgment debt with interest thereon. Acts in contravention of a Partnership not liable
restriction on authority to 3rd persons having
Q: What are the obligations of partners with regard actual or presumptive
to 3rd persons? knowledge of the
A: restrictions
1. Every partnership shall operate
under a firm name. Persons who include their EFFECTS OF CONVEYANCE OF REAL
names in the partnership name even if they are PROPERTY BELONGING TO PARTNERSHIP
not members shall be liable as a partner Title in partnership Conveyance passes title but
2. All partners shall be liable for name, partnership can recover if:
contractual obligations of the partnership with Conveyance in 1. Conveyance was not in
their property, after all partnership assets have partnership name the usual way of business,
or
been exhausted
2. Buyer had knowledge of
a. Pro rata lack of authority
b. Subsidiary Title in partnership Conveyance does not pass
3. Admission or representation name, title but only equitable interest,
made by any partner concerning partnership Conveyance in unless:
affairs within the scope of his authority is partner's name 1. Conveyance was not in
evidence against the partnership the usual way of business,
4. Notice to partner of any matter or
relating to partnership affairs operates as notice 2. Buyer had knowledge of
lack of authority
to partnership except in case of fraud:
Title in name of 1/ Conveyance passes title but
a. Knowledge of partner acting in the more partners, partnership can recover if:
particular matter acquired while a partner Conveyance in name 1. Conveyance was not in
b. Knowledge of the partner acting in of partner/partners in the usual way of business,
the particular matter then present to his whose name title or
mind stands 2. Buyer had knowledge of
c. Knowledge of any other partner lack of authority
who reasonably could and should have Title in name of Conveyance will only pass
communicated it to the acting partner 1/more/all partners or equitable interest
5. Partners and the partnership are 3rd person in trust for
partnership,
solidarily liable to 3rd persons for the partner's
Conveyance
tort or breach of trust executed in
6. Liability of incoming partner is partnership name or
limited to: in name of partners
a. His share in the partnership property for Title in name of all Conveyance will pass title
existing obligations partners, Conveyance
b. His separate property for subsequent in name of all
obligations partners
7. Creditors of partnership Q: Who is a partner by estoppel?
preferred in partnership property & may attach A: One who by words or conduct does any of the ff:
partner's share in partnership assets 1. Directly represents himself to anyone as a
ACTS OF A PARTNER EFFECTS partner in an existing partnership or in a non-
Acts in the ordinary course of with binding effect existing partnership
business even if he has no 2. Indirectly represents himself by consenting
authority to another representing him as a partner in an
Except: when 3rd existing partnership or in a non existing
person has partnership
knowledge of lack of
authority Q: What are the elements to establish liability
1. Acts not in the ordinary Does not bind as a partner on ground of estoppel?
course of business partnership unless
authorized by other
A:
2. Acts of strict dominion or partners 1. Defendant represented himself as partner/
ownership: or is represented by others as such and did not
a. Assign partnership deny/refute
property in trust for 2. Plaintiff relied on such representation

65
3. Statement of defendant not refuted 1. General Rule – the partnership ceases to
be a going concern and the partner’s power
Q: What are the liabilities in case of estoppel? of representation is confined only to acts
A: incidents to winding up or completing
All partners consented to Partnership is liable transactions begun but not then finished.
representation (Art. 1832)
No existing partnership & all Person who 2. Qualifications to the rule – subject to the
those represented represented himself &
qualifications set forth in Articles 1833 and
consented; all those who made
representation liable 1834 in relation to Article 1832.
pro-rata/jointly
No existing partnership & not Person who a. In so far as the partners themselves are
all represented consented; represented himself concerned – the authority of any partner to bind
None of partners in existing liable & those who the partnership by a new contract is
partnership consented made/consented to immediately terminated when the dissolution is
representation not by the act, insolvency, or death of a partner
separately liable (a.i.d).
When the dissolution is by such (a.i.d.) act,
Q: What are the responsibilities of partnership to insolvency, or death, the termination of authority
partners depends upon whether or not the partner had
A: knowledge or notice of dissolution as provided in
1. Refund the amounts disbursed by partner article 1833.
in behalf of the partnership + corresponding Article 1833 - Where the dissolution is
interest from the time the expenses are made caused by the act, death or insolvency of
(loans and advances made by a partner to the a partner, each partner is liable to his co-
partnership aside from capital contribution) partners for his share of any liability
2. Answer for obligations partner may have created by any partner for the partnership as
contracted in good faith in the interest of the if the partnership had not been dissolved
partnership business unless:
3. Answer for risks in consequence of its i. The dissolution being by act of any partner,
management the partner acting for the partnership had
knowledge of the dissolution; or
Q: What is dissolution? ii. The dissolution being by the death or
A: A change in the relation of the partners insolvency of a partner, the partner acting
caused by any partner ceasing to be for the partnership had knowledge or notice
associated in carrying on the business of the death or insolvency.
Q: What are the causes of dissolution? b. With respect to third persons (Art. 1834) –
A: Partner continues to bind partnership even after
1. Without violating the agreement: dissolution in ff. cases:
a. termination of the definite term or specific 1. Transactions to wind up
undertaking partnership affairs/complete transactions
b. express will of a partner in GF when there unfinished
is NO definite term and NO specified 2. Transactions would bind
undertaking partnership if not dissolved, when the other
c. express will of ALL partners (except those party/obligee:
who have assigned or whose interests have a. Situation 1 -
been charged) 1. Had extended credit to partnership
d. expulsion in GF of a member prior to dissolution &
2. Violating the agreement 2. Had no knowledge/notice of
3. Unlawfulness of the business dissolution, or
4. Loss b. Situation 2 -
a. SPECIFIC THING promised as 1. Did not extend credit to partnership
contribution is lost BEFORE delivery 2. Had known partnership prior to
b. Loss of a specific thing contributed dissolution
BEFORE or AFTER DELIVERY if only the 3. Had no knowledge/notice of
USE of such is contributed dissolution/fact of dissolution not
5. Death of any of the partners advertised in a newspaper of general
6. Insolvency of any partner or of the circulation in the place where partnership
partnership is regularly carried on
7. Civil interdiction of any partner
8. Decree of the court NOTE:
Partner cannot bind the partnership anymore after
Q: What are the grounds for resolution by decree of dissolution where:
court? 1. Dissolution is due to unlawfulness
A: (Art. 1831) to carry on with business (except: winding up of
partnership affairs)
Q: What is the effect of dissolution on authority of a 2. Partner has become insolvent
partner?
A:
66
3. Partner unauthorized to wind up a. If the business is not continued by the
partnership affairs, except by transaction with other partners, to have the partnership
one who: property applied to discharge its liabilities and
a. Situation 1 - to receive in cash his share of the surplus
1. Had extended credit to partnership less damages caused by his wrongful
prior to dissolution & dissolution.
2. Had no knowledge/notice of b. If the business is continued:
dissolution, or 1. To have the value of his interest in
b. Situation 2 - the partnership at the time of the
1. Did not extend credit to partnership dissolution, less any damage caused
prior to dissolution by the dissolution to his co-partners,
2. Had known partnership prior to dissolution ascertained and paid in cash or
3. Had no knowledge/notice of dissolution/fact of secured by bond approved by the court;
dissolution not advertised in a newspaper of and
general circulation in the place where partnership is 2. To be released from all existing and
regularly carried on future liabilities of the partnership.
NOTE: Dissolution does not discharge existing Q: What are the rights of injured partner where
liability of partner, except by agreement between: partnership contract is rescinded?
(1) partner himself, A:
(2) person/s continuing the business and 1. Right of a lien on, or retention of, the
(3) partnership creditors surplus of partnership property after
Q: What is winding up? satisfying partnership liabilities for any sum
A: Settling the partnership business or affairs after of money paid or contributed by him;
dissolution. 2. Right of subrogation in place of
Q: What is termination? partnership creditors after payment of
A: Point in time when all partnership affairs are partnership liabilities; and
wound up or completed and are the end of the 3. Right of indemnification by the guilty
partnership life partner against all debts and liabilities of
the partnership.
Q: Who are the persons authorized to wind up?
A: Q: How are the accounts settled between partners?
1. partners designated by the agreement A:
2. in the absence of such, all partners who 1. Assets of the partnership include:
have not wrongfully dissolved the partnership a. Partnership property (including goodwill);
3. legal representative of last surviving partner b. Contributions of the partners.
not insolvent 2. Order of application of the assets:
a. First, those owing to partnership creditors;
Q: What are the rights of a partner where b. Second, those owing to partners other
dissolution is not in contravention of the than for capital and profits such as loans
agreement? given by the partners or advances for
A: Unless otherwise agreed, the rights of each business expenses;
partner are as follows: c. Third, those owing for the return of the
1. To have the partnership property applied to capital contributed by the partners; and
discharge the liabilities of partnership; and d. Finally, the share of the profits, if any, due
2. To have the surplus, if any, applied to pay to each partner.
in cash the net amount owing to the
respective partners. Q: What is a partner’s lien?
A: the right of every partner to have the partnership
Q: What are the rights of a partner where property applied to discharge partnership liabilities
dissolution is in contravention of the agreement? and surplus assets, if any, distributed in cash to the
A: the rights of a partner vary depending upon respective partners, after deducting what may be
whether he is the innocent or guilty partner. due to the partnership from them as partners.
1. Rights of partner who has not caused the Q: What are the effects when the business of a
dissolution wrongfully: dissolved partnership is continued?
a. To have partnership property applied for A:
the payment of its liabilities and to receive in 1. Creditors of old partnership are also
cash his share of the surplus; creditors of the new partnership which
b. To be indemnified for the damages continues the business of the old one w/o
caused by the partner guilty of wrongful liquidation of the partnership affairs
dissolution; 2. Creditors have an equitable lien on the
c. To continue the business in the same consideration paid to the retiring /deceased
name during the agreed term of the partner by the purchaser when
partnership, by themselves or jointly with retiring/deceased partner sold his interest w/o
others; and final settlement with creditors
d. To possess partnership property should 3. Rights if retiring/estate of deceased
they decide to continue the business. partner:
2. Rights of partner who has wrongfully caused the a. To have the value of his interest
dissolution: ascertained as of the date of dissolution;

67
b. To receive as ordinary creditor the Q: What are the liabilities of a limited partner?
value of his share in the dissolved A:
partnership with interest or profits AS CREDITOR AS TRUSTEE
attributable to use of his right, at his option. Deficiency in Specific property stated as
contribution contributed but not yet
NOTE: contributed/wrongfully returned
1. The right to demand on Money/other property
accounting of the value of his interest accrues Unpaid contribution wrongfully paid/ conveyed to
him on account of his
to any partner or his legal representative after
contribution
dissolution in the absence of an agreement to
the contrary.
Q: When may an assignee become a limited
2. Prescription begins to
substituted partner?
run only upon the dissolution of the partnership
A: When:
when the final accounting is done.
1. All the members consent to the assignee
becoming a substituted partner or the limited
Q: Who are the persons liable to render an
partner, being empowered by the certificate,
account?
must give the assignee the right to become a
A:
limited partner;
1. Winding up partner;
2. The certificate is amended; and is
2. Surviving partner;
registered in the SEC.
3. Person or partnership continuing the
business.
LIMITED PARTNERSHIP
Q: What are the loans or other transactions allowed
or prohibited in a limited partnership?
Q: What are the characteristics of a limited
A:
partnership?
1. Allowed
A:
a. Granting loans to partnership
1. One or more general partners control the
b. Transacting business with
business
partnership
2. One or more limited partners contribute to
c. Receiving pro rata share of
the capital and share in the profits but do not
partnership assets with general creditors if
participate in the management of the business
he is not also a general partner
and are not personally liable for partnership
2. Prohibited
obligations beyond their capital contributions
a. Receiving/holding partnership
3. May ask for the return of their capital
property as collateral security
contributions under conditions prescribed by
b. Receiving any payment,
law
conveyance, release from liability if it will
4. Partnership debts are paid out of common
prejudice right of 3rd persons
fund and the individual properties of general
partners
Q: When does a general partner need a
consent/ratification of all limited partners?
DIFFERENCES BETWEEN GENERAL AND
A:
LIMITED PARTNER/PARTNERSHIP
1. Do any act in contravention
of the certificate
GENERAL LIMITED
2. Do any act which would
Personally liable for Liability extends only to
partnership obligations his capital contributions make it impossible to carry on the ordinary
When manner of mgt. not business of the partnership
agreed upon, all general No participation in 3. Confess judgment against
partners have an equal right management partnership
in the mgt. of the business 4. Possess partnership
Contribute cash, property or
Contribute cash or property/assign rights in specific partnership
property only, not industry property other than for partnership purposes
industry
5. Admit person as general
Proper party to proceedings Not proper party to partner
by/against partnership proceedings by/against 6. Admit person as limited
partnership
partner - unless authorized in certificate
Interest not assignable w/o
Interest is freely 7. Continue business with
consent of other partners
assignable partnership property on death, retirement, civil
Name may appear in firm interdiction, insanity or insolvency of general
Name must not appear in partner unless authorized in certificate
name
firm name
Prohibition against No prohibition against Q: What are the specific rights of a limited partner?
engaging in business engaging in business A:
Retirement, death, 1. to have partnership books kept at principal
Does not have same
insolvency, insanity of gen. place of business
effect; rights transferred to
partner dissolves
legal representative 2. to inspect/copy books at reasonable hour
partnership

68
3. to have on demand true and full info of all Since limited partners are not principals in
things affecting partnership the transaction of a partnership, their liability as a
4. to have formal account of partnership rule, is to the partnership, not to creditors of the
affairs whenever circumstances render it just partnership. The general partners cannot, however
and reasonable waive any liability of the limited partners to the
5. to ask for dissolution and winding up by prejudice of such creditors.
decree of court
6. to receive share of profits/other B. To the partnership creditors and other
compensation by way of income partners:
7. to receive return of contributions provided 1. A limited partner is liable for partnership
the partnership assets are in excess of all its obligations when he contributed services
liabilities instead of only money or property to the
partnership;
PREFFERED LIMITED PARTNERS – by an 2. When he allows his surname to appear in
agreement of all the members (general and limited the firm name;
partners stated in the certificate), priority or 3. When he fails to have a false statement in
preference may be given to some limited partners the certificate corrected, knowing it to be false;
over other limited partners as to the: 4. When he takes part in the control of the
1. Return of their contributions; business;
2. Their compensation by way of income; or 5. When he receives partnership property as
3. Any other matter. collateral security, payment, conveyance, or
4. release in fraud of partnership creditors; and
NOTE: In the absence of such statement in the 6. When there is failure to substantially
certificate, even if there is an agreement, all limited comply with the legal requirements governing
partners shall stand on equal footing in respect of the formation of limited partnerships.
these matters. C. To separate creditors
As in a general partnership, the creditor of
Q: What are the requisites for return of contribution a limited partner may, in addition to other remedies
of a limited partner? allowed under existing laws, apply to the proper
A: court for a charging order subjecting the interest in
1. All liabilities of the partnership have been the partnership of the debtor partner for the
paid or if they have yet been paid, the assets of payment of his obligation.
the partnership are sufficient to pay such
liabilities. Q: What are the requisites for waiver or
2. The consent of all the members (general compromise of liabilities?
and limited partners) has been obtained except A:
when the return may be rightfully demanded; 1. The waiver or compromise is made with the
and consent of all partners; and
3. The certificate is cancelled or amended. 2. The waiver or compromise does not
prejudice partnership creditors who
Q: When is the return of contribution a matter of extended credit or whose claims arose
right? before the cancellation or amendment of
A: When all liabilities of the partnership, except the certificate.
liabilities to general partners and to limited partners
on account of their contributions, have been paid or Q: When may a limited partner have the partnership
there remains property of the partnership sufficient dissolved?
to pay them and the certificate is cancelled or so A:
amended as to set forth the withdrawal or reduction: 1. When his demand for the return of his
contribution is denied although he has a right to
1. On the dissolution of the partnership; or such return; or
2. Upon the arrival of the date specified in 2. When his contribution is not paid although
the certificate for the return; or he is entitled to its return because the other
3. After the expiration of 6 months’ notice liabilities of the partnership have not been paid
in writing given by him to the other partners or the partnership property is insufficient for
if no time is fixed in the certificate for the their payment.
return of the contribution or for the
dissolution of the partnership. DISSOLUTION OF LIMITED PARTNERSHIP:
Priority in Distribution of Assets (Art. 1863)
NOTE: Even if a limited partner has contributed
property, he has only the right to demand and
receive cash for his contribution. The exceptions AGENCY
are:
1. When there is stipulation to the contrary in Q: What are the characteristics of a contract of
the certificate; or agency?
2. When all the partners (general and limited A:
partners) consent to the return other than in 1. Bilateral – if it is for compensation because
the form of cash. it gives rise to reciprocal rights and obligations;
and
Q: What are the liabilities of a limited partner? 2. Unilateral – if it gratuitous because it
A. To the partnership: creates obligations for only one of the parties

69
3. Nominate remove
4. Consensual d by
5. Principal the
6. Preparatory – it is entered into as a means latter
d. agent d. guardian is NOT subject
to an end.
is to the directions of the ward,
subject but must act for the ward’s
Q: What is the purpose of agency? to benefit
A: to extend the personality of the principal through directio
the facility of the agent. ns of
the
Q: Who are the parties to the contract? princip
A: al
1. Principal – one whom the agent represents
e. agent e. guardian has no power to
and from whom he derives his authority
can impose personal liability on the
2. Agent – one who acts for and represents make ward
another the
Q: What are the essential elements of agency? princip
A: al
1. consent, express or implied, of the parties person
to establish the relationship; ally
2. The object is the execution of a juridical act liable
in relation to third persons;
3. The agent acts as a representative and not
for himself; and AGENCY JUDICIAL ADMINISTRATION
4. The agent acts within the scope of his a. agent i. judicial administrator is
is appointed by the court
authority. appoint
ed by
NOTE: the
PRINCIPAL: may be a natural or a juridical person. princip
-he must be capacitated. al
-The rule is: if a person is capacitated to act for b. represe ii. he represents not only the
himself or his own right, he can act through an nts the court but also the heirs and
agent. princip creditors of the estate
AGENT: insofar as the third persons are concerned, al
it is enough that the principal is capacitated. But
c. agent iii. administrator files a bond
insofar as his obligations to his principal are does
concerned, the agent must be able to bind himself. not file
a bond
Q: What are the acts that cannot be done by agent? d. he is iv. his acts are subject to
A: controll specific orders from the court
Personal Acts ed by
1. Criminal or Illegal Acts the
princip
Q: What is the nature of relationship between al thru
the
Principal & Agent? agreem
A: Fiduciary, based on trust & confidence ent
AGENCY GUARDIANSHIP AGENCY LEASE OF SERVICES

a. Agent a. guardian a. agent represents the a. worker or lessor
represe represents principal of services does
nts a an not represent his
capacit incapacitate employer
ated d person b. relationship can be b. generally,
person terminated at the will relationship can
of either principal or be terminated
b. agent b. guardian agent only at the will of
derives derives both
authorit authority c. agent exercises c. employee has
y from from the discretionary powers ministerial
the court functions
princip
al
AGENCY TRUST
c. agent c. the guardian
a. agent usually holds no a. trustee may hold
is is appointed
title at all legal title to the
appoint by the court,
property
ed by and stands
b. agent usually acts in the b. trustee may act
the in loco
name of the principal in his own name
princip parentis
al and
can be c. agency usually may be c. trust is usually
terminated or revoked any ended by the
70
time accomplishment B. Implied - when it can be inferred from the acts
of the purposes of the agent which carry out the agency, or from
for which it was his silence of inaction according to the
formed circumstances
d. agency may not be d. trust involves
connected at all with property control over
property 1. Between persons who are present –
implied acceptance if the principal delivers his
e. agent has authority to e. trustee does not power of attorney to the agent and the latter
make contracts which will be necessarily or receives it without any objection
binding on his principal even possess 2. Between persons who are absent –
such authority to acceptance not deemed implied from the
bind the trustor or silence of the agent. Exceptions:
the cestui que a. When the principal transmits his
trust power of attorney to the agent, who
f. agency is really a f. a trust may be
receives it without any objection.
contractual relation the result of the
contract or not; it b. When the principal entrusts to
may be created him by letter or telegram a power of
also by law attorney with respect to the business in
which he is habitually engaged as an agent,
IMPLIED AGENCY AGENCY BY ESTOPPEL and he did not reply to the letter or
1. 1. b/w principal and agent telegram.
b/w a. if caused by the
“agent”, he is not Q: What are the ways of giving notice of agency?
a. agent is a true agent, considered a true agent, A:
with rights and duties hence, he has no rights 1. By special
of an agent as such
information - the person appointed as agent is
2. as to 3rd persons 2. as to 3rd persons
a. the principal is a. if caused by the considered such with respect to the person to
always liable principal, he is liable, but whom it was given.
b. the agent is never only if the 3rd person 2. By public
personally liable acted on the advertisement - the agent is considered such
misrepresentation with regard to any person.
b. if caused by the agent
alone, only the agent is NOTE: The power of attorney must be revoked
liable
in the same manner in which it was given.
Q: What are the classifications of Agency? AGENCY COUCHED IN GENERAL TERMS:
A. As to manner of creation - may be general or
1. Express – agent has been actually
special
authorized by the principal, either orally or
- includes only acts of
in writing
administration and an
2. Implied – agency is implied from
express power is
the acts of the principal, from his silence or
necessary to perform any
lack of action or his failure to repudiate the
act of strict ownership
agency knowing that another person is
even if the principal
acting on his behalf without authority,
states that:
B. As to character
1. he withholds no power
1. Gratuitous – agent receives no
2. agent may execute such acts as he
compensation for his services
may consider appropriate
2. Onerous – agent receives
3. general or unlimited management is
compensation for his services
authorized
C. As to extent of business of the principal
1. General – agency comprises all the
Q: What is a Power of Attorney?
business of the principal
A: An instrument in writing by which one
2. Special – agency comprises one or
person, as principal, appoints another as his
more specific transactions
agent and confers upon him the authority to
D. As to authority conferred
perform certain specified acts or kinds of acts
1. Couched in general terms – agency
on behalf of the principal; primary purpose is to
is created in general terms and is deemed
evidence agent’s authority to third parties within
to comprise only acts in the name and
whom the agent deals.
representation of the principal
2. Simple or Commission – agent acts
Q: What are the instances when a special power of
in his own name but for the account of the
attorney is necessary?
principal
A : (Article 1878)
NOTE:
General rule – there are no formal requirements
GR: Knowledge of agent is knowledge of principal
governing the appointment of an agent.
EXCEPTIONS:
Exception - when the law requires a specific form.
1. agent’s interests are adverse to those
of the principal
Form of Acceptance by Agent:
2. agent’s duty is not to disclose the
A. Express
information (confidential information)

71
3. where the person claiming the benefit 1. If the agent acted in contravention of the
of the rule colludes with the agent to principal's instructions, unless principal derives
defraud the principal benefits from the contract
NOTE: In a sale of a piece of land/any interest 2. When the expenses were due to the fault of
therein, agent’s authority must be in writing, the agent
otherwise sale is void. 3. When the agent incurred them with
knowledge that an unfavorable result would
Q: What are not included in the power to mortgage? ensure, if the principal was not aware thereof
1. to sell 4. When it was stipulated that the expenses
2. to execute a second mortgage would be borne by the agent, or that the latter
3. to mortgage for the agent’s or any 3rd would be allowed only a certain sum
persons’ benefit, UNLESS clearly indicated.
NOTE: Power to compromise does not include
submission to arbitration. Q: What are the conditions for ratification?
A: PRINCIPAL MUST:
Q: What are the effects of agent’s acts? 1. have capacity and power to ratify;
A: A. WITH Authority 2. have had knowledge of material facts;
1. in principal’s name—valid 3. ratify acts in its entirety;
2. in his own name—not binding on the SUCH ACTS MUST: be capable of ratification;
principal; agent and stranger are the only And must be done in behalf of the principal
parties, except regarding things belonging to
the principal or when the principal ratifies the Q: What are the effects of ratification?
contract or derives benefit therefrom A:
B. WITHOUT Authority a. with respect to agent - relieves the
1. in principal’s name—unauthorized agent from liability to the third party for the
and unenforceable but may be ratified, in which unauthorized transaction, and to his principal
case, may be validated retroactively from the for acting without authority; may recover
beginning compensation
2. in his own name—valid on the agent, b. with respect to principal - assumes
but not on the principal responsibility for the unauthorized act, as if the
agent had acted under original authority but not
Q: When is the principal bound by the act of the liable for acts outside the authority approved by
agent? his ratification
A: When the agent acted within the scope of his c. with respect to 3rd persons - bound
authority; and in behalf of the principal. by ratification to the same extent as if the
ratified act had been authorized; cannot raise
NOTE: The principal is bound by either actual the question of the agent’s lack authority to do
or apparent authority of the agent: the ratified act
a. So long as the agent has actual
authority, express or implied, the Q: What are the Distinctions between Authority and
principal is bound by the acts of the the Principal’s Instructions?
agent on his behalf, whether or not the A:
third person dealing with the agent AUTHORITY INSTRUCTIONS
believes that the agent has actual Sum total of the powers contemplates only a
authority. committed to the agent by private rule of guidance to
b. Under the doctrine of apparent the principal the agent; independent
and distinct in character
authority, the principal is liable only as
Relates to the refers to the manner or
to third persons who have been led
subject/business with which mode of agent’s action
reasonably to believe by the conduct of the agent is empowered to
the principal that such actual authority deal or act
exists, although none has been given.
limitations of authority are without significance as
Q: When is the principal not bound by the act of operative as against those against those with neither
the agent? who have/charged with knowledge nor notice of
A: knowledge of them them
1. When the act is without or beyond the contemplated to be made not expected to be made
known to third persons known to those with whom
scope of his authority in the principal’s dealing with the agent the agent deals
name;
2. When the act is within the scope of his
ESTOPPEL TO DENY AGENCY:
authority but in his own name, except when the
transaction involves things belonging to the
1. Estoppel of agent – one professing to
act as agent for another may be estopped
principal.
to deny his agency both as against his
asserted principal and the third persons
Q: Is the principal liable for the expenses incurred
interested in the transaction in which he
by the agent?
engaged.
A: YES
Exceptions: 2. Estoppel of principal –
a. As to agent – one, who knows that another
is acting as his agent and fails to repudiate
72
his acts, or accepts the benefits of them, Q: What is a guaranty commission?
will be estopped to deny the agency as A: fee which is given in return for the risk that the
against such other. agent has to bear in the collection of credits
b. As to sub-agent – to estop the principal
from denying his liability to a third person, Q: What are the modes of extinguishment of
he must have known or be charged with agency?
knowledge of the fact of the transaction and A: (EDWARD)
the terms of the agreement between the 1. Expiration of the period
agent and sub-agent. 2. Death, civil interdiction, insanity or insolvency of
c. As to third persons – one who knows that principal or of the agent
another is acting as his agent or permitted 3. Withdrawal of the agent
another to appear as his agent, to the injury 4. Accomplishment of the object or the purpose of
of third persons who have dealt with the the agency
apparent agent as such in good faith and in 5. Revocation
the exercise of reasonable prudence, is 6. Dissolution of the firm or corporation that
estopped to deny the agency. entrusted or accepted the agency.
3. Estoppel of third persons – a third
person, having dealt with one as agent may NOTE: The list is not exclusive; causes particular
be estopped to deny the agency as against only to agency; may also be extinguished by the
the principal, agent, or third persons in modes of extinguishment of obligations in general
interest. whenever they are applicable, like loss of the thing
4. Estoppel of the government – the and novation.
government is neither estopped by the
mistake or error on the part of its agents. Q: What is the “Presumption of Continuance of
Agency”?
NOTE: The agent may appoint a substitute except A: It means that when once shown to have existed,
when he has been prohibited by the principal an agency relation will be presumed to have
• The agent shall be responsible for the acts continued, in the absence of anything to show its
of the substitute termination.
1. when he was not
given the power to appoint NOTE:
2. when he was given In Continuance of Agency: parties must be (1)
such power but without designating the person present, (2) capacitated and (3) solvent
and the person appointed was notoriously
incompetent or insolvent Q: Can the heirs continue the agency?
A:
Q: What is the responsibility of two or more agents General rule: No. The agency calls for personal
appointed simultaneously? services on the part of the agent; rights &
A: obligations intransmissible.
General rule: liable jointly
Exception: solidarity has been expressly Exceptions:
stipulated; each of the agents becomes solidarily 1. agency by operation of law, or a presumed
liable for: or tacit agency
1. The non-fulfillment of the agency; or 2. agency is coupled with an interest in the
2. For the fault or negligence of his fellow subject matter of the agency (ex. power of sale
agent in a mortgage)
Exception to the exception: when one of the other
agents acts beyond the scope of his authority – Q: What is the effect of a change of circumstance
innocent agent is NOT liable. surrounding the transaction?
A:
GR: the authority of the agent is terminated.
Q: Who is a factor/commission agent? Exceptions:
A: One engaged in the purchase & sale for a 1. If the original circumstances are restored
principal of personal property, which, for this within a reasonable period of time, the agent's
purpose, has to be placed in his possession & at his authority may be revived;
disposal 2. Where the agent has reasonable doubts as
to whether the principal would desire him to act,
Q: Who is a broker? his authority will not be terminated if he acts
A: Middleman or intermediary who in behalf of reasonably;
others and for a commission or fee, negotiates 3. Where the principal and agent are in close
contracts/transactions relating to real or personal daily contact, the agent's authority to act will not
property terminate upon a change of circumstances if
the agent knows the principal is aware of the
Q: What is a factorage? change and does not give him new instructions.
A: Compensation of a factor or commission agent
GENERAL RULE: Agency is REVOCABLE at will
Q: What is an Ordinary Commission? by the principal
A: compensation for the sale of goods that are EXCEPTIONS:
placed in his possession or at his disposal 1. If a bilateral contract depends upon it

73
2. if it is the means of fulfilling an obligation A: A general power of attorney is revoked by
already contracted special one granted to another agent, as regards
3. if a partner is appointed manager of a the special matter involved in the latter.
partnership and his termination is unjustifiable
4. if it is created not only for the interest of the TRUSTS
principal but also for the interest of third
persons Q: Who are the persons involved in the creation of
a trust?
Q: Is there a necessity of notice of revocation? A:
A: 1. Trustor – one who intentionally creates a
1. as to the agent - express notice is not trust
necessary; sufficient notice if the party to be 2. Trustee – one who holds the legal title to
notified actually knows, or has reason to know, the trust property for the benefit of another
a fact indicating that his authority has been and with certain powers and subject to certain
terminated/suspended; revocation without duties
notice to the agent will not render invalid an act 3. Beneficiary or the cestui que trust – one
done in pursuance of the authority who has the equitable interest in the property
2. as to 3rd persons – express notice and enjoys the benefit of administration by the
necessary trustee.
a. as to former customers - actual - may be a natural person or a legal entity
notice must be given to them because they NOTE: trustor may establish a trust with himself as
always assume the continuance of the the beneficiary (usual case).
agency relationship
b. as to other persons - notice by A trust arises from or is the result of a
publication is enough fiduciary relation between the trustee and the cestui
NOTE: que trust as regards certain property – real,
There is implied revocation of the previous personal, funds or money or choses in action held
agency when the principal appoints a new agent for by the trustee.
the same business or transaction provided there is
incompatibility. But the revocation does not become Q: What are the characteristics of the office of the
effective as between the principal and the agent trustee?
until it is in some way communicated to the latter. A:
1. As principal – The trustee is not an agent of the
Q: What is the effect of the direct management by trust estate or of the cestui que trust, but he
the principal? acts for himself in the administration of the trust
A: estate, although subject to the terms of the trust
GR: The agency is revoked for there would no and law of trusts.
longer be any basis for the representation
2. As agent – In some cases, however, a trustee
previously conferred. But the principal must act in
has been regarded as an agent of beneficiaries
good faith and not merely to avoid his obligation to
of the trust at least for certain purposes, such
the agent.
as for the purpose of imputing to the
EXCEPTION: the only desire of the principal is for
beneficiaries of the trust notice given to the
him and the agent to manage the business together
trustee.
Q: How is the agency revoked when the agent has 3. As fiduciary – A trustee, like an executor or
been appointed by two or more principals? administrator, holds an office of trust. The
A: any one of the principals is granted the right to duties of the latter are, however, fixed and/or
revoke the power of attorney without the consent of limited by law, whereas those of trustee of an
the others. express trust are usually governed by the
intention of the trustor or of the parties, if
Q: Can the agent w/draw from the agency? established by contract.
A: the agent may renounce or withdraw from the
agency at any time, without the consent of the Q: What are the classifications of a trust?
principal, even in violation of the latter’s contractual A: *From the viewpoint of whether they become
rights; subject to liability for breach of contract or for effective after the death of the trustor or during his
tort. life, it may either be:
1. Without just cause – the law imposes 1. testamentary trusts
upon the agent the duty to give due notice to 2. trusts inter vivos (living trusts)
the principal and to indemnify the principal
should the latter suffer damage by reason of *From the viewpoint of the creative force bringing it
such withdrawal. into existence:
2. With just cause – the agent cannot be
held liable. 1. Express trust – exists only by the manifestation
of an intention to create it by the one having
Q: What is the effect of a partial revocation of a legal and equitable dominion over the property
general power by special power? made subject to it;
2. Implied trust – exists either through implication
of an intention to create a trust as a matter of
74
law or through the imposition of the trust separation of legal and and equitable ownership
irrespective of and even contrary to any such equitable title. except in cases of gifts in
intention; it may either be: trust.
The beneficiary of a trust
a. A resulting trust – arises where a may demand performance
person makes or causes to be made a of the obligation without
disposition of property under circumstances having formally accepted The donee must comply
which raise an inference that he does not the benefit of the trust in a with the legal
intend that the person taking or holding the public document, upon requirements in accepting
property should have the beneficial interest mere acquiescence in the donations.
formation of the trust and
in the property; is founded on the presumed
acceptance under the
intention of the parties; OR second paragraph of Art.
b. A constructive trust –imposed 1311 (Stipulations pour
where a person holding title to property is autrui).
subject to an equitable duty to convey it to
another on the ground that he would be TRUST CONTRACT
unjustly enriched if he were permitted to Always involves ownership, A legal obligation based
retain it; embracing a set of rights on an undertaking
and duties fiduciary in supported by a
NOTE: the duty to convey the property arises character which may be consideration, which
because it was acquired through fraud, duress, created by a declaration obligation may or may
undue influence, mistake, or through breach of a without consideration. not be fiduciary in
fiduciary duty, or through the wrongful disposition of character.
another’s property.
EXPRESS TRUST IMPLIED TRUST
Q: What are the elements of express trust?
A: 1. Created by the intention 1. Come into being by
1. A competent trustor and trustee; of the parties operation of law
2. An express trust over an 2. An implied trust over
2. An ascertainable trust res; and
immovable or any interest an immovable or any
3. Sufficiently certain beneficiaries. therein cannot be proved by interest therein may be
parol evidence. proved by oral
Q: Who has the burden of proving a trust? evidence.
A: the burden is on the party alleging its existence 3. An express repudiation 3. Not necessary that
made known to the an express repudiation
General rule: A trust whether express or implied
beneficiary is necessary in be made in order to bar
may be proved by parol or oral evidence. order that laches or an action to enforce an
acquisitive prescription may express trust.
Exception: An express trust over an immovable bar an action to enforce an
property or any interest therein may not be proved express trust.
by parol evidence.
RESULTING TRUST CONSTRUCTIVE
By virtue of Article 1443, WRITTEN INSTRUMENT TRUST
is necessary to prove an express trust concerning 1. The intent of the 1. The trust is created
an immovable or any interest therein. Hence, by parties to create a trust is irrespective of or even
analogy, this requirement may also be included presumed or implied by contrary to the intention
under the Statute of Frauds. law from the acts of the of the parties to promote
parties. justice, frustrate fraud and
to prevent unjust
Q: How is an express trust created?
enrichment.
A: created by direct and positive act of the trustor,
2. The 10-year prescriptive 2. The 10-year prescriptive
by some writing, deed, will, or oral declaration. period shall be counted period shall be counted
NOTE: The trustor must be capacitated to convey from the time repudiation from the time that the
property; and capacitated to hold property and to is made known to the constructive trust arises.
enter into contract. beneficiary
While on the other hand, the beneficiary must be
capacitated to receive gratuitously from the trustor. Q: Is acceptance necessary for the creation and
validity of trust relationship?
Q: WHAT ARE THE DISTINCTIONS BETWEEN A:
TRUST AND OTHER RELATIONS? 1. Acceptance of the trustee:
A: -is not necessary to its existence and validity since
TRUST BAILMENT if he declines, the courts will appoint a trustee to fill
the office that he chose to decline.
The delivery of property The bailee has - But a trustee’s acceptance of the trust is
involves a transfer of legal possession of the necessary to charge him with the office of the
title or at least a separation property but has no legal trustee and the administration of the trust and to
of equitable interest and title over it.
vest the legal title in him.
legal title and vests the title
in the trustee.
2. Acceptance of the beneficiary:
-Is essential to the creation and validity of trust.
TRUST DONATION
However, such acceptance is presumed if there is
There is a transfer of
An existing legal property as well as the
no proof to the contrary and the trust does not
relationship and involves the disposition of both legal impose any onerous condition upon the beneficiary.

75
A:
NOTE: Contract of sale Contract to sell
The rule that trustee cannot acquire by prescription Ownership is Ownership is
ownership over property entrusted to him until and transferred to the retained by the
unless he repudiates the trust, applies to express buyer upon seller until the
trusts and resulting trusts. The trustee may claim delivery of the purchase price is
title by prescription founded on adverse possession object to him fully paid
where it appears that: There is only one There are two
1. He has performed open and unequivocal contract executed contracts, first the
acts of repudiation amounting to an ouster of between the seller contract to sell
the cestui que trust; and the buyer (which is conditional
2. Repudiation was made known to the cestui or preparatory sale)
que trust; and a second, the
3. The evidence is clear and conclusive or final deed of sale or
convincing; and the principal contract
4. The period fixed by law has prescribed. which is executed
Q: What is the prescriptive period for an action of after full payment of
reconveyance to enforce an implied trust in one’s the purchase price
favor?
A: It prescribes in ten (10) years from the time the Conditional sale Absolute sale
right of action accrues. One where the One where the title
But the prescriptive rule applies only when vendor is granted to the property is not
the plaintiff or the person enforcing the trust is not in the right to reserved to the
possession of the contested property, since if a unilaterally rescind vendor or if the
person claiming to be the owner thereof is in actual the contract vendor is not
possession of the property, the right to seek predicated on the granted the right to
reconveyance, which in effect, seeks to quit title fulfillment or non- rescind the contract
does not prescribe. fulfillment, as the based on the
case may be, of the fulfillment or non-
Q: What is the trust pursuit rule? prescribed fulfillment, as the
A: Equity will pursue property that is wrongfully condition. case may be, of the
converted by the fiduciary or otherwise compel prescribed condition.
restitution to the beneficiary.
Q: What is a purchase money resulting trust? Q : What is the status of the following contract of
A: That which arises in favor of a person from sale ?
whom a consideration comes for a conveyance of A:
property, whether realty or personality, to another. 1. That entered into by minors:
Examples: • voidable only, therefore ratifiable
1. Donations made to a person but the
• remedy is action for annulment
beneficial interest is vested in another. The
(with partial restitution in so far as the minor
donee is the trustee while the designated third
is benefited)
person is the beneficiary. (Art. 1449)
• where necessaries are sold and
2. Purchase with borrowed funds and the
delivered – minor must pay reasonable
conveyance is made to lender to secure
price (Art. 1489)
payment of debt. (Art. 1450)
3. Legal title to property purchased taken in
2. Sale by & between spouses (Art. 1490):
one co-owner. (Art. 1452)
4. Legal title to land inherited by heir placed in
a. Contract with 3rd parties: VALID
the name of another. (1451)
b. Sale between spouses:
5. Conveyance to a person to secure
General Rule: VOID
performance of grantor’s obligation. (1454)
Reasons:
i. prevent defrauding
SALES creditors
ii. avoid situation where
Q: What is a Contract of Sale? dominant spouse take advantage of
A: (Art. 1458) weaker spouse
iii. avoid circumvention on
Q: What is a contract to sell? prohibition of donation between
A: A conditional sale where the seller, while spouses
reserving the ownership of the property despite XPNS:
delivery to the buyer, binds himself to sell the said i. separation of property
property exclusively to the buyer upon full payment. agreed (marriage settlement)
ii. judicial separation of
Q: State the basic differences (only in their property
legal effects) between:
A. a contract to sell, and a contract of sale 3. Between Common Law Spouses
B. a conditional sale and an absolute sale (Paramours)
76
• Status of contract: VOID (per case A: (Art. 1469)
law) Emptio Res Speratae Emptio Spei
Potential Existence (Sale of Hope)
Q: Who are the persons prohibited by law from 1. Sale of thing having 1. Sale of mere hope or
acquiring property by purchase? potential existence expectancy
A: (AGE-COP) 2. Uncertainty is w/ 2. Uncertainty is w/ regard
1. Agent w/ regard to property of principal regard quantity & to existence of thing
XPN: if principal gave consent. quality
3. Contract deals w/ 3. Contract deals w/
2. Guardian w/ regard to property of ward during
future thing present thing-hope or
period of guardianship expectancy
• Contracts entered by guardian in behalf of 4. Sale is valid only if the 4. Sale is valid even
ward are rescissible if ward suffers lesion by expected thing will though expected thing
more than ¼ of the value of property. exist. does not come into
• 2. existence as long as the
3. Executor/administrator w/ regard to the estate of hope itself validly
the deceased existed. (eg. lotto)
4. Court officers & employees – with regard to NOTE: Presumption is Emptio Res Sperata
property in litigation
5. Others specially disqualified by law. Sale and other Contracts
6. Public officers w/ regard to the property of the SALE DONATION
state Onerous Gratuitous
Consensual Formal contract
Law on Sales Law on Donation
Q: Who are those “others” specially disqualified?
SALE BARTER
A:
Consideration is giving of Consideration is
• Aliens who are disqualified to purchase money as payment giving of a thing
private agricultural lands (Art XII secs. 3
&7) • both are governed by law on sales;
• if consideration consists party in money & partly by
• Unpaid seller having a right of lien or
thing – look at manifest intention; if intention is not
having stopped the goods in transitu, is clear (1468 ):
prohibited from buying the goods either 1.value of thing is equal or less than amount of
directly or indirectly in the resale of the money – Sale
same at public/private sale which he may 2.value of thing is more than amount of money –
make (Art. 1533 (5); Art 1476 (4)) Barter
• The officer holding the execution or SALE CONTRACT FOR PIECE
deputy cannot become a purchaser or be OF WORK
interested directly or indirectly on any Goods are Goods are manufactured
purchase at an execution. (Sec. 21 Rule manufactured and specially for a customer, upon
39) sold by vendor in the special order and not for the
ordinary course of general market (Art. 1469)
• In sale by auction, seller cannot bid unless business
notice has been given that such sale is
SALE AGENCY TO SELL
subject to a right to bid in behalf of the 1.Buyer pays for 1. Agent not obliged to pay
seller. (Art. 1476) price of object for price; must account for
the proceeds of the sale.
Q: What are the objects of sale? 2.buyer becomes 2.principal remains the
A: owner of thing owner even if the object
1. Existing Goods delivered to agent
2. Future Goods-goods to be manufactured raised 3.seller warrants 3.agent assumes no personal
or acquired by seller after perfection of the liability as long as within
authority given
contract
4.not unilaterally 4. May be revoked unilaterally
revocable; even w/o ground
Q: Can RIGHTS be the objects of sale? 5.seller receives 5. Agent not allowed
A: YES, if they are transmissible.( Art..1347 1st par, profit
2nd sentence) SALE DACION EN PAGO
1. No pre-existing 1. Contract where property is
NOTE: credit. alienated to extinguish pre-
Object must be licit otherwise contract void. existing credit/debt.
Vendor must have right to transfer ownership at 2.Buyer-seller 2.novates CR-DR relationship
the time of delivery. relationship into seller-buyer
*services- CANNOT be the object of sale. They are SALE LEASE
not determinate things and no transfer of 1.obligation to 1.use of thing is for specified
ownership is available in services. absolutely transfer period only with obligation to
ownership of thing return
2.consideration is 2.consideration is the rental
Price: Must be- price
1. real 3.seller needs to be 3.lessor need not be owner
2. in money or its equivalent owner of thing to
3. certain or ascertainable at the time of the transfer ownership
perfection of the contract lease with option to
buy: really a
Q: When is the price certain? contract of sale
but designated as

77
lease in name *Sale of real property or interest therein
Q: What are the 3 Stages in the Life of a Contract
of Sale? XPNS:
A: 1. When there is a note or memorandum in
1. Preparation/conception Stage – period of writing & subscribed by party or his agent
negotiation and bargaining 2 When there has been partial
2. Perfection – concurrence of all requisites; performance/execution
meeting of the minds 3. when there has been failure to object to
3. Consummation – parties perform their respective presentation of evidence (oral)
undertakings (delivery of thing and payment of
price) fulfillment or performance of the terms Q: What are the obligations of the vendor?
agreed upon in the contract A:
1) Deliver the thing sold
RIGHT OF FIRST 2) Transfer the ownership
OPTION CONTRACT
REFUSAL 3) Warranties
1. Principal contract; 1. Accessory; can not stand 4) Take care of the thing, pending delivery,
stands on its own on its own with proper diligence
2.Needs separate 2. Does not need separate 5) Pay for the expenses of the deed of sale
consideration consideration unless there is a stipulation to the contrary
3. There must be subject
3. Subject matter & price
matter but price not
must be valid Q: What is the Obligation of the vendee?
important
4. Not conditional 4. Conditional
A: Payment of the price
5 Not subject to specific 5. Subject to specific
performance performance Q: What are the different kinds of delivery?
A: Actual
Q: What is an Earnest Money? - thing sold is placed under the control and
A: It is a partial payment of the purchase price and possession of vendee/agent
considered as proof of the perfection of contract. Constructive
-does not confer physical possession of the
Q: What is an Earnest deposit? thing, but by construction of law, is equivalent to
A: It is neither part of the purchase price nor a proof acts of real delivery.
of the perfection of the contract of sale but only a
GAUARANTEE that the prospective buyer would I.Tradicion symbolica - delivery of certain
not back out of the sale. symbols representing the thing
ii. Tradicion Instrumental – delivery of the
EARNEST MONEY OPTION MONEY instrument of conveyance.
1. Part of purchase price iii. Traditio Longa Manu- Delivery of thing
advanced by vendee to 1. A distinct consideration by mere agreement; when SELLER
vendor as a token of the for an option contract points to the property without need of
perfection of the contract. actually delivering
2.Given only where there is 2. Applies to sale not yet iv. Tradicion Brevi Manu-Before contract of
already perfected sale perfected only option sale, the would-be buyer was already
contract is perfected in possession of the would-be subject
3. When given, buyer is 3. The would-be buyer is not matter of sale
bound to pay the balance required to buy.
v. Constitutum possessarium-at the time of
4. If sale did not 4.if buyer does not buy the perfection of contract, seller continues
materialized, return thing, he cannot recover to have possession merely as a holder
money paid as
money paid unless 3. Quasi-tradition-delivery of rights, credits or
consideration for the
contract of option. incorporeal property
agreed otherwise.
4. Tradition by operation of law
Q: What are the Formalities of Contract of Sale? Q: Where is the place of delivery?
A: A:
GR: Sale being consensual, may be oral or written, 1) That agreed upon
XPNS: 2) Place determined by usage of trade
1. If particular form is required under the Statute of 3) Seller’s place
Frauds 4) Seller’s residence
2. When form is important for validity 5) In case of specific goods, where they can
* Power to sell a piece of land granted to an be found
agent Note: Delivery should be coupled with intention of
*sale of large cattle; must also be registered delivering the thing, and acceptance on the part of
with Municipal treasurer the vendee to give legal effect of the act. Without
*sale of land by non-Christian if not approved such intention, there is no such tradition.
by Governor – VOID.
3. When form is important for enforceability Q: What is the effect of delivery?
(STATUTE OF FRAUDS) A: Title /ownership is transferred
*sale to be performed 1 year after XPN: contrary is stipulated as in the case of:
*Agreement to sell things with value of 500 and
up
78
1. pactum reservatii in domini – agreement that 2 Views:
ownership will remain with seller until full Paras: BUYER,
payment of price. (Contract to sell) except: (1) when Res perit domino
2. sale on acceptance/approval object sold consists
of fungible goods Buyer becomes the owner
3. sale or return
for a price fixed so buyer bears risk of loss
4. there is implied reservation of ownership (2) when seller is Delivery extinguish
guilty of fraud, ownership vis-a-vis the
Q: Who bears the expenses of delivery? negligence, default, seller & creates a new one
A: Seller or violation of in favor of the buyer
Q: What is the rule on Double Sale? contractual terms;
A: FIRST IN TIME, PRIORITY IN RIGHT or (3) when object
Requisites: sold is generic.
1. same subject matter Tolentino: SELLER
Deterioration & fruits -
2. same immediate seller
Buyer bears loss
3. two different buyers
4. both sales are valid
Q: What are the remedies of an Unpaid Seller?
A: (Art. 1526)
Q: What are the rules according to Article 1544?
1. MOVABLE
I.GENERAL
• owner who is first to possess in good faith 1. Possessory Lien
2. IMMOVABLE
• Seller not bound to deliver if buyer has not paid
• First to register in good faith him the price
• No inscription, first to possess in good faith • Exercisable only in following circumstances:
• No inscription & no possession in good faith a. goods sold without stipulation as to
– Person who presents oldest title in good credit
faith b. goods sold on credit but term of
Q: Who is a buyer in Good Faith? credit has expired
A: one who buys property without notice that c. buyer becomes insolvent
another person has a right or interest in such • When part of goods delivered, may still exercise
property right on goods undelivered
NOTE: Q: What are the instances when possessory lien is
 Possession - Both actual or constructive lost?
 Registration A:
1. registered under Torrens system a. seller delivers without reserving
2. not registered under the Torrens system ownership in goods or right to possess
 where situation is that 1st sale deals with them
land when not yet registered & 2nd sale is done b. buyer or agent lawfully obtains
when land already registered – apply FIRST IN possession of goods
TIME, PRIORITY IN RIGHT Principle c. waiver
NOTE: Seller loses lien when he parts with goods
Q: Who Bears Risk of Loss/Deterioration? (but still, stoppage in transitu can be exercised)
A:
Before Perfection At Perfection 2. Stoppage in Transitu
Res perit domino • Requisites: (i-u SENT)
Contract is merely 1) insolvent buyer
inefficacious- loss of the
2) Unpaid seller
Res perit domino-Seller is subject matter does not
the owner so seller bears affect the validity of the 3) Seller must surrender the negotiable
risk of loss sale document of title, if any
Seller cannot anymore 4) Seller must bear the expenses of delivery
comply with obligation so of the goods after the exercise of the right.
buyer cannot anymore be 5) Seller must either actually take possession
compelled of the goods sold or give notice of his claim
to the carrier or other person in possession
After Perfection After Delivery 6) Goods must be in transit
/Before Delivery
3. Special Right to Resell the Goods
• Requisites:
a. goods are perishable
b. stipulated the right of resale in case of default
c. buyer in default for unreasonable time
4. Special Right to Rescind

• Requisites:
a. Expressly stipulated
b. Buyer is in default for unreasonable time
5. Action for Price

• Exercised when:

79
a. ownership has passed to buyer a. Pay w/o interest the balance w/in grace
b. price is payable on a day certain period of 1 month for every year of
c. goods cannot readily be resold for installment payment
reasonable price and Art 1596 is inapplicable • Grace pd to be exercised once
every 5 years
6. Action for Damages b. When no payment - cancelled; buyer
• in case of wrongful neglect or refusal by the entitled to 50% of what he has paid +
buyer to accept or pay for the thing sold 5% for every year but not exceeding
90% of payments made
II. SPECIAL • Cancellation to be effected
30 days from notice & upon
Alternative Remedies in case of sale of Personal payment of cash surrender value
Property in Installments (Recto Law, Art. 1484)
1. Exact fulfillment should the buyer fail to pay 2. Buyer paid less than 2 years installment
2. Cancel the sale if buyer fails to pay 2 or more a. Grace period is not less than 60 days from
installments due date
3. Foreclose on chattel mortgage if buyer fails to b. Cancellation if failure to pay w/in 60 days
pay 2 or more installments grace
NOTE: c. 30 days notice before final cancellation
• Nature of remedies: alternative • buyer can still pay w/in the 30 days
• Coverage: sale & financing transaction & period
contracts of lease with option to purchase • with interest
• Action : Judicial & Extrajudicial • Purpose of law : Protect buyers in installment
against oppressive conditions
Specific Performance • Other rights:
• If availed of, the unpaid seller cannot anymore
choose other remedies; XPN: if after choosing, a. Sell or assign rights to another
it has become impossible, rescission may be b. Reinstate contract by updating within 30
pursued days before and cancellation
Rescission c. Deed of Sale to be done by notarial act
• Deemed chosen when: d. Pay full installment in advance the balance
a.Notice of rescission is sent of price anytime w/o interest
b.Takes possession of subject matter of sale e. Have full payment annotated in certificate
c. Files action for rescission of title
Foreclosure
• Actual foreclosure is necessary to bar recovery CONDITION WARRANTY
of balance Purports to existence of Purports to performance of
• Extent of barring effect: purchase price obligation obligation
• Exception: mortgagor refuses to deliver must be stipulated to Need not be stipulated;
form part of the obligation may form part of obligation
property to effect foreclosure; expenses by provision of law
incurred in attorneys fees, etc. May attach itself to Relates to the subject matter
obligation of seller to itself or to obligation of the
Q: What are the remedies of the buyer? deliver possession & seller as to the subject
A: transfer matter of the sale
A. IMMOVABLES in general Q: What is a Condition?
1. Disturbed in possession or with reasonable A: It is an uncertain event or contingency the
grounds to fear disturbance happening of which the obligation (or right) of the
 SUSPEND PAYMENT contract depends.
2. In case of subdivision or condo projects • Suspensive – gives rise to obligations
 If real estate developer fails to comply with • Resolutory – extinguishes obligations
obligation according to approved plan: Q: What is a Warranty?
a) RESCIND A: a statement or representation made by the seller
b) SUSPEND PAYMENT UNTIL SELLER of goods, as part of the contract of sale, having
COMPLIES reference to the character, quality, or title, of the
goods, and by which he promises or undertakes to
B. SALE OF IMMOVABLES ON INSTALLMENT insure that certain facts are or shall be as he then
(Maceda Law) represents.
• Coverage: Real Estate *May either be express or implied.
• Exclude:
1. industrial Q: What happens in case of breach of warranty?
2. commercial A: Buyer may:
3. sale to tenants under agrarian laws 1. Refuse to proceed with the contract; or
2. Proceed with the contract; waive the
Q: What are the rights granted to buyers? condition.
A: NOTE:
1. Buyer paid at least 2 years installment If the condition is in the nature that it should
happen, the non-performance may be treated as a
breach of warranty.
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1. The thing sold is unfit for the use
Q: What are the requisites of Express Warranties? which it is intended
A: 2. Diminishes its fitness for such use
1.it must be an affirmation of fact relating or to such an extent that the
to the subject matter of sale vendee would not have acquired it
2.natural tendency is to induce buyer to had he been aware thereof
purchase subject matter b. Defect is hidden
3.buyer purchases the subject matter c. Defect exists at the time of the sale
relying thereon d. Vendee gives notice of the defect to
Q: What are Implied Warranties? the vendor within reasonable time
A: Warranties deemed included in all contracts of e. Action for rescission or reduction of the
sale by operation of law. (Art. 1547) price is brought within the proper
1. Warranty that seller has right to sell period
2. Warranty against eviction 6 months – from delivery of the
Requisites: EJ-PNS thing sold
a. buyer is evicted in whole or in part Within 40 days – from the delivery
from the subject matter of sale in case of animals
b. final judgment f. There must be no waiver of warranty on
c. basis of eviction is a right prior to the part of the vendee.
sale or act imputable to vendor
d. seller has been summoned in the NOTE: SELLER does not warrant patent defect;
suit for eviction at the instance of buyer; Caveat emptor (Buyer Beware)
or made 3rd party defendant through 3rd
party complaint brought by buyer
e. no waiver on the part of the NOTE: In case of Defects on Animals:
vendee/buyer • even in the case of professional inspection but
hidden defect is of such nature that expert
Note: For eviction – disturbance in law is required knowledge is not sufficient - defect shall be
and not just trespass in fact. considered as REDHIBITORY
• Sale is VOID if animal is:
Q: When is Implied Warranty NOT APPLICABLE? (a) Suffering from contagious diseases;
A: (b) Unfit for the use or service for which they were
a. “as is and where is” sale purchased as indicated in the contract.
b. sale of second hand articles
c. sale by virtue of authority in fact or law Q: What are the Specific Implied Warranties in the
d. sale at public auction for tax delinquency Sale of Goods?
A:
Liability of seller: value of thing at time of eviction 1. Warranty of fitness
(whether or not -/+ of price of sale) GR: No implied warranty
a. value of income of fruits EXCEPTION:
b. cost of suit which caused the eviction (a) buyer manifests to the seller the
c. expenses of contract if buyer paid for particular purpose for which the
them goods are required; and
d. damages & interests and ornamental (b) buyer relies upon the seller’s skill or
expenses if sale was made in bad faith judgment
2. Warranty of merchantability
Q: What are the rights of buyer in case of partial - That goods are reasonably fit for the
eviction? general purpose for which they are sold.
A:
a. rescission Q: What are the Effects of Waiver?
b. mutual restitution A:
1. seller in bad faith & there is waiver
3. Warranty against encumbrances (non- apparent) against eviction –void
Requisites: 2. when buyer w/o knowledge of a
a. immovable sold is encumbered with particular risk, made general renunciation
non – apparent burden or servitude not of warranty – is not a waiver but merely
mentioned in the agreement limits liability of seller in case of eviction
b. nature of non – apparent servitude or 3. when buyer with knowledge of risk
burden is such that it must be of eviction assumed its consequences &
presumed that the buyer would not made a waiver – vendor not liable
have acquired it had he been aware (applicable only to waiver of warranty
thereof against eviction)
XPN: warranty not applicable when non – apparent NOTE:
burden or servitude is recorded in the Registry of When goods are delivered to the buyer, he
Property – unless there is expressed warranty that cannot rescind the sale:
the thing is free from all burdens & encumbrances • if he knew of the breach of warranty
• if he fails to return or offer to return goods to
4. Warranty against Hidden Defects seller in substantially as good condition as they
Requisites: were at time ownership was transferred
a. Defect is important or serious

81
Q: What are the buyer’s options in case of Breach Q: What is Legal Redemption?
of Warranty? A: It is the right to be subrogated upon the same
A: terms and conditions stipulated in the contract, in
1. Accept goods & set up breach of the place of one who acquires the thing by
warranty by way of recoupment in diminution purchase or by dation in payment or by other
or extinction or the price. transaction whereby ownership is transmitted by
2. Accept goods & maintain action onerous title.
against seller for damages
3. Refuse to Accept goods & maintain Q: What is Trust de son tort?
action against seller for damages A: It is a trust created by the purchase or
4. Rescind contract of sale & refuse redemption of property by one other than the
to receive goods/return them when already person lawfully entitled to do so and in fraud of
received. the other
Q: How is the contract of sale extinguished? Q: When does period of redemption begin to
A: Same grounds whereby obligations in run?
general are extinguished 1. right of legal pre-emption of redemption shall be
exercised within 30 days from notice by the
Q: What is Conventional Redemption ? buyer
A: seller reserved the right to repurchase thing sold *deed of sale not to be recorded in RD unless
coupled with obligation to return price of the sale, accompanied by affidavit that buyer has given
expenses of contract & other legitimate payments notice to redemptioners
and the necessary & useful expenses made on the 2. when there is actual knowledge, no need to
thing sold give written notice; period of redemption begins to
run from actual knowledge
Q: What is the rule on the Presumption of an
Equitable Mortgage? Q: What are the instances when the Right of
A: (Art. 1602) Legal Redemption is also granted?
A:
Note: 1. Redemption of homesteads
IN CASE OF DOUBT IN DETERMINING 2. Redemption in tax sales
WHETHER IT IS EQUITABLE MORTGAGE OR 3. Redemption by judgment debtor
SALE A RETRO (WITH RIGHT OF 4. Redemption in extrajudicial foreclosure
REPURCHASE) – IT SHALL BE CONSTRUED 5. Redemption in judicial foreclosure of mortgage
AS EQUITABLE MORTGAGE.
ASSIGNMENT
Q: What are the factors to be considered in
determining the nature of the contract? Sale of credits & other incorporeal things
A: ASSIGNMENT SALE
1. language of the contract Subject Intangibles (credit, Tangibles
2. conduct of parties matter incorporeal rights)
Remedy available to vendor: reformation of Form Consensual Consensual
contract Binding Recorded in No recording
effect to 3rd registry of needed to
Q: What is the period of redemption? persons property such effect
A:
1. No period agreed upon – 4 years from date Q: What are the effects of Assignment?
of contract A:
2. When there is agreement – should not 1. lack of knowledge or consent of debtor not
exceed 10 years; BUT if it exceeded, valid only for essential for validity but has legal effect
the first 10 years. 2. assignment of rights made w/o knowledge of
3. When period to redeem has expired & there debtor – debtor may set up against assignee
has been a previous suit on the nature of the the compensation w/c would pertain to him
contract – seller still has 30 days from final against assignor of all credits prior to
judgment on the basis that contract was a sale with assignment and later ones until he had
pacto de retro: knowledge of the assignment
rationale: no redemption due to erroneous 3. debtor has consented to assignment – cannot
belief that it is equitable mortgage which can be set up compensation unless assignor was
extinguished by paying the loan. notified that he reserved his right to the
4. When period has expired & seller allowed compensation
the period of redemption to expire – seller is at fault 4. debtor has knowledge but no consent -
for not having exercised his rights so should not be compensation may still be set up
granted a new period
NOTE: When there is an assignment of Credit or
Q: What is the Effect when there is No Redemption Incorporeal Right of assignor in Litigation
Made? gratuitously or onerously to the assignee, the latter
A: there must be judicial order before ownership of
real property is consolidated to the buyer a retro.
82
would then be allowed to proceed against the 3. Purpose Use or temporary Consumption
debtor. possession
4. Subject Real or personal Only personal
Q: What are the rights included in assignment of Matter property property
credit? 5.Ownership Retained by the bailor Passes to the
of thing debtor
A: (1) guaranty; (2) mortgage; (3) pledge; (4)
6. thing to Exact
be thing loaned Equal amount of
preference. returned the same kind
and quality
Q: What is an indenture of assignment? 7. Who bears Bailor Debtor
A: Assignment of goods by way of security for the loss
payment of an obligation under a promissory note. 8. when to In case of urgent Only after the
return need even before the expiration of the
 TOP 20 PROVISIONS IN THE LAW ON SALES: expiration of term term
Arts.1475,79,84,85,96,97,1504,05,37,44,1602,03,0 (the contract is in the
meantime
6,07,19,20,21,23,24,34.
suspended)
CREDIT TRANSACTIONS Commodatum Lease

Real contract Consensual
Q: What do credit transactions include? object is a non- Object may even be work
A: They include all transactions involving the consumable (non fungible) or service.
purchase of loan of goods, services or money thing
extended to another either gratuitously or onerously Essentially gratuitous Onerous
in the present with a promise to pay or deliver in the
future.
COMMODATUM
Q: Who are the parties to bailment?
A: NOTES:
1. Bailor – the giver/lender- the party who 1. Gratuitous, otherwise it is a lease (Article
delivers the possession or custody of the thing 1935)
bailed. 2. Purpose: temporary use of the thing loaned
(Article 1935)
2. Bailee– the recipient/ borrower- the party 3. Bailee’s right to use is limited to the thing
who receives the possession or custody of the loaned and not to its fruits (Article 1935) unless
thing thus delivered. there is stipulation to the contrary (Article 1940)
Q: What is a Loan? 4. Subject matter is generally non-
A: consumable things but may cover consumables
- a contract where one of the parties delivers if the purpose of the contract is for exhibition.
to another, either something not consumable so 5. Bailor need not to be the owner; it is
that the latter may use the same for a certain sufficient that he has possessory interest over
time and return it, in which case is called a subject matter (Article 1938).
commodatum; or money or other consumable 6. Commodatum is purely personal in
things, upon the condition that the same character hence death of either bailor or bailee
amount of the same kind and quality shall be extinguishes the contract (Article 1939)
paid, in which case the contract is simply called
a loan or mutuum Q: Can the bailee lend or lease the object of the
contract to a third person?
CHARACTERISTICS: A: GR: No.
1. real contract – delivery of the thing loaned
is necessary for the perfection of the contract XPN: Members of bailee’s household
2. unilateral contract – once subject matter is XPN TO THE XPN:
delivered, creates obligations on the part of a) There is a contrary stipulation.
only one of the parties (the borrower) b) Nature of thing forbids such
use.
Q: What are the kinds of Loan?
A: Q: What are the kinds of commodatum?
a. Commodatum – where the bailor A:
(lender) delivers to the bailee (borrower) a non- 1. Ordinary Commodatum
consumable thing so that the latter may use it
for a given time and return the same thing 2. Precarium—one whereby the bailor may
b. Mutuum – where the bailor (lender) demand the thing loaned at will in the ff cases:
delivers to the bailee (borrower) money or other a. if neither the duration of the
consumable thing upon the condition that the contract nor the use of the thing has been
latter shall pay same amount of the same kind stipulated.
and quality. b. if the use of the thing is merely
tolerated by the owner
COMMODATUM MUTUUM
1. Object Non-consumable consumable
2. Cause Gratuitous May or may not
be gratuitous

83
Q: What are the obligations of the bailee?
A: (SKALD) Mutuum Lease
1. pay for the ordinary expenses for the use the object is money or any the object may be any
and preservation of the thing consumable (fungible) thing, whether movable or
2. liability for loss even through fortuitous thing immovable, fungible or
event when : non-fungible
a. when being able to save either of There is transfer of No transfer of ownership
ownership
the thing borrowed or his own thing, he
creditor and debtor Lessor-lessee relationship
chose to save the latter relationship
b. he keeps it longer than the period unilateral bilateral
stipulated, or after the accomplishment of
its use (in default); Q: What is BARTER?
c. the thing loaned has been delivered A: It is a contract whereby one person transfers
with appraisal of its value the ownership of non-fungible things to another
d. when he lends or leases it to third with the obligation on the part of the latter to
persons who are not members of his give things of the same kind, quantity, and
household quality.
e. there is deviation from the purpose
NOTE: When there are two or more bailees, their Q: What are the requisites for the recovery of
liability is solidary interest?
A: (ELI)
Q: What are the obligations of the bailor? 1. must be expressly stipulated
A: 2. must be lawful
1. allow the bailee the use of the thing loaned for 3. must be in writing
the duration of the period stipulated or until the
accomplishment of the purpose NOTE:
2. refund the extraordinary expenses the GR: Unpaid interest shall not earn interest
bailee incurred for the preservation of the thing XPNS:
GR: the bailee must bring to the knowledge of the 1. when judicially demanded
bailor such expenses before incurring the same 2. when there is an express stipulation
XPN: in case of there is urgency (compounded interest)
3. to be liable for damages for known hidden
defects DEPOSIT
Q: When can the bailor be made liable for hidden Q: When is the contract of DEPOSIT
defects? constituted?
A: When the following requisites are present: A: From the moment a person receives a thing
a. there was a flaw or defect in belonging to another, with the obligation of safely
the thing loaned keeping it and returning the same upon demand.
b. the flaw or defect is hidden
c. the bailor is aware thereof Q: What are the characteristics of contract of
d. he does not advise the bailee Deposit?
of the same A:
e. the bailee suffers damages by 1. real contract – perfected by the delivery of
reason of said flaw or defect the subject matter. However, an agreement to
constitute a future deposit is a consensual
Q: Is there right of retention in commodatum? contract.
GR: No right of retention 2. a. if gratuitous: unilateral – because only
XPN: When the bailor, knowing the flaws of the the depository has an obligation
thing loaned, does not advise the bailee of the b. if for compensation: bilateral – gives rise to
same and the latter suffers damages. obligations on the part of both parties
3. principal purpose of the contract of deposit
MUTUUM is the safekeeping of the thing delivered
4. Contract of deposit is generally gratuitous.
Q: What are the characteristics of contract of Exceptions:
Mutuum? a. contrary stipulation
A: b. depository is in the business of
1. Borrower acquires ownership of the thing. storing goods
2. If the thing loaned is money, payment must c. property saved from destruction
be made in the currency which is legal tender in during calamity without owner’s knowledge,
the Philippines and in case of extraordinary just compensation should be given the
deflation or inflation, the basis of payment shall depository
be the value of the currency at the time of the 5. Generally, the depositary cannot use the thing
creation of the obligation. deposited except with the permission of the
3. If fungible thing was loaned, the borrower is depositor or when the preservation of the thing
obliged to pay the lender another thing of the requires its use but only for said purpose
same kind, quality and quantity.
DEPOSIT MUTUUM
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Purpose
Safekeeping/custody Consumption NOTE: The rent of safety deposit boxes is an
When to Return ordinary contract of lease of things and not a
Upon demand of the Upon expiration of special kind of deposit because the General
depositor the term granted to Banking Act as revised has deleted the part where
the borrower banks are expressly authorized to accept
Subject Matter documents or papers for safe-keeping.
Movable Money or other
(extrajudicial) or fungible thing Q: What are the OBLIGATIONS OF DEPOSITARY
immovable (judicial) in Voluntary Deposit?
Relationship A:
Depositor- depositary Lender- borrower 1. to keep the thing safely and return it
Compensation 2. exercise same diligence as he would
No compensation of There can be exercise over his own property
things deposited with compensation of 3. not to deposit the thing with a 3rd person
each other (except credits unless expressly authorized by stipulation
by mutual 4. if the thing should earn interest:
agreement) a. collect interest as it falls due
b. take steps to preserve the value
DEPOSIT COMMODATUM and rights corresponding to it
5. Not to commingle things if so stipulated
Principal 6. Not to make use of the thing deposited
Purpose Safekeeping Transfer of use XPNS:
c. When preservation of thing
May be deposited requires its use
Always
Nature gratuitous or d. When authorized by depositor
gratuitous
onerous
7. When the thing deposited is delivered sealed and
closed:
Q: What are the kinds of deposit? a. return the thing in the same condition
A: b. pay damages if seal be broken through his
1. Judicial (sequestration) fault
2. Extra-judicial c. keep the secret of the deposit when seal is
a. Voluntary—the delivery is made by broken w/ or w/o his fault
the will of the depositor HOWEVER, the depositary is authorized to open
Extinguishment: the seal or lock when:
1) Loss or destruction of thing deposited; a. there is presumed authority
2) In gratuitous deposit, upon death of b. out of necessity
either depositor or depositary; 8. Pay for any loss or damage that may arise due to
3) Other causes (return of thing, novation, his fault
expiration of the term, fulfillment of *Liability of loss through fortuitous event
resolutory condition) (SUDA):
b. Necessary—made in compliance a. stipulated
with a legal obligation, or on the occasion of b. he uses thing w/o depositor’s
any calamity, or by travelers in hotels and permission
inns, or by travelers with common carriers. c. he delays its return
d. he allows others to use it (even if
JUDICIAL EXTRA-JUDICIAL he himself is authorized to use it)
Will of the 9. Return the thing deposited with all its fruits,
Creation Will of the court
contracting parties accessions, and accessories
Security or to 10. Pay interest on sums converted to personal use
ensure the right if the deposit consists of money
of a party to
Custody and
Purpose property or to Q: What are the OBLIGATIONS OF DEPOSITOR?
safekeeping
recover in case 1. pay expenses for preservation
of favorable a. gratuitous: reimburse depositary
judgment b. with compensation: expenses
Movables or borne by depositary
Subject immovables but 2. pay losses incurred by depositary due to
Movables only
Matter generally the character of the thing deposited
immovables XPNS:
generally gratuitous a. When at the time of deposit,
Cause Always onerous but may be the depositor was not aware of the
compensated dangerous character of the thing or was not
When Upon order of expected to know it.
must the the court or Upon demand of b. when the depositor notified the
thing be when litigation depositor depositary.
returned is ended c. when the depositary was aware
In whose of it without advice from the depositor
Person who Depositor or third
behalf it is
has a right person designated Q: When is the contract of deposit extinguished?
held

85
A: 2. loss due to the acts of guests, his
1. If gratuitous only: upon death of either the family, his employees, or visitors.
depositor or the depositary 3. loss arises from the character of the
2. loss of the thing deposited goods
• HOWEVER, the list
is not exclusive. There may be other **Hotel/Inn-keepers cannot escape or limit liability
causes such as novation, merger, by stipulation or the posting of notices.
expiration of term, fulfillment of resolutory
condition, etc. Q: Can the keepers of the hotels or inns exercise
the right of retention?
Q: To whom return of thing deposited be made? A: Yes, as security for credits incident to the stay at
A: the hotel (in the nature of a pledge created by
1. To the depositor, to his heirs and operation of law).
successors, or to the person who may have
been designated in the contract (Article 1972). Q: What are aleatory contracts?
2. If the depositor was incapacitated at the A: It is one where one of the parties or both,
time of making the deposit, to his guardian or reciprocally bind themselves to give or do
administrator or to the depositor himself should something in consideration of what the other shall
he acquire capacity (Article 1970). give or do upon the happening of an event which is
3. Even if the depositor had capacity at uncertain, or w/c is to occur at an indeterminate
the time of making the deposit but he time.
subsequently loses his capacity during the Leonine Contract
deposit, the thing must be returned to his legal -contract in which one party gets the lion’s
representative (Article 1988). share to the detriment of the other
Game of Chance
Q: Where should the thing deposited be returned? -that which depends more on chance or
A: hazard than on skill or ability
a. at the place agreed upon
b. in the absence of stipulation: COMPROMISES AND ARBITRATIONS
* at the place where the thing deposited might be,
even if it should not be the same place where the Q; What cannot be compromised?
original deposit was made provided the transfer A:
was accomplished without malice on the part of the Ci-Ma-Le Su-Ju-Le-
depositary. 1. Civil Status of Persons
Q: When should the thing deposited be returned? 2. Validity of Marriage or Legal Separation
A: General Rule: Upon demand or at will, whether 3. Any ground for Legal separation
or not a period has been stipulated. 4. Future Support
Exceptions: 5. Jurisdiction of Courts
a. thing is judicially attached while in the 6. Future Legitime
depositary’s possession
b. depositary was notified of the opposition of Q: What is Guaranty?
a third person to the return or the removal A: It is a contract where a person called the
of the thing deposited (Article 1986) Guarantor binds himself to the creditor to fulfill the
obligation of the principal debtor in case the latter
NECESSARY DEPOSITS should fail to do so.
Q: What is suretyship?
DEPOSIT BY TRAVELLERS IN INNS OR A: It is a contract where a person binds himself
HOTELS SOLIDARILY w/ principal debtor.
Q: When can the keepers of hotels or inns be held
responsible? GUARANTY SURETYSHIP
A: When both are present: Collateral Surety is an original
1. they have been previously informed undertaking promissor
by guest about the effects the latter brought Guarantor- Surety-primarily liable
in secondarily liable
2. the guest has taken precautions Guarantor binds Surety undertakes to
prescribed for their safekeeping himself to pay if the pay if principal
principal cannot pay does not pay
NOTE: Liable regardless of the degree of care Insurer of solvency of Insurer of the debt
exercised when: debtor
1. loss or injury is caused by his Guarantor can avail Surety cannot avail
employees or even by strangers of the benefit of of the benefit of
2. loss is caused by act of thief or robber excussion and excussion and
when there is no use of arms or irresistible division in case division
force creditor proceeds
- Not liable when: against him
1. loss or injury is caused by force
majeure Q: What are the characteristics of Guaranty and
Suretyship?
86
A: (ACCUNCS) guarantor in the same joint proportion in
1. Accessory accordance with the rule in solidary obligations
2. Consensual • The right to be
3. Conditional reimbursed from his co-GRs is acquired
4. Unilateral IPSO JURE by virtue of said payment
5. Nominate • A guaranty or
6. Cannot be presumed suretyship may secure the performance of: 1)
7. Covered by the Statute of Frauds Voidable contract; 2) Unenforceable Contract;
3) Natural obligation
Note:
GR: The acceptance of the creditor is not essential **The CR may proceed against GR although he has
in such contracts. no right of action against principal DR
XPNS: When there is a mere offer of a guaranty or
a conditional guaranty wherein the obligation does RIGHT OF INDEMNITY AND REIMBURSEMENT
not become binding until it is accepted by the CR General Rule:
and notice of such acceptance is given to the GR is entitled to be reimbursed by DR for:
guarantor. total amount of the debt paid
legal interest from the time payment
**Liberally construed in favor of GR/SR and strictly was made known to the DR
construed against the CR; the terms cannot be expenses incurred after notifying DR
extended beyond its terms; however, this does not demand to pay was made upon him
apply to compensated sureties damages in accordance with law
XPNS:
Q: What is the benefit of Excussion? 1. GR is
A: It is a right by which GR cannot be compelled to constituted w/o the knowledge OR
pay the CR unless the latter has exhausted all the against the will of the DR
properties of the principal DR and has resorted to Effect: GR may only recover only so much
all legal remedies against such DR. as was beneficial to the DR
2. Payment by 3rd
Q: When is there no benefit of excussion? persons who does not intend to be
A: reimbursed
1. Guarantor Effect: deemed a donation and as such
(GR) has expressly renounced it. requires the consent of DR
2. GR has bound : Payment valid as to CR who
himself solidarily with the DR accepts it
3. DR is Waiver of right
insolvent.
4. GR has Q: What happens when GR pays w/o notice to the
absconded, or cannot be sued within the DR?
Philippines unless he left a manager or A: The latter may interpose against the former
representative. defenses available to the DR as against the CR at
5. It may be the time payment was made.
presumed that an execution on the property of
the DR cannot satisfy the obligation. Note: GR: GR must 1st notify the DR before paying,
6. GR does not otherwise, if the DR pays again, the GR can only
invoke the benefit against CR upon demand to collect from the CR and GR will have no cause of
him for payment and he points out available action against the DR even if the CR becomes
property of the DR within the Philippines insolvent.
sufficient to cover the obligation XPN: GR can claim reimbursement from DR if:
7. GR is a CR becomes insolvent
judicial bondsman or sub-surety GR was prevented from notifying
8. A pledge or DR by fortuitous event
mortgage has been given by GR as special
security. EXTINGUISHMENT OF GUARANTY:
9. GR fails to 1. Principal obligation is extinguished
interpose it as a defense before judgment is 2. Same causes as all other obligations
rendered. 3. If CR voluntarily accepts immovable or other
properties in payment of the debt (even if he
Q: What is the principle of the Benefit of Division? should afterwards lose the same through
A: Should there be several guarantors of only one eviction or conveyance of property)
DR for the same debt, the obligation to answer for 4. Release in favor of one of the GRs, w/o consent
the same is divided among all. (Joint liability) of the others, benefits all to the extent of the
share of the GR to whom it has been granted
NOTE: GR: CR can claim from the GRs only up to 5. Extension granted to DR by CR w/o consent of
the extent they are respectively bound to pay. GR
XPN: When solidarity has been stipulated. 6. When by some act of the CR, the GRs even
though they are solidarily liable cannot be
• Should any of the subrogated to the rights, mortgages, &
GRs become insolvent, his share shall be preferences of the former
borne by the other GRs including the paying

87
PLEDGE, MORTGAGE AND ANTICHRESIS Q: What are the effects of sale?
A:
Q: What are the provisions common to pledge and 1.
mortgage? extinguish the principal obligation even if the
1. constituted to secure the fulfillment of a proceeds of the sale does not satisfy the whole
valid principal obligation amount of the obligation.
2. Pledgor or mortgagor must be the absolute 2.
owner of the thing pledged or mortgaged. if proceeds from the sale exceed the amount
3. they must have the free disposal of their due, the DR is NOT entitled to the excess
property, and in the absence thereof, that they unless the contrary is provided
be legally authorized for such purpose 3.
4. Debtor retains ownership of the thing given if the proceeds of the sale is less than the
as a security. amount due, the CR has no right to recover the
deficiency
Q: What is Pactum Commisorium?
A: A stipulation whereby the thing pledged or Q: What is a real estate mortgage?
mortgaged or subject of antichresis shall A: It is a contract whereby the DR secures to the
automatically become the property of the creditor in CR the fulfillment of the principal obligation,
the event of non-payment of the debt within the specially subjecting to such security immovable
term fixed. Such stipulation is NULL and VOID. property or real rights over immovable property in
case the principal obligation is not fulfilled at the
INDIVISIBILTY time stipulated
GR: A pledge, mortgage or antichresis is indivisible
XPNS: NOTE:
1. Where each one of several things • Registration is
guarantees determinate portion of the credit necessary to bind third persons but not for the
2. Where only a portion of the loan was validity of the contract.
released • Being an
3. Where there was failure of consideration accessory contract, its consideration is one and
the same as that of the principal obligation.
Q: What is pledge?
A: A contract where DR delivers to CR or 3 rd person Q: What are the special requisites?
a movable or document evidencing incorporeal right A:
for the purpose of securing fulfillment of a principal 1. covers only
obligation with the understanding that when the immovable property and alienable real rights
obligation is fulfilled, the thing delivered shall be imposed upon immovables
returned w/ all its fruits & accessions. 2. must appear
in a public instrument
Q: What are the special requisites? 3. registration in
A: the registry of property is necessary to bind 3rd
1. Possession of the persons
thing pledged must be transferred to the CR or
3rd person by agreement Q: What is foreclosure?
2. Only covers A: It is a remedy available to the mortgagee in
movable property and incorporeal rights which he subjects the mortgaged property to the
evidenced by documents of title satisfaction of the obligation.
3. Description of the
thing pledged and the date must appear in a Q: What are the kinds of foreclosure?
public instrument to bind 3rd persons A:
1. Judicial –
NOTE: A contract of pledge not appearing in a governed by Rule 68 of the Rules of Court
public instrument does not affect its validity. 2. Extrajudicial –
mortgagee is given a SPA to sell the
KINDS: mortgaged property (Act No. 3135)
Conventional – by agreement of parties Q: Can the Mortgagee recover the deficiency?
Legal – by operation of law A: If there be a balance due to the mortgagee after
applying the proceeds of the sale, the mortgagee is
**A thing lawfully pledged to one CR, cannot be entitled to recover the deficiency. (Development
pledged to another as long as the 1st pledge Bank of the Philippines v. Mirang, 66 SCRA 141
subsists. [1975].
Q: When can there be a sale at public auction?
A: In judicial foreclosure, the Rules of Court
1. debt is due and specifically gives the mortgagee the right to claim
unpaid for deficiency in case a deficiency exists (Section 6,
2. pledgor/owner is Rule 70).
notified stating the amount due thereon While Act No. 3135 governing extrajudicial
3. there is foreclosures of mortgage does not give a
intervention of the notary public mortgagee the right to recover deficiency after the
88
public auction sale, neither does it expressly or 1. Delivery of the property to the creditor is
impliedly prohibit such recovery. required only in order that the creditor may
Note: This right to recover deficiency had been receive the fruits and not for the validity of the
categorically resolved in State Investment v. Court contract.
of Appeals (217 SCRA 32 [1993]). Ergo, the 2. It is not essential that the loan should earn
mortgagee is entitled to recover the deficiency in interest in order that it can be guaranteed with a
case the sale proceeds are not sufficient to cover contract of antichresis. Antichresis is
the debt in extrajudicial foreclosures. susceptible of guaranteeing all kinds of
obligations, pure or conditional. (Javier v.
The action to recover a deficiency after Valliser, (CA) N. 2648-R, April 29, 1950; Sta.
foreclosure prescribes after ten (10) years from the Rosa v. Noble, 35 O.G. 27241)
time the right of action accrues as provided in 3. The fruits of the immovable which is the
Article 1144(2) of the Civil Code (Development object of the antichresis must be appraised at
Bank of the Philippines v. Tomeldan, 101 SCRA their actual market value at the time of the
171 [1980]. application. (see Article 2138)
4. The property delivered stands as a security
Q: What is a stipulation of upset price? for the payment of the obligation of the debtor in
A: stipulation of minimum price at which the antichresis. Hence, the debtor cannot
property shall be sold to become operative in the demand its return until the debt is totally
event of a foreclosure sale at public auction. It is paid.
NULL and VOID. 5. A stipulation authorizing the antichretic
creditor to appropriate the property upon the
Q: What is redemption? non-payment of the debt within the period
A: Transaction by which the mortgagor reacquires agreed upon is void. (See Article 2038).
or buys back the property which may have
passed under the mortgage or divests the Q: What are the special requisites?
property of the lien which the mortgage may A:
have created. 1. covers only the
fruits of real property
Q: What are the kinds of redemption? 2. delivery of the
A: property necessary so that CR may receive the
1. Equity of Redemption—right of mortgagor fruits therefrom
to redeem the mortgaged property after his 3. amount of
default in the performance of the conditions of principal and interest must be specified in
the mortgage but before the sale of the writing
mortgaged property or confirmation of sale. 4. express
2. Right of Redemption—right of the agreement that DR will give possession to the
mortgagor to redeem the mortgaged property CR and that CR will apply the fruits to the
within one year from the date of registration of interest and then to the principal
the certificate of sale.
NOTE: The amount of the principal and of the
Q: What are the requisites for valid redemption? interest shall be specified in writing; otherwise,
A: the contract shall be void.
1. Must be made within one year from the time of
the registration of the sale. ANTICHRESIS REAL ESTATE
2. Payment of the purchase price of the property MORTGAGE
plus 1% interest per month together with the 1. property is delivered to 1. debtor usually retains
taxes thereon, if any, paid by the purchaser with creditor possession of the
the same rate of interest computed from the property
date of registration of the sale; and 2. creditor acquires only the 2. creditor has no right to
3. Written notice of the redemption must be right to receive the fruits receive fruits, but
of the property; does not mortgage creates real
served on the officer who made the sale and a
produce a real right right against the
duplicate filed with the proper Register of unless registered in the property
Deeds. (Rosales v. Yboa, 120 SCRA 869) REGISTRY PROPERTY
3. creditor obliged to pay 3. creditor has no such
Q: What is antichresis? the taxes and charges obligation
A: A contract whereby the CR acquires the right to upon the estate unless
receive the fruits of an immovable of the DR, stipulated otherwise
with the obligation to apply them to the payment 4. there is an express 4. there is no such
of interest, if owing, and thereafter to the stipulation that the obligation on the part of
principal of his credit. creditor shall apply the the mortgage
fruits to the payment of
the interest, if owing,
Q: What are the characteristics of antichresis? and thereafter to the
A: principal of the debt.
1. Accessory contract
2. Formal contract- the amount of the principal ANTICHRESIS PLEDGE
and of the interest must both be in writing; Refers to real property personal property
otherwise the contract of antichresis is void. Consensual Real
Principal and interest must be Need not be in writing, oral
Note: specified in writing, otherwise evidence may be allowed to

89
contract is void prove the same. Q: What are the offenses involving Chattel
Mortgage?
Q: What is chattel mortgage? A:
A: It is a contract by virtue of w/c personal 1. Knowingly removing any personal property
property is recorded in the Chattel mortgaged under the Chattel Mortgage Law to
Mortgage Register as a security for the any province or city other than the one in which
performance of an obligation. it was located at the time of the execution of the
mortgage without the written consent of the
Q: What are the special requisites? mortgagee; and
A: 2. Selling or pledging personal property
1. already mortgaged, or any part thereof, under
GR: covers only movable property the terms of the Chattel Mortgage Law without
XPN: when the parties treat as personalty that the consent of the mortgagee written on the
which is according to its nature realty back of the mortgage and duly recorded in the
2. Chattel Mortgage Register (Article 319, Revised
Registration with the Chattel Mortgage Register Penal Code).
3.
Description of the property. Q: What may be the subject matter of Chattel
4. Mortgage?
Accompanied by an affidavit of good faith to A:
bind 3rd persons 1. Shares of stock in a corporation
• The absence of an 2. Interest in business
affidavit of good faith does not affect the validity 3. Machinery and house of mixed
of the contract. materials treated by parties as personal
property and no innocent third person will be
Q: What is an affidavit of good faith? prejudiced thereby (Makati Leasing and
A: It is an oath in a contract of chattel mortgage Finance Corporation v. Weaver Textile Mills,
wherein the parties “severally swear that the Inc., 122 SCRA 296).
mortgage is made for the purpose of securing 4. Vessels, the mortgage of which
the obligation specified in the conditions thereof have been recorded with the Philippine Coast
and for no other purposes and that the same is Guard in order to be effective as to third
a just and valid obligation and one not entered persons
into for the purpose of fraud.” 5. Motor vehicles, the mortgage of
which had been registered both with the Land
NOTE: The absence of the affidavit vitiates the Transportation Commission and the Chattel
mortgage only as against third persons without Mortgage Registry in order to affect third
notice like creditors and subsequent persons
encumbrancers. 6. House which is intended to be
demolished
CHATTEL MORTGAGE PLEDGE 7. Growing crops and large cattle
Delivery is not necessary Delivery is necessary (section 7, paragraphs 2 and 3, Act No. 1508)
Registration in the Chattel Registration in the Registry
Mortgage register is Property is not
necessary for its necessary. Note: Section 7 of the Chattel Mortgage Law does
validity not demand specific description of every chattel
Procedure for the sale of Art. 2112 of the Code mortgaged in the deed of mortgage, but only
the thing given as security
requires that the description of the mortgaged
is Sec. 14 of Act No. 1508
If the property is foreclosed, If the property is sold, the
property be such as to enable the parties to the
the excess goes to the debtor is not entitled to mortgage or any other person to identify the same
debtor the excess unless after a reasonable investigation and inquiry
otherwise agreed. (Saldana v. Phil. Guaranty Co., Inc., 106 Phil. 919);
the creditor is entitled to The creditor is not entitled otherwise, the mortgage is invalid.
recover the deficiency to recover the deficiency
from the debtor except if notwithstanding any Q: How can Chattel Mortgage be foreclosed?
the chattel mortgage is a stipulation to the contrary. A:
security for the purchase of 1. Public Sale
property in installments
2. Private Sale – if there is an express
Possession remains with Possession is vested in
the DR the CR stipulation in the contract.
Act No. 1508 provides for the foreclosure sale in Exception: fraud or duress
chattel mortgage be done by public auction.
However, the parties are free to stipulate that the Note:
foreclosure be done by private sale 1. The mortgagee may, after thirty (30) days
from the time of the default or from the time the
GR: CR may recover deficiency condition is violated, cause the mortgaged
XPN: when the chattel mortgage is used to secure property to be sold at public auction by a public
the purchase of personal property in officer (Section 14, Act No. 1508)
installments (Recto Law) 2. The 30-day period to foreclose a chattel
mortgage is the minimum period after violation
of the mortgage condition for the mortgage
90
3. The creditor has least ten (10) days notice 8. The professional libraries of attorney’s,
served to the mortgagor judges, physicians, pharmacists, dentist,
4. The notice of time, place and purpose of engineers, surveyors, clergymen, teachers and
such sale, is posted other professionals, not exceeding three
5. After the sale of the chattel at public thousand pesos in value;
auction, the right of redemption is no longer 9. One fishing boat and net, not exceeding the
available to the mortgagor. (Cabral v. total value of one thousand pesos, the property
Evangelista, 28 SCRA 1000 [1969]) of any fisherman, by the lawful use of which he
earns a livelihood;
CONCURRENCE AND PREFERENCE OF 10. So much of the earnings of the debtor for
CREDITS his personal services within the month
The rules apply when two or more creditors have preceding the levy as are necessary for the
separate and distinct claims against the same support of his family;
debtor who has an insufficient property. 11. Lettered gravestones;
12. All moneys, benefits, privileges or annuities
Q: What are the general categories of credit? accruing or in any manner growing out of any
A: life insurance, if the annual premiums paid do
1. Special preferred credits—those listed in not exceed five hundred pesos, and if they
Arts. 2241-2242 shall be considered mortgages exceed the sum, a like exemption shall exist
and pledges of real and personal property or which shall bear the same proportion to the
liens (Art. 2243). Hence, they are not included moneys, benefits privileges and annuities so
in the insolvent debtor’s assets. accruing or growing out of such insurance that
2. Ordinary Preferred Credits-those listed in said five hundred pesos bears to the whole
Art 2244 as amended by Art 110 of the Labor premiums paid;
Code 13. Copyrights and other properties especially
3. Common credits—those listed under Art. exempted by law (Section 12, Rule 39)
2245, which shall be paid pro rata regardless of 14. Property under legal custody and of the
dates. public dominion.
Liability for Obligations Q: What are the preferred credits with respect to
The debtor is liable with all his property, present the specific movable property?
and future, for the fulfillment of his obligations, A:
subject to the exemptions provided by law. 1. Duties, taxes and fees due thereon to the
state or any subdivision thereof;
Q: What are the exempt properties? 2. Claims arising from misappropriation,
A: breach of trust, or malfeasance by public
1. Family home constituted jointly by husband officials committed in the performance of their
and wife or by unmarried head of a family duties, on the movables, money or securities
(Article 152, Family Code). obtained by them;
Exceptions: 3. Claims for the unpaid price of movable
a. for non-payment of taxes; sold, on said movables, so long as they are in
b. for debts incurred prior to the the possession of the debtor, up to the value of
constitution of the family home; the same, and if the movable has been resold
c. for debts secured by mortgages on by the debtor and the price is still unpaid, the
the premises before or after such lien may be enforced on the price; this right is
constitution; not lost by the immobilization of the thing by
d. for debts due to laborers, destination, provided it has not lost its form,
mechanics, architects, builders, material substance and identity; neither is the right lost
men and others who have rendered service by the sale of the thing together with other
or furnished material for the construction of property for a lump sum, when the price thereof
the building can be determined proportionally;
2. Right to receive support as well as any 4. Credits guaranteed with a pledge so long
money or property obtained as such support. as the things pledged are in the hands of the
(Article 205, Family Code) creditor, or those guaranteed by a chattel
3. Tools and implements necessarily used by mortgage upon the things mortgaged, up to the
him in his trade or employment; value thereof;
4. Two horses, or two cows, or two carabaos 5. Credits for making repairs or preservation
or other beasts of burden, such as the debtor or personal property on the movable thus
may select, not exceeding one thousand pesos made, repaired, kept or possessed;
in value and necessarily used by him in his 6. Claims for laborers wages, on the goods
ordinary occupation; manufactured or the work done;
5. His necessary clothing and that of all his 7. For expenses of salvage, upon the goods
family. salvaged;
6. Household furniture and utensils necessary 8. Credits between the landlord and the
for housekeeping and used for that purpose by tenant arising from the contract of tenancy on
the debtor, such as the debtor may select, of a shares, on the share of each in the fruits or
value not exceeding one thousand pesos; harvest;
7. Provisions for individual or family use 9. Credits for transportation, upon the goods
insufficient for three months; carried, for the price of the contract and

91
incidental expenses, until their delivery and for 8. Claims of co-heirs for warranty in the
thirty days thereafter; partition of an immovable among them, upon
10. Credits for lodging and supplies usually the real property thus divided;
furnished to travelers by hotelkeepers, on the 9. Claims of donors or real property for
movables belonging to the guest as long as pecuniary charges or other conditions imposed
such movables are in the hotel, but not for upon the donee, upon the immovable donated;
money loaned to the guests; 10. Credits of insurers, upon the property
11. Credits for seeds and expenses for insured, for the insurance premium for two
cultivation and harvest advanced to the years.
debtor, upon the fruits harvested;
12. Credits for rent for one year, upon the Summary:
personal property of the lessee existing on the 1. taxes
immovable leased on the fruits of the same, but 2. vendor’s lien
not on money or instruments of credit; 3. contractor’s lien
13. Claims in favor of the depositor if the 4. lien of materialmen
depository has wrongfully sold the thing 5. mortgage
deposited, upon the price of the sale. 6. expenses of preservation
7. recorded attachments
NOTE: In the foregoing cases, if the movables to 8. warranty in partition
which the lien or preference attaches have been 9. conditional donations
wrongfully taken, the creditor may demand them 10. premiums for 2 year – insurers
from any possessor within thirty (30) days from the
unlawful seizures. Q: What is the Order of Preference with respect to
other properties of the debtor?
Summary: A:
1. taxes 1. Proper funeral expenses for the debtor, or
2. malversation by public officials children under his or her parental authority who
3. vendor’s lien have no property of their own, when approved
4. pledge, chattel mortgage by the court;
5. mechanic’s lien 2. Credits for services rendered the
6. laborer’s wages insolvent by employees, laborers, or household
7. salvage helpers for one year preceding the
8. tenancy commencement of the proceedings in
9. carrier’s lien insolvency;
10. hotel’s lien 3. Expenses during the last illness of the
11. crop loan debtor or of his or her spouse and children
12. rentals - one year under his or her parental authority, if they have
13. deposit no property of their own;
4. Compensation due to the laborers of
Note: The foregoing enumeration is not an order their dependents under laws providing for
of preference (Articles 2248 – 2249) indemnity for damages in cases of labor
accident or illness resulting from the nature of
Q: What are the Preferred Credits with respect to the employment;
specific immovable property? 5. Credits and advancements made to the
A: debtor for support of himself or herself, and
1. Taxes due upon the land or building; family, during the last preceding insolvency;
2. For the unpaid price of real property sold 6. Support during the insolvency
upon the immovable sold; proceedings, and for three months thereafter;
3. Claims of laborers. Masons, mechanics 7. Fines and civil indemnification arising from
and other workmen, as well as of architects, a criminal offense;
engineers and contractors, engaged in the 8. Legal expenses, and expenses incurred in
construction, reconstruction or repair of the administration of the insolvent’s estate for
buildings, canals or other works, upon said the common interest of the creditors, when
buildings, canals or other works; properly authorized and approved by the court;
4. Claims of furnishers of materials used in 9. Taxes and assessments due the national
the construction, reconstruction, or repair of government, other those mentioned in Articles
buildings, canals, and other works, upon said 2241, No. 1, and 2242, No. 1;
buildings, canals or other works; 10. Taxes and assessments due any province,
5. Mortgage credits recorded in the Registry other than those mentioned in Articles 2241,
of Property, upon the real estate mortgage; No. 1 and 2242, No. 1;
6. Expenses for the preservation or 11. Taxes and assessments due any city or
improvement of real property when the law municipality other than those mentioned in
authorizes reimbursement, upon the immovable Articles 2241, No.1 and 2242, No. 1;
preserved or improved; 12. Damages for death or personal injuries
7. Credits annotated in the Registry of caused by a quasi-delict;
Property, by virtue of a judicial order, by 13. Gifts due to public and private institutions
attachments or executions, upon the property of charity or beneficence;
affected, and only as to later credits;

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14. Credits which without special privilege, they shall be satisfied pro rata, after the
appear in (a) a public instrument; or (b) in the payment of the taxes and assessments upon
final judgment, if they have been the subject of the immovable property or real right (Article
litigation. These credits shall have preference 2249).
among themselves in the order of priority of the 5. The excess, if any, after the payment of the
dates of the instruments and of the judgments, credits which enjoy preference with respect to
respectively (Article 2244) specific property, real or personal, shall be
added to the free property which the debtor
Summary: may have, for the payment of the other credits
1. funeral expenses (Article 2250).
2. wages of employees – one year 6. Those credits which do not enjoy any
3. expenses of last illness preference with respect to specific property and
4. workmen’s compensation those which enjoy preference, as to the amount
5. support for one year not paid, shall be satisfied according to the
6. support during insolvency following rules:
7. fines in crimes a. In the order established in Article
8. legal expenses - administration 2244;
9. taxes b. Common credits referred to in
10. tort Article 2245 shall enjoy no preference and
11. donations shall be paid pro rata regardless of dated
(Article 2251).
CULPA CULPA CULPA
CONTRAC AQUI- CRIMINAL QUASI-DELICT
-TUAL LIANA
Proof Preponderan Preponderan Proof beyond Q: What is a quasi-delict?
Needed ce of ce of reasonable
A: Fault or negligence of a person who, by his act
evidence evidence doubt
or omission, connected or unconnected with, but
Defense Exercise of Exercise of
extraordinar diligence of independent from, any contractual relation, causes
available
y diligence good father damage to another person. (Art. 2176)
(in contract of a family in
of carriage), the selection Q: What are the elements of a quasi-delict?
Force and A:
Majeure supervision 1. negligent or wrongful act or omission
of 2. damage
employees
3. causal relation between such negligence or
Pre- There is pre- No pre- No pre-existing
existing existing contract
fault and damage
existing 4. no pre-existing contractual relationship
contract contract contract
between the parties (some authorities believe
Burden of Contractual Victim. Prosecution.
this element not essential)
proof party. Prove Prove the ff.: Accused is
the ff.: 1. damage presumed
1. existence 2. innocent until NOTE: The defense of a good father of the family is
of a contract negligence the contrary is not a proper defense in culpa contractual but can
2. breach 3. causal proved. mitigate the liability; the reason is that the contract
connection is independent of the employer’s selection;
between therefore the selection is of no moment.
negligence
and damage
done
12. appearing in public instrument or final Q: What is Negligence?
judgment A: It is the failure to observe that degree of care,
precaution and vigilance that the circumstances
Q: What is the Order of Preference of Credits? warrant.
A:
1. Those credits which enjoy preference with Q: What is the test of negligence?
respect to specific movable, excluded all others A: Would a prudent man, in the position of the
to the extent of the value of the personal tortfeasor, foresee harm to the person injured as a
property to which the preference refers (Article reasonable consequence of the course about to be
2246). pursued? If so, the law imposes a duty on the actor
2. If there are two or more credits with respect to take precaution against its mischievous results,
to the same specific movable property, they and failure to do so constitutes NEGLIGENCE.
shall be satisfied pro-rata, after the payment of (Picart v. Smith, 37 Phil 809)
duties, taxes, and fees due the State or any
subdivision thereof (Article 2247). Q: What are the presumptions in Quasi-delict?
3. Those credits which enjoy preference in A:
relation to specific real property or real rights, 1. In motor vehicle mishaps, the owner is
exclude all others to the extent of the value of presumed negligent, if he was in the vehicle,
the immovable or real right to which the though not as driver, and he could have used
preference refers (Article 8). due diligence to prevent the misfortune (Art.
4. If there are two or more credits with respect 2184)
to the same specific real property or real rights,

93
2. It is disputably presumed that a driver was Requisites:
negligent if he had been found guilty of a. the plaintiff must know that the
reckless driving or violating traffic regulations at risk is present
least twice for the next preceding two months b. he must further understand its
(Art. 2184) nature
3. The driver of a motor vehicle is c. his choice to incur is free and
presumed negligent if at the time of the voluntary (XPT: if an emergency is found to
mishap, he was violating any traffic regulation exist, or if the life or property of another is
(Art. 2185) in peril or when he seeks to rescue his
4. Prima facie presumption of negligence endangered property)
of the defendant arises if death or injury 6. Contributory Negligence – conduct on the
results from his possession of dangerous part of the injured party contributing to the harm
weapons or substances (Art. 2188) he has suffered which falls below the standard
XPT: when such possession or use is to which he is required to conform for his own
indispensable to his occupation or business protection
5. Presumption of negligence of the • results in the mitigation of liability of the
common carrier arises in case of loss, defendant
destruction or deterioration of the goods or in 7. Concurrent Negligence – both parties are
case of death or injury of passengers equally negligent; the courts will leave them as they
XPT: upon proof of exercise of extra-ordinary are and there can be no recovery
diligence
6. Manufacturers and processors of
foodstuffs, drinks, toilet articles and similar 9. Doctrine of Last Clear Chance or
goods shall be liable for death or injury caused Discovered Peril- The contributory negligence
by any noxious or harmful substances used of the party injured will not defeat the claim for
(Art. 2187) damages if it is shown that the defendant could,
by the exercise of reasonable care and
Requisites: prudence have avoided the consequences of
a. defendant is the manufacturer or the negligence of the injured party.
processor of goods; In case of collision, it applies in a suit
b. defendant used noxious or harmful between the owners and drivers of colliding
substance in the manufacture or processing vehicles and not where a passenger demands
of goods; responsibility from the carrier to enforce its
c. plaintiff used or consumed such contractual obligations.
product unaware of the injurious condition
of the product; Requisites:
d. plaintiff’s injury or death was
caused by the product used or consumed; a. Both plaintiff and defendant
were negligent. (This is an XPN to
Q: What does res ipsa loquitur mean? concurrent negligence rule)
A: the thing or transaction speaks for itself b. Plaintiff was in a position of
danger by his own negligence.
Q: What are the requisites? c. Defendant knew of such
A: position of the plaintiff.
1. the accident ordinarily does not occur in d. Defendant had the least clear
the absence of someone’s negligence chance to avoid the accident by exercise of
2. the instrumentality which caused the injury ordinary care but failed to exercise such
was under the exclusive control and last clear chance.
management of the person charged with e. Accident occurred as
negligence proximate cause of such failure.
3. the injury suffered must not have been due
to any voluntary action or contribution on the 10. Emergency Rule or Sudden Peril
part of the person injured Doctrine
4. absence of explanation by the defendant Where one suddenly finds himself in a
place of danger and is required to act without
Q: What are the defenses in quasi-delict? time to consider the best means that may be
A: PF-DDDACCLE adopted to avoid the impending danger, he is
1. Prescription – 4 years not guilty of negligence if he fails to adopt what
2. Fortuitous event subsequently and upon reflection may appear
3. Due Diligence to have been a better method unless the
4. Damnum Absque Injuria – the law affords emergency in which he finds himself is brought
no remedy for damages resulting from an act about by his own negligence.
which does not amount to a legal injury or • Defendant must not be guilty of
wrong; the consequences must be borne by the Applicable only to situations that are
injured person alone. sudden and unexpected such as to
5. Assumption of Risk deprive actor of all opportunity for
Volenti non fit injuria – one is not legally deliberation
injured if he has consented to the act
complained of or was willing that it should occur
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• But action must still be judged by
the standard of the ordinary prudent man Q: What is the doctrine of attractive nuisance?
• Absence of forseeability. A: One who maintains on his premises dangerous
instrumentalities or appliances of a character likely
Q: Differentiate Proximate from Remote Cause to attract children in play, and who fails to exercise
A: Proximate Cause is that cause which, in natural ordinary care to prevent children from playing
and continuous sequence, unbroken by any therewith or resorting thereto, is liable to a child of
efficient intervening cause, produces the injury and tender years who is injured thereby, even if the
without which the result would not have occurred. child is technically a trespasser in the premises.
Requisites:
Remote Cause is the cause that contributes to, but 1. Possessor knows or has reason to know that
is not necessary for, the production of an effect or children are likely to trespass to the place.
result. 2. Possessor knows or has reason to know or
should realize that it will produce unreasonable
Q: What are the tests to determine whether a cause risk of death or serious bodily harm to such
is proximate or not? children.
A: 3. The children because of their youth realize the
a. Cause-in-fact Test risk involved in meddling with it or in coming
• it is necessary that there is proof that within the area made dangerously by it.
defendant’s conduct is a factor in causing 4. The possessor fails to exercise reasonable care
plaintiff’s damage to eliminate the danger or otherwise to protect
• determines whether the defendant’s act the children.
or omission is a causally relevant factor Q: What is the principle of vicarious liability?
A: A person is not only liable for torts committed by
1. But for test/ sine qua non test him, but also for torts committed by others with
• Defendant’s conduct is the whom he has a certain relation or for whom he is
cause in fact of the injury if the damage responsible
would not have resulted had there been no
negligence on the part of the defendant. ARTICLE 2180 – liability for act or omissions of
2. Substantial Factor Test those persons for whom one is responsible
(FGOESS):
• It makes the negligent
1. Father, or in case of death or incapacity,
conduct the cause-in- fact of the damage if
mother
it was a substantial factor in producing the
a. damage caused by minor
injuries.
children
• important in cases where
b. living in their company
there are concurrent causes
2. Guardian
3. Necessary and Sufficient Test
a. for minors or incapacitated
(NESS)
persons
• the act or omission is a cause-in- b. under their authority
fact if it is a necessary element of a c. living in their company
sufficient set 3. Owners and managers of establishments
a. for their employees
b. Policy test b. in the service of the branches
• The law may limit the liability of the in which they are employed, or;
defendant to certain consequences of his c. on the occasion of their
action; if the damage or injury to the plaintiff functions
is beyond the limit of the liability fixed by 4. Employers
law, the defendant’s conduct cannot be a. damages caused by
considered the proximate cause. employees and household helpers
• determines such limit of liability b. acting within the scope of their
1. Forseeability Test assigned tasks
2. Natural and Probable c. even if the employer is not
Consequence Test engaged in any business or industry
3. Natural and Ordinary or Direct 5. State – acting through a special agent and
Consequences Test not when the damage has been caused by the
4. Hindsight Test official to whom the task done properly pertains.
5. Orbit of Risk Test
6. Substantial Factor Test
Q: Who is a special agent?
Q: What is the principle of concurrent cause? A: Special Agent is one who receives a definite and
A: Where the concurrent or successive negligent fixed order or commission, foreign to the exercise of
acts or omissions of two or more persons, the duties of his office
although acting independently, are in
combination the direct and proximate cause of An employee who on his own responsibility
a single injury to a 3rd person, and it is impossible performs functions inherent in his office and
to determine what proportion each contributed to naturally pertaining thereto is not a special agent
the injury, either of them is responsible for the
whole injury, even though his act alone might not
have caused the entire injury.

95
6. Art 218, Family Code – The school, its an establishment or whether or not engaged
administrators and teachers, or the individual, enterprise in any business or
entity or institution engaged in child care shall industry
have special parental authority and
responsibility over the minor child while under
their supervision, instruction or custody.
NOTE: Authority and responsibility shall apply employers must be employers referred to
to all authorized activities whether inside or engaged in business as need not be engaged in
outside the premises of the school, entity or the law speaks of business or industry
institution “establishment or
enterprise”
Art 219, Family Code – Those given authority
and responsibility under the preceding Article
shall be principally and solidarily liable for refers to negligent acts encompasses negligent
damages caused by the acts or omissions of of employees committed acts of employees
the unemancipated minor. The parents, judicial either in the service of acting within the scope
guardians or the persons exercising substitute the branches or on the of their assigned task
parental authority over said minor shall be occasion of their
subsidiarily liable. functions
The respective liabilities shall not apply if
it is proved that they exercised proper diligence
required under the particular circumstances
Q: Who are the persons made liable by law even
Difference between w/o fault?
Articles 218 of the FC & 2180 NCC A:
218 2180 1. Possessor of an animal or
whoever may make use of the same,
although it may escape or be lost
XPT: when the damage should come from
School, admin, teachers Teachers, head of
a.force majeure, or
engaged in child care establishment in Arts
b. fault of the person who has suffered the
are made expressly and trades are made
damage
liable expressly liable
2. Owner of motor vehicle, in motor vehicle
mishaps, such owner is solidarily liable with
his driver if:
Liability of school, No such express a. he was in the vehicle, and
admin, teachers is solidary nor subsidiary b. could have prevented the
solidary and parents are liability is stated misfortune by the use of due diligence
made subsidiary liable 3. Manufacturers and processors of
foodstuffs, drinks, toilet articles and similar
goods, are liable for death or injuries cause by
any noxious or harmful substances used,
Students involved must Students involved not although no contractual relation exists between
be minor necessarily minor them and the consumers
4. Defendant in possession of dangerous
weapons or substances, such as firearms
Q: Can you impute liability to teacher-in-charge and poison, there is a prima facie presumption
even if the student is already of majority age? of negligence on the part of the defendant if the
A: Yes. Under Article 2180, age is not important. death or injury results from such possession
XPT: when the possession or use thereof is
indispensable in his occupation or business
Q: Does Article 2180 apply to school of arts & 5. Provinces, cities and municipalities, liable for
trades only? damages for the death of, or injuries suffered
A: No. applies to all including academic institution by, any person by reason of the defective
per weight of jurisprudence based on obiter of condition of roads, streets, bridges, public
Justice JBL Reyes in the Exconde case. buildings, and other public works under their
control and supervision
Q: Distinguish Par. 4 (owners & managers) and 6. Proprietor of a building or structure,
Par. 5 (employers) of Article 2180 responsible for the damages resulting from:
A: a. its total or partial collapse, if it
Par 4 Par 5 should be due to the lack of necessary
repairs
(owners & managers) (employers)
b. the explosion of machinery which
has not been taken care of with due
apply to employers apply to employers diligence, and the inflammation of explosive
substances which have not been kept in a
safe and adequate place
owners and managers of employers in general,
96
c. excessive smoke, which may be a. Legal right or duty
harmful to persons or property b. The right or duty is exercised in bad
d. the falling of trees situated at or faith, and
near highways or lanes, if not caused by c. For the sole intent of prejudicing or
force majeure injuring another
e. emanations from tubes, canals,
sewers or deposits of infectious matter, Q: Differentiate Article 20 from Article 21 of the Civil
constructed without precautions suitable to Code.
the place A: Article 20 speaks of the general sanction for all
7. Engineer, architect or contractor, if the other provisions of law which do not especially
damage in the building or structure should be provide for their own sanction.
the result of any defect in the construction
which happens within 15 years from Article 21 on the other hand, speaks of act w/c is
construction legal but is contrary to morals, good custom, public
8. Head of the family that lives in a building or order or public policy and is done with intent to
part thereof, responsible for damages cause injure
by things thrown or falling from the same
Q: What are the other provisions in Human
relations?
NOTE: In motor vehicle mishaps, the owner is A:
solidarily liable with his driver, if the former, who a. Violation of Right of Privacy, Family Relations,
was in the vehicle, could have, by the use of the Vexation and Humiliation (Art. 26, NCC)
due diligence, prevented the misfortune. It is
disputably presumed that a driver was negligent, if b. Dereliction of Official Duty of Public Officers (Art.
he had been found guilty or reckless driving or 27, NCC)
violating traffic regulations at least twice within the Requisites:
next preceding two months. *defendant is a public officer charged with the
If the owner was not in the motor vehicle, the performance of a duty in favor of the plaintiff
provisions of Article 2180 are applicable. (Article *he refused or neglected without just cause to
2184) perform such duty (ministerial)
*plaintiff sustained material or moral loss as
consequence of such non-performance
Q: What is the liability of the owner? *the amount of such damages, if material
A:
If car owner is present in If car owner is not present c. Violation of Rights and Liberties of Another
the car in the car Person (Art. 32, NCC)
sue under Article 2184 sue under Article 2180 d. Defamation, Fraud and Physical Injuries (Art. 33,
NCC)
solidary liability with the imputed liability e. Neglect of Duty by Police Officers (Art. 34, NCC)
driver
once the driver is proven defense of having exercised Q: What is unfair competiton?
negligent in causing the all the diligence of a good A: It consists in employing deception or any other
damage, the law presumes the father of a family is available means contrary to good faith by which any
vehicle owner equally to the car owner person shall pass of the goods manufacture by
negligent and imposes upon him or in which he deals, or his business or
him the burden of proving
services for those of the one having established
proper selection of employee
as a defense goodwill or committing any acts calculated to
produce such result. (Par 2, Sec 29 RA 166)
Q: What is the true test of unfair competition?

Quasi-Delict Criminal Offense A: Whether certain goods have been intentionally
Affects only private interests Affects public interests clothed with an appearance which is likely to
Civil Code, by RPC punishes/corrects deceive the ordinary purchaser exercising
indemnification merely criminal acts ordinary care and not whether a certain limited
repairs damages incurred class of purchases with special knowledge not
Included all acts w/ any kind Crimes punished only if possessed by the ordinary purchaser could
of fault or negligence there is a law clearly
covering it
avoid mistake by the exercise of this special
knowledge.
HUMAN RELATIONS
Q: What is the reason behind Article 28?
Art 19, 20, 21 (catch-fall provision) A: It is necessary in a system of free enterprise.
Democracy becomes a veritable mockery if any
Q: What is the Principle of Abuse of Rights? person or group of persons by any unjust or high-
handed method may deprive others of a fair chance
A: Every person must, in the exercise of his rights
to engage in business or earn a living.
and in the performance of his duties, act with
justice, give everyone his due, and observe honesty
Q: When is there Malicious Prosecution?
and good faith. (Art. 19, NCC)
A: When a criminal prosecution, civil suit, or other
Elements:
legal proceedings has been instituted maliciously

97
and without probable cause, action for damages another, it does not mean that the latter is
maybe brought by one against another, after the exempted from indemnifying the former. The
termination of such prosecution, suit or proceeding. liability will lie on quasi-contract under Article 2146.
Elements: Q: Is the article applicable to the government?

a. The fact of the prosecution and the fact
A: Yes. The government cannot enrich itself at the
that the defendant was himself the
expense of another.
prosecutor, and that the action was finally
terminated with an acquittal
b. That in bringing the action, the PREJUDICIAL QUESTION
prosecutor acted without probable cause Q: What is a prejudicial question?
c. The prosecutor was actuated or A: It is one based on a fact distinct and separate
impelled by legal malice from the crime but so intimately connected with it
that it determines the guilt or innocence of the
UNJUST ENRICHMENT / ACTION REM VERSO - accused; and for it to suspend the criminal action, it
Arts. 22, 23, 2142 & 2143 must appear not only that said case involve facts
intimately related to those upon which the criminal
Every person who through an act of performance by prosecution would be based but also that in the
another, or any other means, acquires or comes resolution of the issue or issue raised in the civil
into possession of something at the expense of the case, the guilt or innocence of the accused would
latter without just or legal ground, shall return the be necessarily determined.
same to him. (Article 22)
Q: What is the justification for Article 36?
Even when an act or event causing damage to A: For purposes of orderly administration of justice
another's property was not due to the fault or and to avoid the rendition of possible conflicting
negligence of the defendant, the latter shall be decisions of two courts on the same issue.
liable for indemnity if through the act or event he
was benefited. (Article 23) Q: Is the principle applicable even if only one court
is involved?
Certain lawful, voluntary and unilateral acts give A: Yes. In such case, the court when exercising
rise to the juridical relation of quasi-contract to the jurisdiction over the civil action is considered
end that no one shall be unjustly enriched or distinct and different from itself when trying the
benefited at the expense of another. (Article 2142) criminal action.
The provisions for quasi-contracts in this Chapter Q: What are the elements of prejudicial question?
do not exclude other quasi-contracts which may A: The elements of a prejudicial question are:
come within the purview of the preceding article. (a) the previously instituted civil action involves an
(Article 2143) issue similar or intimately related to the issue raised
in the subsequent criminal action, and
Q: Distinguish Accion In Rem Verso from Solutio (b) the resolution of such issue determines whether
Indebiti or not the criminal action may proceed.
A:
Accion Rem Verso Solutio Indebiti Q: What is the additional requisite?
It is not necessary that Payment by mistake A: That the civil action must be filed ahead of the
payment be made by is an essential criminal action
mistake element
Q: What is the test to determine that existence of a
Q: What are the requisites for Accion Rem Verso? prejudicial question?
A: A: To determine the existence of a prejudicial
1. that the defendant has been enriched; question, it must appear that the civil case does not
2. that the plaintiff has suffered a loss; only involve the same facts upon which the criminal
prosecution is based but also that the resolution of
3. that the enrichment of the defendant is without
the issues raised in said civil action would
just or legal ground
necessarily be determinative of the guilt or
4. that the plaintiff has no other action based on innocence of the accused.
contract, quasi-contract, crime or quasi-delict
Q: Is the principle of prejudicial question applicable
Q: What is the limitation of accion rem verso? in administrative cases? Can there be a prejudicial
A: It can only be availed of if there is no other question even if does not involve a civil action and a
remedy to enforce it based on contract, quasi- criminal action?
contract, crime or quasi-delict A: Yes.
Q: Is rendition of services included in the article? DAMAGES

A: No. Services are not included in the Article. If
services were rendered by someone benefiting Q: What is damage?
98
A: The detriment, injury, or loss, which is (i) actions for indemnity under workmen's
occasioned by reason of fault of another in the compensation and employer liability
property or person. laws
(j) when double judicial costs are awarded
Q: What are damages? (k) separate civil action to recover civil
A: The pecuniary compensation, recompense or liability arising from crime
satisfaction for an injury sustained or as otherwise
expressed, the pecuniary consequences which the Q: What is the Doctrine of Avoidable
law imposes for the breach of some duty or Consequences?
violation of some rights A: A party cannot recover damages flowing from
Q: What are the kinds of damages? consequences which the party could reasonably
A: (MENTAL) have avoided.
Moral
Exemplary Q: Can one who is injured by a wrongful attachment
Nominal recover damages for actual loss resulting
Temperate therefrom?
Actual
Liquidated A: Yes, but the Supreme Court established the
following rules in Philippine
1. ACTUAL\ COMPENSATORY (Art. 2199) Commercial International Bank v. Intermediate
• comprehends not only the value of Appellate Court (G.R. No. 73610, April 19, 1991)
the loss suffered but also that of the profits 1. The recovery of actual damages is limited to
which the obligee failed to obtain compensation for injuries which are the direct and
• the amount should be that which proximate result of the wrongful attachment;
would put the plaintiff in the same position 2. The items recoverable are limited to those which
as he would have been if he had not flow naturally and reasonably therefrom;
sustained the wrong for which he is now 3. One who has been injured by a wrongful
getting compensation or reparation attachment can recover damages for the actual loss
• to recover damages, the amount of resulting therefrom. For such loss to be
loss must not only be capable of proof but recoverable, they must constitute actual damages
must actually be proven established by competent court.
In the same case, it was also held that the
Q: What is the coverage of Actual Damages? impairment of plaintiffs credit, his inability to sell the
A: land levied upon, or to contract a loan upon the
(a) Dano emergente – loss of what a security of the land are not the proximate, but
person already possesses remote consequence of the attachment.
(b) Lucro cessante – failure to receive as a
benefit that would have pertained to Actual
him CONCEPT PROOF AMOUNT
• loss or impairment of An adequate It is necessary that Property –
compensation the claimant produces value at the
earning capacity in cases of
only for such competent proof or time of
temporary or permanent personal pecuniary loss the best evidence destruction, or
injury suffered by obtainable such as market value,
• injury to the plaintiff’s him as he receipts to justify an plus, in proper
business standing or commercial has duly award therefore. cases,
credit proved Actual or damages for
compensatory the loss of use
Attorney’s Fees are actual damages that are due damages cannot be during the
to the plaintiff and not to the counsel. presumed but must period before
be proved with replacement,
reasonable certainty value of use of
Q: Are attorney’s fees recoverable? (Pp v. Ereno Feb. 22, premises, in
A: 2000) case of mere
GR: NOT recoverable. deprivation of
XPNs: sec-murs-wids Any person who possession.
(a) stipulation between parties seeks to be awarded
(b) when exemplary damages are awarded actual or Personal
(c) when defendant's act or omission compensatory injury –
damages due to acts Medical
compelled plaintiff to litigate with 3rd
of another has the expenses;
persons or incur expenses to protect burden of proving P 75,000
his interest said damages as well by way of
(d) malicious prosecution as the amount civil
(e) clearly unfounded civil action or thereof. Actual indemnity
proceeding against plaintiff damages cannot be in case of
(f) defendant acted in gross & evident bad allowed unless rape
faith in refusing to satisfy plaintiff's just supported by committed
evidence on the or
& demandable claim
record. The court effectively
(g) legal support actions cannot rely on qualified
(h) recovery of wages of household speculations, under
helpers, laborers & skilled workers conjectures or which the

99
guesswork as to the death pecuniary Free Worker’s offended party
fact and amount of penalty is estimation, it Union, 77 SCRA and the
damages (Banas, Jr. imposed may be 24). business and
v. CA, Feb. 10, 2000) by law, or recovered if financial
P 50,000 they are the Aside from the fact position of the
in other proximate that there is a need offender may
rape result of the for the claimant to be considered
cases. defendant’s satisfactorily prove and affect the
wrongful act or the existence of the amount of
Death – Wake omission (Art. factual basis of the damages;
and burial 2217, NCC) damages, it is also P 50,000 in
expenses, P necessary to prove case of rape or
50,000 by way its causal relation for each count
of civil to the defendant’s of rape in case
indemnity ex act (Raagas v. of multiple rape
delicto which Trava, 22 SCRA or death.
requires no 839, Pp v. Manero,
proof other Jan. 29, 1993).
than the fact of
death of the The exception to
victim and the the general rule
assailant’s that factual basis
responsibility must be alleged are
therefor. criminal cases.
Moral damages
1. MORAL (Art.2217) may be awarded to
Q: Why are moral damages awarded? the victim in
criminal
A: They are awarded to enable the injured party to
proceedings in
obtain means, diversions or amusement that will such amount as the
serve to alleviate the moral suffering he has court deems just
undergone by reason of the defendant’s culpable without the need for
action. pleading or proof of
the basis thereof
Q: How can the plaintiff recover moral damages? (Pp v. Prades, July
A: The plaintiff must allege and prove: 30, 1998).
a. The factual basis for moral damages
and
b. The causal relation to the defendant’s Q: What are the factors in determining the amount
act of moral damages?
• XPN: Moral damages may be A: 1. Political, social, financial standing of offended
awarded to the victim in criminal party and offender
proceedings without the need for 2. Mental anguish
pleading of proof or the basis thereof
Example: Compare the mental anguish of two
• Requisites: mothers whose sons died in two different incidents.
a. There must be an injury whether One son was shot to death, and he died instantly.
physical; mental or psychological, The other son was partying at
clearly sustained by the claimant Ozone when it burned down. He suffered for
b. There must be culpable act or omission several weeks with painful burns before he finally
c. Such act or omission is the proximate died. The mental suffering of the Ozone victim's
cause of the injury. mother is greater than that of the mother of the son
d. The damage is predicated on the cases who was shot to death, since the former had to
cited in Art. 2219 watch as her son had to withstand the agony of the
burns.
Moral Damages
CONCEPT PROOF AMOUNT 3. Sentimental value
Include No proof of No hard and Example: Two ring- one with a huge stone that you
physical pecuniary loss is fast rule in won at a raffle and another with a tiny stone that
suffering, necessary. The determining was given to you by your one true love. Of course,
mental assessment is left the amount. the sentimental value of the second ring is greater.
anguish, fright, to the discretion of But
serious the court according sentimental 3. NOMINAL ( Art. 2221)
anxiety, to the value of the
besmirched circumstances of property, Q: What is the purpose of nominal damages?
reputation, each case. extent of
A: In order that a right of the plaintiff which has
wounded However, there humiliation,
feelings, moral must be proof that pain and been violated or invaded by the defendant may be
shock, social the defendant suffering, vindicated or recognized, and not for the purpose of
humiliation and caused physical official, indemnifying the plaintiff for any loss suffered by
similar injury. suffering etc. political, social him.
Though (Compania and financial
incapable of Maritima v. Allied standing of the

100
• These are small sums fixed by the court liquidated
without regard to the extent of the harm damages, the law
done to the injured party shall determine the
measure and not
• They are damages in name only and are the stipulation.
allowed simply in recognition of a technical
injury based on a violation of a legal right 6. EXEMPLARY (Art. 2229)
NOTE: Nominal cannot co-exist with actual or Q: What is the purpose of exemplary damages?
compensatory damages because nominal damages A: Imposed by way of example or correction for the
are recoverable when the damages suffered cannot public good, in addition to the moral, temperate,
be proved with reasonable certainty. liquidated or compensatory damages
Nominal - Intended to serve as a deterrent to serious wrong
CONCEPT PROOF AMOUNT doings and as a vindication of undue sufferings and
Adjudicated in No proof of Left to the
wanton of invasion of the rights of an injured or a
order that a right pecuniary loss is discretion of
which has been necessary. Proof the court punishment for those guilty of outrageous conduct
violated or invaded that a legal right according
by the defendant, has been violated to the Q: What are the requisites before exemplary
may be vindicated is what is only circumstanc damages can be recovered?
or recognized, and required. Usually es of each A:
not for the purpose awarded in the case. a. the claimant’s right to them has been
of indemnifying the absence of proof established
plaintiff for any loss of actual b. their determination depends upon the
suffered by him. damages.
amount of compensatory damages that
may be awarded to the claimant
4. TEMPERATE\ MODERATE (Art. 2224) c. The act must be accompanied by bad
Q: What are temperate damages? faith or done in wanton, fraudulent,
A: Those damages, which are more than oppressive or malevolent manner.
nominal but less than compensatory, and may
be recovered when the court finds that some Exemplary
pecuniary loss has been suffered but its amount
CONCEPT PROOF AMOUNT
cannot be proved with certainty. Imposed by 1. That the claimant is Left to the
way of entitled to moral, temperate discretion of
• In cases where the resulting injury might example or or compensatory damages; the court
be continuing and possible future correction and according to
complications directly arising from the injury for the public the
while certain to occur are difficult to predict, good, in 2. That the crime was circumstanc
temperate damages can and should be addition to committed with 1 or more es of each
awarded on top of actual or compensatory the moral, aggravating circumstances, case; P
temperate, or the quasi-delict act was 30,000 in
damages in such cases there is no liquidated or committed with gross case of
incompatibility between actual and compensator negligence, or in contracts homicide
temperate damages y damages. and quasi-contracts the act committed
must be accompanied by with abuse
CONCEPTbad faith orPROOF done in wanton, AMOUNTof superior
5. LIQUIDATED (Art. 2226) More than fraudulent,
May beoppressive
recovered or Leftstrength.
to the
nominal but malevolent
when the manner.
court finds discretion of
Q: What are liquidated damages? less than that some pecuniary the court
A: Those agreed upon by the parties in a contract, compensatoryNo proof of pecuniary
loss has been loss is according to
to be paid in case of breach thereof damages. necessary.
suffered but its the
amount cannot from circumstances
• It may be equitably reduced when: the nature of the case of each case.
a. iniquitous or unconscionable be proved with
b. partial or irregular performance certainty. No proof of
pecuniary loss is
Liquidated necessary.
CONCEPT PROOF AMOUNT
Those If intended as a That stipulated or
agreed upon penalty in agreed by the Q: What are the damages that can be recovered in
by the obligations with a parties. However,
case of death?
parties to a penal cause, whether it is
contract, to proof of actual intended as an A: MEA-IN
be paid in damages indemnity or a M-oral damages
case of suffered by the penalty, it shall be E-xemplary damages
breach creditor is not equitably reduced if A-ttomey's fees and expenses for litigation
thereof, may necessary in they are iniquitous IN-demnity for death
be intended order that the or unconscionable; IN-demnity for loss of earning capacity
as an penalty may be when the breach of IN-terest in proper cases
indemnity or demanded (Art. contract committed
a penalty. 1228, NCC). by the defendant is
Q: What are the factors to be considered to
No proof of not the one
pecuniary loss contemplated by determine the damages in case of death?
is necessary. the parties in
agreeing upon the A: 1. Loss of the earning capacity of the deceased.

101
2. The earning capacity of the deceased, his NI (Net Income) = Gross Annual Income – Living
obligation to support dependents, and Expenses
the moral damages suffered by his kin are also
considered. This is predicated on the reason that Note: When there is no showing that the living
the life of a great and skilled professional, be he a expenses constituted a smaller percentage of the
lawyer, doctor, engineer, scientist, a statesman, gross income, the living expenses is fixed at half of
journalist, writer, economist, banker, etc., is the gross income.
certainly more valuable not only to their families but
also to their particular community and to the country
in general. Gross Annual Income = Monthly Income x 12
3. If the financial capacity of the carrier enables it to
pay more, a greater sum should be given. {People Example:
v. Mongaya, L-23708, October 31, 1968] The victim was in a perfect health at the age of 44
4. Life expectancy of the deceased. {PAL v. CA, when he was killed by the accused. He was
G.R. No. 544701, May 8, 1990} receiving P16,000 a month. There was no evidence
5. The rate of inflation that depleted the value of the of living expenses presented by the victim heirs or
judgment was considered in imposing legal rate of the accused.
interest on the indemnity due the deceased.
Gross Annual Income
Q. What are the damages recoverable in crimes
and quasi-delicts? P 16,000 x 12 = P 192,000
A. Defendant is liable for damages that are natural Net Income

and probable consequence of the act/omission
P 192,000 – P 96,000 = P 96,000
complained of and not necessary that damages
have been foreseen or could have been foreseen. Note:
In absence of evidence, living expenses is
VALUE OF LOSS SUFFERED presumed to be half of the gross annual income
For simplicity, just divide gross annual income by
Destruction of things, fines, penalties, medical and two (2)
hospital bills, attorney’s fees, interest, and cost of
litigation
Life Expectancy
Loss or impairment of earning capacity in case of (80 – 44) multiply by 2/3 = 24
physical disability
 Unless deceased had permanent physical Loss of Earning Capacity
disability not caused by defendant so that P 96,000 x 24 = P 2,304,000
deceased had no earning capacity at the
time of death
Wherefore, the accused is liable to pay the heirs of
the victim the amount of P 2,304,000 representing
Damages for support are recoverable if deceased the loss of earning capacity
was obliged to give support for period not more
than 5 years.
*The formula is not only applicable in cases where
the victim dies. It also applies in cases where the
Attorney’s fees – as a general rule, are not victim was permanently incapacitated to work.
recoverable, unless provided by law and stipulation.
 Attorney’s fees must be alleged, prayed for
and proven. LAND TITLES AND DEEDS
 Article 2208 refers to extraordinary
attorney’s fees. Q: What are the modes of Acquiring Land Titles?
A: (PERA PAID)
 Ordinary attorney’s fees - the client agreed
1. Public Grant
to pay his lawyer. The client must pay even
2. Emancipation patent or grant
no stipulation: based on the amount of work
3. Reclamation
performed.
4. Adverse Possession
5. Private Grant or Voluntary Transfer
LOSS OF EARNING CAPACITY 6. Accretion
7. Involuntary Alienation
Formula: 8. Descent or Devise
Q: What is Torrens Title?

Loss of Earning Capacity = LE x NI
A: It is a certificate of ownership issued under the
Torrens system of registration by the government,
LE (Life expectancy) = (80 – age) multiply by 2/3 through the Register of Deeds (RD) naming and
declaring the owner in fee simple of the real
102
property described therein, free from all liens & registration contemplated under said Act refers only
encumbrances except as may be expressly noted to ownership of land.
there or otherwise reserved by law The owner of the building should file an
• Conclusive against the whole world opposition or answer to the application for
(including the government) & to a holder registration and ask the court that his right to the
thereof in good faith, it is guaranteed to be building be annotated ion the decree and later in
indefeasible, unassailable & imprescriptible. the certificate of title.
**Decisions in land registration proceedings Probative Value of Torrens Title (TT) – TT may
become final after the expiration of 30 days be received in evidence in all courts of the
from date of service of its notice. Decree of Philippines and shall be conclusive as to all matters
Registration becomes final after lapse of 1 year contained therein, principally as to the identity of the
from date of its issuance & entry. Decree land owner except so far as provided in the Land
becomes incontrovertible and unassailable. Registration Act (LRA)
NOTE: Original Registration Proceeding – brought

GR: A title once registered cannot be defeated before the RTC (land registration court) to
by prescription. determine title or ownership of land on the basis of
XPN: subject to the right of a third person on an application for registration or answer by a
the equitable principle of laches. claimant in a cadastral registration
Q: What is laches? Subsequent Registration Proceeding – where

A: It is the failure or neglect for an unreasonable incidental matters after original registration may be
and unexplained length of time to assert a right brought before the land registration court by way of
warranting a presumption that the party entitled to it motion or petition filed by the registered owner or
has either abandoned it or declined to assert it. party in interest
Q: What are the Steps in Land Registration

Proceedings?
Q: What are the requisites for the Amendment or A: (SF-STPS-FHPIEST)
Correction of title? 1. Survey of land by Bureau of Lands or duly
A: licensed private surveyor
1) It must be filed in the original case 2. Filing of application for registration by applicant
2) By the registered owner or a person in • Application shall be filed with the RTC of
interest the province or city where the land is
3) On grounds enumerated situated.
4) All parties must be notified • Application may include two or more
5) There is unanimity among them parcels of land as long as they are situated
6) Original decree must not be opened within the same province or city.
• The court may at anytime order an
Q: What are the grounds for amendment or application to be amended by striking out
correction of title? one or more parcels or by severance of the
A: application
1) An error or omission was made thereon • If amendment includes a parcel of land not
2) A registered interest is terminated previously included in the application as
3) New rights have arisen which do not appear in published, a new publication of the
the certificate amended application must be made.
4) Change of name or status of a person • Without such publication, registration court
5) Any reasonable ground cannot acquire jurisdiction over the area
that is added.
Q: What are the Grounds for Cancellation of Title? • RTC acting as a land registration court has
A: a limited jurisdiction but it is deemed to
1) When title is void have all the necessary powers to exercise
2) Title is replaced by one issued under a cadastral such jurisdiction to make it effective:
proceeding a. it can determine whether an instrument is a
3) When condition for its issuance has been true deed of sale or a mere equitable
violated by the registered owner. mortgage
b. it can determine the issue on the
Q: May the owner of a building constructed on genuineness of a document.
an unregistered land belonging to another apply
for the registration of such building under the • MeTC, MCTC, and MTC may be assigned
Land Registration act and PD 1529? What by the SC to decide cadastral and land
should he do to protect his rights in case the registration cases:
owner of the land applied for registration a. when there is no controversy or
thereof? opposition
A: The Land Registration Act and PD 1529 apply to b. Value of contested lots do not exceed
registration of land only. It may include the building P20,000.00
as an accessory but the building cannot be 3. Setting of date for initial hearing by the court.
registered independently of the land because of the

103
4. Transmittal of application and date of initial again ask for it if afterwards he loses
hearing together w/ all documents or other possession of the property obtained by
pieces of evidence attached thereto by clerk of virtue of the original writ.
court to National Land Titles and Deeds 10. Issuance of decree by court declaring the
Registration Administration (NALDTRA) decision final & instructing the NALDTRA to
5. Publication of notice of filing of application and issue a decree of confirmation& registration.
date and place of hearing once in O.G & once 11. Entry of decree of registration in NALDTRA .
in newspaper of gen. circulation in the Phils. • Registration in the name of a particular
6. Service of notice by sheriff upon contiguous person vests in him not only the title to the
owners, occupants & those known to have land but also title to improvements
interest in the property. thereon, unless special reservation is
7. Filing of answer or opposition to application by noted with respect to the improvements
any person whether named in the notice or not (Blas v.de la Cruz et al. 37 Phil. 1)
• A private person may not oppose an 12. Sending of copy of decree of registration to
application for registration on the ground corresponding RD.
that the land applied is a property of the 13. Transcription of decree of registration in
government. the registration book &issuance of owner’s
duplicate original certificate of title (OCT) of
General default Order of applicant by RD, upon payment of
Special default prescribed fees.
Issued by the court Issued when some
when no person persons appear and file Q: Who are the persons who may apply for
appears and files oppositions thereto. registration?
opposition to the A:
application within the 1.Those who by themselves or through their
period prescribed on the predecessors-in-interest have been in open,
notice of initial hearing continuous, exclusive, and notorious
Operates against all Only against those (O.C.E.N.)possession & occupation of
persons in general. particular persons who alienable &disposable lands of public domain
did not appear nor under a bona fide claim of ownership since
oppose. June 12,1945 or earlier
2. Those who have acquired ownership of private
8. Hearing of case by court. lands by prescription under provisions of
9. Promulgation of judgment by court. existing laws
3. Those who have acquired ownership of
Q: What is a writ of possession? private lands or abandoned river beds by
A: It is an order issued by the RTC directing the right of accession or accretion
sheriff to place the successful litigant in possession 4. Those who have acquired ownership of land
of the property. by any other manner provided by law
NOTE: (Section 14, PD 1529)
• It may be issued only pursuant to a decree • Where land is owned in common: all co-
of registration in an original land registration owners shall apply jointly.
proceeding “not only against the person • Where land is sold under pacto de retro:
who has been defeated in the case but The vendor a retro may apply provided, should
against anyone adversely occupying the redemption period expire during the pendency of
land or any portion thereof during the registration proceedings and ownership to the
proceedings up to the issuance of the property is consolidated in the vendee a retro, the
decree. (Lucero v. Loot 25 SCRA 687) latter may continue the proceedings.
• Hence, persons who are not parties to • The word “persons” refer to natural persons
registration proceedings who took who are citizens of the Phils. Juridical or artificial
possession of the land after final persons are excluded. Reason: The subject matter
adjudication of the same cannot be of the registration proceeding are alienable and
summarily ousted by a mere motion. disposable lands of public domain.
Regardless of any title or lack of title of said • Private corporations can acquire alienable
person, he cannot be ousted without giving public lands only thru lease not exceeding 1,000
him a day in court in a proper independent hectares. Such lease shall not exceed 25 years and
proceeding. (Bernas v. Nuevo 127 SCRA renewable for not more than 25 years.
399) NOTE:
• Such writ cannot be issued in a petition for GR: An alien cannot acquire private lands.
reconstitution. Reason: Reconstitution XPNS:
does not adjudicate ownership over the 1) when acquisition is thru hereditary
property. A writ of possession is issued to succession. Succession is limited
place the applicant-owner in possession. only to intestate succession (Ramirez
v. Vda de Ramirez 114 SCRA 704)
GR: the right to ask possession does not 2) by an alien who was a former natural
prescribe born citizen of the Phils. provided he
XPN: if a party has once made use of the only acquires 1,000 square meters
benefit of a writ of possession, he cannot
104
(urban land) or 1 hectare (rural land 2. Administrative - may be availed of only in
for residence) case of substantial loss or destruction of land
**As a corporation sole has no nationality, it can titles due to:
acquire by purchase a parcel of private agricultural • fire,
land without violating the constitutional prohibition. • flood, or
(Roman Catholic Apostolic of Davao v. Land • other force majeure
Registration Commission 102 Phil 596) where the number of certificates of title
• Owner of building constructed on land of lost or damaged is at least 10% of the total
another cannot apply. He may prove ownership of number of tites in the custody of RD but in no
the building at the time of hearing so that his title case shall be less than 500.
may be noted on the decree. (Manila Building
Assoc. v. Peñalosa 13 Phil 575) Q: Is mere registration in the entry or day book
• The fact that the land was registered during of the deed of sale without the presentation of
marriage does not prove that it was acquired during the duplicate certificate enough to effect
the marriage. Reason: Registration does not confer conveyance?
title; it merely confirms a title already existing and A: It depends:
which is registrable. In case of voluntary transfer, NO.
• With respect to property subject to reserve Reason: Such is the willful act of the owner. It
troncal, the reserver has the right to apply but the is presumed that he is interested in registering
reservable character of the property will be the instrument.
annotated in the title. In case of involuntary transfer, YES.
Reason: Such registration is contrary to the
Q: What are Muniments of Title? interests of the owner. Mere entry is enough.
A: Instruments or written evidence w/c the • The fact that no transfer certificate of title
applicant holds/possesses to enable him to has as yet been issued by the ROD in the
substantiate &prove title to his estate name of the vendor, cannot detract from the
rights of a purchaser for value and in good
Q: What is the Doctrine of Non-Collateral Attack faith entitled to the protection of law, once the
of Decree or Title? deed of sale has been recorded in the day
A: A decree of registration & registered title book. What remains to be done lies not within
cannot be impugned, enlarged, altered, his power to perform. (Levin v. Bass 91 Phil.
modified, or diminished either in collateral or 420)
direct proceeding, after the lapse of period
prescribed by law - When land subject of a sale is registered
in the name of the purchaser, registration takes
Q: What is the difference between direct attack effect retroactively as of the date the deed was
and collateral attack? noted in the entry book by the ROD. (Fidelity
A: In the former, the issues are raised in a and Surety Co. v. Conegero 41 Phil. 396)
direct proceeding in an action instituted for that
purpose. Q: What is the Cadastral System of Land
The latter is made when, in another Registration?
action to obtain a different relief, an attack on A:
the judgment is made as an incident in said When, in the opinion of the President of
action. Example of a collateral attack: the Phils, public interest so requires that the title
- Torrens title is questioned in the ordinary to any unregistered lands be settled and
civil action for recovery of possession. adjudicated, he may, to this end, direct and
order the Director of Lands to cause to be made
Q: What is the Reconstitution of Certificate of
a cadastral survey of the lands involved and the
Title?
plans and technical description thereof
A: It is the restoration of the instrument w/c is
prepared in due form (Section 35 PD 1529)
supposed to have been lost or destroyed in its
original form &condition.
Purpose: To serve public interest by requiring
that the title to all lands “be settled and
3 elements:
adjudicated.
1) Certificate has been lost or destroyed
2) Petitioner is the registered owner or
Q: What is the Procedure in Cadastral
has an interest therein
Registration?
3) Certificate was in force at the time it
A:
was lost or destroyed.
1. Cadstral survey
2. Filing of petition
Q: What are the two kinds of reconstitution of
3. Publication of Notice of initial hearing
title?
4. Filing of Answer
A:
5. Hearing of case
1. Judicial - the registered owners, assigns, or
6. Decision
any person having an interest in the property
7. Issuance of decree & certificate of title
may file a petition for that purpose with RTC
where property is located. RD is not the
proper party to file the petition.
• Cadastral courts do not have the power to
determine and adjudicate title to a lot already

105
covered by homestead patent to a person other covered &described in the muniments of
than a patentee (Manalo v. Lucban 48 Phil 973) title
• Cadastral court possesses no authority to Q: What are the involuntary dealings affecting
award damages. Registered Lands?
(Abellera v. de Guzman O.G. No. 9 A:
September 1951) 1. Attachments
a. Preliminary attachment
b. Garnishment
PD 1529 CADASTRAL c. Levy on execution
Nature of Voluntary Compulsory 2. Registration of sale of land on execution, or
Registration for taxes, or for any assessment
Applicant Landowner Director of Lands 3. Adverse claim
Lands Usually -Private land; All classes of Requisites for Registrability:
Covered also refers to public lands a) Adverse to registered owner;
agricultural land if b) Arises after original registration;
object of action is
c) Cannot be registered under any other
confirmation of title
Parties Applicant & opponent Landowners (as
provisions of the LRA
claimant of own
lands) Q: What are the Statutory Liens affecting title?
Purpose Confirm title & Gov’t asks court (Not barred although not noted in the title)
register land in to settle & A:
petitioner’s name adjudicate title of 1. Liens, claims or rights arising or existing
land under the laws and the Constitution not
Who Requests Landowner Government required by law to appear of record in the R
Survey of D
Effect of NO adverse claim; if If none of 2. Unpaid real estate taxes levied & assessed
Judgment applicant fails to applicants prove
w/in 2 years immediately preceding the
prove title, his he is entitled to
application may be land, same be acquisition of any right over the land by an
dismissed w/o declared public innocent purchaser fro value w/o prejudice to
prejudice (no res (res judicata) right of the gov’t. to collect taxes payable
judicata) before that period from the delinquent
taxpayer alone
NOTICE OF LIS PENDENS 3. Public highway or private way established or
When Applicable When Inapplicable recognized by law or any gov’t. irrigation
1.Recover possession 1.Attachments canal or lateral thereof
of real estate 4. Any disposition of the property or limitation
2.Quiet title 2.Levy or execution on the use thereof by virtue of laws or
3.Remove clouds upon 3.Proceedings on regulations on agrarian reform (Section 44
title probate of wills PD 1529)
4.For Partition 4.Administration of the
estate of deceased Q: What are the remedies of aggrieved party in
person
Registration Proceedings?
5.Any other proceeding 5.Proceedings for the
of any kind in court recovery of money A: (RRRRAN)
directly affecting title judgments 1. Review of decree of registration
to the land or its use • Grounds:
or occupation or the 1). that a land belonging to a person
building thereon has been registered in the name of
another or that an interest has been
Q: What are the requirements for registrability omitted in the application
of deeds & other voluntary acts of conveyance? 2). Registration has been procured thru
A: (P.I.P.E.) actual fraud
1. Presentation of owner’s duplicate certificate 3). Petitioner is the owner of the said
whenever any duly executed voluntary property or interest therein.
instrument is filed for registration 4). Property has not been transferred to
2. Inclusion of one extra copy of any document an innocent purchaser for value.
of transfer or alienation of real property, to be 5). Action is filed within one year from
furnished city or provincial assessor. the issuance and entry of the decree
3. Payment of prescribed registration fees & of registration
requisite doc stamps 6). Actual fraud must be utilized in the
4. Evidence of full payment of real estate tax as procurement of the decree and not
may be due. thereafter.
• Actual fraud means “intentional omission
NOTE: GR: Boundaries prevail over area. of a fact required by law to be stated in the
XPNS: application or willful statement of a claim against
1. Boundaries relied upon don’t identify land the truth” What is contemplated by law is extrinsic
beyond doubt; fraud.
2. Boundaries given in the registration plan do • Extrinsic or collateral fraud v. intrinsic
not coincide w/ outer boundaries of the land fraud:
106
- The former connotes any fraudulent 6. New trial
scheme executed by the prevailing
party outside the trial of the case Assurance Fund (AF)
against the defeated party. - “there shall be paid to the RD ¼ of 1% of the
- The latter covers fraudulent acts of assessed value of the real estate on the basis
a party in litigation during the trial. of the last assessment for taxation purposes, as
• Petition for review shall not lie if property contribution to the assurance fund” .
has been transferred to innocent purchaser for
value. Q: What are the requisites for entitlement to
• An innocent purchaser for value includes a compensation from AF?
lessee, mortgagee, or other encumbrances for A:
value. 1. Claimant (owner), purchaser or encumbrancer in
GF, suffered actual damage by loss of the land or
• If the land in question was not brought
interest therein
under the operation of Torrens system because the
2. No negligence is attributable to him.
original certificate of title is null and void ab initio,
3. Loss or damage suffered was not occasioned by
concept of innocent purchaser for value does not
a breach of trust or any mistake in the resurvey or
apply.
subdivision of registered land.
4. Claimant is, by provisions of the LRA barred or in
• Doctrine that a forged instrument may any way precluded from bringing an action to
become the root of a valid title: where the forger recover the land or interest therein, or from
thru insidious means obtains the owner’s duplicate obtaining compensation from the person
certificate of title, converts it in his name, and responsible
subsequently sells or otherwise encumbers it to an 5. Action to recover from AF has not prescribed
innocent purchaser for value. 6. Loss or damage was due to any of the following
causes:
2. Relief from judgment a. Omission, mistake, misfeasance of the clerk of
• Applies if the petition is filed within the court or R of D
prescribed period and decree of registration has not b. Registration of another as owner of such land
yet been issued. c. Mistake, omission, misdescription in a certificate
• Even if an order for the issuance of decree or owner’s duplicate, or in any entry or
has been issued but no decree was actually issued, memorandum in the register or other official book
remedy is still available. d. by any cancellation
• A party who has filed a timely motion for
new trial cannot file a petition for relief after his CONFLICT OF LAWS
motion has been denied. (Francisco v. Puno 108 PRIVATE INTERNATIONAL LAW
SCRA 427)
Definition Part of municipal law of state w/c directs
3. Reconveyance its courts and administrative agencies,
when confronted w/ a legal problem
• The complaint for cancellation of owner’s involving foreign element, whether or not
Torrens title must be filed in the original land they should apply foreign law/s or not
registration case. Functions 1. Determination of which country has
• It cannot be filed when property has been jurisdiction
transferred to an innocent purchaser for value. 2. Applicability of a particular place of
either the local or foreign law
• If ground relied upon is fraud, action may 3. Determination of the force, validity
be filed within 4 years from discovery thereof. &effectiveness of a foreign judgment
Discovery is deemed to have taken place when said
instrument was registered. Reason: Registration Q: How is Private distinguished from Public
constitutes constructive notice to the whole world. International Law?
4. Recovery of Damages A:
• Filed in an ordinary action for damages if 1. Monist school – both subjects are
the property has passed unto the hands of an essentially the same, because they
innocent purchaser for value manifest a single concept of law, ultimately
5. Appeal addressed to the same individual.
• Only those who participated in the 2. Dualist School
proceedings can interpose an appeal
• Only applicant and oppositor are parties in Public
Private
land registration proceedings. Motion to intervene is International
International Law
improper. Remedy in lieu of motion to intervene: Law
Ask for the lifting of an order of general default. If Municipal in International in
Nature
lifted, to file an apposition. Reason: Land character character
registration proceedings are in rem and not in Sovereign
personam. states and
• Execution pending appeal is not applicable Persons other entities
Private individuals
to land registration proceedings. Reason: to protect Involved possessed of
innocent purchasers. Judgment may be reversed international
on appeal. personality
Transac- Private transactions Transactions w/
tions b/w private generally affect

107
public interest; When application of the foreign law,
or of interest judgment or contract:
Involved individuals only to g) May work undeniable injustice to the
sovereign citizens/residents of the forum
states h) May work against vital interests&
Remedies may national security of the state of the forum
Remedies/ Resort to municipal
be peaceful or
Sanctions tribunals
forcible Q: What are the theories on why the Foreign Law
may be given effect?
Q: What are the sources of Private International A:
Law? 1. Theory of Comity – recognition w/c a
A: nation allows w/in its territory, to the legislative,
1. Indirect sources executive, or judicial acts of another nation,
a) Natural moral law having due regard to both international duty &
b) Works of writers convenience and to the rights of its citizens, of
2. Direct sources other persons under its protection
a) Constitutions
b) Codifications Kinds of Comity:
c) Special laws a. Comity based on reciprocity
d) Treaties and conventions b. Comity based on the persuasiveness of
e) Judicial decisions the foreign judgment
f) International customs (like lex situs and
lex loci celebrationis). 2. Theory of Vested Rights – to enforce not
the foreign law or foreign judgment itself but the
Q: What are the alternatives given to the court? simply the vested rights that have been vested
A: Whenever a conflicts problem presents itself under such foreign law or judgment.
before a tribunal of the forum, the court is primarily 3. Theory of Local Law – to apply foreign
confronted with the question of jurisdiction. law, not because it is foreign, but because our
own rules by applying similar rules require us to
When a court is without jurisdiction, it has no do so, hence it is as if the foreign law has
alternative except to dismiss the case. Any become part & parcel of our own local law.
judgment rendered without or in excess of 4. Theory of Harmony of Law – to apply the
jurisdiction is clearly null and void. foreign law so that wherever a case is decided,
that is, irrespective of the forum, the solution
On the other hand, when a tribunal possess should be approximately the same, as such,
jurisdiction, it may: identical or similar problems must have identical
1. Refuse to assume jurisdiction on the ground of or similar solutions somewhere.
“forum non conveniens” or 5. Theory of Justice - purpose of all laws is
2. Assume jurisdiction, in which case it may either: the dispensation of justice, if this can be
a) Apply the internal law of the forum (lex fori); attained by applying the proper foreign law,
or then we must do so.
b) Apply the proper foreign law (lex causae).
Q: What are Conflict Rules?
Q: What is Forum Non Conveniens? A: provisions found in a country’s own law which
A: The refusal to assume jurisdiction because it govern factual situations possessed of foreign
would prove inconvenient for the forum. element.
Q: When can Internal or Domestic law be applied? Kinds:

A: (E.N.E.) a. One-sided rule- indicates when
1. Law of forum expressly so provides in its Philippine internal law will apply (e.g. Art. 15
conflicts rule C.C.).
2. Proper foreign law has not been properly b. All-sided rule-indicates when foreign
pleaded and proved law is to be applied (e.g. Art. 16).
3. Case involves any of the exceptions to the
application of proper foreign law. Q: What are the Theories on Personal Law or the
**When the foreign law, judgment or Law that should govern Status and Capacity in
contract is: ( C.C.P.P.-F.R.I.N) General?
a) Contrary to sound and established 1. Nationality theory – by virtue of which the
policy of the forum status and capacity of an individual are
b) Contrary to almost universally conceded generally governed by the law of his nationality.
principles of morality (contra bonos mores) (Personal theory).
c) Involves procedural matters 2. Domiciliary theory –states the law of the
d) Involves penal laws, contracts, domicile as the proper determinative law on
judgments status and capacity. (Territorial theory).
e) Purely fiscal or administrative matters 3. Situs theory –views the particular place or
f) Involves real or personal property situs of an event or transaction as generally the
situated in the forum controlling law. (Eclectic theory).

108
Note: In this jurisdiction, we adhere to the service or process over persons or corporations
Nationality theory (Art 15; 2nd par., Art 16; also Art. which are non-residents of the state and which
1039 C.C.). voluntarily go into the state directly or by agent or
communicate with persons in the state for limited
Q: What is domicile? purposes, in actions which concern claims relating
A: It is the place with which a person has a settled to performance or execution or those purposes;
connection for certain legal purposes, either Long-arm statute refers simply to authorized
because his home is there or because that is the substituted service.
place assigned to him by law.
f. Where the factual antecedents satisfactory
Q: What are the basic principles of domicile? establish the existence of a foreign element, the
A: problem could present a conflicts case. A factual
1. No natural person can ever be without a situation that cuts across territorial lines and is
domicile. affected by the diverse laws of two or more states is
2. That a person can have but one domicile at said to contain a “foreign element.”
a time.
3. Every natural person, free and sui juris, DOMICILE OF ORIGIN and
may establish and change his domicile. CONSTRUCTIVE DOMICILE
4. A domicile once acquired is retained until a DOMICILE OF ORIGIN CONSTRUCTIVE
new one is gained. DOMICILE
5. The presumption is in favor of continuance Acquired at birth 1.Given after birth
of an existing domicile. Applies only to infants Refers to all those who
lack capacity to choose
Q: What are the four essential requisites needed in their domicile: infants,
order to acquire a domicile of choice? idiots and the insane.
Never changes May change from time to
A: (C.A.F.I)
time.
1. Capacity
2. Actual physical presence in the place
Q: What are the legal classifications of Domicile?
chosen
A:
3. Freedom of choice
1. Domicile of origin – the domicile of a
4. Provable intent that it should be one’s fixed
person’s parents at the time of birth.
and permanent place of abode – one’s home –
2. Constructive domicile – domicile
that is, there should be “animus manendi”
established by law after birth in case of
(intent to remain) or “animus non-revertendi”
persons under legal disability, regardless of
(intent not to return to the original abode).
their intention or voluntary act.
3. Domicile of Choice – is the place voluntarily
Q: Define: cognovit, borrowing statute,
chosen by a person sui juris as his home
characterization, Doctrine of forum non-
and to which, whenever he is absent, he
Conveniens, long-arm statute, conflicts case
has the intention to return.
a. Cognovit- confession of judgment whereby a
portion of the complaint is confessed by the
Q: What is the meaning of “Renvoi”?
defendant who denies the rest thereof
A: a French word that means “a referring back”. It
is a term used in Conflicts of Laws to denote the
b. Borrowing statute-laws of the state on jurisdiction
phenomenon where the conflicts rule of the forum
used by another state in deciding conflicts question
makes a reference to a foreign law, but the foreign
involved in the choice of law. It directs the state of
law is found to contain a conflict rule that returns or
the forum to apply the foreign statute of limitations
refers back the matter to the law of the forum.
to the pending claims based on the foreign law and
has the practical effect of treating the foreign
Q: What are the solutions to the problem of
statute of limitations as one of substance. It bars
Renvoi?
the filing of a suit in the forum if it is already barred
A:
by the statute of limitations in the place wher the
1. Reject the renvoi (Here we do not want
cause of action arose. Thus, when the country has
the referring back to us – so we apply the
a borrowing statute, the characterization of a statute
foreign internal law.
into a procedural or substantive law becomes
2. Accept the renvoi (Here we welcome the
irrelevant.
reference back to us – so we apply our internal
law).
c.Characterization- otherwise called classification or
3. Follow the Theory of Desistment (also
qualification. It is the process of assigning a
referred to as Mutual Disclaimer of Jurisdiction
disputed question to its correct legal category.
Theory - hence we follow our own internal law).
4. Make use of the Foreign Court Theory
d.Forum non-conveniens-principle in private
( this means that the Philippine court will put
international law that where the ends of justice
itself in the position of the foreign court – and
strongly indicate that the controversy may be more
whatever the foreign court will do respecting the
suitably tried elsewhere, then jurisdiction should be
case, the Philippine court will do likewise.
declined and the parties relegated to relief to be
sought in another forum.
Q: What is double renvoi?
A: It is what occurs when the local court, in
e. Long arm-statute is a legislative act which
adopting the foreign court theory, discovers that the
provides for personal jurisdiction, via substituted

109
foreign court accepts the renvoi (hence ultimately, it
is the foreign internal law that will be used.
Q: What is transmission?
A: It is the process of applying the law of a foreign
state through the law of a second foreign state
Q: What are the differences between RENVOI

(single or double) and TRANSMISSION?
RENVOI TRANSMISSION
1. Deals with 2 countries 1. Deals with 3 or more
countries
2. Deals with “referring 2. Deals with a “referring
back” across” or a
“transmitting”
Q: What are the PHILIPPINE CONFLICT RULES

FOUND IN THE CIVIL CODE?
Article Defining Points
14 Territoriality Principle
15 Nationality Principle
16 Lex Rei Sitae
17 Lex Loci Celebrationis
21,FC When either or both of the parties to a
marriage are aliens, it is necessary, before
securing marriage license, to provide
themselves w/ certificate of legal capacity to
contract marriage.
26,FC All marriages solemnized outside
Philippines in accord w/ the law in force in
the country where they are solemnized, and
valid there as such, shall also be valid here
EXCEPT those prohibited under Arts 35 (1),
(4), (5), (6), 36,37, 38 of FC.
80,FC In absence of contrary stipulation in a
marriage settlement, property relations of
spouses shall be governed by Philippine
laws regardless of the place of the
celebration of marriage& their residence
815 The will of a Filipino in a foreign country,
provided he is authorized to make a will in
any of the forms established in the country
where he is, may be probated in the
Philippines
816 Will of an alien produces effect in the
Philippines if made w/ formalities prescribed
by law of the place where he resides, or of
his own country, or of the Civil Code of the
Philippines
817 If an alien makes a will in the Philippines in
accord w/ formalities prescribed by the laws
of his country, his will shall have same
effect as if executed according to Philippine
laws
819 Joint wills executed by Filipinos in a foreign
country will not be valid
829 Revocation of will done outside Philippines
by person who does not have his domicile
here is valid when done according to the
law of the place where testator had his
domicile at the time
1039 Capacity to succeed is governed by
decedent’s national law
1753 Law of the country to w/c goods are to be
transported shall govern the liability of the
common carrier for their loss, destruction or
deterioration


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CIVIL LAW NOTES ADVISER:

PUBLICATION Q: Is ignorance of a foreign law a mistake of law or

Waiver of Rights *Courts are required to follow the rule established

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Applicability of Laws 4. Laws on forms and solemnities of contracts,

XPN: Treaty stipulations, Public International Law

Inherent Through the fulfillment of specific legal

LOSS Only through death Through death and other causes

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Q: Elated that her sister who had been married for

- Absent such proof: I. MARRIAGE

2. Consent freely given in the presence of Marriage License

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Q: What are the distinctions between void and voidable marriages?

CHILDREN XPNS: Those conceived or born of marriages Legitimate

VOID MARRIAGES XPT: Marriages of Exceptional Character

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1. Grave enough to bring about the disability of

2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE

VOIDABLE MARRIAGES (Art. 45)

GROUNDS PERSONS WHO MAY SUE PRESCRIPTIVE PERIOD RATIFICATION

Impotence (Continuous and

Serious and Incurable

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Q: What are the EFFECTS of FILING of petition for

EFFECTS of TERMINATION of MARR IAGE

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in default of children, the innocent spouse

XPT: a) if donee contracted the S-M in Bad Faith,

d. Placing the W/C in Fear of Imminent Physical

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Q: May a marriage settlement be modified? DONATIONS PROPTER NUPTIAS

Art 66: Effects of Reconciliation (Legal Separation)

2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE

Prescriptive Period for Filing an Action for

3. Property acquired before the marriage by one

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SYSTEM OF ABSOLUTE COMMUNITY Q: In case of Disagreement, whose decision shall

University of Santo Tomas

University of Santo Tomas

Q: Distinguish ACP and CPG.

Q: Distinguish Art. 147 and 148.

Presence of legal impediment-

Owned in equal shares Separately owned by the parties

Owned in common in proportion to their respective

When only one is in GF, share of

Proof of actual Not necessary Necessary

2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE

THE FAMILY Q: What does Family Relations Include?

Guidelines: Q: When is the aforementioned rule

PATERNITY AND FILIATION

Kinds General Rule Exceptions

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Q: What rules govern when a child’s legitimacy is

University of Santo Tomas

Domestic Adoption Act of 1998 Inter-country Adoption Act of 1995

3. Guardian - w/ respect to his ward after termination of

Domestic Adoption Act of 1998 Inter-country Adoption Act of 1995

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2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE

Q: Is property synonymous with thing? Q: Where buildings are sold to be demolished

Q: What are the categories of immovable property?