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TABLE OF CONTENT

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TABLE OF CONTENT

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TABLE OF CONTENT

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TABLE OF CONTENT

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UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

FAMILY DOMICILE ...................................... 33


PERSONS AND FAMILY SUPPORT ................................................... 33
RELATIONS MANAGEMENT OF HOUSEHOLD .............. 34
EFFECT OF NEGLECT OF DUTY ................. 34
Effect and Application of Laws........... 1 EXERCISE OF PROFESSION....................... 34
WHEN LAWS TAKE EFFECT .......................... 1
IGNORANCE OF THE LAW ........................... 1 Property Relations of the Spouses .. 34
RETROACTIVITY OF LAWS .......................... 1 MARRIAGE SETTLEMENT RULES ............. 34
MANDATORY OR PROHIBITORY LAWS ....... 1 DONATIONS BY REASON OF MARRIAGE...35
WAIVER OF RIGHTS ..................................... 1 ABSOLUTE COMMUNITY OF PROPERTY &
REPEAL OF LAWS ........................................2 CONJUGAL PARTNERSHIP OF GAINS ........ 37
JUDICIAL DECISIONS ...................................2 SEPARATION OF PROPERTY OF THE
DUTY TO RENDER JUDGMENT ....................2 SPOUSES AND ADMINISTRATION OF
PRESUMPTION AND APPLICABILITY OF COMMON PROPERTY BY ONE....................47
CUSTOM ......................................................2 PROPERTY REGIME OF UNIONS WITHOUT
LEGAL PERIODS ..........................................2 MARRIAGE ................................................ 49
APPLICABILITY OF PENAL LAWS ................2
SPECIAL CONFLICT OF LAW RULES ............ 6
The Family ....................................... 50
THE FAMILY AS AN INSTITUTION ............. 50
Human Relations ............................. 10 THE FAMILY HOME.................................... 50
ABUSE OF RIGHT........................................ 10
ACTS CONTRARY TO LAW ......................... 10
ACTS CONTRA BONUS MORES .................. 10
Paternity and Filiation...................... 52
PRINCIPLE OF UNJUST ENRICHMENT ....... 10 LEGITIMATE CHILDREN ............................ 52
PROOF OF FILIATION ................................ 54
ILLEGITIMATE CHILDREN ......................... 54
Persons and Personality .................. 10 LEGITIMATED CHILDREN .......................... 56
CAPACITY TO ACT ...................................... 10
DOMICILE AND RESIDENCE OF PERSON ... 14
Adoption ...........................................56
RA 8552 DOMESTIC ADOPTION LAW ..... 57
Marriage .............................................15 RA 8043 THE LAW ON INTER-COUNTRY
REQUISITES................................................ 15 ADOPTION.................................................. 61
EFFECT OF MARRIAGE CELEBRATED
ABROAD AND FOREIGN DIVORCE ............. 18 Support ............................................ 63
VOID AND VOIDABLE MARRIAGES ............ 19 WHAT IT COMPRISES .................................63
WHO ARE OBLIGED ....................................63
Legal Separation .............................. 29 SUPPORT DURING MARRIAGE LITIGATION
GROUNDS ................................................. 29 ................................................................... 64
DEFENSES ................................................. 30 AMOUNT ................................................... 64
WHEN TO FILE ........................................... 30 WHEN DEMANDABLE ............................... 64
COOLING-OFF PERIOD AND OPTIONS ................................................... 64
RECONCILIATION EFFORTS ...................... 30 ATTACHMENT ........................................... 64
CONFESSION OF JUDGMENT ..................... 31
EFFECTS OF FILING PETITION ................... 31 Parental Authority ...........................65
EFFECTS OF PENDENCY ............................. 31 GENERAL PROVISIONS ............................. 65
EFFECTS OF LEGAL SEPARATION ............. 31 SUBSTITUTE AND SPECIAL PARENTAL
RECONCILIATION ....................................... 31 AUTHORITY ............................................... 66
EFFECT OF PARENTAL AUTHORITY UPON
Rights and Obligations Between THE PERSONS OF THE CHILDREN ............. 67
Spouses ............................................. 33 EFFECTS OF PARENTAL AUTHORITY UPON
ESSENTIAL OBLIGATIONS ......................... 33 THE PROPERTY OF THE CHILDREN .......... 68

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SUSPENSION OR TERMINATION OF
PARENTAL AUTHORITY ............................ 69 PROPERTY
Emancipation, as amended by Characteristics .................................. 83
RA6809.............................................. 71 Classification .................................... 83
HIDDEN TREASURE .............................. 83
BASED ON MOBILITY [IMMOVABLE OR
Summary Judicial Proceedings in the MOVABLE] .......................................... 83
Family Law ......................................... 71 BASED ON OWNERSHIP ........................ 87
PROCEDURAL RULES ................................ 71 BASED ON CONSUMABILITY ................. 89
SEPARATION IN FACT ................................ 61 BASED ON SUSCEPTIBILITY TO
INCIDENTS INVOLVING PARENTAL SUBSTITUTION ..................................... 89
AUTHORITY ................................................ 72 BASED ON THE CONSTITUTION ............. 89
OTHER CLASSIFICATIONS...................... 89
Retroactive Effect ............................. 73
Ownership ........................................ 90
Funeral .............................................. 73 DEFINITION AND CONCEPT ...................... 90
RELATIVES DUTY AND THE RIGHT TO TYPES OF OWNERSHIP ............................. 90
ARRANGE FUNERALS .................................. 73 RIGHT IN GENERAL ................................... 90
NATURE OF FUNERAL ................................... 73 LIMITATIONS ON OWNERSHIP ................. 92
FUNERAL EXPENSES .................................... 73
GUIDELINES IN MAKING FUNERAL
ARRANGEMENTS ......................................... 73
Accession ..........................................94
CLASSIFICATION OF ACCESSION .............. 94

Use of Surnames .............................. 74 Quieting of Title .............................. 101


SURNAMES OF CHILDREN .............................74
IN GENERAL .............................................101
WIFE AFTER AND DURING MARRIAGE ...........74
PURPOSE ..................................................101
CONFUSION AND CHANGE OF NAMES ...........74
NATURE: QUASI IN REM .......................... 102
JUSTIFICATIONS FOR QUIETING OF TITLE
Absence............................................. 74 .................................................................. 102
PROVISIONAL MEASURES IN CASE OF THE ACTION TO QUIET TITLE DOES NOT
ABSENCE ....................................................75 APPLY ....................................................... 102
SUBSEQUENT MARRIAGE CONTRACTED REQUIREMENTS ....................................... 102
WHEN ONE SPOUSE IS ABSENT ................75 QUIETING OF TITLE V. REMOVAL OF CLOUD
DECLARATION OF ABSENCE......................75 .................................................................. 103
ADMINISTRATION OF THE PROPERTY OF PRESCRIPTION/NON-PRESCRIPTION OF
THE ABSENTEE .......................................... 77 ACTION ..................................................... 103
PRESUMPTION OF DEATH ......................... 77
Co-ownership ................................. 103
Civil Registrar ................................... 78 DEFINITION .............................................. 103
ART. 407-413 ..............................................78 REQUISITES.............................................. 103
RA 9048 AS AMENDED BY RA 10172..........78 WHAT GOVERNS CO-OWNERSHIP .......... 103
RULE 108, RULES OF COURT .................... 80 CHARACTERISTICS OF CO-OWNERSHIP . 103
SOURCES OF CO-OWNERSHIP .............. 104
RIGHTS OF CO-OWNERS....................... 105
RULES ...................................................... 106
TERMINATION/ EXTINGUISHMENT.......... 107

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Possession ...................................... 108 NO PRESCRIPTION APPLICABLE ............. 157


DEFINITION ............................................. 108 PRESCRIPTION DISTINGUISHED FROM
CONCEPT OF POSSESSION ...................... 108 LACHES .................................................... 158
CHARACTERISTICS ................................... 108 PRESCRIPTION OR LIMITATION OF
ACQUISITION OF POSSESSION ..................110 ACTIONS................................................... 158
EFFECTS OF POSSESSION......................... 112
LOSS/TERMINATION OF POSSESSION .....118
OBLIGATIONS AND
Usufruct ........................................... 119 CONTRACTS
CONCEPT .................................................. 119
OBJECTS OF USUFRUCT ........................... 119
CHARACTERISTICS .................................... 119 Obligations ...................................... 161
CLASSIFICATION ....................................... 119 IN GENERAL .............................................. 161
RIGHTS AND OBLIGATIONS OF NATURE AND EFFECT OF OBLIGATIONS . 162
USUFRUCTUARY ....................................... 121 DIFFERENT KINDS OF CIVIL OBLIGATIONS
SPECIAL CASES OF USUFRUCT................ 125 .................................................................. 169
RIGHTS OF THE OWNER ....................... 127 NATURAL OBLIGATIONS .......................... 181
EXTINGUISHMENT/ TERMINATION ....... 127 EXTINGUISHMENT OF OBLIGATIONS ...... 182
CONDITIONS NOT AFFECTING USUFRUCT ESTOPPEL ................................................. 191
.................................................................. 129
Contracts.......................................... 191
Easement ........................................ 129 ESSENTIAL REQUISITES ........................... 191
CHARACTERISTICS .............................. 129 FORM OF CONTRACTS ............................. 196
KINDS OF CONTRACTS ............................ 196
CLASSIFICATION.................................. 130
REFORMATION OF INSTRUMENTS ......... 197
GENERAL RULES....................................... 131
RESCISSIBLE CONTRACTS ....................... 197
RELEVANCE OF CLASSIFICATIONS ............ 131
VOIDABLE CONTRACTS ........................... 199
CREATION ................................................ 132
UNENFORCEABLE CONTRACTS............... 199
RIGHTS AND OBLIGATIONS OF OWNERS OF
VOID OR INEXISTENT CONTRACTS ........ 200
DOMINANT AND SERVIENT ESTATES ...... 133
EFFECT OF CONTRACTS.......................... 204
KINDS OF LEGAL EASEMENTS ................. 134
MODES OF ACQUIRING EASEMENT......... 140
EXTINGUISHMENT OF EASEMENTS ........ 140 Quasi-Contracts ............................ 204
NEGOSTIORUM GESTIO .......................... 204
Nuisance ............................................. 71 SOLUTIO INDEBITI ............................ 205
NUISANCE V. TRESPASS .............................. 141 OTHER QUASI-CONTRACTS ................. 205
NUISANCE V. NEGLIGENCE .......................... 142
CLASSES .................................................... 142
DOCTRINE OF ATTRACTIVE NUISANCE ........ 142
LIABILITY IN CASE OF NUISANCE ................. 142 SALES
REGULATION OF NUISANCES ...................... 143
Definition and Essential Requisites
Modes of Acquiring Ownership .... 144 ........................................................ 208
OCCUPATION ........................................... 145 DEFINITION OF SALES ........................... 208
DONATION .......................................... 145 ESSENTIAL REQUISITES OF A CONTRACT
TRADITION ............................................... 156 OF SALE ................................................... 208
STAGES OF CONTRACT OF SALE ............ 208
Prescription ..................................... 156 OBLIGATIONS CREATED ......................... 209
DEFINITION .............................................. 156
RATIONALE .............................................. 156 Parties to a Contract of Sale........... 211
KINDS OF PRESCRIPTION ........................ 156 CAPACITY OF PARTIES .............................. 211

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UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

Subject Matter .................................213 Remedies of an Unpaid Seller...... 230


REQUISITES OF A VALID SUBJECT MATTER DEFINITION OF UNPAID SELLER ............ 230
.................................................................. 213 REMEDIES OF UNPAID SELLER .............. 230

Obligations of the Seller to Transfer Performance of Contract ............... 232


Ownership ....................................... 215 DELIVERY OF THING SOLD....................... 232
OBLIGATIONS OF THE VENDOR IN PAYMENT OF PRICE ................................. 233
GENERAL.................................................. 215
SALE BY A PERSON NOT THE OWNER AT Warranties.......................................234
TIME OF DELIVERY ................................... 215 EXPRESS WARRANTIES ...........................234
SALE BY A PERSON HAVING A VOIDABLE IMPLIED WARRANTIES ............................235
TITLE ........................................................ 215 EFFECTS OF WARRANTIES ...................... 237
EFFECTS OF WAIVERS ............................. 237
Price................................................. 216 BUYERS OPTIONS IN CASE OF BREACH OF
MEANING OF PRICE ................................. 216 WARRANTY ............................................. 237
REQUISITES FOR A VALID PRICE ............. 216
Breach of Contract .........................239
Formation of Contract of Sale ........ 218 GENERAL REMEDIES ...............................239
PREPARATORY ........................................ 218 REMEDIES OF THE SELLER [ARTS. 1636,
PERFECTION ........................................... 220 1594] ........................................................239
CONSUMMATION ..................................... 221 REMEDIES OF THE BUYER .......................243

Transfer of Ownership ....................222 Extinguishment of Sale................. 245


OBLIGATIONS OF THE VENDOR: .............222 CAUSES ................................................... 245
MANNER OF TRANSFER ..........................222 EQUITABLE MORTGAGE ......................... 246
PERIOD OF REDEMPTION ........................247
EXERCISE OF THE RIGHT TO REDEEM .... 248
Risk of Loss ....................................... 27 LEGAL REDEMPTION ............................... 248
GENERAL RULE ........................................ 227 AGE REDEMPTION ................................... 251
WHEN LOSS OCCURRED BEFORE
PERFECTION ............................................ 227
WHEN LOSS OCCURRED AT TIME OF The Law on Sale of Subdivision and
PERFECTION ........................................... 227 Condominium (PD 957) ................ 251
WHEN LOSS OCCURRED AFTER DEFINITIONS ............................................ 251
PERFECTION BUT BEFORE DELIVERY ..... 227
AFTER DELIVERY ..................................... 227 The Condominium Act (RA 4726) 255
WHEN OWNERSHIP IS TRANSFERRED.... 227

Documents of Title ........................ 228


DEFINITION ............................................. 228 SUCCESSION
PURPOSE OF DOCUMENTS OF TITLE ..... 228
NEGOTIABLE DOCUMENTS OF TITLE ..... 228 General Provisions......................... 260
NON-NEGOTIABLE DOCUMENTS OF TITLE DEFINITION ............................................. 260
................................................................. 228
WARRANTIES OF SELLER OF DOCUMENTS
OF TITLE .................................................. 229 Testamentary Succession .............. 261
RULES ON LEVY/GARNISHMENT OF GOODS WILLS ....................................................... 261
................................................................. 229 INSTITUTION OF HEIRS ........................... 269
SUBSTITUTION OF HEIRS ........................ 271

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UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

TESTAMENTARY DISPOSITIONS WITH A RIGHT TO RETURN OF CREDIT RECEIVED


CONDITION, A TERM, AND A MODE ......................................................... 304
LEGITIME .................................................. 272 RIGHT TO INDEMNITY FOR DAMAGES .. 304
DISINHERITANCE ..................................... 277 SUIT FOR DAMAGES ........................... 304
LEGACIES AND DEVISES ......................... 280 RESPONSIBILITY TO PARTNERS........... 304
Legal or Intestate Succession........283
GENERAL PROVISIONS ............................283 Rights and Obligations of Partners
ORDER OF INTESTATE SUCCESSION .......287 Inter Se ........................................... 304
OUTLINE OF INTESTATE SHARES ........... 288 RIGHT TO ASSOCIATE ANOTHER IN SHARE
......................................................... 304
Provisions Common to Testate and RIGHT TO INSPECT PARTNERSHIP BOOKS
Intestate Succession ..................... 289 ......................................................... 304
RIGHT OF ACCRETION ............................ 289 RIGHT TO FORMAL ACCOUNT .............. 305
CAPACITY TO SUCCEED BY WILL OR PROPERTY RIGHTS OF PARTNERS ....... 305
INTESTACY .............................................. 290
OWNERSHIP OF CERTAIN PROPERTIES 305
ACCEPTANCE AND REPUDIATION OF THE
INHERITANCE .......................................... 291 RIGHTS IN SPECIFIC PROPERTY ........... 305
COLLATION ............................................. 292 INTEREST IN PARTNERSHIP ................ 306
PARTITION AND DISTRIBUTION OF ESTATE . RIGHT TO PARTICIPATE IN MANAGEMENT
................................................................. 294 ......................................................... 306
RIGHT TO PROFITS AND OBLIGATIONS FOR
LOSSES .............................................. 307
OBLIGATION TO RENDER INFORMATION
......................................................... 308
AGENCY AND OBLIGATION TO ACCOUNT AND ACT AS
PARTNERSHIP TRUSTEE ........................................... 308

AGENCY ......................................... 298 Obligations of the


Partnership/Partners to Third
Contract of Partnership ................ 298 Persons........................................... 308
DEFINITION........................................ 298 OBLIGATION TO OPERATE UNDER A FIRM
ESSENTIAL FEATURES ........................ 298 NAME ................................................ 308
PARTIES ............................................ 298 LIABILITY OF PARTNERS FOR
OBJECT .............................................. 298 PARTNERSHIP CONTRACTS ................. 308
FORM ................................................ 299 LIABILITY OF PARTNERS FOR
DURATION ......................................... 299 PARTNERSHIP CONTRACTS ................. 309
RULES TO DETERMINE EXISTENCE ....... 299 CONVEYANCE OF PARTNERSHIP REAL
KINDS................................................ 300 PROPERTY .......................................... 310
KINDS OF PARTNERS .......................... 300 LIABILITY OF PARTNERSHIP FOR
PARTNERSHIP AND OTHER CONTRACTS ADMISSION BY A PARTNER .................. 310
DISTINGUISHED .................................. 301 LIABILITY OF PARTNERSHIP FOR
WRONGFUL ACTS OF A PARTNER ......... 310
LIABILITY OF THE PARTNERSHIP FOR
Rights and Obligations of the MISAPPLICATION OF MONEY OR PROPERTY
Partnership .....................................303 .......................................................... 310
RIGHT TO CONTRIBUTION ................... 303 LIABILITY OF THE OTHER PARTNERS
RIGHT TO APPLY PAYMENT RECEIVED TO UNDER ART. 1822 AND 1823 .................. 311
PARTNERSHIP CREDIT ........................ 303 LIABILITY IN CASE OF PARTNERSHIP BY
ESTOPPEL ............................................ 311

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LIABILITY OF AN INCOMING PARTNER .. 312 Kinds of Agency ..............................329


NOTICE TO OR KNOWLEDGE OF THE IN GENERAL ....................................... 329
PARTNERSHIP..................................... 312 AS TO MANNER OF CREATION ............. 329
AS TO EXTENT OF BUSINESS COVERED 329
Dissolution and Winding Up...........312 AS TO AUTHORITY CONFERRED ........... 329
CONCEPTS .......................................... 312 SPECIAL KINDS .................................. 329
CAUSES OF DISSOLUTION .................... 312 KINDS OF AGENTS ............................... 333
EFFECTS OF DISSOLUTION ................... 314
WINDING UP PARTNERS ...................... 315 Powers of the Agent ...................... 333
RIGHTS OF PARTNERS IN CASE OF AUTHORITY OF AN AGENT.................... 333
DISSOLUTION...................................... 315 KINDS OF AUTHORITY .......................... 333
RIGHTS OF PARTNERS IN CASE OF SCOPE OF AUTHORITY ........................ 334
RESCISSION ........................................ 316
POWER TO BIND THE PRINCIPAL ......... 334
SETTLING OF ACCOUNTS BETWEEN
EFFECTS OF THE ACTS OF AN AGENT ... 334
PARTNERS .......................................... 316
RIGHTS OF CREDITORS OF DISSOLVED
PARTNERSHIP..................................... 317 Obligations of Agent ...................... 335
RIGHTS OF A RETIRED PARTNER OR A IN GENERAL ........................................335
REPRESENTATIVE OF DECEASED PARTNER OBLIGATION TO CARRY OUT AGENCY ....335
.......................................................... 318 OBLIGATION WHEN AGENT DECLINES ...335
RIGHT TO AN ACCOUNT ....................... 318 OBLIGATION TO ADVANCE NECESSARY
FUNDS................................................335
Limited Partnership ....................... 318 OBLIGATION TO ACT IN ACCORDANCE
WITH INSTRUCTIONS ...........................336
DEFINITION......................................... 318
OBLIGATION TO PREFER INTEREST OF
CHARACTERISTICS .............................. 318
PRINCIPAL ..........................................336
GENERAL AND LIMITED PARTNERS
OBLIGATION FOR THINGS RECEIVED .....336
DISTINGUISHED .................................. 318
RESPONSIBILITY FOR ACTS OF SUBSTITUTE
GENERAL AND LIMITED PARTNERSHIP
DISTINGUISHED .................................. 318
.......................................................... 337
RESPONSIBILITY OF TWO OR MORE
FORMATION....................................... 320
AGENTS .............................................. 337
MANAGEMENT ................................... 320
OBLIGATION FOR SUMS APPLIED TO HIS
OBLIGATIONS OF A LIMITED PARTNER .. 321
OWN USE ............................................ 337
RIGHTS OF A LIMITED PARTNER ...........322
OBLIGATIONS TO THIRD PERSONS....... 338
DISSOLUTION......................................323 OBLIGATIONS OF A COMMISSION AGENT
SETTLEMENT OF ACCOUNTS ............... 324 ......................................................... 339
AMENDMENT OR CANCELLATION OF RESPONSIBILITY FOR FRAUD AND
CERTIFICATE ...................................... 324 NEGLIGENCE ...................................... 340

Contract of Agency .........................325 Obligations of the Principal .......... 340


DEFINITION........................................ 325 IN GENERAL ....................................... 340
CHARACTERISTICS ............................. 325 OBLIGATION TO COMPLY WITH
FORMATION....................................... 325 CONTRACTS ....................................... 340
EFFECT ............................................... 327 OBLIGATION FOR COMPENSATION OF
AGENCY AND OTHER CONTRACTS AGENT ............................................... 340
DISTINGUISHED .................................. 327 LIABILITY FOR EXPENSES AND DAMAGES
......................................................... 340

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Modes of Extinguishment ..............342 FORECLOSURE [NCC 2112, 2115] ............. 361


IN GENERAL ....................................... 342 EFFECT OF THE SALE OF THE THING
REVOCATION BY PRINCIPAL ................ 342 PLEDGED [ART. 2115] .............................. 361
LEGAL PLEDGE / PLEDGE BY OPERATION
WITHDRAWAL BY AGENT .................... 343
OF LAW (ARTS. 2121-2122) ....................... 361
DEATH, CIVIL INTERDICTION, INSANITY OR
PLEDGE AS DISTINGUISHED FROM
INSOLVENCY ...................................... 344 CHATTEL MORTGAGE [ARTS. 2140, 1484]
ACCOMPLISHMENT OF OBJECT OR ..................................................................362
PURPOSE ........................................... 344 PACTUM COMMISSORIUM.......................362
DISSOLUTION OF FIRM OR CORPORATION EQUITABLE MORTGAGE ..........................362
EXPIRATION OF TERM......................... 344
Real Mortgage ................................ 363
MORTGAGE .............................................. 363
JUDICIAL FORECLOSURE ........................ 365
EXTRAJUDICIAL FORECLOSURE [ACT NO.
CREDIT TRANSACTIONS 3135] ........................................................365
REDEMPTION ...........................................366
Credit Transactions .......................346
SECURITY ............................................... 346 Antichresis ...................................... 367
TYPES OF CONTRACTS OF SECURITY .... 346 CHARACTERISTICS .................................. 367
SPECIAL REQUISITES ............................... 367
AS DISTINGUISHED FROM OTHER
Loan.................................................346 CONTRACTS ............................................. 367
COMMODATUM [NCC 1935-1952] .............. 347 OBLIGATIONS OF ANTICHRETIC CREDITOR
INTEREST AND SUSPENSION OF USURY .................................................................. 367
LAW ......................................................... 348 REMEDIES OF CREDITOR IN CASE OF NON-
PAYMENT OF DEBT ................................. 368
Deposit ........................................... 350
VOLUNTARY DEPOSIT ............................ 350 Chattel Mortgage ...........................368
NECESSARY DEPOSIT .............................. 351 CHATTEL MORTGAGE ............................. 368
JUDICIAL DEPOSIT ...................................352 CHARACTERISTICS ................................. 368
OBLIGATIONS SECURED ......................... 368
Guaranty and Suretyship ...............352 PROPERTY COVERED .............................. 368
GUARANTY ...............................................352 VALIDITY OF CHATTEL MORTGAGE ........ 368
SURETYSHIP ............................................352 FORMAL REQUISITES ............................. 368
GUARANTY DISTINGUISHED FROM REGISTRATION OF CHATTEL MORTGAGE
SURETYSHIP [ZOBEL, INC. VS. CA, 1998] 352 ................................................................. 368
NATURE AND EXTENT OF GUARANTY ....353 FORECLOSURE ........................................ 368
NATURE AND EXTENT OF SURETYSHIP 355
EFFECT OF GUARANTY ........................ 356 Quasi-Contracts ............................. 370
EXTINGUISHMENT OF GUARANTY ........ 359 NEGOTIORUM GESTIO (UNAUTHORIZED
MANAGEMENT) .......................................370
Pledge .............................................359 SOLUTIO INDEBITI (UNDUE PAYMENT) .. 371
CHARACTERISTICS ................................. 360 OTHER QUASI-CONTRACTS ..................... 372
KINDS ...................................................... 360
ESSENTIAL REQUISITES ......................... 360 Concurrence and Preference of
PROVISIONS APPLICABLE ONLY TO PLEDGE
................................................................. 360 Credits ............................................. 373
OBLIGATIONS OF PLEDGEE .................... 360 WHEN RULES ON PREFERENCE ARE
RIGHTS OF PLEDGOR............................... 361 APPLICABLE ............................................. 373
REQUISITES FOR PERFECTION [ARTS. CLASSIFICATION OF CREDITS ................. 373
2093, 2096] ............................................. 361

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SPECIAL PREFERRED CREDITS ON SPECIFIC Regalian Doctrine ..........................382


MOVABLE PROPERTY [ART. 2241] .......... 374 CONCEPT ..................................................382
SPECIAL PREFERRED CREDITS ON SPECIFIC EFFECTS ...................................................382
IMMOVABLE PROPERTY AND REAL RIGHTS CONCEPT OF NATIVE TITLE, TIME
[ART. 2242] ............................................. 374 IMMEMORIAL POSSESSION.....................383
ORDINARY PREFERRED CREDITS [ART.
2244] ....................................................... 375
COMMON CREDITS [ART. 2245] ............. 375 Citizenship Requirement ............... 383
INDIVIDUALS............................................383
CORPORATIONS ..................................... 384

LAND TITLES AND DEEDS Original Registration......................384


CONCEPT ................................................. 384
WHO MAY APPLY .................................... 385
Land Title ........................................ 378 WHERE TO FILE ....................................... 385
CONCEPT .................................................. 378 PROCEDURE IN ORDINARY LAND
REGISTRATION ....................................... 386
EVIDENCE NECESSARY ........................... 390
Deed ................................................ 378 REMEDIES ............................................... 390
CONCEPT .................................................. 378 PETITIONS AND MOTIONS AFTER ORIGINAL
ELEMENTS OF A DEED ............................. 378 REGISTRATION ....................................... 390

Estate .............................................. 378 Judicial Confirmation of Imperfect or


CONCEPT .................................................. 378
TYPES OF ESTATE .................................... 378 Incomplete Titles ............................392
CONCEPT ..................................................392
WHEN APPLICABLE..................................392
Land Registration ........................... 378 WHO MAY APPLY .....................................392
CONCEPT .................................................. 378 FILING OF THE APPLICATION .................. 393
NATURE OF LAND REGISTRATION .......... 378 PROCEDURE IN JUDICIAL CONFIRMATION
LAWS IMPLEMENTING LAND .................................................................. 393
REGISTRATION ........................................ 379 EVIDENCE NECESSARY TO SUBSTANTIATE
PURPOSES OF LAND REGISTRATION ...... 379 APPLICATION ........................................... 393
OBJECT OF REGISTRATION...................... 379
CLASSIFICATION OF LANDS .................... 379
Cadastral Registration ...................394
CONCEPT ................................................. 394
Torrens System ............................... 379 PROCEDURE IN CADASTRAL
CONCEPT .................................................. 379 REGISTRATION ...................................... 394
HISTORY .................................................. 380 DISALLOWANCE OF REOPENING
ADVANTAGES ......................................... 380 CADASTRAL CASES................................. 395
NATURE .................................................. 380
PURPOSE ................................................ 380
ADMINISTRATION OF THE TORRENS Subsequent Registration ...............395
SYSTEM ................................................... 380 CONCEPT ................................................. 395
CERTIFICATE OF TITLE ............................ 380 NECESSITY AND EFFECTS OF
EFFECT OF REGISTRATION UNDER THE REGISTRATION TWO TYPES OF DEALINGS
TORRENS SYSTEM ................................... 381 ................................................................. 395
EFFECT OF NON-REGISTRATION .............382 TWO TYPES OF DEALINGS ...................... 395
DEALINGS IN LAND BEFORE ISSUANCE OF
DECREE ....................................................382 Non-Registrable Properties.......... 400
LACHES ....................................................382 CONCEPT ................................................. 400

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CIVIL CODE PROVISIONS DEALING WITH LEGAL CAUSE ........................................... 417


NON-REGISTRABLE PROPERTIES .......... 400 DOCTRINE OF LAST CLEAR CHANCE ....... 418
SPECIFIC KINDS OF NON-REGISTRABLE CONTRIBUTORY NEGLIGENCE................. 419
PROPERTIES OR LANDS ......................... 400
Legal Injury ..................................... 419
Dealings with Unregistered Lands.. 42 CLASSES OF INJURY ................................ 419
EFFECTS OF TRANSACTIONS COVERING
UNREGISTERED LAND ............................ 402
PRIMARY ENTRY BOOK AND
Intentional Torts ............................ 420
CONCEPT ................................................. 420
REGISTRATION BOOK ............................. 402
VIOLATIONS OF A PERSONS SECURITY
PROCESS OF REGISTRATION.................. 402
AND PHYSICAL INJURIES ....................... 420
THIRD PARTY WITH A BETTER RIGHT NOT
MALICIOUS PROSECUTION......................423
PREJUDICED............................................ 402
DEFAMATION, FRAUD AND PHYSICAL
INVOLUNTARY DEALINGS IN
INJURIES ................................................. 424
UNREGISTERED LANDS .......................... 402
UNJUST DISMISSAL ................................ 425
INTERFERENCE WITH RELATIONS ......... 425

Negligence ..................................... 429


TORTS AND DAMAGES TEST OF NEGLIGENCE............................. 429
STANDARD OF CARE .............................. 430
TORTS .......................................... 404 STANDARD OF CARE NEEDED IN SPECIFIC
CIRCUMSTANCES .................................... 430
EVIDENCE .................................................432
Principles ....................................... 404 PRESUMPTION OF NEGLIGENCE .............432
ABUSE OF RIGHT..................................... 404
ACTS CONTRARY TO LAW....................... 405
ACTS CONTRARY TO MORALS ................ 405 Special Liability in Particular Cases
UNJUST ENRICHMENT ............................ 406 ......................................................... 437
PRODUCTS LIABILITY .............................. 437
CONSUMER ACT...................................... 438
Classification of Torts .....................407 NUISANCE ............................................... 440
ACCORDING TO MANNER OF COMMISSION VIOLATION OF CONSTITUTIONAL RIGHTS
................................................................. 407 ................................................................. 442
ACCORDING TO SCOPE ........................... 407

Strict Liability ................................. 446


The Tortfeasor ................................407 POSSESSOR AND USER OF AN ANIMAL. 446
THE DIRECT TORTFEASOR ..................... 407 NUISANCE ............................................... 446
PERSONS MADE LIABLE FOR OTHERS ... 407 PRODUCTS LIABILITY (SUPRA) .............. 447
JOINT TORTFEASORS .............................. 415 CONSUMER ACT...................................... 447

Acts of Omission and Its Modalities DAMAGES ................................... 450


......................................................... 415
Definition........................................ 450
Classification.................................. 450
Proximate Cause ............................ 416 ACCORDING TO PURPOSE ...................... 450
CONCEPT OF PROXIMATE CAUSE ........... 416 ACCORDING TO MANNER OF
DEFINITION .............................................. 416 DETERMINATION .................................... 450
TESTS TO DETERMINE PROXIMATE CAUSE SPECIAL AND ORDINARY ....................... 450
.................................................................. 417
CAUSE vs. CONDITION ............................. 417

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Actual and Compensatory Damages


........................................................ 450
ALLEGED AND PROVED WITH CERTAINTY
.................................................................. 451
COMPONENTS.......................................... 451
EXTENT OR SCOPE OF ACTUAL DAMAGES
................................................................. 453

Moral Damages ............................. 456


WHEN AWARDED .................................... 456
GENERAL PRINCIPLES OF RECOVERY .... 456
WHEN RECOVERABLE............................. 458

Nominal Damages ........................ 460


WHEN AWARDED .................................... 460

Temperate Damages .................... 460

Liquidated Damages...................... 461


RULES GOVERNING BREACH OF CONTRACT
.................................................................. 461

Exemplary or Corrective Damages 461


WHEN RECOVERABLE............................. 462
GENERAL PRINCIPLES ............................ 462
DAMAGES IN CASE OF DEATH CAUSED BY
CRIMES AND QUASI-DELICTS ................. 463

Graduation of Damages ................463


DUTY OF THE INJURED PARTY ............... 463
BURDEN OF PROOF ................................ 464
RULES ..................................................... 464
GROUNDS FOR MITIGATION OF DAMAGES
................................................................. 464

Miscellaneous Rules ..................... 465


DAMAGES THAT CANNOT CO-EXIST ...... 465
DAMAGES THAT MUST CO-EXIST ........... 465
DAMAGES THAT MUST STAND ALONE .. 465

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Effect and Application of RETROACTIVITY OF LAWS


Laws Art. 4, CC. Laws shall have no retroactive effect,
The Civil Code took effect on August 30, 1950. unless the contrary is provided.

WHEN LAWS TAKE EFFECT General rule: All statutes are to be construed as
having only prospective operation
Art. 2, CC. Laws shall take effect after fifteen Exception: When the law itself expressly
days following the completion of their provides
publication either in the Official Gazette, or in a
newspaper of general circulation in the Exceptions to Exception:
Philippines, unless it is otherwise provided. (as (1) Ex post facto law
amended by E.O. 200) (2) Impairment of contract
(3) In case of remedial statutes
General rules: (4) In case of curative statutes
The clause "unless it is otherwise provided" (5) In case of laws interpreting others
refers to the date of effectivity and not to the (6) In case of laws creating new rights [(Bona v.
requirement of publication itself, which Briones (1918)]
cannot in any event be omitted. [Tanada v. (7) Penal laws favorable to the accused
Tuvera (1986)]
Publication is indispensable in every case, but ACTS CONTRARY TO LAW
the legislature may in its discretion provide
that the usual fifteen-day period shall be
Art. 5, CC. Acts executed against the provisions
shortened or extended. [Tanada v. Tuvera
of mandatory or prohibitory laws shall be void,
(1986)]
except when the law itself authorizes their
validity.
Exception: Interpretative regulations and those
internal in nature [Tanada v. Tuvera (1986)]
WAIVER OF RIGHTS
IGNORANCE OF THE LAW
Art. 6, CC. Rights may be waived, unless the
Art. 3, CC. Ignorance of the law excuses no waiver is contrary to law, public order, public
one from compliance therewith. policy, morals, or good customs, or prejudicial to
a third person with a right recognized by law.
Conclusive Presumption That everyone knows
the law, even if they have no actual knowledge Waiver the relinquishment of a known right
of the law with both knowledge of its existence and an
intention to relinquish it. [Portland v. Spillman]
Mistake of Fact & Difficult Questions of Law -
These may excuse a party from the legal Exceptions:
consequences of his conduct; but not ignorance (1) If the waiver is contrary to law, public order,
of law. public policy, morals or good customs;
In specific instances provided by law, mistake (2) If the waiver prejudices a third person;
as to difficult legal questions has been given (3) If the alleged rights do not yet exist;
the same effect as a mistake of fact. (4) If the right is a natural right.
[Tolentino]
The laws referred to by this article are those of
the Philippines. There is no conclusive
presumption of knowledge of foreign laws.
[Tolentino]

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REPEAL OF LAWS Exception:


This article does not apply to criminal
Art. 7, CC. Laws are repealed only by prosecutions because where there is no law
subsequent ones, and their violation or non- punishing an act, the case must be dismissed.
observance shall not be excused by disuse, or [Tolentino]
custom or practice to the contrary.
PRESUMPTION AND APPLICABILITY
When the courts declared a law to be OF CUSTOM
inconsistent with the Constitution, the former
Art. 10, CC. In case of doubt in the interpretation
shall be void and the latter shall govern
or application of laws, it is presumed that the
lawmaking body intended right and justice to
Administrative or executive acts, orders and
prevail.
regulations shall be valid only when they are not
contrary to the laws or the Constitution
Art. 11, CC. Customs which are contrary to law,
public order or public policy shall not be
TWO KINDS OF REPEAL OF LAW countenanced.
[Tolentino]
(1) Express or Declared contained in a special
Art. 12, CC. A custom must be proved as a fact,
provision of a subsequent law
according to the rules of evidence.
(2) Implied or Tacit takes place when the
provisions of the subsequent law are
incompatible or inconsistent with those of LEGAL PERIODS
an earlier law.
Art. 13, CC. When the laws speak of years,
JUDICIAL DECISIONS months, days or nights, it shall be understood
that years are of three hundred sixty-five days
each; months, of thirty days; days, of twenty-
Art. 8, CC. Judicial decisions applying or
four hours; and nights from sunset to sunrise.
interpreting the laws or the Constitution shall
form a part of the legal system of the If months are designated by their name, they
Philippines. shall be computed by the number of days which
they respectively have.
Jurisprudence cannot be considered as an
independent source of law; it cannot create law. In computing a period, the first day shall be
[1 Camus 38 as cited in Tolentino] excluded, and the last day included

But the Courts interpretation of a statute POLICY ON LAST DAY BEING A


constitutes part of the law as of the date it was LEGAL HOLIDAY/SUNDAY
originally passed since the Courts construction If the period arises by statute or orders by the
merely establishes contemporaneous legislative government, the last day will automatically be
intent that the interpreted law carried into considered the next working day
effect. [Senarillos v. Hermosisima (1956)] If the period arises from a contractual
relationship, the act will still be due on that
DUTY TO RENDER JUDGMENT Legal Holiday/Sunday
General Rule: APPLICABILITY OF PENAL LAWS
Art. 9, CC. No judge or court shall decline to Art. 14, CC. Penal laws and those of public
render judgment by reason of the silence, security and safety shall be obligatory upon all
obscurity or insufficiency of the laws. who live or sojourn in the Philippine territory,
subject to the principles of public international
law and to treaty stipulations.

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EXEMPTIONS UNDER It is the nationality or citizenship of the


INTERNATIONAL LAW (THEORY OF individual, which regulates the following
(1) Civil status
EXTRATERRITORIALITY): (2) Capacity
(1) When the offense is committed by a foreign
(3) Condition
sovereign while in Philippine territory
(4) Family rights and duties
(2) When the offense is committed by
(5) Laws on Succession
diplomatic representatives
(6) Capacity to succeed
(3) When the offense is committed in a public
or armed vessel of a foreign country. According to the Supreme Court, it is a conflict
of laws theory by virtue of which jurisdiction over
CONFLICT OF LAWS the particular subject matter affecting a person
is determined by the latters nationality. [Ellis vs.
CONFLICT OF LAWS/ PRIVATE Republic (1963)]
INTERNATIONAL LAW
(1) It is a branch or part of Philippine Law which Art. 16, CC. Real property as well as personal
regulates the application of foreign law property is subject to the law of the country
within Philippine jurisdiction in the where it is situated.
resolution of cases involving foreign
elements. However, intestate and testamentary
(2) It is that part of municipal law which succession, both with respect to the order of
governs cases involving a foreign element. succession and to the amount of successional
(3) Private International Law is more commonly rights and to the intrinsic validity of
known in other jurisdictions as conflict of testamentary provisions, shall be regulated by
laws the national law of the person whose succession
is under consideration, whatever may be the
nature of the property and regardless of the
SOURCES country wherein the property may be found.
(1) Codes and statutes
(2) Treaties and international conventions
(3) Treatises, commentaries, and studies of RULE ON PROPERTY
learned societies Controlling Law: Lex Situs/Lex ReiSitae
(4) Judicial decisions General Rule: Real and Personal Property is
subject to the law of the country where it is
situated [Art. 16, CC]
EXAMPLES OF CONFLICT OF LAW
RULES IN THE PHILIPPINES APPLICATION OF THE DOCTRINE OF LEX
(1) Lex Patriae [Art. 15, CC] SITUS/LEX REISITAE
(2) Lex Domicili [Art. 1251 (par. 3), CC] (1) The capacity to transfer or acquire property
(3) Lex Situs/ Lex Rei Sitae [Art. 16, CC] is governed by Lex Situs.
(4) Lex Loci Contractus [Art. 17 (par. 1), CC]
(5) Lex Loci Celebrationis [Art. 71, CC] Note: Transfer of property to a foreigner who
(6) Lex Loci Celebrationis [Art. 26 (par. 1), FC] subsequently became a Filipino citizen shall be
(7) Lex Loci Intentionis [Art. 1306, CC] recognized [Llantino vs. Co Liong Chong]

Art. 15. Laws relating to family rights and duties, (2) The formalities of a contract to convey
or to the status, condition and legal capacity of property are governed by Lex Situs
persons are binding upon citizens of the
Philippines, even though living abroad. EXCEPTIONS TO LEX SITUS

Most civil law countries such as the Philippines (1) Transactions Not Affecting Transfer of Title
follow the NATIONAL LAW THEORY: or Ownership of Land: Lex Intentionis or Lex
Voluntatis

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(2) Contracts where Real Property Offered as RULE ON SUCCESSION


Security: The principal contract is the loan
while the mortgage of the land is only an EXTRINSIC VALIDITY [ARTS. 17, 815-817, CC]
accessory
(a) Mortgage Lex Situs Place of Execution Applicable Law
(b) Loan Contract Rules on ordinary
contracts Filipino Testator
Philippines Philippine Law
(3) Intestate and Testamentary Succession:
Intestate and testamentary successions Foreign Country (1) Law of the place
shall be regulated by the national law of the where he may be
decedent, with respect to the following (Art. (lex loci
16(2), CC; Art. 1039, CC) celebrationis) [Art
(a) Order of succession 815, CC]
(2) Philippine law [III
(b) Amount of successional rights
(c) Intrinsic validity of the testamentary Tolentino 117]
provisions Alien Testator
(d) Capacity to succeed Philippines (1) Philippine Law [Art.
17, CC]
(4) Under a Policy-centered Approach: Forum (2) Law of the country
court is not bound to look to the law of the in which he is a
situs when the situs of the movable property citizen or subject
is insignificant or accidental (lex nationali) [Art.
817, CC]
Questions relating to the validity and effect of
the transfer of the movable property are Foreign Country [Art. (1) Law of the place in
governed by the law of the place of principal 816, CC; Art. 17, CC] which he resides
use (lex domicilii)
(2) Law of his country
Where the issue involves considerations other
(lex nationali)
than the validity and effect of the transfer
(3) Philippine law
itself, governing law is the law of the state
(4) Law of the place
which has real interest
where they were
executed (lex loci
celebrationis)

RULE RE: JOINT WILLS


(1) Joint wills prohibited under Art. 818
executed by Filipinos in a foreign country
shall not be valid in the Philippines even
though authorized by the laws of the
country where they were executed. (Art. 819)
(2) Civil Code is silent as to the validity of a joint
will executed by an alien in the Philippines.
It is suggested that it should not be
probated if it would affect the heirs in the
Philippines.

INTRINSIC VALIDITY
Intestate and testamentary successions shall be
regulated by the national law of the decedent,

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with respect to the following [Art. 16(2), CC; Art. (b) The testator had his domicile in the
1039, CC]: foreign country and not in the
(1) Order of succession Philippines
(2) Amount of successional rights (c) The will has been admitted to probate in
(3) Intrinsic validity of the testamentary such country
provisions (d) The fact that the foreign tribunal is a
(4) Capacity to succeed probate court
(e) The laws of the foreign country on
INTERPRETATION OF WILLS procedure and allowance of wills
Governed by the National Law of the decedent.
ADMINISTRATION OF ESTATES
REVOCATION Territorial: governed by the law of the place
where the administration takes place, and that
Testator Applicable Law is the law of the country from which the
administrator derives his authority.
Will is revoked in the Philippines
TRUSTS
Philippine Domiciliary Philippine Law Extrinsic validity: Rule governing wills apply.
Intrinsic validity: lex situs since a trust involves
Non-domiciliary [Art. property [Art. 17, CC]
Philippine Law
829, CC]
Will is revoked in a Foreign Country Art. 17, CC. The forms and solemnities of
(1) Philippine Law contracts, wills, and other public instruments
(2) Law of the place of shall be governed by the laws of the country in
Philippine Domiciliary which they are executed.
revocation (lex loci
actus)
(1) Law of the place When the acts referred to are executed before
where the will was the diplomatic or consular officials of the
made Republic of the Philippines in a foreign country,
Non-domiciliary [Art. (2) Law of the place in the solemnities established by Philippine laws
829, CC] which the testator shall be observed in their execution.
had his domicile at
the time of the Prohibitive laws concerning persons, their acts
revocation or property, and those which have, for their
object, public order, public policy and good
PROBATE OF WILLS customs shall not be rendered ineffective by
Controlling Law: The probate of a will being laws or judgments promulgated, or by
essentially procedural in character, the law of determinations or conventions agreed upon in a
the forum (lex fori) governs. foreign country.

Wills Proved and Allowed in a Foreign RULE ON EXTRINSIC VALIDITY OF


Country: CONTRACTS
(1) A will proved and allowed in a foreign
country in accordance with the laws of that GENERAL RULE: LEX LOCI CELEBRATIONIS
country may be allowed, filed, and recorded The forms and solemnities of contracts xxx shall
in the proper Regional Trial Court in the be governed by the laws of the country in which
Philippines [Rule 77, Sec.1, Rules of Court] they are executed [Art. 17, CC]
(2) Requisites for Reprobate [Vda. de Perez vs.
Tolete (1994)] The following must be
proved by competent evidence:
(a) Due execution of the will in accordance
with the foreign laws

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CONTRACTS BEFORE unless there are cogent reasons for not


DIPLOMATIC/CONSULAR OFFICIALS doing so.
The solemnities established by Philippine laws (b) Implied Based on the
shall be observed with respect to contracts contemporaneous and subsequent acts
executed before diplomatic or consular officials of the parties; often upheld with
of the Republic of the Philippines in a foreign reference to the rule of validity of
country [Art. 17(2), FC] contracts which presumes that the
parties contemplate to enter into a valid
CONTRACTS ENTERED INTO BY LETTER/ contract
CABLEGRAM, ETC.
A contract accepted by letter or cablegram is Art. 18, CC. In matters which are governed by
presumed to have been entered into at the the Code of Commerce and special laws, their
place where the offer was made. (Art. 1319(2)) deficiency shall be supplied by the provisions of
this Code.
THREE POSSIBLE LAWS
Exceptions to the article: Those where special
(1) Lex Loci Contractus Law of the place where laws are made to apply suppletorily to the Civil
the contract is made Code.
(a) Advantages
(i) Relative ease in establishing e.g. Contract of transportation by common
(ii) Certainty and stability carriers: In all matters not regulated by this
(b) Disadvantage: Unjust results when Code, the rights and obligations of common
place of making is entirely incidental carriers shall be governed by the Code of
Commerce and by special laws.[Art. 1766, CC]
Note: To determine where the contract is
made, we look to the place where the last SPECIAL CONFLICT OF LAW
act is done which is necessary to bring the
binding agreement into being so far as the RULES
acts of the parties are concerned.
MARRIAGE
(2) Lex Loci Solutionis Law of the place of
performance governs DEFINITION
(a) Advantage Always connected to the
contract in a significant way Art. 1, FC. Marriage is a special contract of
(b) Disadvantage Not helpful when the permanent union between a man and a woman
contract is performed in 2 or more entered into in accordance with law for the
states with conflicting laws establishment of conjugal and family life. It is
the foundation of the family and an inviolable
(3) Lex Loci Intentionis Law intended by the social institution whose nature, consequences,
parties and incidents are governed by law and not
subject to stipulation, except that marriage
Basis: The contracting parties may establish settlements may fix the property relations
such stipulations, clauses, terms and during the marriage within the limits provided
conditions as they may deem convenient, by this Code.
provided they are not contrary to law,
morals, good customs, public order, or EXTRINSIC VALIDITY OF MARRIAGE
public policy [Art. 1306, CC]
Formal Requisites of Marriage under
May be express or implied Philippine Law [Art. 3, FC] extraneous to
(a) Express when the parties stipulate the parties
that the contract be governed by a (1) Authority of the solemnizing officer
specific law, such law will be recognized

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(2) Valid marriage license except in the cases (a) Marriages between ascendants and
provided for in Chapter 2 of Title I ascendants of any degree, whether
(marriages of exceptional character) legitimate or illegitimate; and
(3) A marriage ceremony which takes place (b) Marriages between brothers and sisters,
with the appearance of the contracting whether of the full or half-blood
parties before the solemnizing officer and (7) Void marriages for reasons of public policy
their personal declaration that they take [Art. 38, FC]
each other as husband and wife in the (a) Marriages between collateral blood
presence of not less than two witnesses of relatives, whether legitimate or
legal age. illegitimate, up to the 4th civil degree
(b) Marriages between step-parents and
Determination of Extrinsic Validity step-children.
(c) Marriages between the adopting parent
Art. 26, FC. All marriages solemnized outside and adopted child
the Philippines in accordance with the laws in (d) Marriages between the surviving spouse
force in the country where they were of the adopting parent and the adopted
solemnized, and valid there as such, shall also child
be valid in this country. xxx (e) Marriages between the surviving spouse
of the adopted child and the adopter
Art. 2, Hague Convention. Formal requirements (f) Marriages between an adopted child
for marriage are governed by the law of the and a legitimate child of the adopter
state of celebration. (g) Marriages between adopted children of
the same adopter
General rule: Lex Loci Celebrationis (h) Marriages between parties where one,
with the intention to marry the other,
Exceptions: The following marriages are void killed that other person's spouse, or his
even if valid in the country where celebrated or her own spouse.
[Art. 26, FC]:
(1) Those contracted by any party below 18 These exceptions put into issue the capacity of
years of age even with the consent of the parties to enter into the marriage and
parents or guardians [Art. 35(1), FC] therefore relate to the substantive requirement
(2) Bigamous or polygamous marriages not for marriage and is governed by lex nationalii.
falling under Art. 41, FC [Art. 35 (4), FC]
(3) Those contracted thru mistake of one INTRINSIC VALIDITY OF MARRIAGE
contracting party as to the identity of the Refers to capacity of a person to marry
other [Art. 35(5), FC]
(4) Those subsequent marriage without Intrinsic validity is determined by the parties
recording in the civil registry the judgment of personal law, which may be their domiciliary or
annulment or declaration of nullity, national law.
partition and distribution of properties and Laws relating to Family rights and duties,
the delivery of the childrens presumptive Status, Condition or Legal capacity of persons
legitimes [Art. 35(6), FC] are binding on citizens of the Philippines, even
(5) A marriage contracted by any party who, at though living abroad [Art. 15, CC]
the time of the celebration, was When either or both contracting parties are
psychologically incapacitated to comply with citizens of a foreign country, it shall be
the essential marital obligations of necessary for them to submit a certificate of
marriage, even if such incapacity becomes legal capacity to contract marriage, issued by
manifest only after solemnization [Art. 36, their respective diplomatic or consular officials,
FC] before they can obtain a marriage license [Art.
(6) Incestuous marriages [Art. 37, FC] 21, FC]
Marriages enumerated under Art. 26(2), FC
are void even if valid in the country where

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celebrated. This is in relation to Art. 5, CC, Under Philippine law, personal relations
where acts executed against the provisions of between the spouses include [Arts. 68, 70-71,
mandatory or prohibitory laws are void. FC]:
(1) Mutual fidelity
Essential Requisites of Marriage under Philippine (2) Respect
Law [Art. 2, FC] concerns parties themselves (3) Cohabitation
(1) Legal capacity of the contracting parties (4) Support
who must be male and female (5) Right of the wife to use the husbands
(2) Consent freely given in the presence of the family name
solemnizing officer
Property relations
The Hague Convention on Validity of Marriages (1) The Hague Convention declares that the
allows a contracting state to refuse recognition governing law on matrimonial property is:
of the marriage in the ff. cases: (a) The internal law designated by the
(1) One of the parties did not freely Consent spouses before the marriage
(2) Spouses were Related, by blood or adoption (b) In the absence thereof, the internal law
(3) One of the parties did not have the Mental of the state in which the spouses fix
capacity to consent their habitual residence
(4) One of the spouses was already Married (2) Rule under Philippine law (Art. 80, FC)
(5) One of the parties has not attained the (a) In the absence of a contrary stipulation
Minimum age, nor acquired the necessary in the marriage settlements, the
dispensation property relations of the spouses shall
be governed by Philippine laws,
Rule on Proxy Marriages regardless of the place of the
Proxy marriages, where permitted by the law of celebration of the marriage and their
the place where the proxy participates in the residence.
marriage ceremony, are entitled to recognition
in countries adhering to the lex loci celebrationis Rule is inapplicable:
rule, at least insofar as formal validity is (i) If both spouses are aliens
concerned. (ii) With respect to the extrinsic validity
of the contracts affecting property
Internal Philippine law, however, does not not situated in the Philippines and
sanction proxy marriages. Arts. 2 and 3 FC both executed in the country where the
require that the contracting parties personally property is located
appear before the solemnizing officer for the (iii) With respect to the extrinsic validity
marriage to be valid. of contracts entered into in the
Philippines but affecting property
Consular Marriages situated in a foreign country whose
Marriages between Filipino citizens abroad may laws require different formalities for
be solemnized by a consul-general, consul or its extrinsic validity.
vice consul of the Republic of the Philippines (3) Doctrine of Immutability of Matrimonial
(Art. 10, FC). Property Regime The change of nationality
on the part of the husband or wife does not
EFFECTS OF MARRIAGE affect the original property regime except
when the law of the original nationality
Personal relations between the spouses itself changes the marital regime, hence,
Governed by the national law of the parties the property regime has to change
accordingly.
If the spouses have different nationalities,
generally the national law of the husband may
prevail as long as it is not contrary to law,
customs and good morals of the forum.

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DIVORCE AND SEPARATION obtained abroad by the alien spouse of a


Filipino citizen before the FC became effective.
RULE UNDER THE HAGUE CONVENTION
The granting of divorce or separation must Paragraph 2 of Article 26 should be interpreted
comply with the national law of the spouses and to include cases involving parties who, at the
lex fori (law of the place where the application time of the celebration of the marriage were
for divorce is made). Filipino citizens, but later on, one of them
becomes naturalized as a foreign citizen and
DIVORCE DECREES OBTAINED BY FILIPINOS obtains a divorce decree. The Filipino spouse
General rule: Decrees of absolute divorce should likewise be allowed to remarry as if the
obtained by Filipinos abroad have no validity other party were a foreigner at the time of the
and are not recognized in Philippine solemnization of the marriage. The reckoning
Jurisdiction. point is not the citizenship of the parties at the
time of the celebration of the marriage, but their
Statutory bases: citizenship at the time a valid divorce is obtained
(1) Laws relating to Family rights and duties, or abroad by the alien spouse capacitating the
to the Status, Condition and Legal capacity latter to remarry. [Republic v. Orbecido (2005)]
of persons are binding upon citizens of the
Philippines, even though living abroad [Art. VALIDITY OF FOREIGN DIVORCE BETWEEN
15, CC] FOREIGNERS
(2) Prohibitive laws concerning persons, their A foreign divorce will be recognized in all
acts or property, and those which have for contracting states if, at the date of the
their object public order, public policy and institution of the proceedings:
good customs, shall not be rendered (1) Either spouse had his habitual residence
ineffective by laws or judgments, or by there;
determinations or conventions agreed upon (2) Both spouses were nationals of that state;
in a foreign country. [Art. 17(3), CC] or
(3) If only the petitioner was a national, he
Exception: should have his habitual residence there
(Hague Convention on the Recognition of
Art. 26(2), FC. Where a marriage between a Divorce and Legal Separation)
Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly While there is no provision of law requiring
obtained abroad by the alien spouse Philippine courts to recognize a foreign divorce
capacitating him or her to remarry, the Filipino decree between non-Filipinos such will be
spouse shall have capacity to remarry under recognized under the principle of international
Philippine law comity, provided that it does not violate a
strongly held policy of the Philippines. The
Owing to the Nationality Principle, only divorce decree obtained by a foreign citizen may
Philippine nationals are covered by the policy be given recognition in Philippine jurisdiction
against absolute divorces, the same being upon proof of existenceof the divorce decree
considered contrary to our concept of public and the foreign law governing the divorce.
policy and morality. However, aliens may obtain [Garcia v. Recio (2001)]
divorces abroad, provided they are valid
according to their national law. And the ANNULMENT AND DECLARATION OF
marriage tie, when thus severed as to one party, NULLITY
ceases to bind the other (allowing the Filipino to
remarry). [Van Dorn v. Romillo, Jr. (1985)] JURISDICTION TO ANNUL
(1) Lex loci celebrationis; or
Note: The Van Dorn case was decided prior to (2) Place of matrimonial domicile
the effectivity of the FC. It can thus serve as a
basis for the recognition of divorce decree

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GOVERNING LAW The conduct of a woman of adult age,


(1) Lex loci celebrationis determines the maintaining intimate sexual relations with
consequences of any defect as to form appellant, with repeated acts of intercourse is
(2) In general, the same applies with reference incompatible with the idea of seduction.
to substantive or intrinsic validity. But with [Tanjanco v. Court of Appeals (1966)]
regard to capacity of the parties to marry,
national law is determinative. PRINCIPLE OF UNJUST
ENRICHMENT
Human Relations Art. 22, CC. Every person who through an act of
performance by another, or any other means,
ABUSE OF RIGHT acquires or comes into possession of something
at the expense of the latter without just or legal
ground, shall return the same to him.
Art. 19, CC. Every person must, in the exercise of
his rights and in the performance of his duties,
Art. 22 Art. 2154
act with justice, give everyone his due, and
(Accion in Rem Verso) (Solutio Indebiti)
observe honesty and good faith.
Not necessarily a Payment should be
mistake in payment made by mistake
ACTS CONTRARY TO LAW
Art. 20, CC. Every person who, contrary to law,
wilfully or negligently causes damage to
Persons and Personality
another, shall indemnify the latter for the same.
CAPACITY TO ACT
ACTS CONTRA BONUS MORES
CIVIL PERSONALITY
Art. 21, CC. Any person who wilfully causes loss
or injury to another in a manner that is contrary Art. 37, CC. Juridical capacity, which is the fitness
to morals, good customs or public policy shall to be the subject of legal relations, is inherent in
compensate the latter for the damage. every natural person and is lost only through
death. Capacity to act, which is the power to do
Mere breach of promise to marry is not an acts with legal effect, is acquired and may be
actionable wrong. But to formally set a wedding lost.
and go through all the above-described
preparation and publicity, only to walk out of it Juridical Capacity Capacity to Act
Fitness of man to be the Power to do acts with
when the matrimony is about to be solemnized,
subject of legal relations legal effect
is quite different. This is palpably and
Passive Active
unjustifiably contrary to good customs for which Aptitude for the Holding Aptitude for the
defendant must be held answerable in and Enjoyment of rights Exercise of rights
damages in accordance with Article 21 Inherent in natural persons Must be acquired
aforesaid. [Wassmer v. Velez (1964)] Lost through death
Lost upon death
and other causes
Article 21 may also be applied in a breach of Can exist without capacity Must exist with
promise to marry where the woman is a victim to act juridical capacity
of moral seduction. Award of damages pursuant Cannot be limited or May be restricted or
to Article 21 is justified not because of such restricted limited
promise to marry but because of the fraud and
deceit behind it and the willful injury to her Juridical capacity can exist even without capacity
honor and reputation which followed thereafter. to act; the existence of the latter implies that of
[Baksh vs. Court of Appeals (1993)] the former.

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BIRTH DEATH
Art. 40, CC. Birth determines personality; but the Art. 42, CC. Civil personality is extinguished by
conceived child shall be considered born for all death. The effect of death upon the rights and
purposes favorable to it, provided that it be born obligations of the deceased is determined by
later with the conditions specified in the law, by contract and by will.
following article.
Criminal liability ends with death but civil
Art. 41, CC. For civil purposes, the fetus is liability may be charged against the estate
considered born if it is alive at the time it is [People v. Tirol, (1981)].
completely delivered from the mothers womb.
However, if the fetus had an intra-uterine life of Art. 43, CC. If there is a doubt, as between two
less than seven months, it is not deemed born if or more persons who are called to succeed each
it dies within twenty-four hours after its other, as to which of them died first, whoever
complete delivery from the maternal womb. alleges the death of one prior to the other, shall
prove the same; in the absence of proof, it is
Birth complete removal of the fetus from the presumed that they died at the same time and
mothers womb; before birth, a fetus is merely there shall be no transmission of rights from
part of the mothers internal organs. one to the other.
Proof that the fetus was alive upon separation is Article 43 provides a statutory presumption
complete respiration test/sign of independent when there is doubt on the order of death
life between persons who are called to succeed each
other (only).
Intra-Uterine Life When Considered Born
7 months or more Alive upon delivery
The statutory presumption of Article 43 was not
Alive only after
applied due to the presence of a credible
Less than 7 months completion of 24
eyewitness as to who died first. [Joaquin v.
hours from delivery
Navarro, (1948)]
PERSONALITY OF CONCEIVED CHILD
COMPARE ART. 43 WITH RULE 131, SEC. 3
(1) Limited only for purposes favorable to it.
(JJ), PRESUMPTION OF SURVIVORSHIP
(2) Conditional it depends upon the child
being born alive later.
Art. 43 Rule 131, Sec. 3 (jj)
Period of conception the first 120 days of the Only use the presumptions when there are no
300 days preceding the birth of the child. facts to get inferences from
Only use for Cannot be used for
A conceived child can acquire rights while still in succession purposes succession purposes
the mothers womb. It can inherit by will or by Only during death in
intestacy. In any circumstance calamities, wreck,
battle or conflagration
An aborted fetus had conditional personality
but never acquired legal rights/civil personality
because it was not alive at the time of delivery
from the mothers womb. No damages can be
claimed in behalf of the unborn child. [Geluz v
CA, (1961)]

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PRESUMPTION OF SURVIVORSHIP IN THE MINORITY


RULES OF COURT [RULE 131, SEC. 3, (JJ), RA 6809 (1989) An act lowering the age of
RULES OF COURT] majority from twenty-one to eighteen years.

Age Presumed Survivor Effects on Contracts


Both under 15 Older (1) They cannot give consent to a contract [Art.
Both above 60 Younger 1327 (1), CC]
One under 15, the (2) A contract where one of the parties is a
One under 15 minor is voidable [Art. 1390(1), CC]
other above 60
(3) A contract is unenforceable when both of
Both over 15 and
the parties are minors (incapable of giving
under 60; different Male
consent) [Art. 1403(3), CC]
sexes
(4) Minority cannot be asserted by the other
Both over 15 and party in an action for annulment [Art. 1397,
Older
under 60; same sex CC]
One under 15 or over (5) Not obliged to make restitution except
One between 15 and
60, the other between insofar as he has been benefited [Art. 1399,
60
those ages CC]
(6) Minor has no right to demand the
RESTRICTIONS ON CAPACITY TO ACT thing/price voluntarily returned by him [Art.
1426, CC]
Art. 38, CC. Minority, insanity or imbecility, the (7) Minor has no right to recover voluntarily
state of being a deaf-mute, prodigality and civil paid sum or delivered thing, if consumed in
interdiction are mere restrictions on capacity to good faith [Art. 1427, CC]
act, and do not exempt the incapacitated (8) Must pay reasonable amount for
person from certain obligations, as when the necessaries delivered to him [Art. 1489, CC]
latter arise from his acts or from property
relations, such as easements. Estoppel works against minors who
misrepresent their ages in a contract and are
compelled to comply with its terms. (active
Art. 39, CC. The following circumstances, among misrepresentation done by minors). [Mercado v.
others, modify or limit capacity to act: age, Espiritu, (1918)]
insanity, imbecility, the state of being a deaf-
mute, penalty, prodigality, family relations, When a minor made no active
alienage, absence, insolvency and trusteeship. misrepresentation as to his minority and such
The consequences of these circumstances are minority is known to the other party, the
governed in this Code, other codes, the Rules of contract is voidable [Art. 1403, CC] as to the
Court, and in special laws. minor. [Bambalan v. Maramba, (1928)]

Capacity to act is not limited on account of Minors are obliged to make restitution insofar as
religious belief or political opinion. they have been benefited. [Art. 1399, CC].
[Braganza v. Villa Abrille, (1959)]
A married woman, twenty-one years of age or
over, is qualified for all acts of civil life, except in
cases specified by law. Effects on Marriage
May not yet contract marriage [Art. 5, FC].
General rule: Incapacitated persons are not
exempt from certain obligations arising from his Marriages, where one of the parties is below 18,
acts or property relations. even with the consent of parents/guardians, are
void [Art. 35, FC].

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Effect on Crimes or otherwise communicated to him by 2 persons


General rule: Exempted from criminal liability. [Art. 807, CC]

Exception: Acted with discernment, and the Cannot be a witness to the execution of a will
minor is between 15 and 18 years of age. [Art. 820, CC]

INSANITY PRODIGALITY
Insanity includes many forms of mental disease, A spendthrift or a prodigal is a person, who, by
either inherited or acquired. A person may not excessive drinking, gambling, idleness or
be insane but only mentally deficient (idiocy, debauchery of any kind shall so spend, waste or
imbecility, feeble-mindedness). lessen his estate as to expose himself or his
family to want or suffering. The acts of
Effect on Contracts prodigality must show a morbid state of mind.
(1) Incapacity to give consent to a contract [Art. [Martinez v. Martinez, (1902)]
1327(2), CC]
(2) Contracts entered into during lucid intervals It is not the circumstance of prodigality, but the
are valid [Art. 1328, CC] fact of being under guardianship that restricts
(3) Restitution of benefits [Art. 1399, CC] capacity to act.
(4) Voidable if one of the parties is insane [Art.
1390, CC] CIVIL INTERDICTION
(5) Unenforceable if both of the parties are
insane [Art. 1403 (3), CC] Civil interdiction It is an accessory penalty
imposed upon persons who are sentenced to a
Effect on Crimes principal penalty not lower than reclusion
General rule: Exempted from criminal liability temporal [Art. 41, RPC].
Offender is deprived of rights of parental
Exception: Acted during lucid interval authority, or guardianship, of marital authority,
of the right to manage his property and of the
Effect on Marriage right to dispose of such by any act inter vivos
May be annulled if either party was of unsound [Art. 34, RPC]
mind unless the such party after coming to
reason, freely cohabited with the other [Art. For the validity of marriage settlements, the
45(2), FC] participation of the guardian shall be
indispensable [Art. 79, CC]
Action for annulment of marriage must be filed
by the sane spouse who had no knowledge of FAMILY RELATIONS
the others insanity, or by any relative/guardian Justifying circumstance if acted in defense of
of the insane before the death of either party; or person/rights of spouse, ascendants,
by the insane spouse during a lucid interval or descendants, brothers/sisters, and other
after regaining sanity [Art. 47(2), FC] relatives up to the 4th civil degree [Art. 11(2),
RPC]
STATE OF BEING DEAF-MUTE
Cannot give consent to a contract if he/she also Mitigating circumstance if acted in the
does not know how to write [Art. 1327(2), CC] immediate vindication of a grave offense/felony
Voidable if one of the parties is deaf-mute and committed against his spouse, ascendants or
does not know how to write relatives of the same civil degree [Art. 13(5),
Unenforceable if both of the parties are deaf- RPC]
mutes and does not know how to write
Incestuous and void marriages:
Can make a valid will, provided: he must (1) Between ascendants and descendants of
personally read the will. The contents of the any degree;
same have either been read personally by him

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UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

(2) Between brothers and sisters, whether full (3) A person who has been in danger of death
or half-blood. [Art. 37, FC] under other circumstances and his existence
has not been known for four years.
Donations/grants of gratuitous advantage
between spouses during the marriage shall be Art. 41, FC. A marriage contracted by any person
VOID, except moderate gifts during family during subsistence of a previous marriage shall
occasions [Art. 87, FC] be null and void, unless before the celebration
of the subsequent marriage, the prior spouse
Prescription does not run between spouses, had been absent for four consecutive years and
parent and child, guardian and ward (Art. 1109) the spouse present has a well-founded belief
that the absent spouse was already dead. In
General rule: Descendants cannot be compelled case of disappearance where there is danger of
to testify in a criminal case, against his parents death under the circumstances set forth in the
and grandparents provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
Exception: crime was against the descendant
OR by one parent against the other [Art. 215, FC] For the purpose of contracting the subsequent
marriage under the preceding paragraph the
Spouses cannot sell property to each other, spouse present must institute a summary
except: proceeding as provided in this Code for the
(1) Absolute separation is agreed upon in the declaration of presumptive death of the
marriage settlements absentee, without prejudice to the effect of
(2) Judicial separation of property [Art. 1490, reappearance of the absent spouse.
CC]
Art. 42, FC. The subsequent marriage referred to
ABSENCE in the preceding Article shall be automatically
terminated by the recording of the affidavit of
Art. 390, CC. After an absence of seven years, it reappearance of the absent spouse, unless there
being unknown whether or not the absentee is a judgment annulling the previous marriage
still lives, he shall be presumed dead for all or declaring it void ab initio.
purposes, except for those of succession.
A sworn statement of the fact and
The absentee shall not be presumed dead for circumstances of reappearance shall be
the purpose of opening his succession till after recorded in the civil registry of the residence of
an absence of ten years. If he disappeared after the parties to the subsequent marriage at the
the age of seventy-five years, an absence of five instance of any interested person, with due
years shall be sufficient in order that his notice to the spouses of the subsequent
succession may be opened. marriage and without prejudice to the fact of
reappearance being judicially determined in
Art 391, CC. The following shall be presumed case such fact is disputed.
dead for all purposes, including the division of
the estate among the heirs: DOMICILE AND RESIDENCE OF
(1) A person on board a vessel lost during a sea PERSON
voyage, or an aeroplane which is missing,
who has not been heard of for four years FOR NATURAL PERSONS
since the loss of the vessel or aeroplane; The place of their habitual residence [Art. 50,
CC]
(2) A person in the armed forces who has taken
part in war, and has been missing for four FOR JURIDICAL PERSONS
years; The place where their legal representation is
established, or where they exercise their primary

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UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

functions, unless there is a law or other provision subject to stipulation, except that marriage
that fixes the domicile [Art. 51, CC] settlements may fix the property relations
during the marriage within the limits provided
DOMICILE VS. RESIDENCE by this Code.
While domicile is permanent (there is intent to
remain), residence is temporary and may be Marriage is a special contract of permanent
changed anytime (there is no necessary intent union between a man and a woman entered
to remain). into in accordance with law for the
establishment of conjugal and family life.
Requisites of domicile: It is the foundation of the family and an
(1) Physical presence in a fixed place inviolable social institution
(2) Intent to remain permanently (animus Its nature, consequences, and incidents are
manendi) [Callejo v. Vera] governed by law and not subject to stipulation
However, marriage settlements may fix the
property relations during the marriage within
KINDS OF DOMICILE the limits provided by the FC.
(1) Domicile of Origin Domicile of parents of
a person at the time he was born. KINDS OF REQUISITES
(2) Domicile of Choice Domicile chosen by a (1) Essential Requisites [Art. 2, FC]
person, changing his domicile of origin. (a) Legal Capacity of the contracting
parties, who must be a male and a
A 3rd requisite is necessary: intention not to female
return to ones domicile as his permanent (b) Consent (of the parties) freely given in
place. the presence of a solemnizing officer.
(2) Formal Requisites [Art. 3, FC]
(3) Domicile by Operation of Law (i.e., Article (a) Authority of solemnizing officer
69, domicile of minor) (b) A valid marriage license
Except:
A married woman does not lose her (i) Marriages in articulo mortis or when
domicile to her husband. [Romualdez- one or both parties are at the point
Marcos vs. Comelec (1995)] of death,
(ii) Marriage in isolated places with no
available means of transportation,
Family Code (iii) Marriage among Muslims or other
ethnic cultural communities,
The Family Code took effect on August 3, 1988. (iv) Marriages of those who have lived
together as husband and wife
Marriage without any legal impediment for at
least 5 years
(c) Marriage Ceremony:
REQUISITES (i) Appearance of contracting parties
in the presence of a solemnizing
NATURE OF MARRIAGE officer
(ii) Personal declaration that they take
Art. 1, FC. Marriage is a special contract of each other as husband and wife in
permanent union between a man and a woman the presence of not less than 2
entered into in accordance with law for the witnesses
establishment of conjugal and family life. It is
the foundation of the family and an inviolable
social institution whose nature, consequences,
and incidents are governed by law and not

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EFFECT OF ABSENCE OF REQUISITES Fraud here refers to matters which relate to the
marital relation:
Absence Defect or Irregularity Non-disclosure of previous conviction by final
Void Voidable judgment of a crime involving moral
turpitude;
ESSENTIAL REQUISITES Concealment of pregnancy by another man;
Concealment of a sexually transmitted
AGE disease;
Legal Capacity Male or female 18 years old Concealment of drug addiction, alcoholism,
and above, not under any of the impediments lesbianism, or homosexuality
mentioned in Art. 37 (incestuous marriages) &
Art. 38 (marriages against public policy), may CEREMONY
contract marriage. [Art. 5, FC] No prescribed form or religious rite for the
solemnization of marriage is required. [Art. 6,
MUST BE MALE AND FEMALE FC]
Changing of sex in ones birth certificate on the
basis of sex reassignment was denied; The couple's written agreement where they
otherwise, it would result in confusion and declare themselves as husband and wife, signed
would allow marriage between persons of the by them before a judge and two capable
same sex which is in defiance of the law, as witnesses, even though it was independently
marriage is a union between a man and a made by them, still counts as a valid ceremony.
woman. [Silverio v. Republic, (2007)] [Martinez v. Tan, (1909)]

Note: The best source for citing the requirement Minimum requirements prescribed by law:
of male/female is still statutory, as provided (1) Appearance of contracting parties
explicitly in the Family Code. personally before the solemnizing officer
[Art. 3, FC]
CONSENT FREELY GIVEN (2) Personal declaration that they take each
Consent here refers to the consent of the other as husband and wife. [Art. 3, FC]
contracting parties; not of the parent/guardian (3) Presence of at least two witnesses of legal
in those cases where such consent is required age. [Art. 3, FC]
(when either party is between 18 to 21 years of (4) The declaration shall be contained in the
age). Marriage Certificate. [Art. 6, FC]
(5) Marriage certificate shall be signed by the
Absence contracting parties and their witnesses and
A marriage entered into by a person whose real attested by the solemnizing officer. [Art. 6,
intent is to avoid prosecution for rape is void for FC]
total lack of consent. The accused did not
intend to be married. He merely used such In a marriage in articulo mortis, when one or
marriage to escape criminal liability. [People v. both parties are unable to sign the marriage
Santiago, (1927)] certificate, it shall be sufficient for one of the
witnesses to write the name of said party, which
Defect shall be attested by the solemnizing officer. [Art.
6, par. 2, FC]
Art. 45, FC. A marriage may be annulled for any
of the following causes existing at the time of Places where marriage SHALL be publicly
the marriage: xxx (3) that the consent of either solemnized:
party was obtained by fraud, unless such party (1) Chambers of the judge or in open court
afterwards, with full knowledge of the facts (2) Church, chapel, or temple
constituting the fraud, freely cohabited with the (3) Office of the consul-general, consul, or vice-
other as husband and wife. consul [Art. 8, FC]

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Exceptions: marriages unless either or both parties


(1) Marriages performed in articulo mortis or in believed in good faith that the solemnizing
remote places. [Art. 29, FC] officer had legal authority to do so. [Art. 35
(2) Where both parties request in writing that (2)]
marriage be solemnized at a place (2) Absence & Irregularity of Authority of a
designated by them. solemnizing officer

Non-compliance with this requirement does not Where a judge solemnizes a marriage outside
invalidate the marriage (premise: more his jurisdiction, there is a resultant irregularity in
witnesses = more people can notify officer of the formal requisite laid down in Article 3, which
impediments to marriage). while it may not affect the validity of the
marriage, may subject the officiating official to
WHO MAY SOLEMNIZE MARRIAGES administrative liability. [Navarro v. Domagtoy
(1) Incumbent member of the Judiciary within (1996); Aranes v. Occiano (2002)]
his jurisdiction. [Art. 7, FC]
(2) Priest, Rabbi, Imam or Minister of any A marriage which preceded the issuance of the
Church or Religious Sect. Must be: marriage license is void and the subsequent
(a) Duly authorized by his church or issuance of such license cannot render valid the
religious sect marriage. Except in cases provided by law, it is
(b) Registered with the civil registrar the marriage license that gives the solemnizing
general officer the authority to solemnize a marriage.
(c) Acting within the limits of the written [Aranes v. Occiano (2002)].
authority granted to him by his church
or religious sect. LICENSE REQUIRED
(d) At least one of the contracting parties
belongs to the solemnizing officers General rule
church or religious sect. [Art. 7, FC] License required
Issued by local registrar of city or municipality
Absence Effect where either contracting party habitually resides
Authority by church/sect VOID [Art. 9, FC]
Registered w/ civil registrar VOID
Acting w/in written authority IRREGULARITY Each contracting party should file separately.
Either party belong to that [Art. 11, FC]
IRREGULARITY
church/sect
License valid in any part of the Philippines for
(3) Ship Captain or Airplane Chief may 120 days from date of issue, automatically
solemnize a marriage in articulo mortis cancelled at the expiration of such period. [Art.
between passengers or crew members [Art. 20, FC]
7, 31, FC]
(4) A Military commander of a unit may Foreign National
solemnize marriages in articulo mortis When either or both parties are foreign
between persons w/in the zone of military nationals: Certificate of legal capacity to contract
operation. [Art. 7, 32, FC] marriage, issued by a diplomatic or consular
(5) Consul-general, consul or vice-consul may official, shall be submitted before a marriage
solemnize marriages between Filipino license can be obtained [Art. 21, FC]
citizens abroad. [Art. 7, 10, FC]
(6) Municipal and City Mayors [LGC sec. 444- Stateless persons or refugees from other
455] countries: affidavit stating circumstances
showing capacity to contract marriage, instead
Exceptions [Art. 35, FC]: of certificate of legal capacity [Art. 21, FC]
(1) Marriage is void when solemnized by any
person not legally authorized to perform

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its inexistence, rendering the marriage VOID.


Exceptions [Republic v. CA and Castro (1994)]
(1) Marriage in Articulo mortis [Art. 27, FC]
The marriage may be solemnized without Before a marriage can be solemnized, a valid
the necessity of a marriage license. marriage license must be presented first,
It remains valid even if ailing party otherwise, it is VOID. [Moreno v. Bernabe (1995)]
survives.
(2) Between passengers or crew members in a Non-existence of a marriage contract does not
ship or airplane [Art. 31, FC] invalidate the marriage as long as all the
(3) Persons within a military zone [Art. 32, FC] requisites for its validity are properly complied
(4) Marriage in Remote and inaccessible places with. [People v. Borromeo (1984)]
[Art. 28, FC]
(5) Marriages by Muslims and Ethnic cultural Marriage Certificate Where parties declare that
minorities provided they are solemnized in they take each other as husband and wife;
accordance with their customs, rites or contains the following:
practices. [Art. 33, FC] (1) Full name, sex, age of party
(6) Marriage by parties who have Cohabited for (2) Citizenship, religion, habitual residence
at least 5 years without any legal (3) Date and precise time of celebration of
impediment to marry each other. [Art. 34, marriage
FC; Ninal vs. Badayog (2000)] (4) That marriage license was properly issued
(except in marriages of exceptional
Requisites for the 5-year cohabitation to be valid character)
for the exemption from acquiring a marriage (5) That parental consent was secured, when
license: required
(1) The man and woman must have been living (6) That requirement as to parental advice was
together as husband and wife for at least complied with, when required
five years before the marriage; (7) That parties have entered into marriage
(2) The parties must have no legal impediment settlements, if any (Art. 22)
to marry each other;
(3) The fact of absence of legal impediment Not an essential or formal requisite without
between the parties must be present at the which the marriage will be void [Madridejo v. de
time of marriage; Leon (1930)]
(4) The parties must execute an affidavit
stating that they have lived together for at Best evidence that a marriage does exist.
least five years [and are without legal [Tenebro v. CA (2004)]
impediment to marry each other]; and
(5) The solemnizing officer must execute a EFFECT OF MARRIAGES
sworn statement that he had ascertained
the qualifications of the parties and that he
CELEBRATED ABROAD AND
had found no legal impediment to their FOREIGN DIVORCE
marriage. [Borja-Manzano v. Judge Sanchez
(2001)] MARRIAGES CELEBRATED ABROAD
General rule: Marriages solemnized abroad in
MARRIAGE CERTIFICATE accordance with the laws in force in that country
shall be valid in the Philippines. [Art 26, FC]
Absence and irregularity of marriage license
and contract Exceptions:
There is a presumption of regularity of official (1) Marriage between persons below 18 years
acts, and the issuance of the Civil Registrar of a old [Art. 35(1), FC]
Certificate of Due Search and Inability to Find (2) Bigamous or polygamous marriage [Art.
the application for a marriage license certifies 35(4), FC]
(3) Mistake in identity [Art. 35 (5), FC]

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(4) Marriages void under Article 53 [Art. 35 (6), Citizenship at the time the divorce is obtained
FC] determines its validity. Since H was no longer a
(5) Psychological incapacity [Art. 36, FC] Filipino citizen when he divorced W, the
(6) Incestuous marriages [Art. 37, FC] nationality principle did not apply to him
(7) Marriage void for reasons of public policy anymore and the divorce is valid. [Llorente v. CA
[Art. 38, FC] (2000)]

A divorce decree obtained by the foreign spouse


Essential requisites Formal requisites is recognized under Phil law if it is executed in
Requirements accordance with the foreigners national law.
Inherent in the parties,
independent of the The party must prove divorce as a fact and that
carried everywhere
parties said divorce is obtained in conformity with the
Lex nationalii Laws Lex loci celebrationis if law allowing it, before the Philippine courts can
relating to family rights valid where celebrated,
take judicial notice. [Garcia v. Recio (2001)]
and duties, or to the then valid everywhere;
status, condition, and forms of contracting
legal capacity of persons marriage are to be VOID AND VOIDABLE
are binding upon Phil regulated by the law
citizens even though living where it is celebrated.
MARRIAGES
abroad [Art. 15, CC] [Art. 26, FC]
Foreign marriages void
Foreign marriages may PRESUMPTION OF MARRIAGE
under Phil law due to lack Presumption in favor of a valid marriage [Art
be void under Phil law
of an essential requisite, 220, CC]
due to absence of a
even if valid under foreign
laws, will not be
formal requisite under The presumption that a man and a woman
foreign laws. deporting themselves as husband and wife
recognized.
have entered into a lawful contract of
PROOF OF FOREIGN MARRIAGE marriage is satisfactory if uncontradicted.
[Sec. 3 (aa), Rule 131, ROC]
In order that it may be upheld:
(1) Provisions of the foreign law In marriages of exceptional character, the
(2) Celebration of the marriage in accordance existence of the marriage is presumed, even in
with said provisions the total absence of a marriage license. [Vda.
De Jacob v CA (1999)]
FOREIGN DIVORCES If a marriage certificate is missing, and all
means have not yet been exhausted to find it,
Those obtained by Filipino citizens are void
then the marriage is presumed to exist [Sevilla
under Philippine law.
v. Cardenas (2006)]
If the foreign spouse obtains a valid divorce
Absence of a marriage certificate is not proof of
decree abroad capacitating him/her to remarry,
absence of marriage.
the Filipino spouse shall have capacity to
remarry under Philippine law. [Art. 26, FC]
To prove the fact of marriage, the following
would constitute competent evidence:
A divorce obtained by the foreign spouse in
(1) The testimony of witnesses to matrimony;
accordance with the said spouses national law
(2) Documentary photos or videos of the
is recognized in the Philippines and releases
wedding;
Filipino spouse from their marriage. [Van Dorn v.
(3) The couples public cohabitation; and
Romillo (1985)]
(4) Birth and baptismal certificates of children
born during the union. [Trinidad v CA (1998)]
The citizenship of the spouses at the time of the
divorce determines their capacity to obtain a
valid divorce. [Quita v. Dandan (1998)]

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VOID MARRIAGES Molina Guidelines:


(1) The burden of proof to show the nullity of
TYPES OF VOID MARRIAGES the marriage belongs to the plaintiff. This is
(1) Absence of any formal/essential requisites to be investigated by the OSG for collusion.
(2) Psychologically Incapacitated spouse (2) The root cause of the psychological
(3) Incestuous Marriages incapacity must be: (a) medically or clinically
(4) Marriages contrary to public policy identified, (b) alleged in the complaint, (c)
(5) Void subsequent marriages sufficiently proven by the experts, (d) clearly
explained in the decision.
Absence of requisites (3) The incapacity must be proven to be existing
at the time of the celebration of the
Art. 4(1), FC. The absence of any essential or marriage.
formal requisites shall render the marriage void (4) Such incapacity must also be shown to be
ab initio, except as stated in Article 35 (a). medically or clinically permanent or
incurable.
Art. 5, FC: Any male or female of the age of (5) Such illness must be grave enough to bring
eighteen years or upwards not under any of the about the disability of the party to assume
impediments mentioned in Articles 37 and 38, the essential obligations of marriage.
may contract marriage. (6) The essential marital obligations must be
those embraced by Articles 68 up to 71 of
Void from the Beginning [Art. 35, FC] the Family Code as regards the husband
(1) Marriage where any party is below eighteen and wife as well as Articles 220, 221, and
years of age even with the consent of 225 of the same Code in regard to parents
parents or guardians and their children.
(2) Marriage solemnized by any person not (7) Interpretations given by the National
legally authorized to perform marriages Appellate Matrimonial Tribunal of the
unless such marriages were contracted with Catholic Church in the Philippines, while not
either or both parties believing in good faith controlling/decisive, should be given great
that the solemnizing officer had legal respect by our courts.
authority to do so. (8) The trial court must order the prosecuting
Ones belief in good faith that the attorney or fiscal and the Solicitor General to
solemnizing officer has the required appear as counsel for the state. No decision
authority is a mistake of fact, and not of law. shall be handed down unless the Solicitor
(3) Marriage solemnized without a valid General issues a certification. [Republic v.
marriage license, except in marriages under Molina, (1997)]
exceptional circumstances
(4) Bigamous or polygamous marriages not 3 characteristics for determining psychological
falling under Article 41 (Art. 41: subsequent incapacity: gravity, antecedent, and incurability.
marriage by present spouse who obtained a [Santos v. Bedia-Santos, (1995)]
declaration of presumptive death for absent
spouse prior to the subsequent marriage) Refusal of husband to have sex was interpreted
(5) There is a mistake as to the identity of the as psychological incapacity. A man who can
other contracting party but wont is psychologically incapacitated. [Tsoi
(6) Subsequent marriages that are void under v. CA, (1997)]
Article 53 (Non-compliance with Art. 52)
Psychological incapacity maybe established by
Psychological incapacity the totality of the evidence presented. Personal
Contracted by any party who, at the time of the medical examination could be dispensed with.
celebration, was psychologically incapacitated [Marcos v. Marcos (2000)]
to comply with the essential marital obligations
of marriage, even if such incapacity becomes
manifest only after its solemnization [Art. 36, FC]

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There is no requirement that the respondent be Void subsequent marriages


medically examined first. [Republic v. San Jose
(2007)] No Judicial Declaration of Nullity
A person entered into a subsequent marriage
Pathological liar considered as psychological without first getting a judicial declaration of
incapacity, Molina guidelines met. [Antonio v. nullity of the first void marriage [Art. 40, FC]
Reyes, (2006)]
Presumptive Death
Incestuous marriages Failure of the spouse present to obtain a judicial
(1) Between ascendants and descendants of declaration of presumptive death before
any degree, legitimate or illegitimate entering a subsequent marriage [Art. 41, FC]
(2) Between brothers and sisters, whether full or
half blood, legitimate or illegitimate [Art. 37, Bad Faith of Both Spouses
FC] Both spouses entering a subsequent marriage
after presumptive death, who acted in bad faith
Against public policy [Art. 44, FC]
(1) Between collateral blood relatives,
legitimate or illegitimate, up to the fourth Non-Recording
civil degree. Subsequent marriage of spouses, where the
(2) Between step-parents and step-children. requirements of recording under Art. 52 have
(3) Between parents-in-law and children-in- not have been complied with, shall be null and
law. void. [Art. 53, FC]
(4) Between adopting parent and adopted child.
(5) Between the surviving spouse of the Art. 52, FC. The judgment of annulment or of
adopting parent and the adopted child. absolute nullity of the marriage, the partition
(6) Between the surviving spouse of the adopted and distribution of the properties of the spouses
child and the adopter. and the delivery of the children's presumptive
(7) Between an adopted child and a legitimate legitimes shall be recorded in the appropriate
child of the adopter. civil registry and registries of property;
(8) Between adopted children of the same otherwise, the same shall not affect third
adopter. persons.
(9) Between parties where one, with the
intention to marry the other, killed that other Previous marriage declared void ab initio or
person's spouse, or his or her own spouse. annulled
[Art. 38, FC]
Art. 40, FC. The absolute nullity of a previous
Stepbrothers and stepsisters can marry because marriage may be invoked for purposes of
marriages between them are not among those remarriage on the basis solely of a final
enumerated in Article 38. judgment declaring such previous marriage
void.
Relationships outside of Art. 37 and 38 which
are not impediments to marriage: brother-in- In order to have a subsequent marriage:
law with sister-in-law, stepbrother with (1) The previous marriage should be judicially
stepsister, guardian with ward, adopted with declared void or annulled (final judgment)
illegitimate child of the adopter, adopted son of [Terre v. Terre (1992), Atienza v. Brillantes
the husband with adopted daughter of the wife, (1995)]
parties who have been convicted of adultery. (2) Must comply with the requirements of Art.
52

Under the Civil Code (superseded by the Family


Code), there was no need for a judicial
declaration of nullity of a previous marriage for

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a subsequent marriage to be valid [People v. (b) There is danger of death under the
Mendoza (1954)] circumstances set forth in Art. 391 CC
attendant to the disappearance;
Even if the judges first marriage contracted in (c) The spouse present had a well-founded
1965 was void for not having a marriage license, belief that the missing person is dead;
the requirement for a judicial declaration of and
nullity in Art. 40 still applies for his subsequent (d) Judicial declaration of presumptive
marriage contracted in 1991. [Atienza v. death was secured (no prejudice to the
Brillantes, (1995)] effect of the reappearance of the absent
spouse).
Where both marriages were contracted prior to
the effectivity of the FC, the requirement of Art. Extraordinary circumstances [Art. 391, CC]:
40 does not apply to the second marriage (1) On board vessel lost at sea voyage, airplane,
where a right is already vested and on which the (2) Armed Forces in war, or
FC cannot have retroactive effect. [Apiag v. (3) Danger of death under other circumstances,
Cantero, (1997)] existence not known

The judicial declaration of nullity can be invoked Institution of a summary proceeding is not
for purposes other than remarriage. Article 40 sufficient. There must also be a summary
was interpreted as being a requirement for judgment. [Balane]
purposes of remarriage but not limited for that
purpose. Separation of property is also a valid Only the spouse present can file or institute a
purpose for filing for a judicial declaration of summary proceeding for the declaration of
nullity. [Domingo v. CA, (1993)] presumptive death of the absentee. [Bienvenido
case]
The word solely in Art. 40 referred to
validating subsequent marriages but NOT to There must have been diligent efforts on the
limiting the purposes for which a judicial part of the deserted spouse to locate the absent
declaration of nullity can be invoked. [Domingo spouse. These diligent efforts correspond to the
v. CA, (1993)] requirement of the law for a well-founded
belief.
Subsequent Marriage when one spouse is
absent Effect of Reappearance of Absent Spouse
General rule: The subsequent marriage remains
Requirements for Subsequent Marriage to be valid.
Valid When Prior Spouse is Absent: [Art. 41, FC]
(1) Subsequent marriage due to ordinary Exception: It is automatically terminated by the
absence where: recording of the affidavit of reappearance of the
(a) Absent spouse had been absent for 4 absent spouse at the instance of any interested
consecutive years; person, with due notice to the spouses of the
(b) The spouse present had a well-founded subsequent marriage. [Art. 42, FC]
belief that absent spouse is dead; and
(c) Judicial declaration of presumptive It is the recording of the affidavit of
death was secured (no prejudice to the reappearance that automatically terminates the
effect of the reappearance of the absent subsequent marriage. Hence, if absentee
spouse). spouse reappears without recording affidavit of
(2) Subsequent marriage due to extraordinary reappearance, then there is no legal effect.
absence where: Meanwhile, absentee spouse cannot remarry.
(a) Absent spouse had been missing for 2 [Tolentino]
consecutive years;

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UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

Exception to the exception: If there is a Art. 390, CC. After an absence of 7 years, it
judgment annulling the previous marriage or being unknown whether or not the absentee
declaring it void ab initio. [Art. 42, FC] still lives, he shall be presumed dead for all
purposes, except for those of succession.
Good Faith
Period of absence for Presumptive Death is The absentee shall not be presumed dead for
mandatory thus cannot be shortened by good the purpose of opening his succession till after
faith and if be done so will be void. an absence of 10 years. If he disappeared after
the age of 75 years, an absence of 5 years shall
Difference between Absence in the Civil Code be sufficient in order that his succession may be
and Family Code opened.

Family Code Civil Code Art. 391, CC. The following shall be presumed
dead for all purposes, including the division of
As to period the estate among the heirs:
4 years under normal Absent for at least 7 (1) A person on board a vessel lost during a sea
circumstances years voyage, or an aeroplane which is missing,
2 years under 4 years under who has not been heard of for four years
extraordinary extraordinary since the loss of the vessel or aeroplane;
circumstances circumstances
(2) A person in the armed forces who has taken
As to remarriage part in war, and has been missing for four
years;
In order to remarry, Declaration of
summary proceeding presumptive death is not (3) A person who has been in danger of death
is necessary necessary under other circumstances and his
As to who can institute the action existence has not been known for four years.

Can be instituted by Although 7 years is required for the presumption


the spouse present, of death of an absentee in the CC, the FC makes
any interested party, The spouses themselves an exception for the purpose of remarriage by
and the subsequent limiting such requirement to 4 years.
spouse
Effects of Termination of Bigamous Marriage
As to effect on subsequent marriage under Art. 42 [Art. 43, FC; Art. 44, FC]
Subsequent Art. 43:
marriage is (1) Children of subsequent marriage
automatically Upon reappearance, conceived prior to its termination considered
terminated by the judicial proceeding is legitimate; custody and support decided by
recording of an necessary to declare court in a proper proceeding
affidavit of marriage null and void (2) Property regime dissolved and liquidated
reappearance of the (party in bad faith shall forfeit his/her share
absent spouse in favor of the common children or if there
are none, children of the guilty spouse by a
As to ground previous marriage, and in case there are
none, to the innocent spouse)
Well founded belief (3) Donation propter nuptias remains valid,
Generally believed to be
that the absent (but if the donee contracted marriage in bad
dead
spouse is dead faith, donations are revoked by operation of
law)

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UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

(4) Insurance benefits innocent spouse may VOIDABLE OR ANNULLABLE


revoke designation of guilty party as MARRIAGE
beneficiary, even if such designation is In case either or both of the contracting parties,
stipulated as irrevocable not having been emancipated by a previous
(5) Succession rights Party in bad faith shall marriage, are between the ages of eighteen and
be disqualified to inherit from the innocent twenty-one, In addition to the requirements of
spouse, whether testate or intestate the preceding articles:
(1) Exhibit to the local civil registrar the consent
Article 44 (Donations): to their marriage of their father, mother,
If both spouses of the subsequent marriage surviving parent or guardian, or persons
acted in bad faith, all donations by reason of having legal charge of them, in the order
marriage and testamentary dispositions made mentioned
by one party in favor of the other are revoked by (2) Manifested in writing by the interested
operation of law. party, who personally appears before the
proper local civil registrar, or
ACTION OR DEFENSE OF NULLITY (3) In the form of an affidavit made in the
presence of two witnesses and attested
PRESCRIPTION before any official authorized by law to
administer oaths
Art. 39, FC. The action or defense for the (4) The personal manifestation shall be
declaration of absolute nullity of a marriage recorded in both applications for marriage
shall not prescribe. (as amended by RA 8533) license, and the affidavit, if one is executed
instead, shall be attached to said
WHO MAY FILE THE PETITION FOR NULLITY applications. [Art 14, FC]
Only an aggrieved or injured spouse may file a
petition for annulment of voidable marriages or GROUNDS FOR ANNULMENT
declaration of absolute nullity of void marriages. x x x A defect in any of the essential requisites
Such petition cannot be filed by compulsory or shall render the marriage voidable as provided
intestate heirs of the spouses or by the State. in Article 45. [Art. 4, FC)
The Committee is of the belief that they do not
have a legal right to file the petition. Art 45, FC. Marriage may be annulled on the
Compulsory or intestate heirs have only inchoate following grounds existing at time of marriage:
rights prior to the death of their predecessor, (1) One of the parties is 18 or above but below
and, hence, can only question the validity of the 21 years old, and there is no parental
marriage of the spouses upon the death of a consent.
spouse in a proceeding for the settlement of the (2) Either party was of unsound mind (insanity).
estate of the deceased spouse filed in the regular (3) The consent of either party was obtained
courts. [Enrico v. Heirs of Sps. Medinaceli (2007), through fraud (different from mistake in
also reiterated in Carlos v. Sandoval (2008)] identity)
(4) The consent of either party was obtained
through force, intimidation, or undue
HOW TO ATTACK A VOID MARRIAGE influence.
General rule: Void marriages may be attacked (5) Either party is physically incapable of
collaterally or directly. consummating the marriage (impotence;
this is different from sterility, which is the
Exception: A person in a void marriage must first inability to produce offspring).
file for a declaration of nullity in order to (6) Either party has a serious and incurable
subsequently marry. sexually-transmissible disease, even if not
concealed.

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Action to Annul Law presumes sanity, burden of proof on party


Action in rem, concerns status of parties; res is alleging insanity
relation between parties or marriage tie;
jurisdiction depends on nationality or domicile Fraud
not the place of celebration. Only those enumerated in Art. 46:
(1) Non-disclosure of previous conviction by
GROUNDS FOR ANNULMENT EXPLAINED final judgment of a crime involving moral
turpitude
Lack of parental consent (2) Concealment by wife at the time of
18 x < 21 without parental consent marriage, that she was pregnant by another
Ratified by party 18 or above but below 21 man
upon free cohabitation upon reaching 21. (3) Concealment of STD regardless of nature
Parents whose consents were wanting may existing at time of marriage
ratify before 21; this right can be waived; (4) Concealment of drug addiction, habitual
however, the Code Commission believes that alcoholism, homosexuality, lesbianism
no such ratification can be made by the existing at time of marriage
parent. [Tolentino]
No other misrepresentation or deceit of
In defending the requirement of parental character, health, rank, fortune or chastity shall
consent, the Court held that the State has constitute fraud.
power to make adjustments in the
constitutional rights of minors based on the Conviction of crime: requisites are
following grounds: 1) the peculiar vulnerability (1) Moral turpitude
of children, 2) to protect minors from immature (2) Conviction
decision making and prevent unstable
marriages, 3) on the presumption that parents Concealment of pregnancy
act in the best interests of their children in child Fraud against very essence of marriage;
rearing. [Moe v. Dinkins, (1981)] importance of procreation of children; an
assault to the integrity of the union by
Insanity introducing alien blood
Mental incapacity or insanity is a vice of If husband knew of pregnancy, the marriage
consent; insanity cannot be annulled on the ground of
(1) of varying degrees concealment
(2) curable being an illness capable of
ratification or convalidation May be ratified upon free cohabitation after
(3) has lucid intervals knowledge of fraud.
(4) ground only for annulment in many
countries Art. 45 STD Art. 46 STD
Can be ratified by cohabitation after insanity is The STD is a type of
cured or during a lucid interval Ground for annulment fraud which is a
Mere mental weakness is not a ground for ground for annulment
annulment, but if found grave enough, it may Does not have to be
Must be concealed
amount to psychological incapacity. concealed
Intoxication, somnambulism where one had Must be serious and Need not be serious
no mental capacity to give consent is incurable nor incurable
equivalent to insanity It is the concealment
The STD itself is the
Must exist at the time of the celebration of the that gives rise to the
ground for annulment
marriage. Insanity that occurs after the annulment
celebration of marriage does not constitute a
cause for nullity [Katipunan v. Tenorio (1937)]

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Effect of cure to fraud in Art. 46: May be ratified upon cohabitation after force,
Recovery or rehabilitation from STD, drug intimidation, or undue influence has ceased or
addiction, and habitual alcoholism will not bar disappeared.
action for annulment; the defect is not the
disease, but the FRAUD which VITIATED Impotency
CONSENT. Must exist at time of marriage, and be
continuous and incurable. If incapacity can be
W gave birth 3 months after marriage, H filed remedied or is removable by operation, NOT
for annulment: concealment of non-virginity. ANNULLABLE [Sarao v. Guevarra(1940)]
Denied. Court held that it was unbelievable that
husband could not have noticed when wife had Physical condition: sexual intercourse with a
been at least 6 months pregnant prior to person of the opposite sex is impossible, not
marriage. [Buccat v. Mangonon de Buccat, mere sterility
(1941)]
Only the potent spouse can file the action for
The Supreme Court granted annulment annulment and he/she must not have been
because the wife concealed the fact that she aware of the others impotency at the time of
was 4 months pregnant during the time of the marriage [Sempio-Diy]
marriage. Since Delizo was naturally plump,
Aquino could hardly be expected to know, by If he/she was aware, it is implied that he/she
mere looking, whether or not she was pregnant renounced copulation by consenting to the
at the time of the marriage. [Aquino v. Delizo, marriage. [Tolentino]
(1960)]
When both spouses are impotent, marriage
It is the concealment of homosexuality, and not cannot be annulled because neither spouse is
homosexuality per se, that vitiates the consent aggrieved. [Sempio-Diy]
of the innocent party. Such concealment An impotent plaintiff could not have expected
presupposes bad faith and intent to defraud the copulation with the other spouse. [Tolentino]
other party in giving consent to the marriage.
[Almelor v. RTC, (2008)] Potency presumed; party who alleges impotency
has burden of proof [Jimenez v. Canizares
Force, intimidation, Undue influence (1960)]
FORCE must be one as to prevent party from
acting as a free agent; will destroyed by Refusal of wife to be examined DOES NOT
fear/compulsion PRESUME impotency because Filipino women
are inherently shy & bashful; TC must order
INTIMIDATION must be one as to compel the physical examination because w/o proof of
party by a reasonable/well-grounded fear of an impotency, she is presumed potent; to order her
imminent and grave evil upon his to undergo physical exam does not infringe her
person/properties right against self-incrimination [Jimenez v.
Canizares]
DEGREE OF INTIMIDATION: age, sex, condition Note: If she continues to refuse the physical
of person borne in mind exam, she can be held in contempt & ordered
Threat or intimidation as not to act as FREE confined in jail until she does so
AGENT; i.e. threatened by armed
demonstrations [Tiongco v. Matig-a] Absence of cohabitation is not a ground for
annulment. [Villanueva vs. CA (2006)]
Committee added undue influence, may be
compelled to enter out of REVERENTIAL FEAR Relative Impotency may now be invoked
e.g., fear of causing distress to parents, because there are cases where one is impotent
grandparents, etc. with respect to his/her spouse but not with
other men or women.

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Reason: danger to the health of spouse &


Example: penile erection to other women offspring/s
possible; unusually large penis cannot fit with Same as incurable impotency
abnormally small vagina Not subject to ratification cannot be
ratified or convalidated by cohabitation:
Sexually-transmissible disease serious and (1) Affliction of STD is unknown to the other
incurable spouse [Balane]
Should exist at the time of the marriage (2) The other spouse must also be free from a
Should be found serious similar STD. [Balane]
Should appear to be incurable

WHO MAY FILE, PRESCRIPTION, RATIFICATION

Ground Who can file Prescription Ratification


(Art. 45) (Art. 47) (Art. 47) (Art. 45)
Party 18 or above but below Within 5 years after
Lack of
21 attaining 21. Free cohabitation after
parental
Parent or guardian who did Before party below 21 attaining age of 21.
consent
not give consent reaches 21.
Sane spouse with no
knowledge of the others
insanity Any time before the death
of either party Free cohabitation of insane
Insanity Legal guardian of insane party after insane party
party comes to reason
During lucid interval or
Insane party after regaining sanity, and
before death
Free cohabitation after
Injured party (defrauded Within 5 years after
Fraud having full knowledge of
party) discovery of fraud
fraud
Force, Within 5 years after Free cohabitation after the
intimidation, disappearance of force, force or intimidation or
Injured party
undue undue influence, or undue influence has ceased
influence intimidation or disappeared
Within 5 years after Cannot be ratified but
Impotence Potent spouse
marriage action prescribes
Within 5 years after Cannot be ratified but
STD Healthy party
marriage action prescribes

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Marriages Not Subject to Ratification/ EFFECTS OF NULLITY


Convalidation by cohabitation
(1) One spouse is incurably impotent (Art. 47, FC Art. 50(1), FC. The effects provided for by
prescription: 5 years) paragraphs (2), (3), (4) and (5) of Article 43 and by
(2) One spouse has an incurable STD (Art. 47, FC Article 44 shall also apply in the proper cases to
prescription: 5 years) marriages which are declared void ab initio or
annulled by final judgment under Articles 40 and
PRESENCE OF PROSECUTOR 45.

Art. 48, FC. To prevent collusion between the Final judgment in such cases shall provide for the:
parties, fabrication or suppression of evidence, the (1) Liquidation, partition, and distribution of the
prosecuting attorney or fiscal shall appear on properties of the spouses
behalf of the State. (2) Custody and support of the common children
(3) Delivery of their presumptive legitimes
In a legal separation or annulment case, the (a) Unless such matters had been
prosecuting attorney must first rule out collusion adjudicated in previous judicial
as a condition sine qua non for further proceedings (Art. 50(2))
proceedings. A certification by the prosecutor (b) All creditors of the spouses/property
that he was present during the hearing and even regime shall be notified of the
cross-examined the plaintiff does not suffice to proceedings for liquidation [Art. 50(2 and
comply with the mandatory requirement. [Corpuz 3), FC]
v. Ochoterena, (2004)]
In the partition, the conjugal dwelling and lot shall
EFFECT OF PENDING be adjudicated to the spouse with whom majority
ACTIONS/DECREE of the common children remain [Arts. 50(4), 102
(1) The court shall provide for the support of the and 129, FC]
spouses,
(2) The custody and support of the common Presumptive legitimes, computed as of the date of
children, giving paramount consideration to the final judgment, shall be delivered in cash,
their moral and material welfare, their choice property or sound securities:
of parent with whom they wish to remain. Unless the parties, by mutual agreement
(3) The court shall also provide for visitation judicially approved, had already provided for
rights of other parent. [Art. 49, FC] such [Art. 51(1), FC]
The children/guardian/trustee of property may
DECISIONS ON THE NULLIFICATION OF THE ask for the enforcement of the judgment [Art.
MARRIAGE 51(2), FC]
The delivery of the presumptive legitimes shall
Art. 48 (2), FC. In the cases referred to in the not prejudice the ultimate successional rights,
preceding paragraph, no judgment shall be based but the value of the properties already received
upon a stipulation of facts or confession of shall be considered as advances on their
judgment. legitime [Art. 51(3), FC]

Stipulation of facts An admission by both parties General rule: children born or conceived within
after agreeing to the existence of any of the void marriages are illegitimate.
grounds or facts that would constitute a
void/voidable marriage Exceptions:
(1) Children conceived or born before the
Confession of judgment The admission by one judgment under Article 36 has become final
party admitting his/her fault to cause the and executory [Art. 54, FC]
invalidity of the marriage. (2) Children conceived or born of subsequent
marriages under Article 53 Art. 54, FC]

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UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

JURISDICTION legal separation. [People v. Zapata and Bondoc


For marriages celebrated under both civil and (1951)]
Muslim rites, Sharia courts do not have exclusive
jurisdiction. The Judiciary Reorganization Act of For sexual infidelity as a ground for legal
1980 provided that regional trial courts have separation, there is no need for a prior conviction
jurisdiction over all actions involving the contract for concubinage, because legal separation only
of marriage and marital relations. [Tamano v. requires a preponderance of evidence, as opposed
Ortiz, (1998)] to proof beyond reasonable doubt. [Gandioco v.
Pearanda (1989)]

The death of one party in a legal separation case


Legal Separation abates the action. This is because the death of
either spouse automatically dissolves the
GROUNDS FOR LEGAL marriage. An action for legal separation is also
purely personal between the spouses. [Lapuz Sy v.
SEPARATION Eufemio (1972)].
Note: The grounds for legal separation are
exclusive. [Art. 55, FC] Abandonment is not mere physical estrangement
but also financial and moral desertion. There
These must be filed within 5 years after must be an absolute cessation of marital
occurrence of cause [Art. 57, FC]: relations, duties, and rights with the intention of
(1) Repeated physical violence or grossly abusive perpetual separation. [Dela Cruz. v. Dela Cruz
conduct directed against the petitioner, a (1968)]
common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel
the petitioner to change religious or political
ACTS OF VIOLENCE ACCORDING TO
affiliation; RA 9262:
(3) Attempt of respondent to corrupt or induce (1) Causing physical harm to the woman or her
the petitioner, a common child, or a child of child;
the petitioner, to engage in prostitution, or (2) Threatening to cause the woman or her child
connivance in such corruption or physical harm;
inducement; (3) Attempting to cause the woman or her child
(4) Final judgment sentencing the respondent to physical harm;
imprisonment of more than six years, even if (4) Placing the woman or her child in fear of
pardoned; imminent physical harm;
(5) Drug addiction or habitual alcoholism of the (5) Attempting to compel or compelling the
respondent; woman or her child to engage in conduct
(6) Lesbianism or homosexuality of the which the woman or her child has the right to
respondent; desist from or desist from conduct which the
(7) Contracting by the respondent of a woman or her child has the right to engage in,
subsequent bigamous marriage, whether in or attempting to restrict or restricting the
the Philippines or abroad; woman's or her child's freedom of movement
(8) Sexual infidelity or perversion; or conduct by force or threat of force, physical
(9) Attempt by the respondent against the life of or other harm or threat of physical or other
the petitioner; or harm, or intimidation directed against the
(10) Abandonment of petitioner by respondent woman or child. This shall include, but not
without justifiable cause for more than one limited to, the following acts committed with
year. the purpose or effect of controlling or
restricting the woman's or her child's
Adultery is not a continuing crime; it is movement or conduct:
consummated at every moment of carnal
knowledge. Thus, every sexual act is a ground for

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UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

(a) Threatening to deprive or actually DEFENSES


depriving the woman or her child of
custody to her/his family;
(b) Depriving or threatening to deprive the
GROUNDS FOR DENYING LEGAL
woman or her children of financial support SEPARATION
legally due her or her family, or (1) Condonation by aggrieved party [Art. 56, FC]
deliberately providing the woman's (2) Consent by aggrieved party to the commission
children insufficient financial support; of the offense [Art. 56, FC]
(c) Depriving or threatening to deprive the (3) Connivance between parties in the
woman or her child of a legal right; commission of the offense [Art. 56, FC]
(d) Preventing the woman in engaging in any (4) Mutual guilt or recrimination between
legitimate profession, occupation, spouses in the commission of any ground for
business or activity or controlling the legal separation [Art. 56, FC]
victim's own money or properties, or solely (5) Collusion between parties to obtain decree of
controlling the conjugal or common legal separation [Art. 56, FC]
money, or properties; (6) Prescription of action for legal separation [Art.
(6) Inflicting or threatening to inflict physical 57, FC: 5 years from occurrence of the cause of
harm on oneself for the purpose of controlling action]
her actions or decisions; (7) Reconciliation of parties during pendency of
(7) Causing or attempting to cause the woman or action [Art. 66 (1), FC]
her child to engage in any sexual activity which (8) Death of either party during pendency of
does not constitute rape, by force or threat of action [Lapuz-Sy vs. Eufemio]
force, physical harm, or through intimidation
directed against the woman or her child or WHEN TO FILE/TRY ACTIONS
her/his immediate family; An action for legal separation shall be filed within
(8) Engaging in purposeful, knowing, or reckless five years from the time of the occurrence of the
conduct, personally or through another, that cause. [Art. 57, FC]
alarms or causes substantial emotional or
psychological distress to the woman or her COOLING-OFF PERIOD AND
child. This shall include, but not be limited to,
the following acts: RECONCILIATION EFFORTS
(a) Stalking or following the woman or her Action cannot be tried before six months have
child in public or private places; elapsed from the filing of the petition [Art. 58, FC]
(b) Peering in the window or lingering outside
the residence of the woman or her child; Actions cannot be tried unless the court has
(c) Entering or remaining in the dwelling or attempted to reconcile the spouses, and
on the property of the woman or her child determined that despite such efforts,
against her/his will; reconciliation is highly improbable [Art. 59, FC]
(d) Destroying the property and personal
belongings or inflicting harm to animals Note: This is without prejudice to judicial
or pets of the woman or her child; and determination of custody of children, alimony, and
(e) Engaging in any form of harassment or support pendente lite.
violence;
(9) Causing mental or emotional anguish, public Courts can still resolve other issues, pending the
ridicule or humiliation to the woman or her waiting period or cooling off period. In resolving
child, including, but not limited to, repeated other issues, courts should try not to touch, as
verbal and emotional abuse, and denial of much as possible, on the main issue (i.e. adultery
financial support or custody of minor children if that is the ground used). However, Court must
of access to the woman's child/children. still receive evidence if just to settle incidental
issues of support and custody. [Araneta vs.
Concepcion, (1956)]

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Note: This provision of the Family Code dictating a shall be forfeited in favor the common
mandatory 6-month cooling-off period does not children, previous children, or innocent
apply in cases where violence, as used in RA 9262 spouse, in that order [Art. 63. cf. Art. 43(2),
(Anti-Violence Against Women and their FC].
Children), is alleged. The case should be heard as (3) Custody of the minor children shall be
soon as possible by the court. awarded to the innocent spouse [Art. 63, cf.
Art 213, FC]
CONFESSION OF JUDGMENT (4) Guilty spouse shall be disqualified from
No decree of legal separation shall be based upon inheriting from innocent spouse by intestate
a stipulation of facts or a confession of judgment succession. The provisions in favor of the
[Art. 60, (1). FC] guilty party in the will of the innocent spouse
shall also be revoked by operation of law. [Art.
Note: Art. 60 par. 1 applies only if the judgment 63, FC]
was based solely on the stipulation of facts or (5) Donations in favor of the guilty spouse may be
solely on the confession of judgment. Thus, if revoked [Art. 64, FC] but this action prescribes
other grounds were used, Art. 60 par. 1 is not after 5 years from the decree of legal
applicable. [Balane] separation.
(6) Innocent spouse may also revoke designation
The prohibition on confession of judgment does of guilty spouse as beneficiary in an insurance
not mean that the Court will not grant petition if policy, even if such stipulations are
one party admits to being guilty of the charges of irrevocable. [Art. 64. FC, cf. PD 612, sec. 11]
adultery. The point of this provision is that the (7) Obligation for mutual support ceases, but the
Court should still admit evidence, not decide just court may order the guilty spouse to support
based on an admission of guilt. Because what is the innocent spouse. [Art. 198, FC]
prohibited is handing down a decree of legal (8) The wife shall continue to use the surname of
separation based solely on a confession of the husband even after the decree for legal
judgment. [Ocampo v Florenciano (1960)] separation. [Laperal v. Republic (1992)]

EFFECTS OF FILING PETITION RECONCILIATION


(1) The spouses are entitled to live separately, but Should the spouses reconcile, they should file a
the marital bond is not severed. [Art. 61 (1), FC] corresponding joint manifestation under oath of
(2) Administration of community or conjugal such reconciliation, duly signed by them and filed
property If there is no written agreement with the court in the same proceeding for legal
between the parties, the court shall designate separation. [Art. 65, FC]
one of them or a third person to administer
the ACP or CPG. [Art. 61(2), FC] Effects of reconciliation:
(1) Proceedings for legal separation shall be
terminated at whatever stage. [Art. 66, FC]
EFFECTS OF PENDENCY (2) If there is a final decree of legal separation, it
The Court shall provide for: [Art. 62, cf. Art. 49. FC] shall be set aside. [Art. 66, FC]
(1) Support of spouses (3) The separation of property and forfeiture of
(2) Custody of children the court shall give share of guilty spouse shall subsist, unless the
custody of children to one of them, if there is spouses agree to revive their former property
no written agreement between the spouses. regime or to institute another property
(3) Visitation rights of the other spouse regime. [Art. 66 cf. Art. 67, FC]
(4) Joint custody of children is restored.
EFFECTS OF LEGAL SEPARATION (5) The right to intestate succession by guilty
(1) The spouses can live separately [Art. 63, FC] spouse from innocent spouse is restored.
but the marriage bonds are not severed. The right to testamentary succession
(2) The ACP or CPG shall be dissolved and depends on the will of the innocent spouse.
liquidated, and the share of the guilty spouse

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ANNEX TO VOID AND VOIDABLE MARRIAGES


AND LEGAL SEPARATION
GROUNDS

Void Marriages Voidable Marriages Legal Separation


(1) One is a minor (1) Repeated physical violence
(2) No authority to marry (2) Pressure to compel to change
(3) No valid marriage religious/political affiliations
(1) Lack of parental
license (3) Corruption / inducement to engage in
consent
(4) Bigamous and prostitution
(2) Insanity
polygamous marriages (4) Final judgment with sentence of more than
(3) Fraud
(5) Mistake of identity 6 yrs.
(4) Force, Intimidation
(6) Void subsequent (5) Drug addiction / habitual alcoholism
or Undue Influence
marriage (6) Homosexuality / lesbianism
(5) Impotence
(7) Psychological (7) Bigamous marriage
(6) Serious and
incapacity (8) Sexual Infidelity
Incurable STD
(8) Incestuous Marriages (9) Attempts against the life of petitioner
(9) Marriages against (10) Abandonment without just cause for more
public policy than 1 year

EFFECTS OF FILING / PENDING DECREE

Void/Voidable Marriages Legal Separation


Support for the spouses
Custody and support for the children
Visitation rights to the other spouse

EFFECTS OF AFFIDAVIT OF REAPPEARANCE, JUDICIAL DECLARATION OF


NULLITY, ANNULMENT AND LEGAL SEPARATION

Void Marriages Terminated Marriage Voidable Legal Separation


[Art. 41, FC] Marriages
Status of Marital ties
Severed Severed Severed Not Severed
Status of Marriage
Void ab initio Subsequent marriage Void Valid
is terminated (not
invalidated)
Status of Children born and conceived before termination
Illegitimate Legitimate Legitimate Legitimate
EXCEPT: Art. 36 and 35
conceived and born before
judgment (legitimate)
Custody of Children
Court Proceeding Court Proceeding Court Proceeding Innocent Spouse

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EFFECTS OF AFFIDAVIT OF REAPPEARANCE, JUDICIAL DECLARATION OF


NULLITY, ANNULMENT AND LEGAL SEPARATION [CONTINUATION]

Void Marriages Terminated Marriage Voidable Legal Separation


[Art. 41, FC] Marriages
Property Relations
(1) Dissolution and Liquidation of properties
(a) Guilty/Bad Faith spouse will forfeit his/her share from the Net Profits to the (in order):
(i) Common children
(ii) Children of the guilty spouse by previous marriage
(iii) The innocent spouse
(2) Notification of creditors with the proceedings for liquidation
(3) Conjugal dwelling to be adjudicated to the spouse who has custody of majority of common children
(4) Insurance policy may be revoked only by the innocent spouse (Legal Separation: Only within 5 years)
(5) Spouse in bad faith/guilty shall be disqualified to inherit from innocent spouse (intestate succession
only in legal separation)
Donation Propter Nuptias
Valid, but if donee contracted marriage in bad faith, revoked by operation of May be revoked within 5
law years

Rights and Obligations If the wife abandons the family domicile (vs
obligation of cohabitation) with justifiable
Between Husband and cause i.e. being forced to perform lewd
sexual acts, the husbands obligation to
Wife support her is not terminated. The law will
not permit the husband to terminate the
obligation to support his wife by his own
ESSENTIAL OBLIGATIONS wrongful acts in driving the wife to seek
(1) Live together (cohabitation) [Art. 68, FC] protection in her parents home. [Goitia v.
Campos Rueda (1916)]
Exception: One spouse living abroad or
there are valid and compelling reasons [Art. A court cannot compel a married woman to
69 (2), FC] at the discretion of the court. go back to her husband, but the court may
decree that support be terminated. [Arroyo
Exception to exception: Incompatibility with v. Vasquez de Arroyo (1921)]
the solidarity of the family [Art. 69 (2), FC]

(2) Observe mutual love, respect, and fidelity


FAMILY DOMICILE
The husband and wife shall fix the family
domicile. [Art. 69, FC]
(3) Render mutual help and support [Art. 68,
FC]
In case of disagreement, the court shall decide.
A person has a purely personal right to [Art. 69 (1), FC]
consortium (Constitutional right to liberty).
Court cannot order a man to go back to the SUPPORT
conjugal dwelling. (Shows that what is in From the conjugal property; if none, income or
Family Code is not the former spousal unity the fruits of their separate properties; if none,
doctrine (Old England)). [Ilusorio v. Bildner from their separate properties (liable in
(2000)] proportion to their properties).

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MANAGEMENT OF HOUSEHOLD If BEFORE the objection, enforce resulting


This is the right and duty of both spouses. obligation against the separate property of the
spouse who has not obtained consent. [Art.
73,FC]
EFFECT OF NEGLECT OF DUTY
In case the other spouse neglects his or her
duties or commits acts which tend to bring
danger, dishonor or injury to the family, the Property Relations of the
aggrieved party may apply to the court for relief.
[Art. 72, FC] Spouses
Injury contemplated is physical, moral, MARRIAGE SETTLEMENTS
emotional or psychological, not financial.
Art. 75, FC. Future spouses may agree upon, in
EXERCISE OF PROFESSION the marriage settlement, which property regime
Either spouse may exercise any legitimate will govern their marriage (ACP, CPG, complete
profession, without need for consent of the separation of property, other regimes). However,
other. in the absence of a marriage settlement, or
when the regime agreed upon is void, the
The other spouse may only object on valid, system of absolute community of property as
serious, and moral grounds. established by this Code shall govern.

In case of disagreement, the Court shall decide Marriage settlements are considered accessory
whether: to the marriage, therefore as per Art. 81,
(1) The objection is proper, and stipulations in consideration of future marriage
(2) Benefit has accrued to the family before OR and donations will be void if the marriage does
after the objection. not take place.

MARRIAGE SETTLEMENT RULES


General rule: Before marriage is celebrated [Art. 76, FC]
Property regime is dissolved and liquidated [Art. 63(2), FC]
Reconciliation in case of legal separation [Arts. 66 and 67, FC]
When modifications can
When abandoned spouse petitions the court for judicial separation of property
be made
[Art. 128, FC]
Sufficient cause for judicial separation of property [Art. 135, FC]
Voluntary dissolution of ACP or CPG by the spouses [Art. 136, FC]
Made in writing
Signed by the parties
Executed before the marriage celebration
Not to prejudice third persons unless registered in the local civil registry where
Requirements of
the marriage is recorded and in registries of property
marriage settlements
and any modification If executed by a person below 21 y.o., valid only when persons required to give
thereof [Art. 77, FC] consent to the marriage (father, mother, or guardian, respectively) are made
parties to the agreement [Art. 78, FC]
If executed by a person upon whom civil interdiction has been pronounced or
who is subject to any other disability, valid only when his guardian appointed
by a competent court is made party to the agreement [Art. 79, FC]

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DONATIONS BY REASON OF Mateo v. Lagua (1969): Donations propter


nuptias are without onerous consideration,
MARRIAGE marriage being merely the occasion or motive
Solis v. Barroso (1928): In donations propter for the donation, not its cause. Being liberalities,
nuptias, the marriage is really a consideration, they remain subject to reduction for
but not in the sense of giving birth to the inofficiousness upon the donors death, if they
obligation. There can be a valid donation even if should infringe the legitime of a forced heir.
the marriage never took place, but the absence
of marriage is a ground for the revocation of the
donation.

Made before the celebration of marriage


Requisites of
Made in consideration of marriage
donations propter
In favor of one or both of the future spouses
nuptias
Donor must be one of the betrothed or any third person
Ordinary wedding gifts given after the celebration of the marriage
Donations in favor of future spouses made before marriage but not in
Donations excluded consideration thereof
Donations made in favor of persons other than the spouses even if founded on the
intended marriage
Spouses to each other
Who may donate Parents of one or both spouses
Third persons to either or both spouses
Family code provisions [Arts. 82-87, FC]
Sources of rules
Ordinary donation provisions [Art. 83; Title III of Book III, NCC]
governing donations
Provisions on testamentary succession and the formalities of wills for donations on
propter nuptias
future property [Art. 84, par. 2, FC]
General rule: Future spouses who agree upon a regime other than ACP cannot
donate to each other more than 1/5 of their present property (excess shall be
considered void). [Art. 84, FC]
Rules for donations Donations of property subject to encumbrances
before marriage (1) Are considered valid.
(2) In case of foreclosure:
(a) if property value < obligation, donee shall not be liable for the deficiency
(b) if property value > obligation, donee shall be entitled to the excess [Art. 85,
FC]
(1) If the marriage is not celebrated or judicially declared void ab initio, except
donations made in marriage settlements.
(2) When the marriage takes place without the consent of the parents or
guardians, as required by law.
(3) When the marriage is annulled, and the donee acted in bad faith.
Grounds for (4) Upon legal separation, if the donee is the guilty spouse.
revocation of (5) If there is a resolutory condition, and it is not complied with.
donation propter (6) When donee has committed an act of ingratitude: [Art. 765, CC]
nuptias [Art. 86, FC] (a) An offense against person or property of donor, or his wife or children
under parental authority.
(b) An imputation to the donor of any criminal offense, or any act involving
moral turpitude, even if proven, unless the crime is committed against the
donee, his wife or children under his authority.
(c) Refusing to support the donor, if he/she is legally required to do so.

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Donations by reason of marriage shall remain valid except that if the donee
contracted marriage in bad faith, such donations made to said donee are revoked
by operation of law. [Art. 43 (3), FC]
Revocation by operation of law Thus, even if spouse in good faith condones the
Effects of judicial
donee, the donation propter nuptias is still forfeited.
declaration of nullity
Effects provided for by Art. 43(2), (3), (4), and (5) and by Art. 44 shall also apply to
marriages that are declared void ab initio or annulled by final judgment under
Article 40 (Judicial declaration of nullity) and 45 (Voidable marriages). [Art. 50,
FC]
General rule: Spouses cannot donate to each other, directly or indirectly;
donations made by spouses to each other during the marriage are void. [Art. 87,
FC]
These donations refer to donations inter vivos [Tolentino]
Exception: Moderate gifts on the occasion of any family rejoicing.
The prohibition on donations can only be assailed by persons who bear such
Rules for donations relation to the parties or the property itself, that their rights are being interfered
during marriage with. Here, the insurance company of the donated car cannot assail the validity of
the donation. In addition, the codal exception of moderate gifts depends on the
income class of the spouses and a car could be considered a moderate gift that
does not infringe the prohibition of donation between spouses. [Harding v.
Commercial Union, (1918)]
A spouse cannot donate to persons which the other spouse may inherit from as it
constitutes an indirect donation. [Nazareno v. Birog, (1947)]
The donation between common-law spouses falls within the provision prohibiting
Rules for donations donations between spouses during marriage. [Matabuena v Cervantes, (1971)]
between common- The donation made by a man to a woman was held valid because no proof was
law spouses shown that they were still living in a common-law relationship at the time of the
donation. [Sumbad v. CA, (1999)]

DISTINGUISHED FROM ORDINARY DONATIONS


Donations propter nuptias Ordinary donations
Does not require express acceptance Express acceptance necessary
May be made by minors [Art. 78, FC] Cannot be made by minors
May include future property Cannot include future property
If present property is donated and property is not No limit to donation of present property provided
absolute community, limited to 1/5 [Art. 84, FC] legitimes are not impaired
Grounds for revocation in Art. 86 Grounds for revocation in donation laws

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ABSOLUTE COMMUNITY OF
PROPERTY AND CONJUGAL
PARTNERSHIP OF GAINS
Art. 80, FC. In absence of a contrary stipulation in
a marriage settlement, property relations between
Filipino spouses are governed by Philippine laws,
regardless of the place of marriage and their
residence.

General rule: By the Nationality Rule [Art. 15, FC],


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

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

Art. 81, FC. Everything stipulated in marriage


settlements in consideration of a future marriage
are void if marriage does not take place. However,
stipulations that do not depend upon the
celebration of marriage (e.g. recognition of
paternity of illegitimate child) remain valid.

Art. 89, FC. Waiver of rights, interests, shares and


effects of the absolute community of property is
allowed, except in the following cases:
(1) When there is judicial separation of property
(2) When the marriage is dissolved by death of
one of the spouses
(3) When the marriage is annulled

Regarding Art. 89: The creditors of the spouse


who made such waiver may petition the court to
rescind the waiver to the extent of the amount
sufficient to cover the amount of their credits.
Art. 90, FC. Co-ownership rules shall apply to ACP
in matters not provided by the Family Code.

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COMPARISON OF ACP AND CPG


ABSOLUTE COMMUNITY PROPERTY CONJUGAL PARTNERSHIP OF GAINS
Default property regime for marriages
celebrated before the Family Code took effect
When it At the precise moment of the celebration of the (August 3, 1988)
commences marriage [Art. 88, FC] For marriages after the Family Code, if agreed
to by the parties through a marriage
settlement.
Proceeds, products, fruits, and income of their
All the property owned by the spouses at the time
separate properties
of the celebration of the marriage or acquired
Everything acquired by them within marriage
thereafter [Art. 91, FC]
through their own efforts
Under the ACP, spouses cannot exclude specific
Everything acquired by them by chance
properties from the regime.
Specific properties [Art. 117, FC]
(1) Acquired by onerous title during the
marriage at the expense of the common
fund;
(2) Acquired through the labor, industry, work,
or profession of either or both spouses
(3) Fruits from common property and net
fruits of the exclusive property of each
spouse
(4) Share of either spouse in hidden treasure,
whether as finder or owner of property
where treasure was found
(5) Acquired through occupation such as
What it
fishing or hunting
consists of
(6) Livestock existing at dissolution of
partnership in excess of what is brought
Winnings from gambling shall accrue to the by either spouse to the marriage
community property [Art. 95, FC] (7) Acquired by chance, such as winnings
from gambling or betting
Moral damages arising from a contract paid
from the CPG [Zulueta v. Pan Am (1973)]
Loans contracted during the marriage are
conjugal, and so is any property acquired
therefrom [Mendoza v. Reyes (1983)]
Property purchased by installment, paid partly
with conjugal funds and partly with exclusive
funds, if full ownership was vested during the
marriage; the CPG shall reimburse the owner-
spouse [Art. 118, FC]
If a winning ticket is bought by conjugal funds,
the prize is conjugal (otherwise, the prize is
exclusive property of the spouse who owns the
ticket)

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ABSOLUTE COMMUNITY PROPERTY CONJUGAL PARTNERSHIP OF GAINS


Improvement on exclusive property: if original
value < new value, where

then land becomes conjugal property, subject


to the reimbursement of the value of the
property of the owner-spouse at the
What it
dissolution of the CPG
consists of
(continued) Property belonging to one spouse converted
into another kind totally different in nature
from its original form during marriage
becomes conjugal in the absence of proof that
the expenses of the conversion were
exclusively for the account of the original
owner-spouse, subject to reimbursement of
the value of the original property from the
conjugal partnership
Properties acquired before the marriage, for those
Property brought into the marriage by each
with legitimate descendants with a former marriage
spouse as his/her own
(to protect rights of children by a former marriage)
General rule: Properties acquired during the
marriage by a gratuitous title, i.e. donation,
inheritance by testate and intestate succession,
including the fruits of such properties Property acquired by either spouse during the
marriage by gratuitous title
Exception: When expressly provided by the donor
or testator that the property shall form part of the
ACP
Property acquired by right of redemption, by
barter, or by exchange with property
What
belonging to either spouse
remains
exclusive
Plata purchased property when she was
property
single. When married, she and her husband
Bergosa co-signed a mortgage on the
property. Upon foreclosure, Bergosa was sued
General rule: Properties for personal use
for illegal detainer. A writ of execution on the
property was carried out but Plata refused to
Exception: Jewelry
leave the premises. SC ruled that Plata
cannot be held in contempt. Property is not
conjugal. Her husband signing as co-
mortgagor does not convert it to CPG. She
could ignore execution because the decision
was for her husband alone. [Plata v. Yatco]
Property purchased with exclusive money of
either spouse

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ABSOLUTE COMMUNITY PROPERTY CONJUGAL PARTNERSHIP OF GAINS


Property purchased by installment, paid partly
with conjugal funds and partly with exclusive
funds, if full ownership was vested before the
marriage [Art. 118, FC]

Even if the installment is completed after the


marriage, the property is exclusive if
ownership was vested in one spouse before
the marriage [Lorenzo v. Nicolas (1952)]
Improvement on exclusive property: if original
value > new value where

then land remains exclusive property of the


owner-spouse, subject to the reimbursement
What of the cost of improvement
remains
exclusive Money received under the Social Security Act
property is not conjugal, although the employee-
(continued) spouse contributes to the SS with his salaries,
but belongs to the designated beneficiary
1. under the Social Security Law. SSA governs,
not FC.
Intellectual property, like copyright or patent,
should, according to Tolentino, be considered
separate property
Business property (e.g. trademarks, trade
names, service marks, business goodwill) are
merely accessories to some commercial
establishment or product, so that if such
establishment or product is separate property
of one spouse, then all the business property
is separate property; but all benefits or
earnings derived from these during the
marriage should belong to the conjugal
property [Tolentino]
Collection of credits belonging to one spouse
exclusively but the interests shall belong to
the CPG [Art. 119, FC]
Proceeds from sale of separate property of a
spouse
Indemnity paid in case of expropriation of
separate property or under an insurance policy
covering separate property
All property acquired during the marriage,
whether made, contracted, or registered in the
name of one spouse, are presumed conjugal
All properties acquired during the marriage form
unless the contrary is prove. [Art 116, FC]
Presumption part of the ACP, unless it be proven that they are
excluded. [Art. 93, FC]
The party who invokes the presumption must
first prove that the property was acquired
during the marriage [Acabal v. Acabal (2005)]

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ABSOLUTE COMMUNITY PROPERTY CONJUGAL PARTNERSHIP OF GAINS


Art. 94, FC Arts. 121-123, FC
(1) Support of the following:
(a) Spouses;
(1) Support of the following:
(b) Common children;
(a) Spouses;
(c) Legitimate children of previous
(b) Common children;
marriage;
(c) Legitimate children of previous
(d) Illegitimate children follow the
marriage;
provisions on Support; Partnership
(d) Illegitimate children follow the
assets liable in case responsibilities
provisions on Support; ACP liable in case
under Art. 121 have been covered and
of absence or insufficiency of the
there is absence or insufficiency of the
exclusive property of the debtor-spouse
exclusive property of the debtor-
but the payment shall be considered as
spouse but the payment shall be
advance to the share of the debtor-
considered as advance to the share of
spouse.
the debtor-spouse.
(2) Expenses to enable either spouse to
(2) Expenses to enable either spouse to
commence/ complete a
commence/complete a
professional/vocational course or activity for
professional/vocational course or activity
self-improvement;
for self-improvement;
(3) Value donated or promised by both spouses
(3) Value donated or promised by both
in favor of common legitimate children for
spouses in favor of common legitimate
the exclusive purpose of commencing/
children for the exclusive purpose of
completing a professional/vocational course
commencing/completing a
or activity for self-improvement
professional/vocational course or activity
for self-improvement
Debts and obligations:
(1) Contracted during the marriage by
Charges and Debts and obligations: administrator-spouse for the benefit of
obligations (1) Contracted during the marriage by the CPG;
administrator-spouse for the benefit of the (2) Contracted during the marriage by both
community; spouses;
(2) Contracted during the marriage by both (3) Contracted during the marriage by one
spouses; spouse with the consent of the other;
(3) Contracted during the marriage by one (4) Contracted by either spouse without the
spouse with the consent of the other; consent of the other to the extent that the
(4) Contracted by either spouse without the family may have been benefitted;
consent of the other to the extent that the (5) Contracted before marriage by either
family may have been benefitted; spouse insofar as they redounded to the
(5) Contracted before marriage by either spouse benefit of the family;
insofar as they redounded to the benefit of (6) Contracted before marriage by either
the family; spouse which have not redounded to the
(6) Contracted before marriage by either spouse benefit of the family when the
which have not redounded to the benefit of responsibilities under Art. 121 should have
the family in case of absence or insufficiency been covered and there is absence or
of the exclusive property of the debtor- insufficiency of the exclusive property of
spouse but the payment shall be considered the debtor-spouse but the payment shall
as an advance to the share of the debtor- be considered as an advance to the share
spouse. of debtor-spouse;
(7) Incurred by either spouse by reason of a (7) Incurred by either spouse by reason of a
crime or quasi-delict in case of absence or crime or quasi-delict when the
insufficiency of the exclusive property of the responsibilities under Art. 121 should have
debtor-spouse but the payment shall be been covered and there is absence or
considered as an advance to the share of the insufficiency of the exclusive property of
debtor-spouse. the debtor-spouse but the payment shall
be considered as an advance to the share
of the debtor-spouse.

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ABSOLUTE COMMUNITY PROPERTY CONJUGAL PARTNERSHIP OF GAINS


Taxes and expenses:
Taxes and expenses:
(1) Taxes, liens, charges and expenses,
(1) Taxes, liens, charges and expenses, including
including major and minor repairs, upon
major and minor repairs, upon the
the conjugal partnership property;
community property;
(2) Taxes and expenses for mere preservation
(2) Taxes and liens for mere preservation made
during the marriage upon the separate
during the marriage upon the separate
property of either spouse;
property of either spouse used by the family;
(3) Expenses of litigation between the
(3) Expenses of litigation between the spouses
spouses unless the suit is found to be
unless the suit is found to be groundless.
groundless.
If community property is insufficient, the spouses If conjugal partnership property is insufficient,
are solidarily liable for the unpaid balance from the spouses are solidarily liable for the unpaid
their separate properties except for: balance from their separate properties except
(1) Debts contracted by either spouse before for:
marriage which have not redounded to the (1) Debts contracted by either spouse before
benefit of the family; marriage which have not redounded to
(2) Support of illegitimate children; and the benefit of the family;
(3) Liabilities incurred by either spouse arising (2) Support of illegitimate children; and
Charges from crime or quasi-delict. (3) Liabilities incurred by either spouse arising
from crime or quasi-delict.
and
Obligations Gambling losses of any kind (i.e. legal or illegal) Gambling losses of any kind (i.e. legal or
(continued) shall be borne by the losing spouses separate illegal) shall be borne by the losing spouses
property [Art. 95, FC] separate property [Art. 123, FC]

Loan contracts signed by both spouses are


conjugal, and they are jointly liable for
payment, even if only one spouse signs a
subsequent promissory note. [DBP v. Adil
(1988)]
The Supreme Court ruled that the indirect
benefits that might accrue to a husband in
signing as a surety or guarantee in an
agreement not in favor of the family but in
favor of his employer corporation are not
benefits that can be considered as giving a
direct advantage accruing to the family.
Hence, the creditors cannot go against the
conjugal partnership property in satisfying the
obligation subject of the surety agreement. A
contrary view would put in peril the conjugal
partnership by allowing it to be given
gratuitously as in cases of donation of
conjugal partnership property, which is
prohibited. [Ayala Investment v. Ching (1998)]

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ABSOLUTE COMMUNITY PROPERTY CONJUGAL PARTNERSHIP OF GAINS


Administration of property belongs to both
spouses, jointly. In case of disagreement, the
husbands decision shall prevail, subject to
recourse by the wife for proper remedy, which
must be availed of within 5 years from the
date of the contract implementing such
decision. [Art. 124, par(1)]
Sale by the husband of property belonging to
the conjugal partnership without the consent
of the wife, when there is no showing that the
latter is incapacitated, is void ab initio. [Abalos
v. Macatangay (2004)]
General rule: Administration of property Art. 124 contemplates a situation where one
belongs to both spouses, jointly. If they spouse is absent, or separated in fact or has
disagree, the husbands decision prevails. abandoned the other or consent is withheld or
However, the wife has 5 years to seek recourse cannot be obtained. Such rules do not apply
from the court. Otherwise, it is presumed she to cases where the non-consenting spouse is
agreed to his decision. [Art. 96, FC] incapacitated or incompetent to give consent
i.e. in coma. The proper remedy is to file for
Ownership, Exception: When the other spouse is guardianship under the ROC. Even assuming
administration, incapacitated, or unable to participate in the that the rules on summary proceedings apply,
enjoyment, and administration, e.g. when abroad. Capacitated the power of the administrator is the same as
disposition spouse may assume sole powers of a guardian. So a spouse who desires to sell
administration. However, power is limited to conjugal property as administrator must still
administration. observe the procedure for the sale of the
wards estate required of judicial guardians
under ROC not the summary judicial
proceedings under FC. [Uy v. CA (2000)]
Spouses are not co-owners of CPG during the
marriage and cannot alienate the supposed
interest of each in the said properties. The
interest of the spouses in the CPG is only
inchoate or a mere expectancy and does not
ripen into title until it appears after the
dissolution and liquidation of the partnership
that there are net assets. [De Ansaldo v. Sheriff
of Manila (1937)]
Disposition or encumbrance of conjugal
Either spouse may, through a will, dispose of his
property requires the following:
or her interest in the community property. [Art.
(1) Consent or approval by both spouses, or
97, FC] However, the will should refer only to his
(2) Judicial authority secured in court
or her share in the community property.
[Art. 124, (2) FC]

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ABSOLUTE COMMUNITY PROPERTY CONJUGAL PARTNERSHIP OF GAINS


General rule: Donation of one spouse without
the consent of the other is not allowed. [Art. 98,
FC]

Exceptions:
(1) Moderate donations to charity due to
family rejoicing or distress
Donation of CPG must be with the consent of
(2) Moderate gifts by each spouse to the other
the other spouse except moderate donations
due to family rejoicing
for charity, on occasions of family rejoicing, or
Moderation depends on the familys socio-
Ownership, family distress [Art. 125; cf. Art. 98, FC]
economic status.
administration,
2.
enjoyment, and ACP allows donations in excess of one-fifth of
disposition present property of future spouses because the
(continued) donation would form part of the community
property once the marriage is celebrated. [Art.
84]
Mere awareness of a transaction is NOT consent. [Jader-Manalo v. Camaisa(2002)]
In the absence of (court) authority or written consent of the other spouse, any disposition or
encumbrance of the conjugal property shall be void. [Homeowners Savings & Loan Bank v.
Dallo(2005)]
If however, one of the spouses is an alien, the Filipino spouse may encumber or dispose of the
property w/o the consent of the former. The property is presumed to be owned exclusively by the
Filipino spouse. [Cheeseman v. IAC (1991)]
Terminates upon [Art. 99, FC]:
(1) Death of either spouse follow rules in Art.
Terminates upon [Art. 126; cf. Art. 99]:
103
(1) Death
(2) Legal separation follow rules in Arts. 63
(2) Legal separation
Dissolution of and 64
(3) Annulment or judicial declaration of
the regime (3) Annulment or judicial declaration of nullity
nullity
follow rules in Arts. 50 and 52
(4) Judicial separation of property
(4) Judicial separation of property during
marriage follow rules in Arts. 134 to 138

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ABSOLUTE COMMUNITY PROPERTY CONJUGAL PARTNERSHIP OF GAINS


Rules on de facto separation [Art. 127]
Rules on de facto separation [Art. 100]
De facto separation does not affect the CPG,
De facto separation does not affect the ACP,
except that:
except that:
1. Spouse who leaves the conjugal home
1. Spouse who leaves the conjugal home
without just cause shall not be entitled to
without just cause shall not be entitled to
support; however, he/she is still required
support; however, he/she is still required to
to support the other spouse and the family
support the other spouse and the family
2. If consent is necessary for transaction but is
2. If consent is necessary for transaction but is
withheld or otherwise unobtainable,
withheld or otherwise unobtainable,
authorization may be obtained from the
authorization may be obtained from the
court
court
Effect of de 3. Support for family will be taken from the
3. Support for family will be taken from the
facto partnership property.
ACP
separation 4. If partnership property is insufficient,
4. If ACP is insufficient, spouses shall be
spouses shall be solidarily liable
solidarily liable
5. If it is necessary to administer or encumber
5. If it is necessary to administer or encumber
separate property of spouse who left,
separate property of spouse who left,
spouse present may ask for judicial
spouse present may ask for judicial
authority to do this
authority to do this
6. If partnership property is not enough and
6. If ACP is not enough and one spouse has no
one spouse has no separate property,
separate property, spouse who has property
spouse who has property is liable for
is liable for support, according to provisions
support, according to provisions on
on support.
support.
Abandonment [Art. 128, FC]
Present/aggrieved spouse may petition the
court for:
Abandonment [Art. 101, FC] (1) Receivership
Present/aggrieved spouse may petition the (2) Judicial separation of property
court for: (3) Authority to be the sole administrator of
(1) Receivership the partnership property, subject to
(2) Judicial separation of property precautionary conditions that the court
(3) Authority to be the sole administrator of may impose
the absolute community, subject to
precautionary conditions that the court A spouse is deemed to have abandoned the
may impose other when he or she has left the conjugal
Rules on dwelling without any intention of returning.
Abandonment A spouse is deemed to have abandoned the
other when he or she has left the conjugal Spouse is prima facie considered to have
dwelling without any intention of returning. abandoned the other spouse and the family if
he or she has:
Spouse is prima facie considered to have (1) Left for a period of 3 months
abandoned the other spouse and the family if (2) Failed to inform the other spouse of his or
he or she has: her whereabouts for a period of 3 months
(1) Left for a period of 3 months Physical separation of the spouses, coupled
(2) Failed to inform the other spouse of his or with the husbands refusal to give support to
her whereabouts for a period of 3 months the wife, sufficed to constitute abandonment
as a ground for an action for the judicial
separation of their conjugal property.
[Partosa-Jo v. CA (1992)]

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ABSOLUTE COMMUNITY PROPERTY CONJUGAL PARTNERSHIP OF GAINS


Procedure [Art. 129, FC]
(1) Prepare an inventory of all properties
(2) Amounts advanced by CPG in payment of
Procedure [Art. 102, FC]
personal debts and obligations shall be
(1) Inventory of assets of ACP and of spouses,
credited to the CPG
with market values
(3) Reimburse each spouse for the use of
(2) Obligations are paid with community
his/her exclusive funds in the acquisition
property, and separate obligations not
of property or for the value of his or her
charged to ACP paid by respective assets
exclusive property, the ownership of which
of spouses
has been vested by law in the conjugal
partnership
If obligations exceed the assets of the ACP,
(4) Debts and obligations of CPG shall be
nothing is divided. Creditors can go after
paid out of the conjugal assets, otherwise
the separate properties of the spouses,
both spouses are solidarily liable with
which are solidarily liable for the deficiency
their exclusive property
(5) Remains of the exclusive properties shall
(3) Delivery of whatever remains in their
be delivered to respective owner-spouses
exclusive property
(6) Indemnify loss/deterioration of movables
(4) Balance, or net remainder is divided
belonging to either spouse, even due to
equally between the spouses, irrespective
fortuitous event, used for the benefit of
of how much each brought into the
the family
community
(7) Net remainder of CPG shall constitute the
(5) If personal obligations of a spouse exceed
profits which shall be divided equally
his/her separate property, creditor can go
between husband and wife except when:
after the share of the spouse on the net
(a) A different proportion or division was
remainder of the ACP, without prejudice to
Liquidation of agreed upon in the marriage
the provisions of law on forfeitures and
assets and settlements
delivery of presumptive legitimes
liabilities (b) There has been a voluntary waiver or
(6) After covering all community obligations
forfeiture of such share as provided in
and obligations of spouses, balance of
the FC
separate properties shall be delivered to
(8) Presumptive legitimes are delivered to
respective spouses or their heirs, and they
common children
will also divide into two equal shares
(9) Conjugal dwelling goes to:
whatever is left of the community assets,
(a) Spouse with whom majority of
without prejudice to the provisions of law
common children choose to remain
on forfeitures and delivery of presumptive
(below 7 y.o. = deemed to have
legitimes
chosen the mother)
(b) Whoever the court chooses in case of
lack of majority
Rules in case of termination of marriage by death of one of the spouses [Art. 104, FC]:
(1) The community property shall be liquidated in the same proceeding for the settlement of the
estate of the deceased spouse.
(2) If no such judicial settlement proceeding is instituted, surviving spouse shall liquidate the
community property either judicially or extra-judicially within one year from the death of the
deceased spouse.
(a) If no liquidation is made within the period, any disposition or encumbrance involving
community property of the terminated marriage shall be void.
(b) Non-compliance with liquidation procedures would mean that a subsequently contracted
marriage will follow a regime of complete separation of property.
Procedure for liquidation of properties of two marriages [Art. 104, FC]:
(1) Determine the capital, fruits, and income of each community upon such proof as may be
considered according to the rules of evidence.
(2) In case of doubt as to which community the existing properties belong, they shall be divided
between two communities in proportion to the capital and duration of each.

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SEPARATION OF PROPERTY OF
THE SPOUSES AND
ADMINISTRATION OF COMMON
PROPERTY BY ONE SPOUSE
DURING THE MARRIAGE
Art. 134, FC. In the absence of an express
declaration in the marriage settlements, the
separation of property between spouses during
the marriage shall not take place except by
judicial order. Such judicial separation of property
may either be voluntary or for sufficient cause

Judicial separation of property may either be:


(1) voluntary or
(2) for sufficient cause

SUFFICIENT CAUSES AND GROUNDS FOR RETURN TO PREVIOUS REGIME

Sufficient Causes for Judicial Separation of Property Grounds for Return to Previous Regime
[Art. 135, FC] [Art. 141, FC]
(1) Spouse of petitioner has been sentenced to a
penalty which carries with it the penalty of (1) Termination of the civil interdiction
civil interdiction
(2) Spouse of petitioner is judicially declared an
(2) Reappearance of absentee spouse
absentee
(3) Loss of parental authority of the spouse of (3) Restoration of parental authority to the spouse
petitioner has been decreed by the court previously deprived of it
(4) Spouse of petitioner has abandoned the (4) When the spouse who left the conjugal home
latter or failed to comply with his or her without legal separation resumes common life
obligations to the family with the other
(5) When the court, being satisfied that the spouse
(5) The spouse granted the power of
granted the power of administration in will not
administration in the marriage settlements
again abuse that power, authorizes the
has abused that power
resumption of said administration
(6) At the time of the petition, the spouses have (6) Reconciliation and resumption of common life
been separated in fact for at least 1 year and of the spouses who had been separated in fact
reconciliation is highly improbable. for at least 1 year
(7) When after voluntary dissolution of the ACP or
CPG has been judicially decreed upon the joint
petition of the spouses, they agree to the
revival of the former property regime. No
voluntary separation of property may thereafter
be granted.

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SEPARATION OF PROPERTY
Agreed upon in the marriage settlements by the spouses
Mandatory under Arts. 103 & 130 (subsequent marriages contracted by a surviving
When it
spouse without judicial settlement of previous property regime)
applies
Default property regime when there is reconciliation between spouses after judicial
separation of property
Present or future property or both
Each spouses earnings from his or her own profession, business, or industry
What it Natural, industrial or civil fruits of spouses separate properties
consists of May be total or partial

If partial, property not considered separate is presumed to pertain to the ACP


Family expenses: Both spouses are liable in proportion to their income; if insufficient,
Liabilities based on the current value of their separate properties
Creditors for family expenses: Spouses solidarily liable
Spouses may own, dispose, possess, and administer separate estates without the
consent of the other
Ownership,
Administration of exclusive properties may be transferred between spouses when:
administration,
(1) One spouse becomes the other spouses guardian
enjoyment,
(2) One spouse is judicially declared an absentee
and
(3) One spouse is given the penalty of civil interdiction
disposition
(4) One spouse becomes a fugitive
Conveyance between the spouses is allowed under Art. 1490, NCC.

A voluntary separation of properties is not


perfected by mere consent but upon the decree of
the court approving the same. The petition for
voluntary separation of property was denied
because the children of the 1st and 2nd marriages
were not informed; the separation of property may
prejudice the rights and shares of the children. [In
Re: voluntary dissolution of CPG of Sps. Bernas
(1965)]

A compromise agreement with judicial


recognition is valid, pending petition for
declaration of nullity of marriage. [Maquilan v.
Maquilan (2007)]

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PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE


[Arts. 147-148, FC]

Art. 147 Art. 148


Applicability
Man and woman living together as husband and
wife, with capacity to marry [Art. 5, FC] without any Man and woman living together as husband and
legal impediment) wife, NOT capacitated to marry
(1) at least 18 years old (1) Under 18 years old
(2) not Art. 37 (incestuous void marriage) (2) Adulterous relationship
(3) not Art. 38 (void marriage by reason of public (3) Bigamous /polygamous marriage
policy) (4) Incestuous marriages under Art. 37
(4) not bigamous (5) Void marriages by reason of public policy under
Other void marriages due to absence of formal Art. 38
requisite
Salaries and wages
Owned in equal shares Separately owned by parties
Properties acquired through exclusive funds
Remains exclusive
Remains exclusive, provided there is proof

Properties acquired by both through work and industry


Owned in common in proportion to respective
Governed by rules on co-ownership
contribution
Properties acquired while living together
Owned in equal shares since it is presumed to have
been acquired through joint efforts No presumption of joint acquisition. When there is
evidence of joint acquisition but none as to the
If one party did not participate in acquisition, extent of actual contribution, there is a
presumed to have contributed through care and presumption of equal sharing.
maintenance of family and household
Forfeiture
If one party is validly married to another his/her
share in the co-owned properties will accrue to the
(1) In favor of their common children
ACP/CPG of his/her existing valid marriage
(2) In case of default of or waiver by any or all of
the common children or their descendants,
If the party who acted in bad faith is not validly
each vacant share shall belong to the
married to another, his/her share shall be forfeited
respective surviving descendants
in the same manner as that provided in Art 147.
(3) In the absence of such descendants, such
share belongs to the innocent party
The same rules on forfeiture shall apply if both
parties are in bad faith.
Application of Article 148; there was no proof of actual contribution, while there was a subsisting
marriage apart from the union without marriage, therefore, the N. Forbes house goes to the CPG of
subsisting marriage. [Yaptinchay v. Torres (1969)]
Transfer of certificate and tax declarations are not sufficient proof of joint contribution. [Villanueva v. CA
(2004)]
Marriages that have been declared void come under the rules of co-ownership under FC147/148
regardless of the reason. [Valdez v. QC-RTC (1996)]

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The Family Exceptions to the general rule cannot be


subject of compromise [Art 2035, CC]
(1) Civil status of persons,
Art. 149, FC. The family, being the foundation of (2) Validity of marriage or a legal separation,
the nation, is a basic social institution which (3) Any ground for legal separation,
public policy cherishes and protects. (4) Future support (as it is presumed to be
Consequently, family relations are governed by needed for the survival of the one receiving
law and no custom, practice or agreement support),
destructive of the family shall be recognized or (5) Jurisdiction of courts,
given effect. (6) Future legitime

THE FAMILY AS AN Whenever a stranger is a party in a case


involving family members, the requisite showing
INSTITUTION of earnest efforts to compromise is no longer
ASPECTS OF FAMILY RELATIONS mandatory, as such inclusion of a stranger takes
(1) External Aspect the case out of the ambit of Art. 151. [Hontiveros
(a) Governed by law [Art. 149, FC] v. RTC (1999)]
(b) Only in this aspect can third persons
and the public interest be concerned
(2) Internal Aspect
THE FAMILY HOME
(a) Sacred to the family and inaccessible to
law because law must respect the CONSTITUTED
freedom of action of man (1) Jointly by the husband and the wife
(b) e.g. spiritual relations, sexual relations (2) By an unmarried head of a family;
of spouses, profession and career of
spouses, practices and customs of INCLUDES
family (1) Dwelling house where they and their family
reside
FAMILY RELATIONS INCLUDE: (2) The land on which it is situated [Art. 152, FC]
(1) Between husband and wife
(2) Between parents and children Art. 157, FC. The actual value of the family home
(3) Among other ascendants and descendants shall not exceed, at the time of the constitution,
(4) Among brothers and sisters, full or half the amount of Three hundred thousand pesos
blood (P300,000.00) in urban areas, and Two
hundred thousand pesos (P200,000.00) in
General rule [Art. 151, FC]: No suit between rural areas or such amounts as may hereafter be
members of the same family shall prosper. fixed by law.

Exception: If it should appear in a verified A person may constitute and be the beneficiary
complaint or petition that: of only one family home [Art. 161, FC]
(1) Earnest efforts towards a compromise have
been made; The provisions of the Chapter on Family Home
(2) Such efforts have failed; and shall govern existing family residences insofar
(3) Such earnest efforts and the fact of failure as said provisions are applicable [Art. 162, FC]
must be alleged.
GUIDELINES
Note: The case will be dismissed if it is shown (1) It is deemed constituted from time of actual
that no such efforts were made. occupation as a family residence
(2) It must be owned by person constituting it
The rule shall not apply to cases which may not (3 It must be permanent
be the subject of compromise.

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(4) Rule applies to valid and voidable and even REQUIREMENTS FOR THE SALE,
to common-law marriages under Arts.147 ALIENATION, DONATION,
and 148
(5) It continues despite death of one or more
ASSIGNMENT, OR ENCUMBRANCE
spouses or unmarried head of family for 10 OF THE FAMILY HOME
years or as long as there is a minor (1) The written consent of the person
beneficiary [Art.159, FC] constituting it,
(2) That of the spouse of the person
RULES ON EXEMPTION OF FAMILY constituting it, and
(3) That of majority of the beneficiaries of legal
HOME age. [Art. 158, FC]
General rule: The family home is exempt from
the following from the time of its constitution If there is a conflict, the Court will decide.
and so long as any of its beneficiaries actually
resides therein [Art. 153, FC]:
(1) Execution
IN CASE OF DEATH OF ONE OR BOTH
(2) Forced sale SPOUSES OR THE UNMARRIED
(3) Attachment HEAD OF THE FAMILY
The family home shall continue despite the
Exceptions [Art. 155, FC]: death of one or both spouses or of the
(1) Nonpayment of taxes. unmarried head of the family for a period of 10
(2) Debts incurred prior to the constitution of years, or for as long as there is a minor
the family home. beneficiary. [Art. 159, FC]
(3) Debts secured by mortgages on the
premises before or after such constitution. The heirs cannot partition the home unless the
(4) Debts due to laborers, mechanics, court finds compelling reasons therefore. [Art.
architects, builders, materialmen and others 159, FC]
who have rendered service or furnished
material for the construction of the building. REQUISITES FOR CREDITOR TO
EXECUTE UPON THE FAMILY HOME
BENEFICIARIES OF THE FAMILY (1) He must be a judgment creditor;
HOME (2) His claim is not among those exempted
(1) Husband and wife, or an unmarried person under Article155, and
who is the head of the family (3) He has reasonable grounds to believe that
(2) Parents (may include parent-in-laws), the family home is worth more than the
ascendants, descendants, brothers and maximum amount fixed in Art. 157.
sisters (legitimate/illegitimate), who are
living in the family home and who depend PROCEDURE TO AVAIL OF RIGHT UNDER
on the head of the family for support. [Art. ART. 160
154, FC] (1) The creditor must file a motion in the court
proceeding where he obtained a favorable
REQUISITES TO BE A BENEFICIARY decision for a writ of execution against the
(1) The relationship is within those family home.
enumerated; (2) There will be a hearing on the motion where
(2) They live in the family home; and the creditor must prove that the actual
(3) They are dependent for legal support on the value of the family home exceeds the
head of the family. maximum amount fixed by the FC either at
the time of its constitution or as a result of
improvements introduced thereafter.
(3) If the creditor proves that the actual value
exceeds the maximum amount the court
will order its sale in execution.

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(4) If the family home is sold for more than the


value allowed, the proceeds shall be Paternity and Filiation
applied as follows:
(a) First, the obligation enumerated in Kinds of Filiation [Arts. 163, 164, 165, FC]:
Article 157 must be paid (1) Natural
(b) Then the judgment in favor of the (a) Legitimate
creditor will be paid, plus all the costs of (b) Illegitimate
execution (2) Legal Fiction (Adoption)
(c) The excess, if any, shall be delivered to
the judgment debtor
LEGITIMATE CHILDREN
The proof that the house is the family home
must be alleged against creditors; applied the WHO ARE LEGITIMATE CHILDREN
rule in Art. 160, FC. [Versola v. Mandolaria Those conceived or born during the marriage of
(2006)] parents either by natural means or by artificial
insemination [Art. 164, FC]
WON the grandson of the deceased is a
beneficiary according to Art. 154 FC. The NATURAL/BIOLOGICAL
beneficiary should satisfy all requisites; he must A child conceived or born during a valid
be dependent on the head of the family. Since marriage is presumed to belong to that
the grandson still had parents who are legally marriage, regardless of the existence of
obliged for his support, he was not deemed a extramarital relationships. [Liyao v. Liyao
beneficiary. [Patricio v. Dario III (2006)] (2002)]

Article 159 imposes the proscription against the ARTIFICIAL INSEMINATION


immediate partition of the family home Requisites to be considered legitimate:
regardless of its ownership. This signifies that (1) Artificial insemination made on wife
even if the family home has passed by (2) Sperm comes from any of the following:
succession to the co-ownership of the heirs, or (a) Husband
has been willed to any one of them, this fact (b) Third person donor
alone cannot transform the family home into an (c) Husband and third person donor
ordinary property, much less dispel the (3) In case of donor sperm, husband and wife
protection cast upon it by law. The rights of the must authorize/ratify insemination in a
individual co-owner or owner of the family home written instrument:
cannot subjugate the rights granted under (a) Executed & signed by husband and wife
Article 159 to the beneficiaries of the family before the birth of the child.
home. [Arriola v. Arriola (2008)] (b) Recorded in the civil registry together
with the birth certificate of the child.
[Art. 164, FC]

Dual consent is required whether the semen


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

WHO ARE ILLEGITIMATE CHILDREN


General rule: Those conceived and born outside
of a valid marriage. [Art. 165, FC]

Exceptions:
(1) Children of marriages void under Art.36
(psychological incapacity); and
(2) Under Art. 53 (subsequent marriages which

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did not comply with Art. 52). [Sempio-Dy] Only the man (and his heirs in certain situations)
can impugn the legitimacy of the child. [Benitez-
Common children born before the annulment Badua v. CA (1994)]
are legitimate, and therefore entitled to support
from each of the spouses. [De Castro v. Assidao- LEGITIMACY WITH REGARD TO THE
De Castro, (2008)] MOTHER
Child considered legitimate although [Art. 167,
IMPUGNING LEGITIMACY FC]:
Grounds for impugning legitimacy of a child are: (1) Mother may have declared against its
(1) Physical impossibility for the husband to legitimacy
have sexual intercourse with his wife within (2) Mother may have been sentenced as an
the first 120 days of the 300 days which adulteress (also applies to wife who was
immediately preceded the child's birth due raped)
to:
(a) Physical incapacity of the husband to If the marriage is terminated and the mother
have sexual intercourse with his wife contracted another marriage within 300 days
(b) Husband and wife were living after the termination of the former marriage,
separately as to make sexual the following rules shall govern in the absence
intercourse impossible of proof to the contrary [Art 168, FC]:
(c) Serious illness of the husband (1) If born before 180 days after the
absolutely preventing sexual solemnization of the subsequent marriage
intercourse child is considered conceived during the
(2) Other biological or scientific reasons, except former marriage, provided it be born within
artificial insemination 300 days after termination of the former
(3) And in case of artificial insemination, the marriage
written consent of either parent was vitiated (2) If born after 180 days following the
through fraud, violence, mistake, celebration of the subsequent marriage
intimidation, or undue influence. [Art. 166, child is considered conceived during such
FC] marriage, even if it be born within 300 days
after the termination of the former marriage
Mere proximate separation between the
spouses is not sufficient physical separation to The legitimacy or illegitimacy of a child born
constitute as ground for impugning legitimacy. after 300 days following the termination of the
[Macadangdang v. CA (1980)] marriageburden of proof upon whoever
alleges the status. [Art. 169, FC]
Serious illness of the husband which absolutely
prevented him from having sexual intercourse If nobody asserts the legitimacy or illegitimacy
with his wife, like if the husband was already in of the child described in Art. 169, the child
comatose or a vegetable, or sick with syphilis in should be considered illegitimate unless
the tertiary stage so that copulation was not legitimacy is proved. Legitimacy cannot be
possible. But tuberculosis, even in its most presumed here since the birth was beyond the
crucial stage, does not preclude copulation 300-day period of gestation. While it goes
between the sick husband and his wife. [Andal v. against the policy of law to lean in favor of
Macaraig (1951)] legitimacy, this interpretation is better than the
anomalous situation created by Art. 169, which
Blood-type matching is an acceptable means of is a child without a status. [Tolentino]
impugning legitimacy, covered by Art. 166(2),
under biological or other scientific reasons. ACTION FOR IMPUGNING LEGITIMACY [Arts.
But this is only conclusive of the fact of non- 170 and 171, FC]
paternity. [Jao v. CA (1987)] May be brought within 1, 2, or 3 years from the
knowledge of the birth, or the knowledge of
registration of birth.

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(1) Within 1 year if husband or any heirs reside possession of status as legitimate child
in the same city or municipality where the (b) Any other means stated by the rules of
child was born or his birth was recorded. court or special laws
(2) Within 2 years if the husband or all heirs
live in the Philippines but do not reside in Only in the absence of primary evidence can
the same city or municipality where the secondary evidence be admitted.
child's birth took place or was recorded
(3) Within 3 years if the husband or all heirs ACTION FOR CLAIMING FILIATION
live outside the Philippines when the child's (LEGITIMATE CHILDREN) [Art. 173, FC]
birth took place or was recorded in the (1) The child can bring the action during his or
Philippines her lifetime
(2) If the child dies during minority or in a state
If the birth of the child has been concealed or of insanity, such action shall be transmitted
was unknown to the husband, the above periods to his heirs, who shall have a period of five
shall be counted: years within which to institute the action.
(1) From the discovery or knowledge of the birth (3) The action commenced by the child shall
of the child, or survive notwithstanding the death of either
(2) From the discovery or knowledge of its or both of the parties
registration, whichever is earlier.

General rule: Only the husband can impugn the


RIGHTS OF LEGITIMATE CHILDREN
[Art. 174, FC]
legitimacy of a child. If he does not bring an
(1) To bear the surnames of the father and the
action within the prescribed periods, he cannot
mother, in conformity with the provisions of
file such action anymore thereafter, and this is
the Civil Code on surnames
also true with his heirs.
(2) To receive support from their parents, their
ascendants, and in proper cases, their
Exception: That the heirs of the husband may
brothers and sisters, in conformity with the
file the action or continue the same within the
provisions of the Code on support
periods prescribed in Art. 170 [Art. 171, FC]:
(3) To be entitled to the legitimate and other
(1) If the husband died before the expiration of
successional rights granted to them by the
the period fixed for bringing his action
Civil Code
(2) If he should die after the filing of the
complaint without having desisted
therefrom ILLEGITIMATE CHILDREN
(3) If the child was born after the death of the Illegitimate children may establish their
husband. illegitimate filiation in the same way and on the
same evidence (primary or secondary) as
Legitimacy can only be attacked directly. legitimate children. [Art. 175, FC]
[Sayson v. CA (1992)]
ACTION FOR CLAIMING FILIATION
PROOF OF FILIATION [Art. 175, FC]
Legitimate children may establish their filiation (1) For actions based on primary evidence, the
by any of the following [Art. 172, FC]: same periods stated in Art. 173 apply.
(1) Primary Evidence (2) For actions based on secondary evidence,
(a) Their record of birth appearing in the the action may only be brought during the
civil registry. lifetime of the alleged parent.
(b) An admission of his filiation by his
parent in a public document or a private Baptismal certificates are given probative value
handwritten instrument and signed by only for births before 1930. Birth certificates
said parent must be signed by the parents and sworn for it
(2) Secondary Evidence to be admitted as evidence. [Mendoza v. Melia
(a) Proof of open and continuous (1966)]

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Mere possession of status as an illegitimate


Unsigned birth certificates are not evidence of child does not make a recognized illegitimate
recognized filiation. [Baluyut v. Baluyut (1990)] child but is only a ground for bringing an action
to compel judicial recognition by the assumed
Baptismal certificates are only conclusive of the parent. [Gono-Javier vs. Court of Appeals (1994)]
sacrament administered, and cannot be used as
proof of filiation. [Acebedo v. Arquero (2003)] DNA evidence can still be used even after the
death of the parent. [Estate of Rogelio Ong v.
Marriage certificates cannot be used as proof of Diaz (2007)]
filiation. [Lim v. CA (1975)]
There are four significant procedural aspects of
Rule 130, Sec. 40 is limited to objects commonly a traditional paternity action that parties have
known as family possessions reflective of a to face: a prima facie case, affirmative defenses,
family's reputation or tradition regarding presumption of legitimacy, and physical
pedigree like inscriptions on tombstones, resemblance between the putative father and
monuments, or coffin plates. [Jison v. CA (1998)] the child. A prima facie case exists if a woman
declaressupported by corroborative proof
Signature of the father on the birth certificate is that she had sexual relations with the putative
considered as an acknowledgement of paternity father; at this point, the burden of evidence
and mere presentation of a duly authenticated shifts to the putative father. Further, the two
copy of such certificate will successfully affirmative defenses available to the putative
establish filiation. [Eceta v. Eceta (2004)] father are: (1) incapability of sexual relations
with the mother due to either physical absence
Su padre (Your father) ending in a letter is or impotency, or (2) that the mother had sexual
only proof of paternal solicitude and not of relations with other men at the time of
actual paternity. Signature on a report card conception. [Gotardo v. Buling (2012)]
under the entry of Parent/Guardian is likewise
inconclusive of open admission. [Heirs of To prove open and continuous possession of the
Rodolfo Baas v. Heirs of Bibiano Baas (1985)] status of an illegitimate child, there must be
evidence of the manifestation of the permanent
By open and continuous possession of the intention of the supposed father to consider the
status of a legitimate child is meant the child as his, by continuous and clear
enjoyment by the child of the position and manifestations of parental affection and care,
privileges usually attached to the status of a which cannot be attributed to pure charity.
legitimate child, like bearing the paternal [Perla v. Baring and Perla (2012)]
surname, treatment by the parents and family
of the child as legitimate, constant attendance Meanwhile, the lack of participation of the
to the child's support and education, and giving supposed father in the preparation of a
the child the reputation of being a child of his baptismal certificate renders this document
parents. [De Jesus v. Syquia (1933)] incompetent to prove paternity. Baptismal
certificates are per se inadmissible in evidence
DNA evidence can be used as proof of paternity. as proof of filiation and they cannot be admitted
[Agustin v. CA (2005)] indirectly as circumstantial evidence to prove
the same. [Perla v. Baring and Perla (2012)]
The due recognition of an illegitimate child in a
record of birth, a will, a statement before a court RIGHTS OF ILLEGITIMATE CHILDREN
of record, or in any authentic writing, is in itself a [Art. 176, FC]
consummated act of acknowledgement of the (1) Use the surname and be under the parental
child, and no further court action is required. [De authority of the mother
Jesus v. Estate of Decedent Juan Gamboa Dizon (2) However, may use the surname of their
(2001)] father if

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(a) Their filiation has been expressly (3) Legitimation of children who died before the
recognized by the father through the celebration of the marriage shall benefit
record of birth appearing in the civil their descendants [Art. 181, FC]
register; or
(b) There is an admission in a public GROUNDS FOR IMPUGNING
document or private handwritten LEGITIMATION
instrument made by the father. (1) The subsequent marriage of the child's
(c) Provided, the father has the right to parents is void.
institute an action before the regular (2) The child allegedly legitimated is not
courts to prove non-filiation during his natural.
lifetime [RA 9255] (3) The child is not really the child of the
alleged parents. [Sempio-Dy]
The use of the word may in Art. 176 readily
shows that an acknowledged illegitimate
child is under no compulsion to use the
RIGHTS
The same as those of legitimate children [Art.
surname of his illegitimate father. The word
179, FC]
may is permissive and operates to confer
discretion upon the illegitimate children.
[Grande v. Antonio (2014)] IMPUGNING LEGITIMATION [Art. 182,
FC]
(3) Shall be entitled to support in conformity (1) May be made only by those who are
with the Family Code prejudiced in their rights
(4) Legitime shall consist of one-half of the (2) Within five years from the time their cause
legitime of a legitimate child. of action accrues

LEGITIMATED CHILDREN Adoption


Legitimated children are illegitimate children
who because of the subsequent marriage of Legitimation Adoption
their parents are, by legal fiction, considered Legal effect
legitimate. The law merely makes The law creates by
legal what exists by fiction a relation which
TO BE CAPABLE OF LEGITIMATION nature did not in fact exist
(1) The child must have been conceived and Persons affected
born outside of wedlock; and Natural children Strangers (generally)
(2) The parents, at the time of the child's Procedure
conception, were not disqualified by any Extrajudicial acts of Always by judicial
impediment to marry each other, or parents decree
disqualified only because either or both of Who should apply
them were below 18 y.o. [Art. 177 as Both parents, with
amended by RA 9858] exceptions allowing
Both parents
only one of them to
apply [RA 8552]
PROCEDURE AND EFFECTS Effect on parent-child relationship
(1) Legitimation shall take place by a Same status and
subsequent valid marriage between the rights with that of a
parents. The annulment of a voidable Creates a relationship
legitimate child not
marriage shall not affect the legitimation. only between the child
only in relation to the
[Art. 178, FC] and the adopting
legitimizing parents
(2) Effects of legitimation shall retroact to the parents
but also to other
time of the childs birth [Art. 180, FC] relatives

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Adoption a juridical act, which creates (5) Has submitted all the necessary clearances
between two persons a relationship similar to and such certifications as may be required
that which results from legitimate paternity and
filiation. **Items 3, 4 and 5 may be waived under the
following circumstances:
It requires a proceeding in rem, and may only be (1) Adopter is a former Filipino Citizen who
proven by a judicial decree issued by a court of seeks to adopt a relative within the 4th
competent jurisdiction, not by open and degree of consanguinity or affinity
continuous cohabitation. (2) Adopter seeks to adopt the legitimate or
illegitimate child of his/her Filipino spouse
REPUBLIC ACT NO. 8552 (3) Adopter is married to a Filipino Citizen and
seeks to adopt jointly with his/her spouse a
DOMESTIC ADOPTION LAW relative within the 4th degree of
(FEBRUARY 25, 1998) consanguinity or affinity of the Filipino
spouse
WHO CAN ADOPT
GUARDIANS
FILIPINO CITIZENS [Sec. 7a] With respect to their wards, after the
(1) Of legal age termination of the guardianship and clearance
(2) With full civil capacity and legal rights of his/her accountabilities.
(3) Of good moral character and has not been
convicted of any crime involving moral JOINT ADOPTION
turpitude General rule: Husband and wife shall adopt
(4) Emotionally and psychologically capable of jointly.
caring for children
(5) At least sixteen (16) years older than Exceptions:
adoptee, except when adopter is biological (1) If one spouse seeks to adopt the legitimate
parent of the adoptee or is the spouse of the child of the other
adoptees parent (2) If one of the spouses seeks to adopt his/her
(6) In a position to support and care for his/her illegitimate child provided that the other
children in keeping with the means of the spouse has signified his/her consent
family (3) If spouses are legally separated from each
(7) Has undergone pre-adoption services other

ALIENS [Sec. 7b] If spouses jointly adopt, parental authority shall


Same for Filipinos provided further that: be jointly exercised by them.
(1) His/her country has diplomatic relations
with the Philippines WHO CAN BE ADOPTED [Sec. 8]
(2) Has been living in the Philippines for 3 (1) Minor who has been administratively or
continuous years prior to the filing of judicially declared available for adoption
application and maintains such residence (2) Legitimate child of one spouse by another
until the decree is entered (provided that (3) Illegitimate child by a qualified adopter to
absences not exceeding 60 days per 1 year improve the childs status to that of
for professional, business, or emergency legitimacy
reasons are allowed) (4) A person of legal age if, prior to the
(3) Has been certified by his/her diplomatic or adoption, said person has been consistently
consular office or any appropriate considered and treated by the adopter(s) as
government agency that he/she has the his/her child since minority
legal capacity to adopt in his/her country (5) A child whose previous adoption has been
(4) His/her government allows the adoptee to rescinded
enter his/her country as his/her adoptee (6) A child whose biological or adoptive
parent(s) has died, provided that no

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proceedings shall be initiated within 6 PRE-ADOPTION PROCEDURES


months from the time of death of said
parent(s) VOLUNTARY COMMITMENT OF BIOLOGICAL
MOTHER WANTING TO PUT HER CHILD UP
EXCEPTIONS TO THE REQUIREMENT OF A FOR ADOPTION
CERTIFICATION THAT THE CHILD IS
AVAILABLE FOR ADOPTION [Sec. 4] Counseling on her options other than
(1) Adoption of an illegitimate child by his/her adoption
biological parent;
(2) Adoption of a child by his/her stepparent;
(3) Adoption by a relative within the 4th civil
degree by consanguinity or affinity Explaining to her the implications of losing
her parental authority over the child
PERSONS WHOSE WRITTEN CONSENT IS
NECESSARY FOR ADOPTION [Sec. 9]
(1) The prospective adoptee if 10 years or older Continuing services shall be provided after
(2) The prospective adoptees biological relinquishment to cope with feelings of
parents, legal guardian or the government loss, etc. and other services for his/her
instrumentality or institution that has reintegration to the community
custody of the child
(3) The prospective adopters legitimate and
adopted children who are 10 years or older
(4) The prospective adopters illegitimate Biological parent(s) who decide to keep the
children, if any, who are 10 years or older child shall be provided with adequate
and living with them services and assistance to fulfill their
(5) The spouse, if any, of the person adopting or parental responsibilities
to be adopted.

A decree of adoption shall be effective as of the


Biological parent(s) who decide to put the
date the original petition was filed. It also child for adoption shall sign the Deed of
applies in case the petitioner dies before the Voluntary Commitment (DVC) which shall
issuance of the decree of adoption to protect be rescissible within 3 months from signing
the interest of the adoptee. of the same

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INVOLUNTARY COMMITMENT OF ADOPTION PROCEDURES


ABANDONED OR NEGLECTED CHILD
Inquiry of prospective adopters at DSWD
Filing of a petition at Regional DSWD in
the form of an affidavit and with the
required supporting documents Attendance of DSWD Adoption For a and
Seminars (include counseling)

Posting of the petition, then


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

Case Study Report


Issuance of certification by DSWD
Secretary declaring the child legally
available for adoption Certificate of Availability for Adoption

Matching
REQUIRED SUPPORTING DOCUMENTS FOR
A PETITION FOR THE DECLARATION OF
INVOLUNTARY COMMITMENT Placement
(1) Social Case Study Report by
DSWD/LGU/institution charged with childs
custody Supervised Trial Custody
(2) Proof of efforts to locate the childs
parents/known relatives
(a) Written certification that a Home Study Report
local/national radio/TV case was aired
on 3 different occasions
(b) Publication in 1 newspaper of general Recommendation and Consent of DSWD
circulation
(c) Police report / barangay certification of
due diligence File Petition for Adoption within 30 days
(d) Returned registered mail to last known from Receipt of Consent from DSWD
address of parents
(3) Birth certificate, if available
(4) Recent photo and photo upon
abandonment of child Adoption Decree

After the decree of adoption, the court may also


issue a travel authority, if needed; DSWD to
provide post adoption services.

The case study report by the DSWD/LGU is


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

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WHO MAY NOT ADOPT/ BE (5) When only collateral blood relatives survive,
ADOPTED ordinary rules of legal or intestate succession
shall apply
Art. 184 (as amended by RA 8552), FC.
The following may not adopt: NAME
(1) The guardian, with respect to the ward, prior
to the approval of the final accounts Art. 365, CC. An adopted child shall bear the
rendered upon the termination of the surname of the adopter.
guardianship
(2) Any person convicted of a crime of moral RA 8552 allows the change of first name to be
turpitude instituted in the same proceeding as the
RIGHTS OF AN ADOPTED CHILD adoption: the decree of adoption shall state
the name by which the child is to be known.
PARENTAL AUTHORITY
NATIONALITY
Except in cases where the biological parent is
Adoption does not confer citizenship: Philippine
the adopters spouse, all legal ties between
citizenship may be lost/acquired [only] in the
biological parent and adoptee shall be severed,
manner provided by law. [Sec. 3, Art. 4,
and the same shall then be vested on the
Constitution]
adopters. [Sec. 16]
The right to confer citizenship belongs to the
LEGITIMACY
State (political) and cannot be granted by a
The adoptee shall be considered the legitimate
citizen through adoption. Adoption creates a
son/daughter of the adopters for all intents and
relationship between the adopter and adoptee,
purposes, and as such is entitled to all rights
not between the State and the adoptee.
and obligations provided by law to legitimate
children born to them without discrimination of
any kind. [Sec. 17] RESCISSION OF ADOPTION
Adoptee may file action for rescission, with the
SUCCESSION assistance of DSWD if he/she is a minor or over
In legal and intestate succession, the adopter 18 but incapacitated, based on the following
and the adoptee shall have reciprocal rights of grounds [Sec. 19]:
succession without distinction from legitimate (1) Repeated physical and verbal maltreatment
filiation. However, if the adoptee and his/her by adopters despite having undergone
biological parents had left a will, the law on counseling
testamentary succession shall govern. [Sec. 18] (2) Attempt on life of adoptee
(3) Sexual assault or violence
Art. 190, FC as amended. Rules on legal or (4) Abandonment or failure to comply with
intestate succession to the estate of the parental obligations
adoptee:
(1) Legitimate and illegitimate children, Adoption, being in the best interest of the child,
descendants and the surviving spouse of the shall not be subject to rescission by the adopter.
adoptee shall inherit in accordance with the However, the adopter may disinherit the child
ordinary rules of legal/intestate succession based on these causes [Art. 919, CC]:
(2) When the surviving spouse OR illegitimate (1) Conviction of an attempt on the life of the
children AND adopters concur, they shall adopter
inherit on a 50-50 basis (2) Having accused, without grounds, the
(3) When the surviving spouse AND illegitimate adopter of a crime punishable by
children AND adopters concur, they shall imprisonment for more than 6 years
inherit on a 1/3-/1/3-1/3 basis (3) Conviction of adultery/concubinage with
(4) When only adopters survive, they shall the adopters spouse
inherit 100% of the estate

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(4) Having caused the adopter to make or punished for such act, PROVIDED [Sec. 22 (RA
change a will by force, intimidation or undue 8552)]:
influence (1) The simulation was for the childs best
(5) Refusal without just cause to support the interest
adopter (2) Child has been treated consistently as his
(6) Maltreatment of the adopter by word/deed own
(7) Living a dishonorable/disgraceful life (3) Petition filed within 5 years of RA 8552s
(8) Conviction of a crime which carries with it effectivity (2003)
the penalty of civil interdiction
THREE-IN-ONE PROCEDURE
EFFECTS OF RESCISSION [Sec. 20]: (1) Correction of entries in birth certificate
(1) Parental authority of the adoptee's (2) Deed of Voluntary Commitment or
biological parents, if known, OR the legal Declaration of abandonment
custody of the DSWD shall be restored if the (3) Adoption decree
adoptee is still a minor or incapacitated
(2) Reciprocal rights and obligations of the REPUBLIC ACT NO. 8043
adopters and the adoptee shall be
extinguished THE LAW ON INTER-COUNTRY
(3) Court shall order the Civil Registrar to ADOPTION
cancel the amended certificate of birth of (JUNE 7, 1995)
the adoptee and restore his/her original
birth certificate
Inter-country Adoption the socio-legal process
(4) Succession rights shall revert to its status
of adopting a Filipino child by a foreigner or a
prior to adoption, but only as of the date of
Filipino citizen permanently residing abroad
judgment of judicial rescission
where the petition is filed, the supervised trial
(5) Vested rights prior to judicial rescission
custody is undertaken, and the decree of
shall be respected
adoption is issued outside the Philippines.
Rescission contemplates a situation where the
adoption decree remains valid until its WHO CAN ADOPT
termination. Any foreign national or a Filipino citizen
permanently residing abroad who has the
qualifications and none of the disqualifications
RECTIFICATION OF SIMULATED under the Act may file an application if he/she:
BIRTH (1) Is at least 27 years of age and at least 16
Simulation of birth is the tampering of LCR years older than the child to be adopted, at
records to make it appear that a certain child the time of application unless the adopter is
was born to a person who is not his/her the parent by nature of the child to be
biological parent, causing said child to lose adopted or the spouse of such parent;
his/her true identity/status. (2) If married, his/her spouse must jointly file
for the adoption;
Sec. 21-b (RA 8552). Any person who shall cause (3) Has the capacity to act and assume all
the fictitious registration of the birth of a child rights and responsibilities of parental
under the name(s) of a person(s) who is not authority under his national laws, and has
his/her biological parent(s) shall be guilty of undergone the appropriate counseling from
simulation of birth, and shall be punished by an accredited counselor in his/her country;
prision mayor in its medium period and a fine (4) Has not been convicted of a crime involving
not exceeding P50,000.00. moral turpitude;
(5) Is eligible to adopt under his/her national
A person who has, prior to the effectivity of RA law;
8552, simulated the birth of a child shall not be (6) Is in a position to provide the proper care
and support and to give the necessary

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moral values and example to all his advantage in favor of the adopted child. In the
children, including the child to be adopted; instant case, however, to hold that parental
(7) Agrees to uphold the basic rights of the authority had been retroactively lodged in the
child as embodied under Philippine laws, adopting parents so as to burden them with
the U.N. Convention on the Rights of the liability for a tortuous act that they could not
Child, and to abide by the rules and have foreseen and which they could not have
regulations issued to implement the prevented would be unfair and unconscionable.
provisions of this Act; [Tamargo v. CA (1992)]
(8) Comes from a country with whom the
Philippines has diplomatic relations and Adoption is a juridical act, proceeding in rem.
whose government maintains a similarly Because it is artificial, the statutory
authorized and accredited agency and that requirements in order to prove it must be strictly
adoption is allowed under his/her national carried out. Petition must be announced in
laws; publications and only those proclaimed by the
(9) Possesses all the qualifications and none of court are valid. Adoption is never presumed.
the disqualifications provided in applicable [Lazatin v. Campos (1979)]
Philippine laws.
Validity of facts behind a final adoption decree
WHO CAN BE ADOPTED cannot be collaterally attacked without
Only a legally-free child may be the subject of impinging on that courts jurisdiction. [Santos v.
inter-country adoption. Aranzanso (1966)]

Legally-free child one who has been Participation of the appropriate government
voluntarily or involuntarily committed to the instrumentality in performing the necessary
DSWD of the Philippines, in accordance with the studies and precautions is important and is
Child and Youth Welfare Code. indispensable to assure the childs welfare.
[DSWD v. Belen (1997)]
No child shall be matched to a foreign adoptive
family unless it is satisfactorily shown that the Consent for adoption must be written and
child cannot be adopted locally (last resort). notarized. [Landingin v. Republic (2006)]

In order that such child may be considered for Adopted children do not have a right to
placement, the following documents must be represent their adopters in successional
submitted to the Board: interests. Although an adopted child is deemed
(1) Child study to be a legitimate child and have the same
(2) Birth Certificate / Foundling Certificate rights as the latter, these rights do not include
(3) Deed of Voluntary Commitment/ Decree of the right of representation (because the
Abandonment/ Death Certificate of parents adopted child has no right to inherit from the
(4) Medical Evaluation / History grandparent). The relationship created by the
(5) Psychological Evaluation, as necessary adoption is between only the adopting parents
(6) Recent photo of the child and the adopted child. It does not extend to the
blood relatives of either party. [Sayson v. CA
Where the petition for adoption was granted (1992)]
after the child had shot and killed a girl, the
Supreme Court did not consider the retroactive
effect given to the decree of adoption so as to
impose a liability upon adopting parents at a
time when adopting parents had no actual or
physically custody over the child. Retroactive
effect may perhaps be given to the granting of
the petition for adoption where such is essential
to permit the accrual of some benefit or

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Support The order of liability among ascendants and


descendants would be:
(1) Legitimate children and descendants,
WHAT IT COMPRISES (2) Legitimate parents and ascendants,
Consists of everything indispensable for (3) Illegitimate children and their descendants.
sustenance, dwelling, clothing, medical [Tolentino]
attendance, education and transportation, in
keeping with the financial capacity of the family. When two or more are obliged to give support,
[Art. 194, FC] the payment shall be divided between them in
Education includes a persons schooling or proportion to their resources;
training for some profession, trade or
vocation, the right to which shall subsist Also, in case of urgent need and by special
beyond the age of majority. [Art. 194, FC] circumstances, judge may order only one
Transportation includes expenses in going to obligor to furnish support without prejudice to
and from school, or to and from place of work. reimbursement from other obligors of the share
[Art. 194, FC] due from them [Art. 200, FC].

If there are multiple recipient sand only one


WHO ARE OBLIGED obligor, and the latter has no sufficient means to
To support each other: satisfy all claims:
(1) Spouses; (1) Observe order in Article 199 as to whose
(2) Legitimate ascendants and descendants; claim shall be satisfied first;
(3) Parents and their children (legitimate and (2) But if the concurrent obligees are the
illegitimate) and the children of the latter spouse and a child subject to parental
(legitimate and illegitimate); authority, the child shall be preferred. [Art.
(4) Legitimate brothers and sisters, whether of 200, FC]
full or half-blood; [Art. 195, FC]
(5) Illegitimate brothers and sisters, whether of The above preference given to a child under
full or half-blood, except when the need for parental authority over the spouse should
support of one (of age) is due to a cause prevail only if the person obliged to support
imputable to his/her fault or negligence. pays it out of his separate property. So if the
[Art. 196, FC] support comes from ACP or CPG, the above rule
of preference for the child does not apply.
Both legitimate and illegitimate children are [Tolentino]
entitled to support.
Even if the parents-in-law were the ones who
PROPERTIES ANSWERABLE FOR called for the physicians services for the
SUPPORT childbirth of their daughter-in-law, it is the
From the separate property of the obligor. If no womans husband who is bound to pay the fees
separate property, the ACP/CPG (if financially due to the physician. [Pelayo v. Lauron (1909)]
capable) shall advance the support, to be
deducted from the obligors share upon Man is still liable for support in arrears since the
liquidation of such regime. [Art. 197, FC] mother advanced it from a stranger (the uncle
of the daughters). [Lacson v. San Jose-Lacson
ORDER OF SUPPORT (1968)]
If there are multiple obligors [Art. 199, FC]:
Acknowledgment of and commitment to
(1) Spouse
comply with support obligation through a note
(2) Descendants, nearest in degree
in his own handwriting is proof that a demand
(3) Ascendants, nearest in degree
was made. [Lacson v. Lacson (2006)]
(4) Brothers and Sisters

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The amount of support is variable and, for this spouses ceases. (But in legal separation, court
reason, no final judgment on the amount of may order guilty spouse to give support to
support is made as the amount shall be in innocent spouse.) [Art. 198, FC]
proportion to the resources or means of the
giver and the necessities of the recipient. Note: De facto separation does not affect the
[Gotardo v. Buling (2012)] ACP and the CPG, except that the spouse who
leaves the conjugal home without just cause
STRANGER GIVES SUPPORT shall not be entitled to support. [Art. 100, FC]
When, without the knowledge of the person
obliged to give support, it is given by a stranger, AMOUNT
the stranger has the right to claim the same The amount of support is in proportion to the
from the person obliged, unless it appears that means of the provider and the needs of the
he gave it without intention of being receiver, and can be reduced or increased if such
reimbursed. [Art. 206, FC] circumstances change. [Arts. 201, 202, FC]

PERSON OBLIGED REFUSES OR WHEN DEMANDABLE


FAILS TO GIVE SUPPORT The obligation to give support shall be
When the person obliged to give support demandable from the time the person who has
unjustly refuses or fails to give support when a right to receive the same needs it for
urgently needed, any third person may furnish maintenance, but it shall not be paid except
support to the needy individual, with right of from the date of judicial or extra-judicial
reimbursement from the person obliged to give demand. [Art. 203, FC]
support. This particularly applies when the
father or mother of a minor child unjustly Support pendente lite may be claimed in
refuses to support or fails to give support to the accordance with the Rules of Court. [Art. 203,
child when urgently needed. [Art. 207, FC] FC]

CONTRACTUAL SUPPORT OR THAT Payment shall be made within the first 5 days of
GIVEN BY WILL each corresponding month. When the recipient
The excess in amount beyond that required for dies, his heirs shall not be obliged to return
legal support shall be subject to levy on what he has received in advance. [Art. 203, FC]
attachment or execution. [Art. 208, FC]
OPTIONS
Reason: The amount of support agreed upon in (1) Payment of the amount; or
the contract or given in the will can be more (2) Receiving and maintaining the recipient in
than what the recipient needs [Sempio-Diy]. the home of the provider, unless there is a
legal or moral obstacle for doing so.
Furthermore, contractual support shall be
subject to adjustment whenever modification is
necessary due to changes in circumstances
ATTACHMENT
The right to receive support as well as any
manifestly beyond the contemplation of the
money or property obtained as such support
parties. [Art. 208, FC]
shall not be levied upon on attachment or
execution. [Art. 205, FC]
SUPPORT DURING MARRIAGE
LITIGATION This is to protect that which the law gives to the
Pending legal separation or annulment, and for recipient against want and misery. [Tolentino]
declaration of nullity, support pendente lite for
spouses and children will come from the
ACP/CPG. After final judgment granting the
petition, mutual support obligation between

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Parental Authority (2) Cannot be renounced, transferred or


waived, except in cases authorized by law
[Art. 210, FC]
GENERAL PROVISIONS (3) Jointly exercised by the father and the
Parental authority is the mass of rights and mother [Art. 211, FC]
obligations which parents have in relation to the (4) Purely personal and cannot be exercised
person and property of their children until their through agents
emancipation, and even after this under certain (5) Temporary
circumstances [Manresa].
PARENTAL PREFERENCE RULE
PARENTAL AUTHORITY INCLUDES The natural parents, who are of good character
[Art. 209]: and who can reasonably provide for the child,
(1) The caring for and rearing of children for are ordinarily entitled to custody as against all
civic consciousness and efficiency; persons. [Santos v. CA (1995)]
(2) The development of the moral, mental and
physical character and well-being of said WHO EXERCISES AUTHORITY IN
children CASES OF DEATH, ABSENCE,
UNSUITABILITY, REMARRIAGE, OR
Parental authority and responsibility may not be
renounced or transferred except in the cases
SEPARATION OF PARENTS
(1) In case one parent is absent or already dead,
authorized by law. [Art. 210, FC]
the present or surviving parent [Art. 212, FC]
Remarriage of the surviving parent shall
CASES WHEN PARENTAL not affect his/her parental authority over
AUTHORITY AND RESPONSIBILITY the children, unless the court appoints
MAY BE TRANSFERRED OR another person to be the guardian of the
RENOUNCED children or their property [Art. 212, FC]
(1) Adoption; (2) In case of a void/annulled marriage, and
(2) Guardianship; or there is no agreement between spouses, the
(3) Commitment of the child in an entity or parent designated by the court [Art. 43(1),
institution engaged in childcare or in a FC; Art. 49, FC]
childrens home. (3) Innocent spouse gets custody of minor
children in legal separation [Art. 63(3), FC]
RULES AS TO THE EXERCISE OF (4) The court shall take into account all
PARENTAL AUTHORITY relevant considerations, especially the
(1) Jointly exercised by the father and mother choice of the child over seven years of age,
overt heir common children, but in case of unless the parent chosen is unfit [Art. 213(1),
FC]
disagreement, the father's decision shall
(5) Substitute parental authority [Art. 214, FC]
prevail, unless there is a judicial order to the
(a) In case of death, absence or
contrary [Art. 211, FC]
unsuitability of the parents, substitute
(2) Exercised by the mother if the child is
parental authority shall be exercised by
illegitimate [Art.176, FC]
the surviving grandparent
(3) Children under parental authority shall
always observe respect and reverence (b) When several grandparents survive, the
towards their parents and are obliged to one designated by the court shall
exercise parental authority, taking into
obey them [Art. 211, FC]
account all relevant considerations,
especially the choice of the child over
CHARACTERISTICS OF PARENTAL seven years of age, unless the
AUTHORITY grandparent chosen is unfit
(1) Natural right and duty of parents [Art. 209,
FC]

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DESCENDANTS PRIVILEGE OF SUBSTITUTE PARENTAL AUTHORITY


REFUSAL TO TESTIFY [Art. 215, FC] OVER DISADVANTAGED CHILDREN
General rule: No descendant shall be [Art. 217, FC]
compelled, in a criminal case, to testify against Entrusted in summary judicial proceedings to:
his parents and grandparents. (1) Heads of childrens homes
(2) Orphanages
Exception: When such testimony is (3) Similar institutions duly accredited by the
indispensable in: proper government agency (such as the
(1) a crime against the descendant, or DSWD)
(2) a crime by one parent against the other.
WHO ARE DISADVANTAGED CHILDREN
TENDER YEARS PRESUMPTION (1) Foundlings
No child under 7 years of age shall be separated (2) Abandoned
from the mother, unless the court finds (3) Neglected
compelling reasons to order otherwise. [Art. (4) Abused
213(2); Gamboa v. CA (2007)] (5) Others similarly situated

Examples of compelling reasons are: PERSONS EXERCISING SPECIAL


(1) When the mother is insane; PARENTAL AUTHORITY [Art. 218, FC]
(2) With a communicable disease that might (1) School, its administrators and teachers; or
endanger the life or health of the child; (2) The individual, entity or institution engaged
(3) Is maltreating the child; or in childcare
(4) Has another child by another man who lives
with her. [Cervantes v. Fajardo (1989)] Note: Exercised over minor child while under
their supervision, instruction or custody.
Alleged lesbianism [Gualberto v. Gualberto
(2005)], prostitution or infidelity to husband Substitute Parental Special Parental
does not necessarily make a mother unfit as Authority Authority
parent. It must be shown that such lesbianism, It is exercised
prostitution or infidelity adversely affects the concurrently with the
child. parental authority of
the parents and rests
SUBSTITUTE AND SPECIAL It is exercised in case
on the theory that
PARENTAL AUTHORITY while the child is in the
of death, absence, or
custody of the person
in case of unsuitability
exercising special
PERSONS EXERCISING SUBSTITUTE of parents.
parental authority, the
PARENTAL AUTHORITY IN DEFAULT parents temporarily
OF PARENTS OR JUDICIALLY relinquish parental
APPOINTED GUARDIAN authority over the
In order: child to the latter.
(1) The surviving grandparent [Art. 214, FC]
(2) Oldest brother or sister, over 21 years old, The special parental authority and responsibility
unless unfit or unqualified. applies to all authorized activities, whether
(3) Childs actual custodian, over 21 years old, inside or outside the premises of the school,
unless unfit or unqualified. entity or institution. [St. Marys Academy v.
Carpitanos (2002)
The same order applies to the appointment of
judicial guardian over the property of the child.

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LIABILITY OF THOSE EXERCISING (4) To administer their property and to use the
SPECIAL PARENTAL AUTHORITY fruits and income for the support of the
children and collective daily needs of the
OVER THE CHILD [Art. 219, FC] family [Art. 225 and 226, FC]
(1) Principal and solidary liability for damages
(5) To give or withhold consent to their
caused by the acts or omissions of the minor
marriage, their marriage settlements, their
child while under their special parental
donations by reason of marriage, adoption,
authority
and employment [Tolentino]
(2) Subsidiary liability for the parents and
(6) To disinherit them for just cause [Tolentino]
judicial guardians of the minor, or those
exercising substitute parental authority over
Art. 220 which states that the parent has a right
such minor for his acts and omissions
to impose necessary discipline on the child does
not authorize the parent to invade or disregard
Both groups can use the defense that they
the childs honor and dignity under the mask of
exercised proper diligence to avoid liability
discipline. Such acts can never be justified as
parental punishment. [People v. Silvano (1999)]
DOCTRINE OF VICARIOUS LIABILITY
[Art. 2180 (2, 3, 7, 8), CC] DUTIES OF PARENTS UPON THE
(1) The father, and in case of his death, the
mother are responsible for the damages PERSON OF THE CHILDREN
caused by their minor children who live in (1) To support them, providing for their
their company upbringing in accordance with their means
(2) Guardians are liable for damages caused by [Art. 220, FC]
the minors or incapacitated persons who (2) To educate, instruct, and provide them with
are under their authority and live in their moral and spiritual guidance and love and
company understanding [Art. 220, FC]
(3) Teachers or heads of establishments of arts (3) To furnish them with good and wholesome
and trades shall be liable for damages educational materials, supervise their
caused by their pupils and students or activities, recreation and association with
apprentices, so long as they remain in their others, protect them from bad company,
custody and prevent them from acquiring habits
detrimental to their health [Art. 220, FC]
Responsibility in Art. 2180 shall cease when the (4) To perform such other duties as are
persons responsible mentioned prove that they imposed by law [Art. 220, FC]
observed all the diligence of a good father of (5) To give their lawful inheritance [Tolentino]
the family (6) To protect them from unlawful aggression
[Tolentino]
(7) To answer for damages caused by their fault
EFFECT OF PARENTAL or negligence and for the civil liability for
AUTHORITY UPON THE crimes committed by them. [Art. 221, FC]
PERSONS OF THE CHILDREN
SUBSTITUTE REPRESENTATION
RIGHTS OF PARENTS UPON THE The courts may appoint a guardian of the childs
property, or a guardian ad litem when the best
PERSON OF THE CHILDREN interests of the child so requires. [Art. 222, FC]
(1) To keep them in their company [Art. 220,
FC]
(2) To represent them in all matters affecting
COURT ASSISTANCE IN THE
their interests [Art. 220, FC] DISCIPLINE OF THE CHILD
(3) To demand from them respect and (1) The parents or, in their absence or
obedience and impose necessary discipline incapacity, the individual, entity or
on them [Art. 220, FC] institution exercising parental authority,
may petition the proper court of the place

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where the child resides, for an order bond of not less than 10% of the value of
providing for disciplinary measures over the the childs property or annual income.
child. [Art. 223, FC]
(2) The child shall be entitled to the assistance PROCEDURE IN THE APPROVAL OF
of counsel, either of his choice or appointed THE PARENTS BOND [Art. 225, FC]
by the court, and a summary hearing shall (1) A verified petition for approval of the bond
be conducted wherein the petitioner and shall be filed in the proper court of the place
the child shall be heard. [Art. 223, FC] where the child resides.
(3) If the court finds the petition meritorious, (2) If the child resides in a foreign country, the
disciplinary measures may include the petition shall be filed in the proper court of
commitment of the child for not more than the place where the property or any part
30 days in entities or institutions engaged in thereof is situated.
childcare or in childrens homes duly (3) The petition shall be docketed as a
accredited by the proper government summary special proceeding. The court
agency. [Art. 224, FC] shall determine the amount of the bond,
The parent exercising parental authority but shall not be less than 10% of the market
shall not interfere with the case of the value of the childs property or of his annual
child whenever committed but shall income.
provide for his support. [Art. 224, FC]
Upon proper petition or at its own OWNERSHIP OF CHILDS
instance, the court may terminate the
commitment of the child whenever just
ACQUISITIONS
The property of the unemancipated child earned
and proper. [Art. 224, FC]
or acquired with his work or industry or by
(4) If the court finds the petitioner at fault,
onerous or gratuitous title shall belong to the
irrespective of the merits of the petition, or
child in ownership and shall be devoted
when the circumstances so warrant, the
exclusively to the latters support and education,
court may also order the deprivation or
unless the title or transfer provides otherwise.
suspension of parental authority or adopt
[Art. 226, FC]
such other measures as it may deem just
and proper. [Art. 223, FC]
PARENTS USUFRUCT
The right of the parents over the fruits and
EFFECTS OF PARENTAL income (not the property itself) of the childs
AUTHORITY UPON THE property shall be limited primarily to the childs
PROPERTY OF THE CHILDREN support and secondarily to the collective daily
[Art. 225, FC] needs of the family. [Art. 226, FC]
(1) The father and mother shall jointly exercise
legal guardianship over the property of the WHEN PARENTS ENTRUST THE
minor common child without court MANAGEMENT OF THEIR
appointment. PROPERTIES TO A CHILD [Art. 227, FC]
(2) In case of disagreement, the fathers If the parents entrust the management or
decision shall prevail, unless there is judicial administration of any of their properties to an
order to the contrary. unemancipated child, the net proceeds of
(3) The ordinary rules on guardianship shall be such property shall belong to the owner.
merely suppletory except when the child is The child shall be given a reasonable monthly
under substitute parental authority, or the allowance in an amount not less than that
guardian is a stranger, or a parent has which the owner would have paid if the
remarried, in which case the ordinary rules administrator were a stranger, unless the
on guardianship shall apply. owner grants the entire proceeds to the child.
(4) If the market value of the property or the
annual income of the child exceeds
P50,000, the parent is required to furnish a

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In any case, the proceeds thus given in whole (5) Subjects the child or allows him to be
or in part shall not be charged to the childs subjected to acts of lasciviousness
legitime.
The aforesaid grounds are to include cases
SUSPENSION OR TERMINATION which resulted from culpable negligence of the
parent or the person exercising parental
OF PARENTAL AUTHORITY; authority.
RA 7610, CHILD ABUSE LAW
If the degree of seriousness or the welfare of the
PARENTAL AUTHORITY child so demands, the court may deprive the
guilty party of parental authority or adopt such
PERMANENTLY TERMINATES other measures as may be proper.
(1) Upon death of parents [Art. 228, FC]
(2) Upon death of child [Art. 228, FC]
(3) Upon emancipation of child [Art. 228, FC] PERMANENT DEPRIVATION OF
(4) If the parents exercising parental authority PARENTAL AUTHORITY ON
has subjected the child or allowed him to be GROUNDS OF SEXUAL ABUSE [Art. 232,
subjected to sexual abuse [Art. 232, FC] FC]
If the person exercising parental authority has
In the case of death of parents, there is no subjected or has allowed the child to be
absolute termination of parental authority subjected to sexual abuse, such person shall be
because while the child is still a minor, the permanently deprived of authority over the
grandparents, brothers and sisters, or a child.
guardian may exercise substitute parental
authority over the child [Art. 216, FC] SCOPE OF SUBSTITUTE AND
SPECIAL PARENTAL AUTHORITY [Art.
TERMINATION OF PARENTAL 233, FC]
AUTHORITY WHICH CAN BE REVIVED The person exercising substitute parental
BY FINAL JUDGMENT [Art. 229, FC] authority shall have the same authority over
(1) Upon adoption of the child; the person of the child as the parents.
(2) Upon the appointment of a general In no case shall the school administrators,
guardian for the child; teacher or individual engaged in childcare
(3) Upon judicial declaration of exercising special parental authority inflict
(a) Abandonment of the child in a case corporal punishment upon the child.
filed for the purpose
(b) Absence or incapacity of the person RA 7610, CHILD ABUSE LAW
exercising parental authority
(4) Upon final judgment of a competent court PERSONS LIABLE
divesting the party concerned of parental (1) Those who engage in or promote, facilitate
authority. or induce child prostitution which include,
but are not limited to, the following:
GROUNDS FOR SUSPENSION OF (a) Acting as a procurer of a child
PARENTAL AUTHORITY [Art. 230 and prostitute;
231, FC] (b) Inducing a person to be a client of a
(1) Conviction of parent for crime which carries child prostitute by means of written or
with it the penalty of civil interdiction oral advertisements or other similar
(2) Treats child with excessive harassment and means;
cruelty (c) Taking advantage of influence or
(3) Gives corrupting orders, counsel, or relationship to procure a child as
example prostitute;
(4) Compels child to beg (d) Threatening or using violence towards a
child to engage him as a prostitute; or

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(e) Giving monetary consideration, goods (10) Any person who engages in the act of
or other pecuniary benefit to a child finding children among low-income
with intent to engage such child in families, hospitals, clinics, nurseries, day-
prostitution. care centers, or other child-caring
(2) Those who commit the act of sexual institutions who can be offered for the
intercourse of lascivious conduct with a purpose of child trafficking
child exploited in prostitution or subject to (11) Any pregnant mother who executes an
other sexual abuse affidavit of consent for adoption for a
(3) Those who derive profit or advantage consideration
therefrom, whether as manager or owner of (12) Any person who shall hire, employ, use,
the establishment where the prostitution persuade, induce or coerce a child to
takes place, or of the sauna, disco, bar, perform in obscene exhibitions and indecent
resort, place of entertainment or shows, whether live or in video, or model in
establishment serving as a cover or which obscene publications or pornographic
engages in prostitution in addition to the materials or to sell or distribute the said
activity for which the license has been materials
issued to said establishment. (13) Any person who shall commit any other acts
(4) Any person who, not being a relative of a of child abuse, cruelty or exploitation or to
child, is found alone with the said child be responsible for other conditions
inside the room or cubicle of a house, an prejudicial to the child's development
inn, hotel, motel, pension house, apartelle (14) Any person who shall keep or have in his
or other similar establishments, vessel, company a minor, 12 years or under or who
vehicle or any other hidden or secluded area is 10 years or more his junior in any public or
under circumstances which would lead a private place, hotel, motel, beer joint,
reasonable person to believe that the child discotheque, cabaret, pension house, sauna
is about to be exploited in prostitution and or massage parlor, beach and/or other
other sexual abuse. tourist resort or similar places
(5) Any person who is receiving services from a Exception: Any person who is related
child in a sauna parlor or bath, massage within the fourth degree of consanguinity
clinic, health club and other similar or affinity or any bond recognized by law,
establishments. local custom and tradition or acts in the
(6) Any person who shall engage in trading and performance of a social, moral or legal
dealing with children including, but not duty
limited to, the act of buying and selling of a (15) Any person who shall induce, deliver or offer
child for money, or for any other a minor to any one prohibited by RA 7610 to
consideration, or barter keep or have in his company a minor.
(7) Any person who lets a child to travel alone (16) Any person, owner, manager or one
to a foreign country without valid reason entrusted with the operation of any public
therefor and without clearance issued by or private place of accommodation, whether
the Department of Social Welfare and for occupancy, food, drink or otherwise,
Development or written permit or including residential places, who allows any
justification from the child's parents or legal person to take along with him to such place
guardian or places any minor herein described.
(8) Any person, agency, establishment or child- (17) Any person who shall use, coerce, force or
caring institution who recruits women or intimidate a street child or any other child
couples to bear children for the purpose of to:
child trafficking (a) Beg or use begging as a means of living;
(9) Any doctor, hospital or clinic official or (b) Act as conduit or middlemen in drug
employee, nurse, midwife, local civil registrar or trafficking or pushing; or
any other person who simulates birth for the (c) Conduct any illegal activities.
purpose of child trafficking

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Emancipation [as amended by RA SEPARATION IN FACT


A verified petition alleging the following facts is
6809]
required when [Art. 239]:
(1) A husband and wife are separated in fact;
Art. 234, FC. Emancipation takes place by the
or,
attainment of majority. Unless otherwise
(2) One has abandoned the other
provided, majority commences at the age of
eighteen years.
SITUATION
Art. 236, FC. Emancipation shall terminate Where one of them seeks judicial authorization
parental authority over the person and property for a transaction where the consent of the other
of the child who shall then be qualified and spouse is required by law but such consent is
responsible for all acts of civil life, save the withheld or cannot be obtained
exceptions established by existing laws in
special cases. The petition shall:
(1) Attach the proposed deed, if any,
Contracting marriage shall require parental embodying the transaction, if none, shall
consent until the age of twenty-one. describe in detail the said transaction and
state the reason why the required consent
Nothing in this Code shall be construed to thereto cannot be secured.
derogate from the duty or responsibility of (2) The final deed duly executed by the parties
parents and guardians for children and wards shall be submitted to and approved by the
below twenty-one years of age mentioned in the court.
second and third paragraphs of Article 2180 of
the Civil Code. SEPARATE CLAIM FOR DAMAGES
Claims for damages by either spouse, except
costs of the proceedings, may be litigated only
REPUBLIC ACT NO. 6809 in a separate action. [Art. 240,FC]
By virtue of this law, emancipation can no
longer take place by virtue of the minors
marriage or by the concession of the parents to
JURISDICTION
a minor in a recorded public instrument. Jurisdiction over the petition shall, upon proof of
notice to the other spouse, be exercised by the
proper court authorized to hear family cases, if
one exists, or in the regional trial court or its
Summary Judicial equivalent sitting in the place where either of
the spouses resides. [Art. 241, FC]
Proceedings in the Family
Law NOTIFICATION TO OTHER SPOUSE
[Art. 242, FC]
PROCEDURAL RULES (1) Upon the filing of the petition, the court
PROVIDED FOR IN THIS TITLE shall notify the other spouse, whose consent
to the transaction is required, of said
SHALL APPLY TO [Art. 238, FC] petition, ordering said spouse to show cause
(1) Separation in fact between husband and why the petition should not be granted, on
wife or before the date set in said notice for the
(2) Abandonment by one of the other initial conference.
(3) Incidents involving parental authority (2) The notice shall be accompanied by a copy
of the petition and shall be served at the
last known address of the spouse
concerned.

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PROCEDURE INCIDENTS INVOLVING


(1) A preliminary conference shall be
conducted by the judge personally without
PARENTAL AUTHORITY
the parties being assisted by counsel.
(2) After the initial conference, if the court PROCEDURE
deems it useful, the parties may be assisted (1) Such petitions shall be verified and filed in
by counsel at the succeeding conferences the proper court of the place where the
and hearings. [Art. 243, FC] child resides. [Art. 250, FC]
(3) If the petition is not resolved at the initial (2) Upon the filing of the petition, the court
conference, said petition shall be decided in shall notify the parents or, in their absence
a summary hearing. or incapacity, the individuals, entities or
Basis of summary hearing (at the sound institutions exercising parental authority
discretion of the court): over the child. [Art. 251, FC]
(a) Affidavits
(b) Documentary evidence Petitions filed under Articles 223, 225 and 235
(c) Oral testimonies at the courts sound of this Code involving parental authority shall
discretion. If testimony is needed, the be verified. [Art. 249, FC]
court shall specify the witnesses to be
heard and the subject-matter of their The rules in Chapter 2 hereof shall also govern
testimonies, directing the parties to summary proceedings under this Chapter
present said witnesses. [Art. 246(a), insofar as they are applicable [Art. 253, FC]
FC]
The foregoing rules in Chapter 2 (Separation in
WHEN APPEARANCE OF SPOUSES Fact) and (Incidents Involving Parental
REQUIRED Authority) hereof shall likewise govern summary
(1) In case of non-appearance of the spouse proceedings filed:
whose consent is sought, the court shall (1) Declaration of presumptive death [Art. 41,
inquire into the reasons for his failure to FC]
appear, and shall require such appearance, (2) Delivery of presumptive legitime [Art. 51, FC]
if possible. [Art. 244, FC] (3) Fixing of family domicile [Art. 69, FC]
(2) If, despite all efforts, the attendance of the (4) Disagreements regarding one spouses
non-consenting spouse is not secured, the profession, occupation, business, or activity
court may proceed ex parte and render [Art. 73, FC]
judgment as the facts and circumstances (5) Disposition or encumbrance of common
may warrant. In any case, the judge shall property in ACP where one spouse is
endeavor to protect the interests of the non- incapacitated or unable to participate in the
appearing spouse. [Art. 245, FC] administration; administration of absolute
community in a disagreement and the wife
NATURE OF JUDGMENT takes recourse within five years [Art. 96, FC]
(6) Disposition or encumbrance of common
The judgment of the court shall be immediately
property in CPG where one spouse is
final and executory. [Art 247]
incapacitated or unable to participate in the
administration; administration of
RULES APPLICABLE FOR partnership property in a disagreement and
ADMINISTERING OR ENCUMBERING the wife takes recourse within five years,
SEPARATE PROPERTY OF SPOUSE [Art. 124, FC]
The petition for judicial authority to administer
or encumber specific separate property of the When wife and husband are de facto separated
abandoning spouse and to use the fruits or and the CPG is insufficient, the spouse present
proceeds thereof for the support of the family shall, upon a petition, be given judicial authority
shall also be governed by these rules. [Art. 248, to administer or encumber any specific property
FC] of the other spouse and use the fruits and

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proceeds thereof to satisfy the latters share. No human remains shall be retained, interred,
[Art. 127, FC] disposed of or exhumed without the consent of
the persons mentioned in articles 294 and 305.

Retroactive Effect DAMAGES


Any person who shows disrespect to the dead,
This Code shall have retroactive effect insofar as
or wrongfully interferes with a funeral shall be
it does not prejudice or impair vested or
liable to the family of the deceased for
acquired rights in accordance with the Civil
damages, material and moral [Art. 309, CC]
Code or other laws. [Art 256, FC]

FUNERAL EXPENSES
The construction of a tombstone or mausoleum
Funeral shall be deemed a part of the funeral expenses,
and shall be chargeable to the conjugal
RELATIVES DUTY AND RIGHTS partnership property, if the deceased is one of
the spouses [Art. 310, CC].
TO ARRANGE FUNERALS
The duty and the right to make arrangements
for the funeral of a relative shall be in GUIDELINES IN MAKING
accordance with the order established for FUNERAL ARRANGEMENTS
support, under Article 294 [Art. 305, CC]: (1) The persons who are preferred in the right
(1) Spouse to make funeral arrangements may waive
(2) Descendants in the nearest degree. In case the right expressly or impliedly in which
of descendants of the same degree, the case the right and duty immediately
oldest shall be preferred. descend to the person next in the order.
(3) The ascendants in the nearest degree. In (2) It must be in keeping with the social
case of ascendants, the paternal shall have position of the deceased.
a better right. (3) Law shall prevail over the will of the persons
(4) The brothers and sisters, the oldest shall be who have the right to control the burial of
preferred. deceased exhumation, evidential purpose,
(5) Municipal authorities, if there are no disposition of corpse by deceased,
persons who are bound to support or if such mutilation of corpses and autopsies.
persons are without means. (4) Corpses which are to be buried at public
expenses may also be used for scientific
NATURE OF FUNERAL purposes under certain conditions.
Every funeral shall be in keeping with the social (5) Expressed wishes of the deceased is given
position of the deceased. [Art. 306] priority provided that it is not contrary to law
and must not violate the legal and
The funeral shall be [Art. 307, CC]: reglementary provisions concerning
(1) In accordance with the expressed wishes of funerals and disposition of the remains
the deceased. (time, manner, place or ceremony)
(2) In the absence of such expression, his (6) In the absence of expressed wishes, his
religious beliefs or affiliation shall religious beliefs or affiliation shall
determine the funeral rites. determine the funeral rights.
(3) In case of doubt, the form of the funeral (7) In case of doubt, the persons in Art. 199
shall be decided upon by the person obliged shall decide.
to make arrangements for the same, after (8) Any person who disrespects the dead or
consulting the other members of the family interferes with the funeral shall be liable for
material and moral damages.

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Use of Surnames (b) She or the former husband is married


again to another person.
(3) When legal separation has been granted,
SURNAMES OF CHILDREN the wife shall continue using her name and
(1) Legitimate and legitimated children shall surname employed before the legal
principally use the surname of the father. separation. [Art. 372, CC]
[Art. 364, CC] (4) A widow may use the deceased husband's
(2) An adopted child shall bear the surname of surname as though he were still living, in
the adopter. [Art. 365, CC] accordance with Article 370. [Art 373, CC]
(3) A natural child acknowledged by both
parents shall principally use the surname of CONFUSION AND CHANGE OF
the father. If recognized by only one of the
parents, a natural child shall employ the
NAMES
In case of identity of names and surnames, the
surname of the recognizing parent. [Art 366,
younger person shall be obliged to use such
CC]
additional name or surname as will avoid
(4) Natural children by legal fiction shall
confusion. [Art. 374, CC]
principally employ the surname of the
father. [Art. 367, CC]
In case of identity of names and surnames
(5) Illegitimate children referred to in Article 287
between ascendants and descendants, the word
shall bear the surname of the mother. [Art
"Junior" can be used only by a son. Grandsons
368, CC]
and other direct male descendants shall either
(6) Children conceived before the decree
[Art. 375, CC]:
annulling a voidable marriage shall
(1) Add a middle name or the mother's
principally use the surname of the father.
surname, or
[Art. 369, CC]
(2) Add the Roman Numerals II, III, and so on.
WIFE AFTER AND DURING Usurpation of a name and surname may be the
MARRIAGE subject of an action for damages and other
(1) A married woman may use [Art. 370, CC]: relief. [Art. 377, CC]
(a) Her maiden first name and surname
and add her husband's surname, or The unauthorized or unlawful use of another
(b) Her maiden first name and her person's surname gives a right of action to the
husband's surname or latter [Art. 378, CC]
(c) Her husband's full name, but prefixing a
word indicating that she is his wife, such The employment of pen names or stage names
as "Mrs." is permitted, provided it is done in good faith
The wife cannot claim an exclusive and there is no injury to third persons. Pen
right to use the husbands surname. names and stage names cannot be usurped.
She cant be prevented from using it; [Art. 379, CC]
but neither can she restrain others
from using it. [Tolentino] Except as provided in the preceding article, no
(2) In case of annulment of marriage, and the person shall use different names and surnames.
wife is the guilty party, she shall resume her [Art 380, CC]
maiden name and surname. If she is the
innocent spouse, she may resume her
maiden name and surname. However, she
may choose to continue employing her
former husband's surname, unless [Art. 371,
CC]:
(a) The court decrees otherwise, or

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Absence had been absent for four consecutive years and


the spouse present has a well-founded belief
that the absent spouse was already dead. In
PROVISIONAL MEASURES IN case of disappearance where there is danger of
CASE OF ABSENCE death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
Art. 43, CC. If there is a doubt, as between two
or more persons who are called to succeed each
other, as to which of them died first, whoever SUBSEQUENT MARRIAGE
alleges the death of one prior to the other, shall CONTRACTED WHEN ONE
prove the same; in the absence of proof, it is
presumed that they died at the same time and
SPOUSE IS ABSENT
there shall be no transmission of rights from General rule: Marriage contracted by any person
one to the other. during the subsistence of a previous marriage is
void.
Article 43 provides a statutory presumption
Exceptions:
when there is doubt on the order of death
The following subsequent marriage of the
between persons who are called to succeed each
present spouse is valid:
other (only).
(1) Subsequent marriage due to ordinary
absence where:
The statutory presumption of Article 43 was not
(a) The prior spouse had been absent for 4
applied due to the presence of a credible
consecutive years;
eyewitness as to who died first. [Joaquin v.
(b) The spouse present had a well-founded
Navarro (1948)]
belief that absent spouse is dead; and
(c) Judicial declaration of presumptive
PRESUMPTION IN THE RULES OF death was secured (no prejudice to the
COURT (RULE 131, SEC. 3, (JJ.) effect of the reappearance of the absent
(PRESUMPTION OF SURVIVORSHIP) spouse).
(2) Subsequent marriage due to extraordinary
Age Presumed Survivor absence where:
Both under 15 Older (a) The prior spouse had been missing for 2
Both above 60 Younger consecutive years;
One under 15, the other One under 15 (b) There is danger of death attendant to
above 60 the disappearance [Art. 391, Civil Code];
Both over 15 and under Male (c) The spouse present had a well-founded
60; different sexes belief that the missing person is dead;
Both over 15 and under Older and
60; same sex (d) Judicial declaration of presumptive
One under 15 or over 60, One between 15 and 60
death was secured (no prejudice to the
the other between those
ages effect of the reappearance of the absent
spouse).
Applicable only to two or more persons who
perish in the same calamity, and it is not shown Institution of a summary proceeding is not
who died first, and there are no particular sufficient. There must also be a summary
circumstances from which it can be inferred. judgment. [Balane]

Art. 41, CC. A marriage contracted by any person Only the deserted spouse can file or institute a
summary proceeding for the declaration of
during subsistence of a previous marriage shall
presumptive death of the absentee. [Bienvenido
be null and void, unless before the celebration
case]
of the subsequent marriage, the prior spouse

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There must have been diligent efforts on the WHO MAY BE APPOINTED AS
part of the deserted spouse to locate the absent REPRESENTATIVE
spouse. These diligent efforts correspond to the (1) Spouse present shall be preferred when
requirement of the law for a well-founded there is no legal separation.
belief. (2) If no spouse or spouse is incapacitated, any
competent person.
Exception to the Exception:

Art. 381, CC. When a person disappears from his DECLARATION OF ABSENCE
domicile, his whereabouts being unknown, and
without leaving an agent to administer his Art. 384, CC. Two years having elapsed without
property, the judge, at the instance of an any news about the absentee or since the
interested party, a relative, or a friend, may receipt of the last news, and five years in case
appoint a person to represent him in all that the absentee has left a person in charge of the
may be necessary. administration of his property, his absence may
be declared
This same rule shall be observed when under
similar circumstances the power conferred by Art. 385, CC. The following may ask for the
the absentee has expired. declaration of absence:
(1) The spouse present;
Art. 382, CC. The appointment referred to in the (2) The heirs instituted in a will, who may
preceding article having been made, the judge present an authentic copy of the same;
shall take the necessary measures to safeguard (3) The relatives who may succeed by the law of
the rights and interests of the absentee and intestacy;
shall specify the powers, obligations and (4) Those who may have over the property of
remuneration of his representative, regulating the absentee some right subordinated to
them, according to the circumstances, by the the condition of his death.
rules concerning guardians.
Article 386, CC. The judicial declaration of
Art. 383, CC. In the appointment of a absence shall not take effect until six months
representative, the spouse present shall be after its publication in a newspaper of general
preferred when there is no legal separation. circulation.

If the absentee left no spouse, or if the spouse WHEN MAY ABSENCE BE DECLARED
present is a minor, any competent person may (1) Two years without any news about the
be appointed by the court. absentee
(2) Five years if the absentee left a person in
REQUISITES TO APPOINT charge of administration of his property
REPRESENTATIVE (3) Declaration takes effect only after six
The judge may appoint a person to represent months after publication in a newspaper of
general circulation
absentee when:
(1) Person disappears from his domicile WHO MAY ASK FOR A DECLARATION
(2) His whereabouts are unknown OF ABSENCE
(3) No agent to administer his property
(1) Spouse present
(4) An interested party, a relative, or a friend
(2) Heirs instituted in a will, who may present an
files the action
authentic copy of the same;
(3) Relatives who may succeed by the law of
intestacy;
(4) Those who may have some right over the
property of the absentee, subordinated to the
condition of his death.

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ADMINISTRATION OF THE PRESUMPTION OF DEATH


PROPERTY OF THE ABSENTEE
Art. 390, CC. After an absence of 7 years, it
Art. 387, CC. An administrator of the absentee's being unknown whether or not the absentee
property shall be appointed in accordance with still lives, he shall be presumed dead for all
Article 383. purposes, except for those of succession.

Art. 388, CC. The wife who is appointed as an The absentee shall not be presumed dead for
administratrix of the husband's property cannot the purpose of opening his succession till after
an absence of 10 years. If he disappeared after
alienate or encumber the husband's property, or
that of the conjugal partnership, without judicial the age of 75 years, an absence of 5 years shall
authority. be sufficient in order that his succession may be
opened.
Art. 389, CC. The administration shall cease in
Art. 391, CC. The following shall be presumed
any of the following cases:
dead for all purposes, including the division of
(1) When the absentee appears personally or
the estate among the heirs:
by means of an agent;
(2) When the death of the absentee is proved (1) A person on board a vessel lost during a sea
and his testate or intestate heirs appear; voyage, or an aeroplane which is missing,
(3) When a third person appears, showing by a who has not been heard of for four years
proper document that he has acquired the since the loss of the vessel or aeroplane;
absentee's property by purchase or other (2) A person in the armed forces who has taken
title. part in war, and has been missing for four
years;
(3) A person who has been in danger of death
In these cases the administrator shall cease in
the performance of his office, and the property under other circumstances and his
shall be at the disposal of those who may have a existence has not been known for four years.
right thereto.
General rule: A person shall be presumed dead
for all purposes after absence for a period of 7
WHO MAY ADMINISTER THE years.
PROPERTY
(1) Spouse present shall be preferred when Exception: Succession
there is no legal separation In succession, 10 years is required for
(2) If no spouse or spouse is incapacitated, any presumption of death.
competent person If absentee disappeared after age of 75, 5
years shall be sufficient.
WHEN WILL THE ADMINISTRATION
OF PROPERTY CEASE? EXTRAORDINARY ABSENCE
Administrator shall cease in performance of his Only 4 years is required for presumption to arise
office, and property shall be disposed in favor of if:
those who have a right thereto when: (1) A person on board a vessel lost during a sea
(1) Absentee appears personally or by means of voyage, or an aeroplane which is missing,
an agent who has not been heard of for four years
(2) Testate or intestate heirs appear, upon proof since the loss of the vessel or aeroplane;
of death of absentee (2) A person in the armed forces who has taken
(3) Third person appears, with a proper part in war, and has been missing for four
document showing he has acquired years;
absentees property by purchase or other
title

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(3) A person who has been in danger of death


under other circumstances and his Art. 409, CC. In cases of legal separation,
existence has not been known for four years. adoption, naturalization and other judicial
orders mentioned in the preceding article, it
Although 7 years is required for the presumption shall be the duty of the clerk of the court which
of death of an absentee in the Civil Code, Art. 41 issued the decree to ascertain whether the same
of the Family Code makes an exception for the has been registered, and if this has not been
purpose of remarriage by limiting such done, to send a copy of said decree to the civil
requirement to 4 years. registry of the city or municipality where the
court is functioning.
Art. 41 also limits the required 4 years in Art. 391
for absence under exceptional circumstances to Art. 410, CC. The books making up the civil
only 2 years. register and all documents relating thereto
shall be considered public documents and shall
Art. 392, CC. If the absentee appears, or without be prima facie evidence of the facts therein
appearing his existence is proved, he shall contained.
recover his property in the condition in which it
may be found, and the price of any property that Art. 411, CC. Every civil registrar shall be civilly
may have been alienated or the property responsible for any unauthorized alteration
acquired therewith; but he cannot claim either made in any civil register, to any person
fruits or rents. suffering damage thereby. However, the civil
registrar may exempt himself from such liability
if he proves that he has taken every reasonable
Civil Registrar precaution to prevent the unlawful alteration.

Art. 413, CC. All other matters pertaining to the


ARTICLES 407-413 registration of civil status shall be governed by
special laws.
Art. 407, CC. Acts, events and judicial decrees
concerning the civil status of persons shall be RA 9048 AS AMENDED BY RA
recorded in the civil register. 10172
AN ACT AUTHORIZING THE CITY OR
Art. 408, CC. The following shall be entered in MUNICIPAL CIVIL REGISTRAR OR THE
the civil register: CONSUL GENERAL TO CORRECT A CLERICAL
(1) Births; OR TYPOGRAPHICAL ERROR IN AN ENTRY
(2) Marriages; AND/OR CHANGE OF FIRST NAME OR
(3) Deaths; NICKNAME IN THE CIVIL REGISTER WITHOUT
(4) Legal Separations; NEED OF A JUDICIAL ORDER, AMENDING FOR
(5) Annulments of marriage; THIS PURPOSE ARTICLES 376 AND 412 OF
(6) Judgments declaring marriages void from THE CIVIL CODE OF THE PHILIPPINES
the beginning;
(7) Legitimations; General rule: No entry in a civil register shall be
(8) Adoptions; changed or corrected without a judicial order
(9) Acknowledgments of natural children;
(10) Naturalization; Exception:
(11) Loss, or Clerical or typographical errors;
(12) Recovery of citizenship; Change of: first name or nickname, day and
(13) Civil interdiction; month in the date of birth, or sex of a person
(14) Judicial determination of filiation; This exception applies where it is patently clear
(15) Voluntary emancipation of a minor; and that there was a clerical or typographical error
(16) Changes of name. or mistake in the entry, which can be corrected

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or changed by the concerned city or municipal


civil registrar or consul general in accordance Citizens of the Philippines who are presently
with the provisions of this Act and its residing or domiciled in foreign countries may
implementing rules and regulations file their petition, in person, with the nearest
Philippine Consulates.
Clerical or typographical error to a mistake
committed in the performance of clerical work in The petitions filed with the city or municipal civil
writing, copying, transcribing or typing an entry registrar or the consul general shall be
in the civil register that is harmless and processed in accordance with this Act and its
innocuous (i.e. misspelled name, misspelled implementing rules and regulations.
place of birth, mistake in the entry of day and
month in the date of birth or the sex of the All petitions for the clerical or typographical
person or the like, which is visible to the eyes or errors and/or change of first names or
obvious to the understanding, and can be nicknames may be availed of only once.
corrected or changed only by reference to other
existing record or records) GROUNDS
Before the amendment by RA 10172, no
WHO MAY FILE THE PETITION AND WHERE?
correction must involve the change of sex, (1) Any person having direct personal interest in
nationality, age or status of the petitioner. After the correction of a clerical or typographical
the amendment, change of sex can now be error in an entry and/or change of first
subjected to correction without judicial order name or nickname in the civil register
under the rules of this Act. (2) Verified petition with the local civil registry
office of the city or municipality
Civil Register the various registry books and
(a) where the record being sought to be
related certificates and documents kept in the
corrected or changed is kept
archives of the local civil registry offices, (b) where the interested party is presently
Philippine Consulates and of the Office of the residing or domiciled, if it will be
Civil Registrar General. impractical to submit in the place where
record is kept (i.e. when party has
Sec. 3. Who May File the Petition and Where. Any migrated to another place in the
person having direct and personal interest in country)
the correction of a clerical or typographical error (c) nearest Philippine Consulates, if the
in an entry and/or change of first name or petitioner is presently residing or
nickname in the civil register may file, in person, domiciled in foreign countries
a verified petition with the local civil registry
office of the city or municipality where the All petitions for the clerical or typographical
record being sought to be corrected or changed errors and/or change of first names or
is kept. nicknames may be availed of only once.
In case the petitioner has already migrated to Sec. 4. Grounds for Change of First Name or
another place in the country and it would not be Nickname. The petition for change of first name
practical for such party, in terms of
or nickname may be allowed in any of the
transportation expenses, time and effort to following cases:
appear in person before the local civil registrar (1) The petitioner finds the first name or
keeping the documents to be corrected or nickname to be ridiculous, tainted with
changed, the petition may be filed, in person, dishonor or extremely difficult to write or
with the local civil registrar of the place where
pronounce.
the interested party is presently residing or
(2) The new first name or nickname has been
domiciled. The two (2) local civil registrars habitually and continuously used by the
concerned will then communicate to facilitate petitioner and he has been publicly known
the processing of the petition.

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by that first name or nickname in the weeks in a newspaper of general circulation.


community: or
(3) The change will avoid confusion. Furthermore, the petitioner shall submit a
certification from the appropriate law
Sec. 5. Form and Contents of the Petition. The enforcement agencies that he has no pending
petition for correction of a clerical or case or no criminal record.
typographical error, or for change of first name
or nickname, as the case may be, shall be in the The petition and its supporting papers shall be
form of an affidavit, subscribed and sworn to filed in three (3) copies to be distributed as
before any person authorized by the law to follows: first copy to the concerned city or
administer oaths. The affidavit shall set forth municipal civil registrar, or the consul general;
facts necessary to establish the merits of the second copy to the Office of the Civil Registrar
petition and shall show affirmatively that the General; and third copy to the petitioner
petitioner is competent to testify to the matters
stated. The petitioner shall state the particular RULE 108, RULES OF COURT
erroneous entry or entries, which are sought to CANCELLATION OR CORRECTION OF
be corrected and/or the change sought to be ENTRIES IN THE CIVIL REGISTRY
made.
Sec. 1. Who may file petition. Any person
The petition shall be supported with the interested in any act, event, order or decree
following documents: concerning the civil status of persons which has
(1) A certified true machine copy of the been recorded in the civil register, may file a
certificate or of the page of the registry book verified petition for the cancellation or
containing the entry or entries sought to be correction of any entry relating thereto, with the
corrected or changed. Court of First Instance of the province where the
(2) At least two (2) public or private documents corresponding civil registry is located.
showing the correct entry or entries upon
which the correction or change shall be Sec. 2. Entries subject to cancellation or
based; and
correction. Upon good and valid grounds, the
(3) Other documents which the petitioner or following entries in the civil register may be
the city or municipal civil registrar or the cancelled or corrected:
consul general may consider relevant and
(a) births;
necessary for the approval of the petition. (b) marriages;
(c) deaths;
No petition for correction of erroneous entry
(d) legal separations;
concerning the date of birth or the sex of a
(e) judgments of annulments of marriage;
person shall be entertained except if the (f) judgments declaring marriages void from
petition is accompanied by earliest school the beginning;
record or earliest school documents such as, but (g) legitimations;
not limited to, medical records, baptismal (h) adoptions;
certificate and other documents issued by (i) acknowledgments of natural children;
religious authorities; nor shall any entry (j) naturalization
involving change of gender corrected except if
(k) election, loss or recovery of citizenship
the petition is accompanied by a certification
(l) civil interdiction;
issued by an accredited government physician (m) judicial determination of filiation;
attesting to the fact that the petitioner has not (n) voluntary emancipation of a minor; and
undergone sex change or sex transplant. The (o) changes of name.
petition for change of first name or nickname, or
for correction of erroneous entry concerning the
Sec. 3. Parties. When cancellation or correction
day and month in the date of birth or the sex of
of an entry in the civil register is sought, the civil
a person, as the case may be, shall be published
registrar and all persons who have or claim any
at least once a week for two (2) consecutive

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interest which would be affected thereby shall (3) Deaths


be made parties to the proceeding. (4) Legal separations
(5) Judgments of annulments of marriage
Sec. 4. Notice and publication. Upon the filing of (6) Judgments declaring marriages void from
the petition, the court shall, by an order, fix the the beginning
time and place for the hearing of the same, and (7) Legitimations
cause reasonable notice thereof to be given to (8) Adoptions
the persons named in the petition. The court (9) Acknowledgments of natural children
shall also cause the order to be published once (10) Naturalization
a week for three (3) consecutive weeks in a (11) Election, loss or recovery of citizenship
newspaper of general circulation in the (12) Civil interdiction
province. (13) Judicial determination of filiation
(14) Voluntary emancipation of a minor
Sec. 5. Opposition. The civil registrar and any (15) Changes of name
person having or claiming any interest under
the entry whose cancellation or correction is
sought may, within fifteen (15) days from notice
of the petition, or from the last date of
publication of such notice, file his opposition
thereto.

Sec. 6. Expediting proceedings. The court in


which the proceeding is brought may make
orders expediting the proceedings, and may
also grant preliminary injunction for the
preservation of the rights of the parties pending
such proceedings.

Sec. 7. Order. After hearing, the court may either


dismiss the petition or issue an order granting
the cancellation or correction prayed for. In
either case, a certified copy of the judgment
shall be served upon the civil registrar
concerned who shall annotate the same in his
record.

WHO MAY FILE PETITION


Any person interested in any act, event, order or
decree concerning the civil status of persons
which has been recorded in the civil register.

WHERE FILED
Verified petition for cancellation or correction of
entry in the civil registry may be filed with the
Regional Trial Court of the province where the
corresponding civil registry is located.

ENTRIES SUBJECT TO
CANCELLATION/CORRECTION
(1) Births
(2) Marriages

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(4) Statues, reliefs, paintings or other


Property objects for use or ornamentation, placed in
All things which are, or may be, the object of buildings or on lands by the owner of the
appropriation. [NCC 414] immovable in such a manner that it reveals
the intention to attach them permanently to
Characteristics the tenements;
(5) Machinery, receptacles, instruments or
(1) Utility capacity to satisfy human wants implements intended by the owner of the
(2) Substantivity and Individuality separate and tenement for an industry or works which
autonomous existence may be carried on in a building or on a piece
(3) Susceptibility of being appropriated what of land, and which tend directly to meet the
cannot be appropriated because of their needs of the said industry or works;
distance, depth, or immensity cannot be (6) Animal houses, pigeon-houses,
considered things (i.e. stars, ocean)
beehives, fish ponds or breeding places of
similar nature, in case their owner has
Classification placed them or preserves them with the
intention to have them permanently
HIDDEN TREASURE attached to the land, and forming a
Hidden treasure any hidden and unknown permanent part of it; the animals in these
deposit of money jewels or other precious places are included;
objects, the lawful ownership of which does not (7) Fertilizer actually used on a piece of
appear. [NCC 439] land;
(8) Mines, quarries, and slag dumps, while
Owner of the land, building or other property on the matter thereof forms part of the bed,
which the hidden treasure was found, also owns and waters either running or stagnant;
it, subject to:
(9) Docks and structures which, though
(1) Right of a finder by chance who is not a
trespasser/intruder: of treasure floating, are intended by their nature and
(2) Right of a usufructuary who finds treasure: object to remain at a fixed place on a river,
of treasure lake, or coast;
(3) Right of State to acquire things of interest to (10) Contracts for public works, and
science or the arts [NCC 438] servitudes and other real rights over
immovable property.
BASED ON MOBILITY
CATEGORIES OF IMMOVABLES
[IMMOVABLE OR MOVABLE] (1) By nature
(2) By incorporation
REAL OR IMMOVABLE PROPERTY (3) By destination
(4) By analogy
NCC 415.
(1) Land, buildings, roads and constructions Immovables by Nature: cannot be moved from
place to place; their intrinsic qualities have no
of all kinds adhered to the soil;
utility except in a fixed place (Par. 1 & 8)
(2) Trees, plants, and growing fruits, while
they are attached to the land or form an (1) Par. 1
integral part of an immovable; (a) Building - their adherence to the land
(3) Everything attached to an immovable in must be permanent and substantial.
a fixed manner, in such a way that it cannot (b) Buildings have been considered as
be separated therefrom without breaking immovables, despite:
the material or deterioration of the object;

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(i) Treatment by the parties e.g. they Immovables by Destination: are essentially
constitute a separate mortgage on the movables but by the purpose for which they
building and the land [Punzalan v. have been placed in an immovable, partake of
Lacsamana] the nature of an immovable [Par. 4, 5, 6 & 9]
(ii) Separate Ownership i.e. a building on
rented land is still considered an (1) Par. 4
immovable. [Tolentino] (a) Requisites:
(i) Placed by the owner or by the
(2) Par. 8 tenant (as agent);
(a) Mineral Deposits (ii) With intention of attaching them
(i) Minerals still deposited in the soil permanently even if adherence
(ii) When minerals have been will not involve breakage or injury.
extracted, they become chattel. (b) Where the improvement or ornaments
(b) Slag Dump: dirt and soil taken from a placed by the lessee are not to pass to
mine and piled upon the surface of the the owner at the expiration of the lease,
ground. Minerals can be found inside they remain movables for chattel
the dump. mortgage purposes. [Davao Sawmill v.
(c) Waters: those still attached to or running Castillo(1935)]
thru the soil or the ground.
Par. 3 v. Par. 4
Immovables by Incorporation: are essentially Par. 3 Par. 4
movables but are attached to an immovable in
Cannot be separated Can be separated
such a way as to be an integral part [Par. 2, 3, &
from immovable from immovable
7]
without breaking or without breaking or
deterioration deterioration
(1) Par. 2
(a) Trees and plants: only immovables when Must be placed by
they are attached to the land or form an Need not be placed by the owner, or by his
integral part of an immovable the owner agent, expressed or
(i) When they have been cut or implied
uprooted, they become movables. Real property by
Real property by
(b) By special treatment of Act 1508 incorporation and
incorporation
(Chattel Mortgage Law), growing crops destination
may be subject of a Chattel Mortgage.
(c) For the purpose of attachment: growing (2) Par. 5
(a) Immovability depends upon their being
crops are to be attached in the same
manner as realty. (Rule 59, Sec. 7) destined for use in the industry or work
in the tenement;
(2) Par. 3 (i) The moment they are separated,
(from the immovable or from the
(a) Res vinta in Roman Law
industry or work in which they are
(b) Attachment in a fixed manner:
utilized) they recover their condition
breakage or injury in case of separation
will be substantial e.g. wells, sewers, as movables.
(ii) If it is still needed for the industry
aqueducts and railways
(i) Whether attached by the owner but separated from the tenement
himself or some other person temporarily, the property continues
to be immovable.
(b) Requisites for Immovability in Par. 5:
(3) Par. 7
Actually used (it has been spread over the (i) Placed by the owner or the tenant
land) (as agent);
(ii) The machine, receptacle,
instrument, implement must also

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be ESSENTIAL to the business in Parties may by agreement treat as, but


order to be considered realty. effective only as to them.
[Mindanao Bus Co. v City Assessor
(1962)] It is based, partly, upon the principle of
(c) Except: Estoppel estoppel. [Evangelista vs. Alto Surety(1958)]
(d) Parties may, by agreement, treat as
personal property that which by nature For purposes of taxation, improvements on
would be real, as long as no third land are commonly taxed as realty, even
parties would be prejudiced. That though for some purposes, they might be
characterization is effective between the considered as personalty.
parties. [Makati Leasing v. Wearever
(1983)] It is a familiar phenomenon to see things
(e) Effect of Attachment classified as real property for purposes of
(i) Machinery becomes part of the taxation, which on general principle, might
immovable. be considered personal property. [Manila
(ii) The installation of machinery and Electric v. Central Bank (1962)]
equipment in a mortgaged sugar
central for the purpose of carrying out PERSONAL OR MOVABLE
the industrial functions and
increasing production, constitutes a
permanent improvement on said NCC 416 & 417.
sugar central and subjects said (1) Those movables susceptible of
machinery and equipment to the appropriation which are not included in
mortgage constituted thereon. the preceding article;
[Berkenkotter v. Cu Unjieng(1935)] (2)Real property which by any special
provision of law is considered as
(3) Par. 6 personalty;
Requisites: (3) Forces of nature which are brought under
(a) Placed by the owner or the tenant (as control by science; and
agent);
(4)In general, all things which can be
(b) With the intention of permanent
attachment; transported from place to place without
(c) Forming a permanent part of the impairment of the real property to which
immovable. they are fixed.
(5)Obligations and actions which have for
(4) Par. 9: their object movables or demandable
A floating house tied to a shore and used sums; and
as a residence is considered real property, (6)Shares of stock of agricultural,
considering that the waters on which it commercial and industrial entities,
floats are considered immovables. although they may have real estate.
But if the floating house makes it a point
to journey from place to place, it assumes TESTS TO DETERMINE MOVABLE CHARACTER
the category of a vessel, and is considered
a movable. (1) By exclusion
Everything NOT included in Article 415
Immovables by Analogy: Contracts for public Parties cannot by agreement treat as
works, servitudes, other real rights over immovable that which is legally movable.
immovable property e.g. usufruct and lease of
real property for a period of 1 year and (2) By description
registered [Par. 10] (a) Ability to change location whether it
can be carried from place to place;
Note: Enumeration in Art. 415 not absolute.

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(b) Without substantial injury to the but a donation of a movable may be


immovable to which it is attached. made orally or in writing. [NCC 748]

The steel towers built by MERALCO are not (3) For ACQUISITIVE PRESCRIPTION:
buildings or constructions since they are Real property can be acquired by
removable and merely attached to a square prescription in 30 years (bad faith) and 10
metal frame by means of bolts, which when years (good faith). (NCC 1137, 1134)
unscrewed could easily be dismantled and Movables can be acquired by prescription
moved from place to place, without breaking in 8 years (bad faith) and 4 years (good
the material or causing deterioration to the faith). (NCC 1132)
object they are attached. [Board of (4) Actions for RECOVERY OF POSSESSION:
Assessment Appeals v. Meralco] Possession of real property - recovered
through accion reivindicatoria, accion
(3) By special provision of law publiciana, forcible entry and unlawful
Growing crops under the Chattel Mortgage detainer.
Law Possession of movable property -
Machinery installed by a lessee not acting recovered through replevin.
as agent of the owner [Davao Sawmill v.
Castillo] (5) VENUE of actions:
Intellectual property considered personal Real actions - Actions concerning real
property; it consists in the pecuniary property are commenced in the court that
benefit which the owner can get by the has jurisdiction over the area where the
reproduction or manufacture of his work. real property is situated. [Rules of Court
Rule 4 Sec. 1]
(4) By forces of nature Personal actions - Commenced where the
e.g. electricity, gas, heat, oxygen plaintiff or any of the principal plaintiffs,
or where the defendant or any of the
IMPORTANCE AND SIGNIFICANCE OF principal defendants resides, or if a non-
CLASSIFICATION UNDER THE CIVIL CODE resident defendant, where he may be
found, at the election of the plaintiff. [Rule
(1) In CRIMINAL LAW: 4 Sec. 2]
Usurpation of property can take place only
(6) The GOVERNING LAW (Private International
with respect to real property. [RPC 312]
Law):
Robbery and theft can be committed only
Immovables - governed by the law of the
against personal property. [RPC 293, 308]
country where they are located.
(2) In the FORM OF CONTRACTS Involving Movables - governed by the personal laws
Movables and Immovables: of the owner. (which in some cases is the
law of his nationality and in other cases,
(a) Subject matter of specific contracts: the law of his domicile)
Only real property can be the subject
(7) In affecting THIRD PERSONS:
of real mortgage [NCC 2124] and
antichresis. [NCC 2132] In transactions involving real property
Only personal property can be the must be recorded in the Registry of
Property to affect third persons.
subject of voluntary deposit [NCC
1966], pledge [NCC 2094] and chattel In transactions involving personal
mortgage. [Act 1508] property registration is not required,
except for chattel mortgages. [Chattel
(b) Donations of real property are required Mortgage Register, NCC 2140]
to be in a public instrument [NCC 749]

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BASED ON OWNERSHIP
e.g. fortresses, unleased mines and civil
buildings.
NCC 419. Property is part of either the
public dominion or private ownership. (3) Those for the development of the national
wealth.
Churches and other consecrated objects are
considered outside the commerce of man; they Includes natural resources such as minerals,
are considered neither public nor private coal, oil and forest.
property.
(4) Patrimonial property:
PUBLIC DOMINION (a) Owned by the State over which it has
Property of public dominion is outside the the same rights as private individuals in
commerce of man. They cannot be the subject relation to their own property.
matter of private contracts, cannot be acquired (b) Subject to the administrative laws and
by prescription and they are not subject to regulations on the procedure of
attachment and execution nor burdened with a exercising such rights. E.g. friar lands,
voluntary easement. escheated properties and commercial
buildings.
Public As defined by NCC 420 (c) Purpose:
Dominion (i) Enables the State to attain its
Public Domain Used in Art XII, Section 2, economic ends.
1987 Constitution (ii) Serves as a means for the States
Public Lands Public Land Act subsistence and preservation.
(iii) Enables the State to fulfill its
primary mission.
CHARACTERISTICS (d) Conversion of Property of Public
Not owned by the State but pertains to Dominion for Public Use to Patrimonial
it as territorial sovereign; to hold in trust Property:
for the interest of the community. (i) Property of public dominion, when
Purpose: For public use, and not for use no longer intended for public use or
by the State as a juridical person. for public service, shall form part of
Cannot be the subject of appropriation the patrimonial property of the
either by the State or by private State [NCC 422, Civil Code]
persons. (ii) An express Declaration by the State
(either by the Congress or by the
CLASSIFICATIONS President, if the power was provided
by law) that the public dominion
Administered by the State [NCC 420] property has been converted into
patrimonial property, even though it
(1) Those intended for public use. (roads, canals, was classified as alienable or
rivers, torrents, ports and bridges disposable. [Heirs of Malabanan v.
constructed by the State, banks, shores, Republic (2009)]
roadsteads, and others of similar character)
Administered by Municipal Corporations
May be used by everybody, even by [NCC 424]
strangers or aliens but nobody can exercise
over it the rights of a private owner. (1) Property for public use, in the provinces,
cities, and municipalities, consist of the
(2) Those intended for some public service: provincial roads, city streets, municipal
may be used only by authorized persons but streets, the squares, fountains, public
exists for the benefit of all. waters, promenades, and public works for

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public service paid for by said provinces, (2) Property belonging to private persons, either
cities, or municipalities. individually or collectively [NCC 425]
Property of private ownership, besides the
(2) Patrimonial property of Municipal patrimonial property of the State,
Corporations: provinces, cities, and municipalities,
The province or municipality, as a juridical consists of all property belonging to
entity, also possesses private property to private persons, either individually or
answer for its economic necessities. collectively.
Classification of Properties of provinces, Refers to all property belonging to private
cities, and municipalities [Salas v. persons, natural or juridical, either
Jarencio, (1972)] individually or collectively (co-owned
(i) Properties acquired with their own property)
funds in their private or corporate
capacity over which the political Determination (two different views)
subdivision has ownership and
control. (1) Determined by how the property was used
(ii) Properties of public dominion held in In Province of Zamboanga v. City of
trust for the States inhabitants are Zamboanga (1968), property was
subject to the control and supervision considered patrimonial for they were not for
of the State. public use.

A municipal corporation must prove that (2) Determined by how the property was
they acquired the land with their own acquired
corporate funds According to Salas v. Jarencio (1972), the
absence of a title deed to any land, showing
o Presumption: that land comes from the that it was acquired with its private or
State upon the creation of the corporate funds, the presumption is that
municipality. All lands in the possession such land came from the State upon the
of the municipality creation of the municipality.
o Except for those acquired with its private
funds, are deemed to be property of public Conversion
dominion, held in trust for the State for
the benefit of its inhabitants. Alienable Public Land converted to Private
Property through Prescription
Congress has paramount power to dispose Alienable public land held by a
of lands of public dominion in a possessor personally/through
municipality, the latter being a subdivision predecessors-in-interest, openly,
only for purposes of local administration. continuously and exclusively for 30
[Salas v. Jarencio, (1972)] years is CONVERTED to private
property by the mere lapse or
Private Ownership completion of the period. The
Can be exercised by the State in its private application for confirmation is mere
capacity or by private persons. formality, because land had already
been converted, giving rise to a
Kinds registrable title. [Director of Lands v.
(1) Patrimonial property - Property owned by the IAC(1986)]
State and its political subdivisions in their
private capacity; all property of the State Private Land converted to Property of Public
not included in NCC 420 (on public Dominion through abandonment and
dominion) [NCC 421-424] reclamation

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Through the gradual encroachment or BASED ON THE CONSTITUTION


erosion by the ebb and flow of the tide,
private property may become public IF [ARTICLE XII, SEC 3]
the owner appears to have (1) Public Agricultural Land;
ABANDONED the land, and permitted (2) Mineral Land;
it to be totally destroyed so as to (3) Timber Land;
become part of the shore. The land (4) National Parks.
having disappeared on account of the
gradual erosion, and having remained OTHER CLASSIFICATIONS
submerged until they were reclaimed by
the government, they are public land. BY THEIR PHYSICAL EXISTENCE
[Government v. Cabangis(1929)] (1) Corporeal
All property the existence of which can be
BASED ON CONSUMABILITY determined by the senses. (res qui tangi
possunt)
[NCC 418] (2) Incorporeal
(a) Things having abstract existence,
Only applies to movable property, determined by created by man and representing value.
nature.
(b) Includes rights over incorporeal things,
credits, and real rights other than
CONSUMABLE ownership over corporeal things.
(1) Movables which cannot be used in a
manner appropriate to their nature without BY THEIR AUTONOMY OR DEPENDENCE
their being consumed. (e.g. food)
(1) Principal
(2) Consumable goods cannot be the subject
Those to which other things are considered
matter of a commodatum unless the
dependent or subordinated, such as the
purpose of the contract is not the land on which a house is built.
consumption of the object, as when it is (2) Accessory
merely for exhibition.
Those which are dependent upon or
subordinated to the principal. They are
NON-CONSUMABLE destined to complete, enhance or ornament
All others not falling under consumable e.g. another property.
money in coin.
BY SUSCEPTIBILITY TO DETERIORATION
BASED ON SUSCEPTIBILITY TO (1) Deteriorable
SUBSTITUTION Those that deteriorate through use or by
time.
Only applies to movables, determined by the
(2) Non-deteriorable.
intention of the parties.
BY REASON OF THEIR SUSCEPTIBILITY TO
FUNGIBLES
Things that, because of their nature or the will DIVISION
of the parties, are capable of being substituted (1) Divisible
by others of the same kind, not having a distinct Those which can be divided physically or
individuality. juridically without injury to their nature. E.g.:
piece of land or an inheritance.
NON-FUNGIBLES (2) Indivisible
Those which cannot be divided without
(1) Things that cannot be substituted for
destroying their nature or rendering
another;
impossible the fulfillment of the juridical
(2) If the parties agreed that the same thing be
relation of which they are object.
returned, it is not fungible.

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BY REASON OF DESIGNATION RIGHT IN GENERAL


(1) Generic
That which indicates its homogenous RIGHTS INCLUDED IN OWNERSHIP [NCC
nature, but not the individual such as a
horse, house, dress, without indicating it.
428]
(1) Right to enjoy and dispose of a thing,
(2) Specific
without other limitations than those
That which indicates the specie or its nature
established by law.
and the individual, such as the white horse
(2) Right of action against the holder and
of X.
possessor of the thing in order to recover it.
EXISTENCE IN POINT OF TIME
(1) Present BUNDLE OF RIGHTS
Those which exist in actuality, either (1) Jus Utendi: Right to enjoy and receive what
physical or legal, such as, the erected the property produces.
building. (2) Jus Fruendi: Right to receive the fruits.
(2) Future (3) Jus Accessiones: Right to the accessories.
Those which do not exist in actuality, but (4) Jus Abutendi: Right to consume a thing by
whose existence can reasonably be use.
expected with more or less probability, such (5) Jus Disponendi: Right to alienate,
as ungathered fruits. encumber, transform or even destroy the
thing owned.
(6) Jus Vindicandi: Right to recover possession
of property based on a claim of ownership.
Ownership (7) Jus Possidendi: Right to possess the
property. (Implied from all the other rights)
DEFINITION AND CONCEPT
Independent right of exclusive PROTECTING PROPERTY
enjoyment and control of a thing.
Has the purpose of deriving all BASIC DISTINCTIONS
advantages required by the reasonable
needs of the owner/holder of right and REAL RIGHT v. PERSONAL RIGHT
promotion of general welfare.
Real Rights
A complete subjection to an owners
Rights that confer upon its holder an
will.
autonomous power to derive directly from a
May be exercised in everything not thing certain economic advantages
prohibited by public law or the rights of independently of whoever the possessor of the
another. thing.
TYPES OF OWNERSHIP Personal Rights
(1) Full Ownership: With complete rights over Rights of a person to demand from another as a
the property. definite passive subject, the fulfillment of a
(2) Naked Ownership: Absence of jus fruendi prestation to give, to do or not to do.
and jus utendi.
(3) Sole Ownership: Ownership vested only in Real Rights Personal Rights
one person. Definite active subject Definite active subject
(4) Co-Ownership: Ownership vested in 2 or who has a right against (creditor) and a
more persons. ALL persons generally definite passive
as an indefinite passive subject (debtor).
subject.

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Real Rights Personal Rights ACTIONS TO RECOVER OWNERSHIP AND


Object is generally a Subject matter is POSSESSION OF PROPERTY
corporeal thing. always an incorporeal
thing. Actions to Recover Possession
Generally extinguished Personal right Immovable Property
by the loss or survives the subject Accion Reivindicatoria
destruction of the thing matter. Recovery of ownership of real property.
over which it is Including but not limited to possession.
exercised. Prescription of Action: 30 years.
It is directed against It is binding or
the whole world, giving enforceable only Accion Publiciana
rise to real actions against a particular Recovery of a better right to possess (de jure).
against 3rd persons. person giving rise to Judgment as to who has the better right
personal actions of possession.
against such debtor. Also, actions for ejectment not filed
within 1 year must be filed as accion
publiciana.
REAL ACTION v. PERSONAL ACTION (ROC, Prescription: 10 years.
Rule 4 Sec 1-2)
Accion Interdictal
Real action A summary action for recovery of physical
Actions affecting title to or possession of real possession through either an action for Forcible
property or any interest therein. Entry or Unlawful Detainer.
Prior physical possession by the plaintiff
Personal action
is not required.
All other actions.
The action must be filed within 1 year
ACTION IN REM v. ACTION IN PERSONAM v. AFTER dispossession/unlawful
ACTION QUASI IN REM possession/demand to vacate.

Action in rem Distinction between forcible entry and unlawful


Action against a property, judgment binding detainer
against the whole world. (1) Forcible Entry: Lawful possessor deprived
through FISTS:
Action in personam FISTS (Force, Intimidation, Strategy,
Action against a specific person, judgment Threats, Stealth)
binding against that particular person. Prescription: 1 year from dispossession
(force, intimidation, threats) or from
Action quasi in rem knowledge of dispossession (strategy,
Action against a specific property with respect stealth).
to a person.
(2) Unlawful Detainer: Possessor refused to
REMEDIES vacate upon demand by owner.
DOCTRINE OF SELF-HELP [NCC 429-430] Legal possession (by permission/
The owner may use such force as may be tolerance) becomes unlawful upon failure
reasonably necessary to repel or prevent an to vacate.
actual or threatened unlawful physical Prescription of action: 1 year from last
invasion or usurpation of his property. notice to vacate.
Every owner may enclose or fence his land or
tenements by any other means without
detriment to servitudes constituted thereon.

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Movable property TAXATION


Forced contribution to the operation of
Replevin government.
For manual delivery of property
Prescription of Right: 4 years (GF) or 8 years EMINENT DOMAIN
(BF) Property taken for public use/purpose, but
subject to due process and payment of just
Requisites for recovery of property [NCC 434] compensation.
(1) Property must be identified;
Through a relocation survey and a title Requisites: To justify the exercise of the right of
properly identifying boundaries and eminent domain, the following requisites must
location. all be present:
(a) Private property as the object of the
(2) Plaintiff must rely on the strength of his title expropriation;
and not on weakness of defendants title. (b) The property is taken by the State or by
Right must be founded on positive title competent authority;
and not on lack or insufficiency of (c) The purpose of the taking is for public use;
defendants. (d) The taking must be attended with due
Ei incumbit probatio qui dicit, non qui process of law; and
negat: He who asserts, not he who denied (e) There is payment of just compensation.
must prove.
SPECIFIC LIMITATIONS
Imposed by law, sic utere tuo, nuisance, state of
LIMITATIONS ON OWNERSHIP necessity, easements, and those voluntarily
imposed by the owner: servitudes, mortgages
LIMITATIONS ON THE RIGHT OF imposed by contract.
OWNERSHIP PROVIDED BY THE LAW
(1) Legal Servitudes: once requisites are satisfied,
GENERAL LIMITATIONS the servient owner may ask the Court to
declare the existence of an easement.
Taxation, eminent domain, police power (a) Art. 644 & 678: Aqueduct
(b) Art. 679: Planting of trees
POLICE POWER (c) Art. 670: Light and View
Property taken with no compensation for (d) Art. 649 & 652: Right of Way
general welfare. (e) Art. 637: Passage of water from upper to
When any property is condemned or seized by lower tenements
competent authority in the interest of health, (f) Art. 676: Drainage of buildings
safety or security, the owner thereof shall not (g) Art. 684-687: Lateral and subjacent
be entitled to compensation, unless he can support
show that such condemnation or seizure is
unjustified. [Art. 436, Civil Code] (2) Must not injure the rights of a third person
(a) Sic Utere Tuo Ut Alienum Non Laedas
Requisites: To justify the exercise of police (b) The owner of a thing cannot make use
power, the following must appear [US v thereof in such manner as to injure the
Toribio(1910)]: rights of a third person. [NCC 431]
(a) The interests of the public generally, require
such interference (as distinguished from (3) Actions in a State of Necessity
those of a particular class); and The owner of a thing has no right to prohibit
(b) The means are reasonably necessary for the the interference of another with the same, if
accomplishment of a purpose, and not the interference is necessary to avert an
unduly oppressive. imminent danger and the threatened
damage, compared to the damage arising to

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the owner from the interference, is much


greater. The owner may demand from the
person benefited, indemnity for the damage
to him. [NCC 432]

(4) Nuisance
A nuisance is any act, omission, establishment,
business, condition of property, or anything else
which:
(a) Injures or endangers the health or safety
of others;
(b) Annoys or offends the senses;
(c) Shocks, defies or disregards decency or
morality;
(d) Obstructs or interferes with the free
passage of any public highway or street,
or any body of water; or
(e) Hinders or impairs the use of property.
[NCC 694]

Summary of Actions:

Action Venue Summon Prayer Basis Prescription


Real Action In personam Possession Prior 1 year
Forcible Entry/Unlawful
physical
Detainer
possession
Real Action In personam Possession Real right of 10 years
Accion Publiciana
Possession [NCC 555(4)]
Real Action In personam Possession Ownership GF: 10 years
BF: 30 years
[NCC 1137]

Accion Reividicatoria Unless---


Torrens Title --
- Unless
laches

Real Action In personam Title Ownership 10 years


Reconveyance
(NCC 1456)
Real Action Quasi-in rem Quieting Ownership Imprescriptible
Quieting of Title
of Title
Personal In personam Possession Ownership GF: 4 years
Replevin
Action BF: 8 years

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Accession In cases where there is a clear and convincing


evidence to prove that the principal and the
accessory are not owned by one and the same
Accession the right by virtue of which the person or entity, the presumption shall not be
owner of a thing becomes the owner of applied and the actual ownership shall be upheld.
everything that is produced thereby, or which is In a number of cases, we recognized the separate
incorporated or attached thereto, either ownership of the land from the building and
naturally or artificially. [NCC 440] brushed aside the rule that accessory follows the
principal. [Villasi v. Garcia (2014)]
Accessories things joined to or included with
the principal thing for the latters Fruits: all periodical additions to a principal thing
embellishment, better use, or completion. produced by forces inherent to the thing itself.

CLASSIFICATION OF Kinds of Fruits


(1) Natural spontaneous products of soil and the
ACCESSION young and other products of animals [NCC 442
(1)].
(1) Accession Discreta (fruits) the right
pertaining to the owner of a thing over Under the rule partus sequitur ventrem, to the
everything produced thereby (by internal owner of female animals would also belong the
forces). young of such animals although this right is lost
when the owner mixes his cattle with those of
(2) Accession Continua the right pertaining to another.
the owner of a thing over everything that is
incorporated or attached thereto either (2) Industrial produced by lands of any kind
naturally or artificially; by external forces (by through cultivation or labor [NCC 442 (2)].
external forces).
(a) Over Immovables Standing trees are not fruits since they are
(i) Industrial considered immovables although they produce
(ii) Natural fruits themselves. However, they may be
(1) Alluvion considered as industrial fruits when they are
(2) Avulsion cultivated or exploited to carry on an industry.
(3) Change of Course of River
(4) Formation of Islands (3) Civil Fruits easily prorated for under NCC 544
(b) Over Movables they are deemed to accrue daily and belong to
(i) Conjunction and Adjunction the possessor in good faith in that proportion.
(ii) Commixtion and Confusion
(iii) Specification Note:
(a) Natural and Industrial Fruits are real
WITH RESPECT TO IMMOVABLES property while still ungathered.
(b) Only those that are manifest or born are
Accession Discreta considered as natural or industrial fruits.
Right of ownership to the fruits. [NCC 441]
Principles Applicable to Accession Discreta
General Rule: To the owner of the principal
belongs the natural, industrial and civil fruit. (1) Time of Accrual depending on kind:
Annuals: from the time seedlings appear on
Exceptions: the ground.
(1) Possession in good faith Perennials: from the time fruits actually
(2) Usufruct appear on the plants.
(3) Lease
(4) Antichresis

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Young of animals: from the time they are On the part of owner of materials: Allows the use of
in the womb, although unborn his materials without protest.
beginning of maximum ordinary period of
gestation. On the part of the builder, planter and sower: Knows
Fowls: from the time of incubation. that he does not have title to the land, nor the right
to build thereon OR no permission of the owner of
(2) A receiver of fruits has the obligation to pay the materials to pay their value.
the expenses incurred by a third person in
the production, gathering and preservation. Note:
[NCC 443] Bad faith leads to liability for damages and the
Exception: Receiver does not have to pay if loss of the works or the improvement without
fruits are recovered before gathering from reimbursement.
a possessor in bad faith, receiver does NOT Bad faith of one party neutralizes the bad faith of
have to pay indemnity. the other.
But if recovered after fruits have been
gathered, receiver must pay since the (2) Accession Continua Natural: Land deposits, etc.
fruits have been separated from
immovable, hence accession principles (a) Alluvium: Soil is gradually deposited on
will not apply. banks adjoining the river.

Principles Applicable to Accession Continua Requisites:


(1) Deposit of soil or sediment is gradual
(1) Accession Continua Artificial or Industrial: and imperceptible;
Building, planting or sowing on land owned (2) As a result of the action of the currents
by another (over immovables). of the waters of the river;
(3) Land where the accretion takes place is
General Rule: Whatever is built, planted or adjacent to the banks of the rivers; and
sown on the land of another + (4) Deemed to Exist: When the deposit of
improvements or repairs made thereon, the sediment has reached a level higher
belong to the owner of the land subject to than the highest level of the water
the rules on BPS. during the year.

Presumptions: Effect:
(a) All works, sowing and planting are The riparian owner automatically owns the
presumed made by the owner. Alluvion BUT it does not automatically
(b) All works are presumed made at the become registered property. [Reynante v CA
owners expense, unless the contrary is (1992)]
proved.
(c) The owner of the principal thing owns Rationale
the natural, industrial and civil fruits, To offset the owners loss from possible
except when the following persons exist: erosion due to the current of the river;
(i) Possessor in Good Faith To compensate for the subjection of the
(ii) Usufructuary land to encumbrances and legal
(iii) Lessee easements.
(iv) Antichretic creditor
(b) Avulsion: A portion of land is segregated
Meaning of bad faith from one estate by the forceful current of a
On the part of the landowner: Whenever the river, creek or torrent and transferred to
building, planting or sowing was done with the another.
knowledge and without opposition on his part.

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Requisites: (d) Formation of Islands


(1) Segregation and transfer of land is
sudden and abrupt; They belong to the State if:
(2) Caused by the current of the water; (i) Formed on the SEAS within the jurisdiction
and of the Philippines.
(3) The portion of land transported (ii) Formed on LAKES.
must be known and identifiable. (iii) Formed on NAVIGABLE or FLOATABLE
OR RIVERS:
(4) Can also apply to sudden transfer (1) Capable of affording a channel or
by other forces of nature such as passage for ships and vessels;
land transferred from a mountain (2) Must be sufficient not only to float
slope because of an earthquake. bancas and light boats, but also bigger
watercraft;
Effect: (3) Deep enough to allow unobstructed
The ownership of the detached property movements of ships and vessels.
is retained by the owner subject to
removal within 2 years from the TEST: can be used as a highway of
detachment. commerce, trade and travel.

(c) Change Of Course Of River They belong to the Owners of the nearest margins
or banks if:
Requisites: (i) Formed through successive accumulation of
(1) Change in the natural course of the alluvial deposits
waters of the river; and (ii) On NON-NAVIGABLE and NON-
(2) Such change causes the FLOATABLE RIVERS
abandonment of the river beds. (iii) If island is in the middle: divided
longitudinally in half.
Natural Bed: ground covered by its
waters during ordinary floods.

(3) Such change is sudden or abrupt

Results:
(i) Owners whose lands are occupied
by the new course automatically
become owners of the old bed, in
proportion to the area they lost
(ii) Owners of the lands adjoining the
old bed are given the right to
acquire the same by paying the
value of the land.
*Not exceeding the value of the land
invaded by the new bed (the old
property of the owner)
(iii) The new bed opened by the river on
a private estate shall become of
public dominion.

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Landowner

Good Faith Bad Faith

Rights of Landowner [NCC 448] Absolute Duties of Landowner [NCC


447]:
Options:
(1) Pay damages; and
(a) Buy (only after payment of indemnity (2) Allow removal; or
Good Faith

for necessary, useful and ornamental (3) Buy or pay for value of
Builder, expenses [NCC 546 and 548]); improvement.
Planter,
Sower (b) Sell to BP (unless the value of the land
[BPS] is considerably more than that of the
building or trees); or
Remedy: Rent to BP if L does not want
to buy

(c) Rent to S.

Rights of Landowner [NCC 449-452]

Options: SAME AS
Bad Faith

(a) Appropriate the improvements without GF: GF


paying indemnity;
(b) Demolish/Removal of the work of BPS
at the expense of BPS;
(c) Sell to BP; or
(d) Rent to the S

Absolute right to Damages from BPS.

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Landowner

Good Faith Bad Faith

Rights of Landowner: [NCC 447] Absolute Duties of Landowner: [NCC


Good 447]
Material Faith To buy the improvements unless M (1) Pay damages; and
Man can remove without damage. (2) Allow removal in any event; or
(3) Pay for value.

Bad Absolute Rights of Landowner [NCC SAME AS


Faith 447] GF: GF
(1) To appropriate the materials
without payment.
(2) Right to damages from M.

Landowner BPS Owner of Material


Good faith Good faith Good faith
Options: (1) Right of retention until (1) Collect value of material
(a) Right to acquire necessary and useful expenses primarily from BPS and
improvements and pay are paid; subsidiarily to landowner if
indemnity to BPS; subsidiarily (2) To pay value of materials to BPS is insolvent; and
liable to OM; OM. (2) Limited right of removal (if
(b) Sell the land to BP except if the removal will not cause
the value of the land is any injury)
considerably more; or
(c) Rent to sower.
Good faith Good faith Bad faith
Options: (1) Right of retention until (1) Lose the material without
(a) Right to acquire necessary and useful right to indemnity.
improvements and pay expenses are paid. (2) Must pay for damages to
indemnity to BPS; (2) Keep BPS without indemnity BPS.
(b) Sell land to BP except if the to OM and collect damages
value of the land is from him.
considerably more; or
(c) Rent to sower.
Good faith Bad faith Bad faith
(1) Landowner has right to collect Recover necessary expenses for (1) Recover value from BPS (as if
damages from BPS in any preservation of land from both are in good faith)
case and the option to either: landowner unless landowner (2) If BPS acquires improvement,
(a) Acquire improvements sells land. remove materials if feasible
w/o paying for indemnity; w/o injury
(b) Demolition or restoration; (3) No action against landowner
or but may be liable to
(c) Sell to BP, or to rent to landowner for consequential
sower damages
(2) Pay necessary expenses to
BPS.

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Landowner BPS Owner of Material


Bad faith Bad faith Bad faith
Same as when all acted in good Same as when all acted in good Same as when all acted in good
faith under Article 453 faith under Article 453 faith under Article 453
Bad faith Good faith Good faith
(1) Acquire improvement after (1) May remove improvements. (1) Remove materials if possible
paying indemnity and (2) Be indemnified for damages w/o injury
damages to BPS unless the in any event. (2) Collect value of materials
latter decides to remove. (3) Pay OM the value of the from BPS; subsidiarily from
(2) Subsidiarily liable to OM for materials. landowner
value of materials.
Bad faith Bad faith Good faith
Options: (a) Right of retention until (a) Collect value of materials
(a) Acquire improvements after necessary expenses are paid. primarily from BPS and
indemnity; subsidiarily liable (b) Pay value of materials to OM subsidiarily from landowner.
to OM for value of materials; and pay him damages. (b) Collect damages from BPS.
(b) Sell the land to BP except if (c) Absolute right to remove
the value of the land is materials in any event.
considerably more; or
(c) Rent to sower.
Good faith Bad faith Good faith
(1) Landowner has right to collect (1) Right to necessary expenses. (1) Collect value of materials
damages from BPS in any (2) Pay value of materials to OM. primarily from BPS and
case and the option to either: (3) Pay damages to OM/LO. subsidiarily from landowner
(a) Acquire improvements (2) Collect damages from BPS
w/o paying for indemnity; (3) If BPS acquires
(b) Demolition or restoration; improvements, absolute right
or of removal in any event.
(c) Sell to BP, or to rent to
sower
(2) Pay necessary expenses to
BPS.
(3) Subsidiarily liable to OM.
Bad faith Good faith Bad faith
Acquire improvements and pay (1) Receive indemnity for (1) No right to indemnity.
indemnity and damages to BPS damages. (2) Loses right to material.
unless the latter decides to (2) Absolute right of removal of
remove materials. improvements in any event.

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WITH RESPECT TO MOVABLE owner of the accessory for its value in its
PROPERTY uncontroverted state.

Three Types (2) If union was in bad faith, NCC 470 applies:
(1) Conjunction or Adjunction - process where 2 Owner of accessory in bad faith loses the
movables belonging to different owners are thing incorporated and has the obligation to
attached to each other to form a single object. indemnify the owner of the principal thing
for damages.
(2) Mixture the union of material where the If owner of principal is in bad faith, owner of
components lose their identity. the accessory has a right to choose between
the owner of principal paying him its value
Kinds: or that the thing belonging to him be
(a) Commixtion mixture of solids separated, even though for this purpose it
(b) Confusion mixture of liquids and gases be necessary to destroy the principal thing;
and in both cases, there shall be indemnity
(3) Specification transforming/giving of a new for damages
form to anothers material through labor.
Test to determine the principal thing
Adjunction In the order of application, the principal is that:
(1) To which the other has been united as an
Requisites: ornament or for its use or perfection (Rule of
(1) There are 2 movables belonging to 2 different importance and purpose).
owners; (2) Of greater value.
(2) They are united in such a way that they form a (3) Of greater volume.
single object; and (4) That of greater merits, taking into
(3) They are so inseparable that their separation consideration all the pertinent legal
would impair their nature or result in provisions, as well as the comparative merits,
substantial injury to either component. utility and volume of their respective things.
[Manresa]
Kinds of Adjunction:
(1) Inclusion or engraftment e.g. a diamond is When separation allowed
set on a gold ring (1) When separation will not cause any injury; or
(2) Soldadura or soldering e.g. when lead is (2) When the accessory is much more precious:
united or fused to an object made of lead (a) Owner of accessory may demand
(a) It is ferruminacion if both the accessory and separation even though the principal
principal objects are of the same metal; thing may suffer.
and (b) Owner who caused the union shall bear
(b) Plumbatura, if they are of different metals the expenses for separation even if he
(3) Escritura or writing e.g. when a person writes acted in good faith.
on paper belonging to another; (3) When the owner of the principal is in bad
(4) Pintura or painting e.g. when a person faith.
paints on canvas belonging to another;
(5) Tejido or weaving e.g. when threads Mixture
belonging to different owners are used in Kinds of Mixtures:
making textile (1) Commixtion: mixture of solid things
(2) Confusion: mixture of liquid things

Ownership of new object formed by adjunction Rules:


(1) If union was made in good faith (1) Mixture by will of the owners:
The owner of principal thing acquires the (a) Primarily governed by their stipulations.
accessory, with obligation to indemnify the

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(b) In the absence of stipulation, each owner (b) To demand indemnity for the material.
acquires a right or interest in the mixture
in proportion to the value of his material. If the owner was in bad faith, maker may
appropriate the new thing without paying the
(2) Mixture caused by an owner in good faith or by owner OR require the owner to pay him the value
chance of the thing or his work, with right to indemnity
(a) Share of each owner shall be proportional
to the value of the part that belonged to (2) Person in bad faith
him.
(b) If things mixed are exactly the same kind, General rule:
quality and quantity, divide the mixture (a) Owner may either appropriate the new
equally. thing to himself without paying the maker
(c) If things mixed are of different kind or OR
quality, a co-ownership arises. (b) Owner may demand value of material plus
(d) If they can be separated without injury, damages
the owners may demand separation.
(e) Expenses are borne by the owners pro Exception:
rata. The first option is not available in case the
(f) NOTE: Good faith does not necessarily value of the work, for artistic or scrientific
exclude negligence, which gives rise to reasons, is considerably more than that of the
damages. material

(3) Mixture caused by an owner in bad faith (3) Person made use of material with consent and
(a) Actor forfeits the thing belonging to him. without objection of owner
(b) Actor also becomes liable for damages.
Rights shall be determined as though both
(4) Mixture made with knowledge and without acted in good faith
objection of the other owner
Rights to be determined as though both acted
in good faith.
Quieting of Title or Interest
Specification
in and Removal or
Definition:
Takes place when the work of a person is done on
Prevention of Cloud over
the material of another, such material, in Title to or Interest in Real
consequence of the work itself, undergoes a
transformation. Property
Rules: IN GENERAL
A remedy or form of proceeding originating in
(1) Person in good faith equity jurisprudence. Equity comes to the aid of
General rule: the plaintiff who would suffer if the instrument
Worker becomes the owner but must (which appear to be valid but is in reality void,
indemnify the owner (who was also in good ineffective, voidable or unenforceable) was to be
faith) for the value of the material. enforced.
Exception:
If the material is more valuable than the new PURPOSE
thing, the owner of the material may choose: (1) To declare:
(a) To take the new thing but must pay for (a) The invalidity of a claim on a title; or
the work or labor; or (b) The invalidity of an interest in property.

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(2) To free the plaintiff and all those claiming (3) Plaintiff must return the benefits received
under him from any hostile claim on the from the defendant.
property.
There is a CLOUD on title to real property or
NATURE: QUASI IN REM any interest to real property
A suit against a particular person or persons in Cloud on title means a semblance of title, either
legal or equitable, or a claim or a right in real
respect to the res and the judgment will apply
property, appearing in some legal form but which
only to the property in dispute.
is, in fact, invalid or which would be inequitable to
The action to quiet title is characterized as
enforce.
proceeding quasi in rem. Technically, it is neither
in rem nor in personam. In an action quasi in
A cloud exists if:
rem, an individual is named as a defendant.
(1) There is a claim emerging by reason of:
However, unlike suits in rem, a quasi in rem
(a) Any instrument e.g. a contract, or any
judgment is conclusive only between the parties.
deed of conveyance, mortgage,
[Spouses Portic v. Cristobal] assignment, waiver, etc. covering the
property concerned;
JUSTIFICATIONS FOR QUIETING (b) Any record, claim, encumbrance e.g. an
OF TITLE attachment, lien, inscription, adverse
(1) To prevent future or further litigation on the claim, lis pendens, on a title; or
ownership of the property. (c) Any proceeding e.g. an extrajudicial
(2) To protect the true title and possession. partition of property.
(3) To protect the real interest of both parties. (2) The claim should appear valid or effective and
(4) To determine and make known the precise extraneous evidence is needed to prove their
state of the title for the guidance of all. validity or invalidity;
(a) Test: Would the owner of the property in
an action for ejectment brought by the
THE ACTION TO QUIET TITLE adverse party be required to offer
DOES NOT APPLY: evidence to defeat a recovery?
(1) To questions involving interpretation of (b) As a general rule, a cloud is not created by
documents; mere verbal or parole assertion of
(2) To mere written or oral assertions of claim, ownership or an interest in property.
unless made in a legal proceeding or (3) Such instrument, etc. is, in truth and in fact,
asserting that an instrument or entry in invalid, ineffective, voidable, or unenforceable,
plaintiffs favor is not what it purports to be; or has been extinguished or terminated, or
(3) To boundary disputes; has been barred by extinctive prescription;
(4) To deeds by strangers to the title unless and
purporting to convey the property of the (4) Such instrument, etc. may be prejudicial to
plaintiff; the true owner or possessor.
(5) To instruments invalid on their face; or
(6) Where the validity of the instrument involves a The plaintiff must have legal or equitable title
pure question of law. to, or interest in the real property [NCC 477]
(1) Legal title: the party is the registered owner of
REQUIREMENTS the property.
(2) Equitable title: the person has the beneficial
ownership of the property.
REQUISITES OF AN ACTION TO QUIET
TITLE The plaintiff must return the benefits received
(1) There is a CLOUD on title to real property or from the defendant [NCC 479]
any interest to real property;
(2) The plaintiff must have legal or equitable title
to, or interest in the real property; and

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QUIETING OF TITLE V. REMOVAL Co-ownership


OF CLOUD
REQUISITES OF AN ACTION TO DEFINITION
The form of ownership when the ownership of an
PREVENT A CLOUD: undivided thing or right belongs to different
(1) Plaintiff has a title to a real property or
persons. [NCC 484]
interest therein;
(2) Defendant is bent on creating a cloud on the
title or interest therein. The danger must not REQUISITES
be merely speculative or imaginary but (1) Plurality of owners ;
imminent; and (2) Object must be an undivided thing or right ;
(3) Unless the defendant is restrained or stopped, and
the title or interest of the plaintiff will be (3) Each co-owners right must be limited only to
prejudiced or adversely affected. his ideal or abstract share of the physical
whole.
PRESCRIPTION/NON-
PRESCRIPTION OF ACTION WHAT GOVERNS CO-
OWNERSHIP
PRESCRIPTION OF ACTION (1) Contracts ;
(1) When the plaintiff is in possession of the (2) Special laws; and
property, the action to quiet title does not (3) The Civil Code
prescribe.
CHARACTERISTICS OF CO-
The rationale for this rule has been aptly
stated thus: OWNERSHIP
(1) There are 2 or more co-owners.
The owner of real property who is in (2) There is a single object which is not materially
possession thereof may wait until his or physically divided and over which and his
possession is invaded or his title is attacked ideal share of the whole.
before taking steps to vindicate his right. A (3) There is no mutual representation by the co-
person claiming title to real property, but not owners.
in possession thereof, must act affirmatively (4) It exists for the common enjoyment of the co-
and within the time provided by the statute. owners.
Possession is a continuing right as is the right (5) It has no distinct legal personality.
to defend such possession. So it has been (6) It is governed first of all by the contract of the
determined that an owner of real property in parties; otherwise, by special legal provisions,
possession has a continuing right to invoke a and in default of such provisions, by the
court of equity to remove a cloud that is a provisions of Title III on Co-ownership.
continuing menace to his title. Such a menace
is compared to a continuing nuisance or There are ideal shares defined but not
trespass which is treated as successive physically identified [NCC 485]
nuisances or trespasses, not barred by statute (1) The share of the co-owners, in the benefits as
until continued without interruption for a well as in the charges, shall be proportional to
length of time sufficient to affect a change of their respective interests.
title as a matter of law." [Pingol v. CA] (2) Any stipulation in a contract to the contrary
shall be void.
(2) When the plaintiff is not in possession of the (3) The portions belonging to the co-owners in
property, the action to quiet title may the co-ownership shall be presumed equal,
prescribe. unless the contrary is proved.
(a) 10 yrs. ordinary prescription
(b) 30 yrs. extraordinary prescription

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Each co-owner has absolute control over his Article 90: if matter is not provided in the FC
ideal share Chapter on ACP, then rules on co-
Every co-owner has absolute ownership of his ownership will apply
undivided interest in the co-owned property and is
free to alienate, assign or mortgage his interest (2) Purchase creating implied trust:
except as to purely personal rights. While a co- If two or more persons agree to purchase
owner has the right to freely sell and dispose of property and by common consent, the legal
his undivided interest, nevertheless, as a co- title is taken in the name of one of them for
owner, he cannot alienate the shares of his other the benefit of all, a trust is created by force of
co-owners nemo dat qui non habet. [Acabal v. law in favor of the others in proportion to the
Acabal] interest of each. [NCC 1452]

Mutual respect among co-owners with regard (3) Easement of Party Wall: co-ownership of part-
to use, enjoyment, and preservation of the owners of a party wall (NCC 658)
things as a whole
(1) The property or thing held pro-indiviso is (4) Condominium Law: co-ownership of the
impressed with a fiduciary character: each co- common areas by holders of units
owner becomes a trustee for the benefit of his
co-owners and he may not do any act
Sec. 6, RA 4726. The Condominium Act. Unless
prejudicial to the interest of his co-owners.
otherwise expressly provided in the enabling or
(2) Until a judicial division is made, the respective
master deed or the declaration of restrictions, the
part of each holder cannot be determined. incidents of a condominium grant are as follows:
The effects of this would be: (c) Unless otherwise, provided, the common
(a) Each co-owner exercises, together with areas are held in common by the holders of
the others, joint ownership over the pro
units, in equal shares, one for each unit.
indiviso property, in addition to his use
and enjoyment of the same
(b) Each co-owner may enjoy the whole CONTRACT
property and use it.
By Agreement of Two or More Persons
Only limitation: a co-owner cannot use or enjoy the Article 494, Civil Code. No co-owner shall be obliged to
property in a manner that shall injure the interest remain in the co-ownership. Each co-owner may
of his other co-owners. [Pardell v. Bartolome] demand at any time the partition of the thing owned
in common, insofar as his share is concerned.
SOURCES OF CO-OWNERSHIP Nevertheless, an agreement to keep the thing
Law, contract, succession, testamentary undivided for a certain period of time, not exceeding
disposition or donation inter vivos, fortuitous ten years, shall be valid. This term may be extended by
event or chance, and by occupancy a new agreement.

LAW A donor or testator may prohibit partition for a period


(1) Cohabitation: co-ownership between common which shall not exceed twenty years.
law spouses Neither shall there be any partition when it is
prohibited by law.
The Family Code, in the following provisions,
made the rules on co-ownership apply: No prescription shall run in favor of a co-owner or co-
Article 147: between a man and a woman heir against his co-owners or co-heirs so long as he
capacitated to marry each other expressly or impliedly recognizes the co-ownership.
Article 148: between a man and a woman
not capacitated to marry each other

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By the creation of a Universal Partnership BY FORTUITOUS EVENT OR BY


of all present property CHANCE
NCC 1778. A partnership of all present property is (1) Co-ownership between owners of 2 things
that in which the partners contribute all the that are mixed by chance or by will of the
property which actually belongs to them to a owners:
common fund, with the intention of dividing the
same among themselves, as well as all the profits
[NCC 472] Each owner shall acquire a right
which they may acquire therewith.
proportional to the part belonging to him, bearing
in mind the value of the things mixed or confused.
NCC 1779. In a universal partnership of all present
property, the property which belonged to each of (2) Hidden Treasure [NCC 438]
the partners at the time of the constitution of the When the discovery is made on the property of
partnership, becomes the common property of all another, or of the State or any of its
the partners, as well as all the profits which they subdivisions, and by chance, one-half shall be
may acquire therewith. allowed to the finder.

A stipulation for the common enjoyment of any BY OCCUPANCY


other profits may also be made; but the property Harvesting and Fishing: Co-ownership by two or
which the partners may acquire subsequently by more persons who have seized a res nullius thing
inheritance, legacy, or donation cannot be
included in such stipulation, except the fruits
thereof.
BY ASSOCIATIONS AND SOCIETIES
WITH SECRET ARTICLES
Articles are kept secret among the members and
SUCCESSION any one of the members may contract in his own
name with third persons are governed by the
Intestate succession: co-ownership between the provisions relating to co-ownership.
heirs before partition of the estate

NCC 1078. Where there are two or more heirs, the


RIGHTS OF CO-OWNERS
whole estate of the decedent is, before its
partition, owned in common by such heirs, subject RIGHT TO SHARE IN THE BENEFITS AS
to the payment of debts of the deceased. WELL AS THE CHARGES [NCC 485]
For as long as the estate is left undivided the Proportional to their interests;
heirs will be considered co-owners of the Stipulation to the contrary is void;
inheritance. Portion belonging to the co-owners is presumed
If one of the heirs dies, his heirs will in turn be equal.
co-owners of the surviving original heirs.
RIGHT TO USE THE THING OWNED IN
TESTAMENTARY DISPOSITION OR COMMON [NCC 486]
DONATION INTER VIVOS Limitations:
(1) When a donation is made to several persons That he use the thing in accordance with the
jointly, it is understood to be in equal shares, purpose for which it is intended.
and there shall be no right of accretion
among them, unless the donor has otherwise That he uses it in such a way as to not injure the
provided. [NCC 753] interest of the co-ownership or prevent the other
(2) A donor or testator may prohibit partition for a co-owners from using it.
period which shall not exceed 20 years.

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RIGHT TO BRING AN ORDER IN (4) Donor or testator may prohibit partition, period
EJECTMENT [NCC 487] NOT to exceed 20 years.
(5) No partition may be made if prohibited by
law.
RIGHT TO COMPEL OTHER CO-OWNERS TO
(6) Right does not prescribe.
CONTRIBUTE TO THE EXPENSES OF
PRESERVATION AND TO THE TAXES [NCC 488] RIGHT TO REDEMPTION [NCC 1619]
(1) Any one of the other co-owners may exempt (1) May exercise this in case the shares of other
himself by renouncing so much of his co-owners are sold to a third person
undivided interest as may be equivalent to his (2) If 2 or more co-owners wish to exercise this
share of the expenses and taxes. right, redemption will be made in proportion
(2) No waiver if it is prejudicial to the co- to their share in the thing
ownership
Note: Rules on Co-Ownership Not Applicable to
RIGHT TO REPAIR [NCC 489] CPG or ACP.
(1) Repairs for preservation may be made at the (1) These are governed by the Family Code.
will of one of the co-owners but he must first (2) Even void marriages and cohabitation of
notify his co-owners. incapacitated persons are governed by FC 50,
(2) Expenses to improve or embellish, decided 147, and 148.
upon by a majority.

RIGHT TO OPPOSE ALTERATIONS [NCC


RULES
491]
(1) Consent of all the others is needed to make ON RENUNCIATION
alterations, even if the alteration benefits all. (1) Other co-owners may choose not to
(2) If the withholding of the consent is clearly contribute to the expenses by renouncing so
prejudicial to the common interest, the courts much of his undivided interest as may be
may afford relief equivalent to his share of the necessary
(3) Reason for the rule: alteration is an act of expenses and taxes.
ownership, not of mere administration. (2) Renunciation must be express; thus, failure to
pay is not a renunciation of the right.
(3) Requires the consent of other co-owners
RIGHT TO FULL OWNERSHIP OF HIS PART AND
because it is a case of dacion en pago
OF THE FRUITS AND BENEFITS PERTAINING (cessation of rights) involving expenses and
THERETO [NCC 493] taxes already paid. (J.B.L. Reyes)
(1) Therefore he may alienate, assign or (4) Cannot renounce his share if it will be
mortgage it, and even substitute another prejudicial to another co-owner.
person in its enjoyment except when personal
rights are involved. REPAIRS FOR PRESERVATION
(2) The effect of the alienation or the mortgage, (1) First, notify other co-owners, as far as
with respect to the co-owners, shall be limited practicable.
to the portion which may be allotted to him in (2) Co-owner may advance expenses for
the division upon the termination of the co- preservation even without prior consent; he is
ownership. entitled to reimbursement.
RIGHT TO PARTITION [NCC 494] EMBELLISHMENTS OR
(1) Each may demand at any time the partition of
the thing, insofar as his share is concerned. IMPROVEMENTS
(2) An agreement to keep the thing undivided for (1) Notify co-owners of improvements and
a certain period NOT exceeding 10 years is embellishments to be made.
valid.
(3) Term may be extended by a new agreement. If no notification is made, the co-owner who
advanced the expenses will only have the

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right to be reimbursed if he proves the Registration under the Torrens system is


necessity of such repairs and the constructive notice of title but it NOT SUFFICIENT
reasonableness of the expenses. NOTICE of the act of repudiation. [Adille v CA]

Exception: If proven that had there been a PARTITION OR DIVISION


notification, they could have hired another
who would charge less or that they know of a Procedure for Partition
store that sells the needed material at a Governing rule: Rule 69 of the Rules of Court.
cheaper price How: By agreement of parties or by judicial
decree.
The reimbursement will be limited to the
Form: Oral or Written (Statute of Frauds does
amount that should have been spent had he
not operate here because it is not a conveyance
notified the others, and the difference shall be
of property but a mere segregation or
borne by him alone.
designation of which parts belong to whom)
The Rules of Court do not preclude agreements
(2) Decisions by the majority must be followed.
or settlements.
TERMINATION/ Action for Partition will determine:
EXTINGUISHMENT (1) Whether or not the plaintiff is indeed a co-
owner of the property
TOTAL DESTRUCTION OF THING OR LOSS OF (2) HOW will the property be divided between the
plaintiff and defendant.
THE PROPERTY CO-OWNED
Is there still co-ownership if a building is
Effect:
destroyed?Yes, over the land and the debris.
(1) Confers exclusive ownership of the property
adjudicated to a co-heir.
MERGER OF ALL INTERESTS IN ONE PERSON (2) Co-heirs shall be reciprocally bound to
warrant the title to and the quality of each
ACQUISITIVE PRESCRIPTION property adjudicated.
(3) Reciprocal obligation of warranty shall be
By whom proportionate to the respective hereditary
(1) A third person. [NCC 1106] shares of co-heirs.
(2) A co-owner against the other co-owners. (4) An action to enforce warranty must be
brought within 10 years from the date the
Requisites for acquisitive prescription against co- right accrues.
owners [Adille v CA (1988)]: (5) The co-heirs shall not be liable for the
(1) A co-owner repudiates the co-ownership; subsequent insolvency of the debtor of the
(2) The act of repudiation is clearly made known estate.
to other co-owners;
(3) The evidence thereon is clear and conclusive; Unless partition is effected, each heir cannot
and claim sole ownership over a definite portion of the
(4) The co-owner has been in possession thru land. Heirs become the undivided owner of the
open, continuous, exclusive and notorious whole estate. Until said partition, he cannot
possession of the property for the period alienate a specific part of the estate. Until then,
required by law. they can only sell their successional rights.
[Carvaria v. CA]
Note: there is a presumption that possession of a
co-owner is NOT adverse Rights against individual co-owners in case of
partition [NCC 497]
(1) The creditors are allowed to take part in the
partition.

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(2) Reason for the rule: They own part of the Right of Possession Right to possess
interest of the co-owners who made the (jus possessionis) (jus possidendi)
assignment or alienation. Independent right Incident to
ownership
Intervention of creditors and assignees
General Rule: Creditors may take part in the Possession includes the idea of occupation. It
division. They need to establish the existence of cannot exist without it. (Exceptions: NCC 537)
the credit during co-ownership.

Exception: If the partition was already executed


CHARACTERISTICS

Exception to the exception: If there was fraud, or a ESSENTIAL REQUISITES OF


previous formal opposition to the partition. POSSESSION
(1) Corpus possessionis: Holding (actual or
Rules on notice to creditors and assignees: constructive) of a thing or exercise of a right, if
(1) The law does not expressly require previous right is involved.
notice to the creditors and assignees before a (a) General Rule: Possession and cultivation
partition, but the right of creditors and of a portion of a tract under claim of
assignees to take part in the division ownership of all is a constructive
presupposes the duty to notify. possession of all, if the remainder is not in
(2) If notice is not given, the partition will not be adverse possession of another. [Ramos v.
binding on them. Director of Lands (1918)]
(3) Once notice has been given, it is the duty of (b) Doctrine of constructive possession applies
creditors and assignees to intervene and when the possession is under title calling
make known their stand. for the whole. It does not apply where
(a) If they fail, they cannot question the possession is without title.
division made, except in cases of fraud.
(b) If they formulate a formal question, they (2) Animus possidendi: Intention to possess
can contest such partition (a) There is no possession if the holder does
not want to exercise the rights of a
Partition in case co-owners cannot agree on the possessor.
partition of an indivisible thing (NCC 498) (b) Implied from the acts of the possessor.
(c) May be contradicted and rebutted by
evidence to prove that the person who is
in possession does not in fact exercise
Possession power or control and does not intend to
do so.
DEFINITION
The holding of a thing or the enjoyment of a right. DEGREES OF POSSESSION
[NCC 523] (1) Mere holding or possession without title and in
violation of the right of the owner
CONCEPT OF POSSESSION (a) e.g. possession of a thief or usurper of
land
To possess, in a grammatical sense, means to (b) Here, both the possessor and the public
have, to physically and actually occupy a thing, know that the possession is wrongful.
with or without right. [Sanchez Roman]
It is the holding of a thing or a right, whether by (2) Possession with juridical title but not that of
material occupation or by the fact that the thing ownership
or the right is subjected to the action of our will. (a) e.g. possession of a tenant, depository
[Manresa] agent, bailee trustee, lessee, antichretic
It is an independent right apart from ownership. creditor.
(b) This possession is peaceably acquired.

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(c) This degree of possession will never ripen Possession in the Concept of an Owner, and
into full ownership as long as there is no Possession in the Concept of a Holder with the
repudiation of concept under which Ownership Belonging to Another [NCC 525]
property is held. (1) Possession in Concept of Holder:
(a) One who possesses as a mere holder, not
(3) Possession with just title or title sufficient to in the concept of owner, acknowledges in
transfer ownership, but not from the true another a superior right which he believes
owner to be ownership, whether his belief be
(a) e.g. possession of a vendee from a vendor right or wrong.
who pretends to be the owner. (b) e.g. tenant, usufructuary, borrower in
(b) This degree of possession ripens into full commodatum.
ownership by lapse of time.
(2) Possession in Concept of Owner:
(4) Possession with a just title from the true owner (a) May be exercised by the owner himself or
(a) This is possession that springs from one who claims to be so.
ownership. (b) When a person claims to be the owner of a
thing, whether he believes so or not,
CASES OF POSSESSION acting as an owner, and performing acts
of ownership, and he is or may be
Possession for Oneself, or Possession considered as the owner by those who
Exercised in Ones Own Name and Possession witness his exercise of proprietary rights,
in the Name of Another [NCC 524] then he is in the possession of an owner.
(1) In ones own name the fact of possession and This is the kind of possession that ripens
the right to such possession is found in the into ownership under Article 540, when
same person. such possession is public, peaceful and
(2) In the name of another the one in actual uninterrupted. [see Art. 1118].
possession is without any right of his own, but
is merely an instrument of another in the Effects of Possession in Concept of an Owner
exercise of the latters possession. (1) Converted into ownership by the lapse of time
necessary for prescription.
Kinds of possession in the name of another (2) Possessor can bring all actions necessary to
(a) Necessary arises by operation of law protect his possession, availing himself of any
e.g. representatives who exercise possession action which an owner can bring, except
in behalf of a conceived child, juridical accion reivindicatoria which is substituted by
persons, persons not sui juris and the conjugal accion publiciana.
partnership (3) He can ask for the inscription of possession in
the registry of property.
(b) Voluntary effected through the mutual (4) Upon recovering possession from one who has
consent of the parties unlawfully deprived him of it, he can demand
(i) e.g. agents or administrators appointed fruits and damages.
by the owner or possessor. (5) He can do on the thing possessed everything
(ii) Third person may also voluntary exercise that the law authorizes an owner to do; he can
possession in the name of another, but it exercise the right of pre-emption and is
does not become effective unless ratified entitled to the indemnity in case of
by the person in whose name it is appropriation.
exercised.
Possession in Good Faith and Possession in
Bad Faith [NCC 526]
(1) Possessor in good faith one who is unaware
that there exists a flaw which invalidates his
acquisition.

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(a) Good faith consists in the possessors the law excuses no one from compliance
belief that the person from whom he therewith, will be defeated.
received a thing was the owner of the
same and could convey his title. What Things May be Possessed [NCC 530]
(b) It implies freedom from knowledge and Only things and rights which are susceptible of
circumstances which ought to put a being appropriated may be the object of
person on inquiry. possession.
(c) The belief of a possessor that he is the
owner of the thing must be based upon What May Not Be Possessed by Private
the title or mode of acquisition, such as a Persons
sale, a donation, inheritance or other (1) Res Communes
means of transmitting ownership; for (2) Property of Public Dominion
without this, there can be no real, well- (3) Right under discontinuous and/or non-
grounded belief of ones ownership. apparent easement
(d) Error in the application of the law, in the
legal solutions that arise from such ACQUISITION OF POSSESSION
application, in the appreciation of legal
consequence of certain acts, and in the
interpretation of doubtful provisions or
WAYS OF ACQUIRING POSSESSION
doctrines, may properly serve as basis for [NCC 531]
good faith. (1) By material occupation
(e) A misconception of the law, no matter (a) Material occupation used in its ordinary
how honest cannot have the effect of meaning and not in its technical meaning
making one a possessor in good faith under NCC 712, which defines occupation
when he does not hold a title valid in form as a mode of acquiring ownership.
or a deed sufficient in terms to transfer (b) Possession acquired by material
property. occupation is only possession as a fact,
not the legal right of possession.
(2) Possessor in bad faith one who knows his (c) Constructive delivery is considered as an
title is defective. equivalent of material occupation in two
(a) Only personal knowledge of the flaw in situations where such occupation is
the title or mode of acquisition can make essential to the acquisition of possession:
him a possessor in bad faith for bad faith (i) Tradicion brevi manu takes place
is not transmissible from one person to when one who possess a thing by title
another. other than ownership, continues to
(b) Mistake upon a doubtful or difficult possess the same under a new title,
question of law as a basis of good faith. that of ownership.
(c) Mistake or ignorance of the law, by itself, (ii) Tradicion constitutum possessorium
cannot become the basis of good faith. takes place when the owner alienates
What makes the error or ignorance a basis the thing, but continues to possess
of good faith is the presence of an the same under a different title.
apparent doubt or difficulty in the law.
In other words, the law is complex, (2) By subjection to the action of ones will
ambiguous, or vague such that it is open (a) This mode refers more to the right of
to two or more interpretations. possession than to possession as a fact.
(d) When the ignorance of the law is gross The action of our will must be juridical,
and inexcusable, as when a person of in the sense that it must be according to
average intelligence would know the law, law.
such ignorance cannot be the basis of (b) It includes:
good faith. Otherwise, the intendment of (i) Tradicion symbolica by delivering
Article 3 which states that, Ignorance of some object or symbol placing the

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thing under the control of the intention of possessing such thing or


transferee. exercising such right,
(ii) Tradicion longa manu by the
transferor pointing out to the Note:
transferee the things that are being (a) Bad faith is personal and intransmissible.
transferred. Only the person who acted in bad faith
must suffer its effects; his heir should not
(3) By execution of proper acts under legal be saddled with the consequences.
formalities (b) Good faith can only benefit the person
(a) This mode refers to juridical acts or the who has it; and the good faith of the heir
acquisition of possession by sufficient title cannot erase the effects of bad faith of his
evidenced by the performance of required predecessor.
formalities.
(b) Examples: By any person without any power whatsoever
(i) Donations; but subject to ratification, without prejudice to
(ii) Succession; proper case of negotiorum gestio [NCC 2144,
(iii) Contracts (like a sale with right to 2149, 2150]
repurchase); (a) Whoever voluntarily takes charge of the agency
(iv) Judicial possession; or management of the business or property of
(v) Execution of judgments; another, without any power from the latter, is
(vi) Execution and registration of public obliged to continue until the termination of
instruments; the affair and its incidents, or to require the
(vii) Inscription of possessory information person concerned to substitute him, if the
titles. owner is in a position to do so.
(c) The execution of the required formalities (b) This juridical relation does not arise in either
is equivalent to delivery of the property. of these instances:
(i) When the property or business is not
BY WHOM MAY POSSESSION BE neglected or abandoned;
ACQUIRED [NCC 532] (ii) If in fact the manager has been tacitly
(1) By the same person authorized by the owner.
(2) By his legal representative
(3) By his agent Qualifiedly, minors and incapacitated persons
(4) By any person without any power whatsoever [NCC 535]
but subject to ratification, without prejudice (1) Incapacitated all those who do not have the
to proper case of negotiorum gestio [Arts. capacity to act (insane, lunatic, deaf-mutes
2144, 2149, 2150] who cannot read and write, spendthrifts and
(5) Qualifiedly, minors and incapacitated persons those under civil interdiction).
(2) Object of possession things only, not rights.
By the same person (3) Method of acquisition material occupation;
Elements of personal acquisition: acquisition by means for which the
(1) Must have the capacity to acquire possession; incapacitated person has the capacity, such as
(2) Must have the intent to possess; and acquisition by succession, testate or intestate,
(3) The possibility to acquire possession must be or by donations propter nuptias, pure and
present. simple donations.

By his legal representative WHAT DO NOT AFFECT POSSESSION


Requisites of acquisition through another: [NCC 537]
(1) That the representative or agent has the (1) Acts merely tolerated
intention to acquire the thing or exercise the (a) Those which because of neighborliness or
right for another, and not for himself; and familiarity, the owner of property allows
(2) That the person for whom the thing has been another person to do on the property;
acquired or the right exercised, has the

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(b) Those services or benefits which ones (2) If there are two or more possessors, the one
property can give to another without longer in possession;
material injury or prejudice to the owner, (3) If the dates of possession are the same, the
who permits them out of friendship or one who presents a title; or
courtesy; (4) If all conditions are equal, the thing shall be
(c) Acts of little disturbances, which a person, placed in judicial deposit pending
in the interest of neighborliness or friendly determination of possession or ownership
relations permits others to do on his through proper proceedings.
property, although continued for a long
time, no right will be acquired by EFFECTS OF POSSESSION
prescription.

Note: Permissive use merely tolerated by the RIGHTS OF A POSSESSOR IN GOOD


possessor cannot affect possession and FAITH
cannot be the basis of acquisitive prescription. (1) Right to be protected and respencted in
Possession to constitute the foundation of possession; (NCC 539)
prescriptive right must be possession under (2) Right to bring action to restore possession;
claim of title; it must be adverse. [Cuaycong v. (3) Right to the fruits already received; (NCC.
Benedicto] 544)
(4) Right to a share in pending fruits and the
(2) Acts executed clandestinely and without the production, gathering, and preservation of
knowledge of the possessor [NCC 1108] such; (NCC. 545)
Possession has to be in the concept of an (5) Right to necessary expenses; (NCC. 546)
owner, public, peaceful and uninterrupted. (6) Right to retain the thing until reimbursed;
(NCC. 546)
(3) Acts of violence as long as the possessor (7) Right to remove useful improvements
objects thereto (i.e. he files a case) [NCC 536] removable without damage to the principal
(a) Possession cannot be acquired through thing or to refund its value; (upon election by
force or intimidation. the owner) (NCC. 547)
(8) Right to recover removable ornaments. (NCC.
Includes forcibly taking away the property 548)
from another and also when one occupied
the property in the property in the OBLIGATIONS OF A POSSESSOR IN
absence of another, and repels the latter GOOD FAITH
upon his return.
(1) Pay in proportion to the charges, expenses of
cultivation and the net proceeds upon
(b) Effect on Possession: Acts mentioned do cessation of good faith; (NCC 545)
not constitute true possession. They do
(2) Costs of litigation; (NCC 550)
not interrupt the period of prescription
(3) Liability to the deterioration/loss of a thing
nor affect the rights to the fruits.
possessed if acted through fraudulent
intent/negligence. (NCC 552)
RULES TO SOLVE CONFLICTS OF
POSSESSION [NCC 538] RIGHTS OF A POSSESSOR IN BAD
General Rule: Possession cannot be recognized in FAITH
two different personalities, except in cases of co-
(1) Right to be respencted in possession; (NCC
possession by co-possessors without conflict of
539)
claims of interest.
(2) Right to necessary expenses and the
production, gathering, and preservation of
In case of conflicting possession preference is fruits; (NCC. 545 and 546)
given to:
(3) Does not have right to reimbursement of
(1) Present possessor or actual possessor;
expenses for luxury but may remove them as

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long as the principal thing suffers no injury, or (b) Action for the recovery of possession of
may sell them to the owner. real property upon mere allegation and
proof of a better title.
OBLIGATIONS OF A POSSESSOR IN (c) This must be instituted within 10/30 years
GOOD FAITH (or else acquisitive prescription will deny
(1) Reimburse the value of the fruits received and recovery).
which the legitimate possessor could receive; (3) Accion Reivindicatoria
(NCC 549) (a) This action is for the recovery of
(2) Pay in proportion to the charges, expenses of possession based on a claim of
cultivation and the net proceeds upon ownership.
cessation of good faith; (NCC 545) (b) It is an action setting up title and the right
(3) Costs of litigation; (NCC 550) to possession.
(4) Liability to the deterioration/loss of a thing (c) This action is not barred by a judgment in
possessed in every case, including fortuitous an action for forcible entry and unlawful
events. (NCC 552) detainer.
(4) Action for Replevin
(a) This is a prayer to recover possession of
RIGHT TO BE PROTECTED IN HIS movable property
POSSESSION [NCC 539]
(1) Every possessor has a right to be respected in Rules:
his possession; if disturbed, possessor has a (1) Lawful possessor can employ self-help (NCC
right to be protected in or restored to said 429)
possession. (2) To consolidate title by prescription, the
(2) Every possessor includes all kinds of possession must be under claim of ownership,
possession, from that of an owner to that of a and it must be peaceful, public and
mere holder, except that which constitutes a uninterrupted.
crime. (3) It is only the conviction of ownership
(3) Reason for the rule: To prevent anyone from externally manifested, which generates
taking the administration of justice into his ownership.
own hands. Even the owner cannot forcibly (4) Acts of possessory character done by virtue of
eject the possessor, but must resort to the a license or mere tolerance by the real owner
courts. are not sufficient and will not confer title by
prescription or adverse possession.
Actions to Recover Possession: (5) The following cannot acquire title by
(1) Forcible entry and Unlawful detainer (Summary prescription:
proceedings) (a) Lessees, trustees, pledges, tenants on
(a) Action by a person deprived of the shares or planters and all those who hold
possession of any land or building by in the name or representation of another;
force, intimidation, strategy, threat, or (b) Mere holders placed in possession of the
stealth (FISTS) at any time within 1 year property by the owner, such as agents,
after such unlawful deprivation (Rule 70) employees;
(b) May ask for writ of preliminary mandatory (c) Those holding in a fiduciary character, like
injunction within 10 days from filing of receivers, attorneys, depositaries and
complaint in forcible entry (NCC 539). antichretic creditors;
(c) The same writ is available in unlawful (d) Co-owner, with regard to common
detainer actions upon appeal. (NCC 1674) property; Except: When he holds the same
(2) Accion Publiciana adversely against all of them with notice
(a) This action is based on the superior right to them of the exclusive claim of
of possession; no issue of ownership is ownership.
settled. (i) Possession of real property presumes
possession of the movables therein
(NCC 542);

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(ii) Each co-owner is deemed to have Legal interruption of possession in good faith
exclusive possession of the part which Takes place when an action is filed against him
may be allotted to him upon the from the time he learns of the complaint, from the
division, for the entire period during time he is summoned to the trial.
which the co-possession lasted.

Interruption in the possession of the Effect of cessation of good faith (NCC 545)
whole or a part of a thing possessed in (a) If at the time the good faith ceases, there
common shall be to the prejudice of all should be any natural or industrial fruits, the
the possessors. (NCC 543) possessor shall have a right to a part of the
expenses of cultivation, and to a part of the
ENTITLEMENT TO FRUITS net harvest, both in proportion to the time of
POSSESSOR IN GOOD/BAD FAITH the possession.
(b) The charges divided on the same basis by the
[NCC 544, 549] two possessors.
(1) Possessor in good faith is entitled to the fruits
Charges Those which are incurred, not
received before the possession is legally
interrupted. on the thing itself but because of it (e.g.
taxes, contributions in favor of the
(2) Natural and industrial fruits are considered
government)
received from the time they are gathered or
(c) The owner of the thing may give the possessor
severed.
in good faith the right to finish the cultivation
(3) Civil fruits are deemed to accrue daily and
and gathering of the growing fruits, as an
belong to the possessor in good faith in that
indemnity for his part of the expenses of
proportion.
cultivation and the net proceeds.
Provision is based on the following reasons of The possessor in good faith who refuses to
equity: accept this concession shall lose the right to
The fruits received are generally used for the be indemnified in any other manner.
consumption and livelihood of the possessor,
When fruits are insufficient
and his life and expenses may have been
There should only be reimbursement of expenses;
regulated in view of such fruits.
but each possessor should suffer a proportionate
The owner has been negligent in not
reduction due to the insufficiency of the harvest.
discovering or contesting the possession of the
possessor; it would be unjust after the possessor
has been thus allowed to rely on the efficacy of REIMBURSEMENT FOR EXPENSES
the title, to require him to return the fruits he POSSESSOR IN GOOD/BAD FAITH
has received on the basis of that title. [NCC546-552]
Between the owner, who has abandoned his
property and left it unproductive, and the NECESSARY EXPENSES
possessor, who has contributed to the social (1) Imposed by the thing itself for its preservation
wealth, by the fruits he has produced, the law and have no relation to the desire or purpose
leans toward the latter. of the possessor.
(2) They are the cost of living for the thing and
RIGHT OF THE POSSESSOR IN GOOD FAITH must be reimbursed to the one who paid
Only limited to the fruits of the thing. He must them, irrespective of GF or BF.
restore the fruits received from the time such (a) Only the possessor in GF may retain the
good faith ceased. He has no rights to the objects thing until he has been reimbursed
which do not constitute fruits. therefor.
(3) The expenses are not considered
improvements; they do not increase the value
of the thing, but merely prevent them from
becoming useless.

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USEFUL EXPENSES Note:


(1) Incurred to give greater utility or productivity (1) Costs of litigation over the property shall be
to the thing, e.g. Wall surrounding an estate, borne by every possessor. [NCC 550]
an irrigation system, planting in an (2) Improvements caused by nature or time shall
uncultivated land, a fishpond, an elevator in always inure to the benefit of the person who
the building, electric lighting system has succeeded in recovering possession [NCC
(2) They are reimbursed only to the possessor in 551]
GF as a compensation or reward for him. A Includes all the natural accessions referred
possessor in BF cannot recover such to by articles 457-465, and all those that do
expenses. not depend upon the will of the possessor.
(3) If the useful improvements can be removed (e.g. widening of the streets, rising of
without damage to the principal thing, the fountains of fresh or mineral water, increase
possessor in good faith may remove them, of foliage of trees)
unless the person who recovers the
possession refunds the expenses or pays the Possessor in GF Possessor in BF
increase in value which the thing may have
acquired by reason thereof. Fruits Received
Entitled to the fruits
EXPENSES FOR LUXURY Must reimburse the
while possession is in
(1) They do not affect the existence or the legitimate possessor
GF and before legal
substance of the thing itself, but only the (549)
interruption (544)
comfort, convenience or enjoyment of the
possessor. Pending Fruits
(2) They are not the subject of reimbursement, Entitled to part of the
because the law does not compensate expenses of cultivation,
personal whims or caprices, e.g. Opening of a and to a part of the net
garden, placing fountains and statues in it, harvest, in proportion
adorning the ceilings with paintings, and the to the time of the
walls with reliefs. possession.
Must reimburse the
legitimate possessor
Useful Expenses Expenses for Luxury Indemnity may be, at
(549)
the owners option,
Those which increased 1. In money, OR
Those which merely
the income derived 2. By allowing full
embellished the thing
from the thing cultivation and
Result: Increase in the gathering of the fruits
products, either (545)
absolutely, or because Charges
of greater facilities for Result: Benefit or
producing them advantage is only for Must share with the
the convenience of legitimate possessor, in
Same as with GF (545)
Includes expenses definite possessors proportion to the time
resulting in real benefit of the possession (545)
or advantage to the Necessary Expenses
thing
Right to
Result: Benefit or The utility is for the reimbursement and
advantage is only for possessor or particular Reimbursement only
retention in the
the convenience of persons alone and is (546)
meantime (546)
definite possessors therefore accidental.

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Possessor in GF Possessor in BF When the owner can recover


(a) Has lost the thing; or
Useful Expenses (b) Has been unlawfully deprived thereof.
Right of retention until
reimbursed; Owners (3) If the current possessor has acquired it in
option to reimburse good faith at a public sale, owner must
him either for expenses reimburse the price paid in order to recover
or for increase in value the property.
which the thing may
have acquired (546) No right to PERIOD TO RECOVER [NCC 1140, 1132, 1133]
reimbursement and no (1) Actions to recover movable properties prescribe
Limited right of right of removal (547) after 8 years from the time the possession
removal should not thereof is lost, unless the possessor has
damage principal and acquired the ownership by prescription for a
owner does not lesser period.
exercise option of (2) Ownership of movable properties prescribes
paying the expenses or through uninterrupted possession for 4 years
increase in value (547) in good faith.
(3) Ownership of personal property also
Ornamental Expenses prescribes through uninterrupted possession
Limited right of Limited right of for 8 years, without need of any other
removal (548) removal (549) condition.
(4) Movable properties possessed through a
Deterioration or Loss
crime can never be acquired through
No liability unless due prescription.
to fraud or negligence Liable in every case
after becoming in BF (552) FINDER OF LOST MOVABLE [NCC 719-720]
(552) (1) Whoever finds a movable, which is not a
Costs of Litigation treasure, must return it to its previous
possessor.
Bears cost (550) Bears cost (550) (2) If the previous possessor is unknown, the
finder shall immediately deposit it with the
LOSS OR UNLAWFUL DEPRIVATION mayor of the city or municipality where the
OF A MOVABLE PROPERTY finding has taken place.
(3) The finding shall be publicly announced by
POSSESSION OF MOVABLE ACQUIRED IN the mayor for two consecutive weeks in the way
GOOD FAITH (IN CONCEPT OF OWNER) IS he deems best.
EQUIVALENT TO TITLE [NCC 559] (4) If the movable cannot be kept without
(1) Possessor has actual title which is defeasible deterioration, or without expenses which
only by true owner. considerably diminish its value, it shall be sold
at public auction eight days after the
Requisites of Title publication.
(a) Possession in GF; (5) Six months from the publication having
(b) The owner has voluntarily parted with the elapsed without the owner having appeared,
possession of the thing; and the thing found, or its value, shall be awarded
(c) The possession is in the concept of an to the finder. The finder and the owner shall
owner. be obliged, as the case may be, to reimburse
the expenses.
(2) Nevertheless, one who has lost any movable (6) If the owner should appear in time, he shall be
or has been unlawfully deprived thereof may obliged to pay, as a reward to the finder, one-
recover it from the person in possession. tenth of the sum or of the price of the thing
found.

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DISTINGUISHED FROM VOIDABLE TITLE [NCC (5) Generally, he can do on the things possessed
1506] everything that the law authorizes the owner
(1) A seller of goods with a voidable title not to do until he is ousted by one who has a
avoided at the time of the sale: The buyer better right.
acquires a good title to the goods, provided he (6) This is whether possession is in good faith or
buys them in good faith, for value, and in bad faith [NCC. 528]
without notice of the seller's defect of title.
(2) A movable lost or which the owner has been PRESUMPTION IN FAVOR OF THE
unlawfully deprived acquired by a possessor POSSESSORFOR ACQUISITIVE
in good faith at a public sale: The owner can
always recover the movable provided he
PRESCRIPTION
(1) Of good faith until contrary is proved (NCC
reimburses the price paid.
527)
(a) Presumption is only juris tantum because
EFFECTS OF POSSESSION IN THE possession is the outward sign of
CONCEPT OF AN OWNER ownership. Unless such proof of bad faith
Possession may lapse and ripen into full is presented, the possessor will be held to
ownership. be in good faith.
(b) So long as the possessor is not actually
General Rule: Presumption of just title and cannot aware of any defect invalidating his title,
be obliged to show or prove it. [NCC 541] he is deemed a possessor in good faith.
Basis: Possession is presumed ownership,
unless the contrary is proved. This presumption (2) Of continuity of initial good faith in which
is prima facie and it prevails until contrary is possession was commenced; possession in
proved. good faith does not lose this character except
Just title that which is legally sufficient to in case and from the moment possessor
transfer the ownership or the real right to which became aware or is not unaware of improper
it relates. or wrongful possession (NCC 528)
For the purposes of prescription, there is just (a) Good faith ceases from the date of the
title when the adverse claimant came into summons to appear at the trial. [Cordero v
possession of the property through one of the Cabral (1983)]
modes recognized by law for the acquisition of (b) Good faith ceases when there is:
ownership or other real rights, but the grantor (i) Extraneous evidence; or
was not the owner or could not transmit any (ii) A suit for recovery of the property by
right. [NCC 1129] the true owner.

Exception: For the purposes of prescription, just (2) Of enjoyment of possession in the same
title must be proved; it is never presumed. [NCC character in which possession was required
1131] until contrary is proved [NCC 529]
(1) Possessor may bring all actions necessary to
protect his possession except accion (3) Of non-interruption of possession in favor of
reivindicatoria. present possessor who proves possession at a
(2) May employ self-help under Art. 429. previous time until the contrary is proved [NCC
Possessor may ask for inscription of such real 554]
right of possession in the registry of property. (a) Possession is interrupted for the purposes
(3) Has right to the fruits and reimbursement of of prescription, naturally or civilly. [NCC
expenses (assuming he is possessor in good 1120]
faith) (b) Possession is naturally interrupted when
(4) Upon recovery of possession which he was through any cause it should cease for
unlawfully deprived of, may demand fruits more than one year [NCC 1121]
and damages.

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(c) Old possession is not revived if a new (4) By the possession of another, subject to the
possession should be exercised by the provisions of Art. 537, if the new possession
same adverse claimant [NCC 1121] has lasted longer than 1 year. But the real
(d) If the natural interruption is for only one right of possession is not lost till after the
year or less, the time elapsed shall be lapse of 10 years.
counted in favor of the prescription [NCC
1122] ABANDONMENT
(e) Civil interruption is produced by judicial Includes the giving up of possession, and not
summons to the possessor. [NCC 1123] necessarily of ownership by every possessor.
(f) Judicial summons shall be deemed not to It is the opposite of occupation. It consists of the
have been issued and shall not give rise to voluntary renunciation of all the rights which
interruption [NCC 1124]: the person may have in a thing, with intent to
(i) If it should be void for lack of legal lose such a thing. To be effective, it is necessary
solemnities; that it be made by a possessor in the concept of
(ii) If the plaintiff should desist from the an owner.
complaint or should allow the
It must be clearly appear that the spes
proceedings to lapse;
recuperandi is gone and the animus revertendi is
(iii) If the possessor should be absolved
finally given up.
from the complaint
(g) In all these cases, the period of the
interruption shall be counted for the ASSIGNMENT, EITHER GRATUITOUS
prescription OR ONEROUS
Complete transmission of ownership rights to
(4) Non-interruption of possession of property another person, gratuitously or onerously.
unjustly lost but legally recovered [NCC. 561]
POSSESSION BY ANOTHER; IF
(5) Other presumptions with respect to specific POSSESION HAS LASTED LONGER
properties of property rights THAN ONE YEAR; REAL RIGHT OF
(a) Of extension of possession of real property
to all movables contained therein so long
POSSESSION NOT LOST AFTER 10
as in is not shown that they should be YEARS SUBJECT TO NCC 537
excluded (NCC 542) (1) Acts merely tolerated, and those executed
(b) Non-interruption of possession of clandestinely and without the knowledge of
hereditary property (NCC 553) the possessor of a thing, or by violence, do not
(i) Possession of hereditary property is affect possession.
deemed transmitted to the heir (2) Possession that is lost here refers only to
without interruption and from the possession as a fact (de facto), not the legal
moment of the death of the decedent right of possession (de jure). It is the
(c) Of just title in favor of possessor in concept possession that the new possessor acquires.
of owner (NCC 541) (3) Real right of possession is lost only after 10
(d) Exclusive Possession of Common Property years.
(NCC. 543) (4) After 1 year, the actions for forcible entry and
unlawful detainer can no longer be brought.
But accion publiciana may still be instituted to
LOSS/TERMINATION OF recover possession de jure.
POSSESSION [NCC 555]
(1) By the abandonment of the thing; RULES FOR LOSS OF MOVABLES
(2) By an assignment made to another either by (1) The possession of movables is not deemed
onerous or gratuitous title; lost so long as they remain under the control
(3) By the destruction or total loss of the thing, or of the possessor, even though for the time
because it goes out of commerce; being he may not know their whereabouts.
(NCC 556)

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(2) Control judicial control or right, or that the CHARACTERISTICS


thing remains in ones patrimony. (1) It is a real right;
(3) Wild animals are possessed only while they (2) Of temporary duration;
are under one's control. (NCC 560) (3) The purpose is to derive all advantages from
(a) Domesticated or tamed animals if they the thing due to normal exploitation.
retain the habit of returning to the
premises of the possessor.
NATURAL CHARACTERISTICS
(1) Includes only the right to use (jus utendi) and
KINDS OF ANIMALS the right to the fruits (jus fruendi).
(1) Wildthose which live naturally independent (2) Usufructuary must preserve the form or
of man. substance of the thing.
(2) Domesticatedthose which, being wild by (a) Preservation is a natural requisite, not
nature, have become accustomed to essential because the title constituting it or
recognize the authority of man. When they the law may provide otherwise.
observe this custom, they are placed in the (b) Reason for preserving form and substance
same category as domestic and when they (i) To prevent extraordinary
lose it, they are considered as wild. exploitation;
(3) Domestic or Tamethose which are born and (ii) To prevent abuse, which is
reared ordinarily under the control and care of frequent;
man; they are under the ownership of man, (iii) To prevent impairment.
and do not become res nullius unless they are (c) Exception: In an abnormal usufruct,
abandoned. alteration is allowed.
(3) Usufruct is extinguished by the death of the
usufructuary.
Usufruct (a) Natural because a contrary intention may
prevail.
CONCEPT [NCC 562] CLASSIFICATION
Usufruct gives a right to enjoy the property of
another with the obligation of preserving its form
and substance, unless the title constituting it or BY ORIGIN
the law otherwise provides. (1) Voluntary: created by the will of private
persons
(a) By act inter vivos such as contracts and
OBJECTS OF USUFRUCT donations:
(1) Independent Rights (i) By alienation of the usufruct;
A servitude which is dependent on the (ii) By retention of the usufruct;
tenement to which it attaches cannot be the (iii) Where a usufruct is constituted inter
object of usufruct. vivos and for valuable consideration,
the contract is unenforceable unless
(2) Things in writing.
Non-consumable things. (b) By act mortis causa such as testament.
Consumable things, but only as to their (2) Legal: as provided by law.
value if appraised, or on an equal quantity Usufruct of parents over the property of
and quality if they were not appraised. unemancipated children. (now limited to the
collective daily needs of the family, FC 26)
(3) Unproductive things (3) Mixed: created both by law and the acts of
e.g. sterile or absolutely unproductive land, or persons.
things for mere pleasure, such as promenades, (a) The rights and duties of the usufructuary
statues or paintings, even if they do not provided by law may be modified or
produce any utility. eliminated by the parties.

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(b) The title constituting the usufruct may (b) In case they were not appraised, he has
validly authorize the usufructuary to the right to return the same quantity and
alienate the thing itself held in usufruct. quality, or pay their current price at the
(i) If the usufructuary is authorized to time the usufruct ceases. [NCC 574]
alienate the thing in case of necessity, (c) In reality, the usufruct is not upon the
it is the usufructuary who determines consumable things themselves, but upon
the question of necessity. the sum representing their value or upon
a quantity of things of the same kind and
BY PERSON ENJOYING THE RIGHT OF quality.
USUFRUCT (d) The usufructuary, in effect, becomes the
(1) Simple: only one usufructuary enjoys the owner of the things in usufruct, while the
property. grantor becomes a mere creditor entitled
(2) Multiple: several usufructuaries enjoy the to the return of the value or of the things
property. of the same quantity and quality (as if
(a) Simultaneous: at the same time. converted into a simple loan).
(b) Successive: one after the other.
BY THE EXTENT OF THE USUFRUCT
LIMITATIONS ON SUCCESSIVE USUFRUCT AS TO THE FRUITS
(1) If usufruct is by donation, ALL donees must be (1) Total: all consumed by the usufruct.
alive. [NCC 756] (2) Partial: only on certain aspects of the
(2) Fiduciary or first heir and the second heir must usufructs fruits.
be alive at the time of the death of the
testator. [NCC 863] AS TO THE OBJECT
(3) If by testamentary succession, there must be (1) Singular: only on particular property of the
only 2 successive usufructuaries, and both owner.
must be alive or at least already conceived at (2) Universal: pertains to the whole property;
the time of the testators death. [NCC 869] A universal usufructuary must pay the debts
of the naked owner, if stipulated. Article 758
BY OBJECT OF USUFRUCT and 759 on donations apply.
Usufruct may be constituted on the whole or a
part of the fruits of the thing or on a right,
NCC 758: When the donation imposes upon
provided it is not strictly personal or
intransmissible. [NCC 564] the donee the obligation to pay the debts of
the donor, if the clause does not contain any
RIGHTS declaration to the contrary, the former is
(1) Must not be strictly personal or understood to be liable to pay only the debts
intransmissible. which appear to have been previously
(2) Usufruct over a real right is by itself a real
contracted. In no case shall the donee be
right.
(a) Right to receive present or future support responsible for the debts exceeding the value
cannot be the object of the usufruct. of the property donated, unless a contrary
intention clearly appears.
THINGS
(1) Normal: involves non-consummable things
where the form and substance are preserved. NCC 759: There being no stipulation
(2) Abnormal or irregular: when the usufruct regarding the payment of debts, the donee
includes things which cannot be used without shall be responsible therefor only when the
being consumed. donation has been made in fraud of creditors.
(a) The usufructuary has right to make use of
them under the obligation of paying their The donation is always presumed to be in
appraised value at the termination of the fraud of creditors, when at the time thereof
usufruct, if they were appraised when the donor did not reserve sufficient property
delivered.
to pay his debts prior to the donation.

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BY THE TERMS OF THE USUFRUCT Right to fruits pending at the beginning of


(1) Pure: no terms or conditions. usufruct
(2) Conditional: either suspensive or resolutory. Fruits pending at the Fruits pending at the
(3) With a term or period beginning of the termination of the
(a) Ex die: from a certain day. usufruct usufruct
(b) In diem: up to a certain day. Belong to the Belong to the naked
(c) Ex die in diem: from a certain day up to a usufructuary owner
certain day.
Without need to The owner shall
RIGHTS AND OBLIGATIONS OF reimburse the expenses reimburse to the
USUFRUCTUARY to the owners usufructuary ordinary
cultivation expenses
RIGHTS from the proceeds of
the fruits (not to exceed
AS TO THE THING AND ITS FRUITS the value of the fruits)
Without prejudice to the Rights of innocent 3rd
Right to enjoy the property to the same extent right of 3rd persons e.g. parties should not be
as the owner, but only with respect to its use if the fruits had been prejudiced.
and the receipt of its fruits. planted by a possessor
(1) Usufructuary cannot extract products which in good faith, the
do not constitute fruits because he is bound to pending crop expenses
preserve the form and substance of the thing. and charges shall be
(2) Usufructuary rights may be transferred, prorated between said
assigned or otherwise disposed of by the possessor and the
usufructuary. usufructuary
(3) Not exempt from execution and can be sold at
public auction. Fruits already matured at the time of the
termination of the usufruct, which ordinarily
As to hidden treasure, usufructuary is would have already been gathered by the
considered a stranger without a right to a usufructuary, may remain ungathered for no fault
share, unless he is also the finder of the imputable to him, but because of malice or an act
treasure imputable to the naked owner or a 3rd person, or
(1) With respect to hidden treasure which may be even due to force majeure or fortuitous event.
found on the land or tenement, he shall be
considered a stranger. Right to civil fruits
(2) Hidden treasure belongs to the owner of the (1) Civil fruits deemed to accrue daily, and
land, building, or other property on which it is belong to the usufructuary in proportion to
found. the time the usufruct may last.
(3) Nevertheless, when the discovery is made on (2) Whenever a usufruct is constituted on the
the property of another, or of the State or any right to receive a rent or periodical pension,
of its subdivisions, and by chance, one-half whether in money or in fruits, or in the interest
thereof shall be allowed to the finder. on bonds or securities payable to bearer, each
payment due shall be considered as the
proceeds or fruits of such right.
(3) Whenever it consists in the enjoyment of
benefits accruing from a participation in any
industrial or commercial enterprise, the date
of the distribution of which is not fixed, such
benefits shall have the same character.
(a) In either case they shall be distributed as
civil fruits.

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Right to enjoy any increase through accessions as the obligations she had assumed
and servitudes, including products of hunting towards the owner are fulfilled. [Fabie v.
and fishing. Gutierrez David(1945)]
(4) A lease executed by the owner before the
Right to lease the thing creation of the usufruct is not extinguished by
General rule: The usufructuary may lease the thing such usufruct.
to another but this shall terminate upon the
expiration of the usufruct, saving leases of rural Limitations on the Right to Lease the Property
lands, which shall be considered as subsisting (1) Usufructuary cannot alienate a thing in
during the agricultural year. usufruct:
(a) Cannot alienate or dispose of the objects
Exceptions: included in the usufruct;
(1) Legal usufructs cannot be leased. (b) Cannot renounce a servitude;
(2) Caucion juratoria (lease would show that the (c) Cannot mortgage or pledge a thing.
usufructuary does not need the property (d) EXCEPT:
badly) (i) When the right of usufruct is
converted into the right of ownership;
Effect of the transfer of right: (ii) When the things are consumable;
(1) The transfer or lease of the usufruct does NOT (NCC 574);
terminate the relation of the usufructuary with (iii) When the things by their nature are
the owner. intended for sale, such as the
(2) Death of the transferee does not terminate merchandise in a commercial
the usufruct but it terminates upon the death establishment; and
of the usufructuary who made the transfer. (iv) When the things, whatever their
nature, are delivered under appraisal
Rules as to Lease as equivalent to their sale.
(1) The property in usufruct may be leased even (2) Future crops may be sold but such sale would
without the consent of the owner. be void if not ratified by the owner.
(2) The lease should be for the same period as (a) The buyers remedy is to recover from the
the usufruct. usufructuary.
(a) EXCEPT: leases of rural lands continues for (3) Only voluntary usufruct can be alienated.
the remainder of the agricultural year. (4) The usufructuary-lessor is liable for the act of
(b) A lease executed by the usufructuary the substitute.
before the termination of the usufruct and (a) A usufructuary who alienates or leases his
subsisting after the termination of the right of usufruct shall answer for any
usufruct must be respected, but the rents damage which the things in usufruct may
for the remaining period will belong to the suffer through the fault or negligence of
owner. the person who substitutes him. [NCC,
(c) If the usufructuary has leased the lands or 590]
tenements given in usufruct, and the
usufruct should expire before the Right to improve the thing, but improvement
termination of the lease, he or his heirs inures to the benefit of the naked owner
and successors shall receive only the (1) Usufructuary is not entitled to
proportionate share of the rent that must reimbursement.
be paid by the lessee. [NCC, 568] (2) Whenever the usufructuary can remove the
(3) It is the usufructuary and not the naked owner improvements without injury to the property
who has the right to choose the tenant. in usufruct, he has the right to do so, and the
(a) As corollary to the right of the owner cannot prevent him from doing so even
usufructuary to all the rent, to choose the upon payment of their value.
tenant, and to fix the amount of the rent, (3) This right does not involve an obligation if
she necessarily has the right to choose the usufructuary does not wish to exercise it,
herself as the tenant thereof; and, as long

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he cannot be compelled by the owner to the property, which shall contain an appraisal
remove the improvements. of the movables and a description of the
(4) This right to remove improvements can be condition of the immovables; and
enforced only against the owner, not against a (2) To give security, binding himself to fulfill the
purchaser in good faith to whom a clean title obligations imposed upon him in accordance
has been issued. with this Chapter.
(5) Usufructuary may set off the improvements
against any damage to the property. Note: These requirements are NOT conditions
(a) The improvements should have increased precedent to the commencement of the right of
the value of the property, and that the the usufruct but merely to the entry upon the
damages are imputable to the possession and enjoyment of the property.
usufructuary.
(b) Increase in value and the amount of To Make An Inventory:
damages are set off against each other. (1) Requisites:
(c) If the damages exceed the increase in (a) Immovables must be described; and
value, the difference should be paid by the (b) Movables must be appraised because
usufructuary as indemnity. they are easily lost or deteriorated.
(d) If the increase in value exceeds the (2) Concurrence of the owner in the making of the
damages, and the improvements are of inventory.
such nature that they can be removed (3) Expenses for the making of the inventory are
without injury to the thing in usufruct, the borne by the usufructuary.
settlement of the difference must be (4) The inventory may be in a private document,
agreed upon by the parties. except when immovables are involved. (a
(e) If the improvements cannot be removed public instrument is prescribed to affect 3rd
without injury, the excess in value accrues persons)
to the owner. (5) Failure to make an inventory does not affect
(6) Registration of improvements to protect the rights of the usufructuary to enjoy the
usufructuary against 3rd persons property and its fruits.
(a) A prima facie presumption arises that the
AS TO THE LEGAL RIGHT OF USUFRUCT property was received by the usufructuary
ITSELF in good condition.
(b) Even if he is already in possession, he may
Right to mortgage right of usufruct still be required to make an inventory.
(1) The usufructuary may alienate his right of (6) Exception to the requirement of inventory
usufruct, even by a gratuitous title; but all the (a) When no one will be injured, the
contracts he may enter into as such usufructuary may be excused from this
usufructuary shall terminate upon the obligation.
expiration of the usufruct. [NCC. 572]
(2) Does not include parental usufruct because of To give a bond for the faithful performance of
personal and family considerations. duties as usufructuary:
(1) Any kind of sufficient security is allowed, e.g.
Right to alienate the usufruct except in purely cash, personal bond, mortgage.
personal usufructs or when title constituting it (2) No bond is required in the following:
prohibits the same (a) No prejudice would result; [Art. 585]
Parental usufruct is inalienable. (b) Usufruct is reserved by a donor; [Art. 584]
(i) Gratitude on the donees part
OBLIGATIONS demands that the donor be excused
from filing the bond.
AT THE BEGINNING OF THE USUFRUCT OR (c) Title constituting usufruct excused
BEFORE EXERCISING THE USUFRUCT usufructuary.
(1) To make, after notice to the owner or his (3) A usufructuary may take possession under a
legitimate representative, an inventory of all caucion juratoria (bond by oath): [Art. 587]

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(a) It is only by way of exception that a (6) To shoulder the costs of litigation regarding
caucion juratoria is allowed, and only the usufruct; and
under the special circumstances: (7) To answer for fault or negligence of alienee,
(i) Proper court petition; lessee or agent of usufructuary.
(ii) Necessity for delivery of furniture,
implements or house included in the To take care of the thing like a good father of a
usufruct; family
(iii) Approval of the court; and (1) When damages are caused to the property by
(iv) Sworn promise. the fault or negligence of the usufructuary,
(b) A usufructuary under this can neither the naked owner need not wait for the
alienate his right nor lease the property, for termination of the usufruct before bringing
that would mean that he does not need the action to recover proper indemnity.
the dwelling or the implements and (2) The bad use of a thing, which causes
furniture. considerable injury, entitles the owner to
(4) Effect of filing a bond demand the delivery and administration of
(a) Retroactivity: upon giving the security, the the thing.
usufructuary will be entitled to all the (3) The exercise of this remedy does NOT
benefits accruing since the time when he extinguish the usufruct.
should have begun to receive them.
(5) Effect of failure to give bond: [NCC 586] To undertake ordinary repairs
(a) The owner may demand that the The usufructuary is obliged to make the ordinary
immovable properties be placed under repairs needed by the thing given in usufruct.
administration; [NCC 592]
(i) That the movable properties be sold;
(ii) That the public bonds, instruments of (1) Ordinary repairs:
credit payable to order or to bearer be (a) Such as are required by the wear and tear
converted into registered certificates due to the natural use of the thing and
or deposited in a bank or public are indispensable for its preservation;
institution; and (b) Deteriorations or defects arise from the
(iii) That the capital or sums in cash and natural use of the thing;
the proceeds of the sale of the (c) Repairs are necessary for the preservation
movable property be invested in safe of the thing.
securities.
(b) The owner may, until the usufructuary (2) The usufructuary is bound to pay only for the
gives security, retain in his possession the repairs made during the existence of the
property in usufruct as administrator, usufruct.
subject to the obligation to deliver to the (a) If the defects existed already at the time
usufructuary the net proceeds, after the usufruct began, the obligation to
deducting the sums, which may be agreed defray the ordinary repairs falls upon the
upon or judicially allowed him for such owner.
administration.
(3) If the defects are caused by the ordinary use of
DURING THE USUFRUCT the thing, the usufructuary may exempt
(1) To take care of the thing like a good father of himself from making the repairs by returning
a family; to the owner the fruits received during the
(2) To undertake ordinary repairs; time that the defects took place.
(3) To notify owner of need to undertake
extraordinary repairs; Except: When the ordinary repairs are due to
(4) To pay for annual charges and taxes on the defects caused by the fault of the usufructuary
fruits;
(5) To notify owner of any act detrimental to
ownership;

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(4) If the usufructuary fails to make the repairs To notify owner of any act detrimental to
even after demand, the owner may make ownership (NCC 601)
them at the expense of the usufructuary
To shoulder the costs of litigation regarding
To notify owner of need to undertake the usufruct (NCC 602)
extraordinary repairs
(1) Extraordinary repairs To answer for fault or negligence of the
(a) Those caused by exceptional alienee, lessee or agent of the usufructuary
circumstances, whether or not they are (NCC 590)
necessary for the preservation of the The usufructuary is made liable for the acts of the
thing; or substitute. While the substitute answers to the
(b) Those caused by the natural use of the usufructuary, the usufructuary answers to the
thing, but are not necessary for its naked owner.
preservation.
AT THE TIME OF THE TERMINATION
(2) General Rule: Naked owner must make the
extraordinary repairs.
OF THE USUFRUCT
To deliver the thing in usufruct to the owner in the
The usufructuary is obliged to pay legal
condition in which he has received it, after
interest on the amount while usufruct lasts.
undertaking ordinary repairs.
(3) If the extraordinary repairs are indispensable,
Exception: Abnormal usufruct A thing of the
and the naked owner fails to undertake them,
same kind, quantity and quality is returned; if with
the usufructuary may make such repairs.
appraised value, must return value appraised.
(a) Requisites:
(i) There must be due notification to the
naked owner of the urgency if it is SPECIAL CASES OF USUFRUCT
not urgent, there is no obligation to
give notice; USUFRUCT OVER A PENSION OR A
(ii) The naked owner failed to make them; PERIODICAL INCOME [NCC 570]
and (1) Each payment due shall be considered as the
(iii) The repair is needed for preservation. proceeds or fruits of such right.
(b) The usufructuary that has made the (2) The usufruct shall be distributed as civil fruits.
extraordinary repairs necessary for
preservation is entitled to recover from USUFRUCT OF PROPERTY OWNED IN
the owner the increase in value, which the
tenement acquired by reason of such COMMON [NCC 582]
works. (1) The usufructuary takes the place of the owner
(c) Usufructuary may retain until he is paid. as to:
(a) Management;
To pay for annual charges and taxes on the (b) Fruits; and
fruits (c) Interest.
It is well settled that a real tax, being a burden (2) Effect of partition:
upon the capital, should be paid by the owner of (a) The right of the usufructuary is not
the land and not by a usufructuary. There is no affected by the division of the property in
merit in the contention of distinguishing public usufruct among the co-owners.
lands into alienable and indisposable. All (b) After partition, the usufruct is transferred
properties owned by the government, without any to the part allotted to the co-owner.
distinction, are exempt from taxation. [Board of
Assessment Appeals of Zamboanga del Sur v.
Samar Mining Company, Inc.(1971)]

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USUFRUCT CONSTITUTED ON A FLOCK USUFRUCT ON MORTGAGED


OR HERD OF LIVESTOCK [NCC 591] PROPERTY [NCC 600]
(1) When the usufruct is universal and some
(1) On sterile stock: same rules on consumable objects are mortgaged, apply Art. 598.
property govern. (i.e. replacement upon (2) If the usufructuary mortgaged the usufruct
termination) himself, he is liable to pay his own debt.
(2) On fruitful stock:
(a) Must replace ordinary losses of the stock USUFRUCT OVER AN ENTIRE
with the young if: PATRIMONY [NCC 598]
(i) Some animals die from natural Applies when:
causes; or (1) The usufruct is a universal one
(ii) Some animals are lost due to rapacity (2) And the naked owner Has debts or is
of beasts of prey. obliged to make periodical payments
(b) No obligation to replace if: (whether or not there be known capital)
(i) There is a total loss of animals
because of some unexpected or General rule: The usufructuary is not liable for the
unnatural loss (like contagious owners debts.
disease or any other uncommon Exceptions:
event, provided the usufructuary has (1) When it is so stipulated; in which case the
no fault); or usufructuary shall be liable for the debt
(1) If all perish, the usufructuary specified;
should deliver the remains to the (2) If there is no specification, he is liable only for
owner. debts incurred by the owner before the
(ii) There is a partial loss. usufruct was constituted; or
(1) If a part of the stock perishes, the (3) When the usufruct is constituted in fraud of
usufruct subsists on the creditors.
remainder.
In no case shall the usufructuary be responsible
USUFRUCT OVER FRUIT BEARING for debts exceeding the benefits under the
TREES AND SPROUT AND usufruct. (except when the contrary intention
WOODLANDS [NCC575-576] appears)
The usufructuary can:
(1) Use dead trunks and those cut off or uprooted USUFRUCT OVER DETERIORABLE
by accident; PROPERTY [NCC 753]
(2) Make usual cuttings that owner used to do; (1) The usufructuary shall have the right to make
and use thereof in accordance with the purpose for
(3) Cut the trees that are not useful. which they are intended.
(2) It is sufficient if the usufructuary returns the
USUFRUCT ON A RIGHT OF ACTION things in the condition in which they may have
[NCC 578] been found at the time of the expiration of the
(1) The action may be instituted in the usufruct despite ordinary defects caused by
usufructuarys name. As the owner of the use and deterioration produced by age and
usufruct, he is properly deemed a proper time.
party-in-interest.
(2) If the purpose is the recovery of the property Except: when sucgh defects were caused
or right, he is still required under Art. 578 to through the usufructuarys fraud and
obtain the naked owners authority. negligence.
(3) If the purpose is to object to or prevent
disturbances over the property, no special (3) If the usufructuary does not return the things
authority from the naked owner is needed. upon the expiration of the usufruct, he should

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pay an indemnity equivalent to the value of DEATH OF USUFRUCTUARY


the things at the time of such expiration.
EXCEPTIONS
USUFRUCT OVER CONSUMABLE (1) In multiple usufructs: it ends at the death of
PROPERTY [NCC 574] the last survivor (NCC 611)
(1) The usufructuary shall have the right to make (a) If simultaneously constituted: all the
use of them under the obligation of paying usufructuaries must be alive (or at least
their appraised value at the termination of the conceived) at the time of constitution.
usufruct, if they were appraised when (b) If successively constituted:
delivered. (i) If by virtue of donation all the
(2) If not appraised, he shall have the right to donees-usufructuaries must be living
return at the same quantity and quality, or at the time of the donation;
pay their current price at the time the usufruct (ii) If by will there should only be 2
ceases. successive usufructuaries and both
must have been alive at the time of
testators death.
RIGHTS OF THE OWNER
(1) At the beginning of the usufruct (see
(2) If the period is fixed by reference to the life of
obligations of usufructuary at the beginning of
another or there is a resolutory condition.
the usufruct)
(2) During the usufruct
Death does not affect the usufruct and the
(a) Retains title to the thing or property.
right is transmitted to the heirs of the
(b) He may alienate the property: he may not
usufructuary until the expiration of the term
alter the form or substance of the thing;
or the fulfillment of the condition.
nor do anything prejudicial to the
usufructuary.
(3) When a contrary intention clearly appears:
(c) He may construct buildings, make
(a) If the usufructuary dies before the
improvements and plantings, provided:
happening of a resolutory condition, the
(1) The value of the usufruct is not
usufruct is extinguished.
impaired; and (b) Usufruct is personal and it CANNOT be
(2) The rights of the usufructuary are not
extended beyond the lifetime of the
prejudiced.
usufructuary. [Sanchez Roman and SC]

EXTINGUISHMENT/ EXPIRATION OF PERIOD OR


TERMINATION [NCC 603] FULFILLMENT OF RESOLUTORY
(1) By the death of the usufructuary, unless a CONDITION IMPOSED ON USUFRUCT
contrary intention clearly appears;
(2) By the expiration of the period for which it was BY PERSON CONSTITUTING
constituted, or by the fulfillment of any USUFRUCT
resolutory condition provided in the title (1) In favor of juridical persons [NCC. 605]
creating the usufruct; (a) Usufruct cannot be constituted in favor of
(3) By merger of the usufruct and ownership in a town, corporation, or association for
the same person; more than fifty years.
(4) By renunciation of the usufructuary; (b) If before the expiration of such period the
(5) By the total loss of the thing in usufruct; town is abandoned, or the corporation or
(6) By the termination of the right of the person association is dissolved, the usufruct shall
constituting the usufruct; or be extinguished.
(7) By prescription. (2) Time that may elapse before a 3rd person
attains a certain age. [NCC. 606]
(a) Usufruct subsists for the number of years
specified, even if the 3rd person should die
before the period expired unless the

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usufruct has been expressly granted only Situation Effect


in consideration of the existence of the
person. Art. 608
If destroyed property is insured before termination of
MERGER OF RIGHTS OF USUFRUCT the usufruct
AND NAKED OWNERSHIP IN ONE When insurance If owner rebuilds,
PERSON premium paid by owner usufruct subsists on
Illustration: H was the usufructuary of land owned and usufructuary (par. 1) new building.
by X. x dies, leaving in his will, the naked If owner does not
ownership of the land to H. the usufruct is rebuild, interest upon
extinguished because now H is both the naked insurance proceeds
owner and the usufructuary. paid to usufructuary.
When the insurance Owner entitled to
RENUNCIATION OF USUFRUCT taken by the naked insurance money (no
(1) Waiver: A voluntary surrender of the rights of owner only because interest paid to
the usufructuary, made by him with the intent usufructuary refuses to usufructuary).
to surrender them. contribute to the If he does not rebuild,
(2) Limitations: premium (par. 2) usufruct continues over
(a) Must be express: tacit renunciation is not remaining land and/or
sufficient; owner may pay interest
(b) Does not need the consent of naked on value of both
owner; and materials and land
(c) If made in fraud of creditors, they may (607).
rescind the waiver through an action If owner rebuilds,
under Article 1381 (accion pauliana). usufruct does not
continue on new
EXTINCTION OR LOSS OF PROPERTY [NCC building, but owner
608] must pay interest on
Situation Effect value of land and old
materials.
Art. 607 When insurance taken Insurance proceeds
If destroyed property is not insured by usufructuary only goes to the
If the building forms Usufruct continues over depends on value of usufructuary.
part of an immovable the land and materials usufructuarys insurable No obligation to
under usufruct (plus interests), if owner interest rebuild.
does not rebuild. Usufruct continues on
If usufruct is on the Usufruct continues over the land.
building only the land and materials Owner has no share in
(plus interests), if owner insurance proceeds.
does not rebuild.
If owner rebuilds, TERMINATION OF THE RIGHT OF
usufructuary must PERSON CONSTITUTING THE
allow owner to occupy USUFRUCT
the land and to make Example: usufructs constituted by a vendee a retro
use of materials; but terminate upon redemption.
the owner must pay
interest on the value of
both the land and the
PRESCRIPTION
materials. (1) Adverse possession against the owner or the
usufructuary.

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(2) It is not the non-use which extinguishes the


usufruct by prescription, but the use by a 3rd Easement
person. (1) An encumbrance imposed upon an
(3) There can be no prescription as long as the immovable for the benefit of another
usufructuary receives the rents from the lease immovable belonging to a different owner.
of the property, or he enjoys the price of the [NCC. 613]
sale of his right. (2) A real right which burdens a thing with a
prestation of determinate servitudes for the
exclusive enjoyment of one who is NOT an
CONDITIONS NOT AFFECTING owner of a tenement.
USUFRUCT (3) A real right by virtue of which the owner has
to ABSTAIN from doing or ALLOW somebody
EXPRORPIATION OF THING IN else to do something to his property for the
benefit of another.
USUFRUCT [NCC 609]
Dominant Estate the immovable in favor of
3 SITUATIONS which the easement is established.
(1) If naked owner alone was given the indemnity,
he has the option: Servient Estate the immovable which is subject
(a) To replace with equivalent thing; or to the easement .
(b) To pay to the usufructuary legal interest
on the indemnity. This requires a security
to be given by the naked owner for the CHARACTERISTICS
payment of the interest.
(2) If both the naked owner and the usufructuary ESSENTIAL FEATURES:
were separately given indemnity, each owns (1) It is a real right it gives an action in rem or
the indemnity given to him, the usufruct being real action against any possessor of the
totally extinguished. servient estate
(3) If usufructuary alone was given the indemnity, (a) Owner of the dominant estate can file a
he must give it to the naked owner and real action for enforcement of right to an
compel the latter to return either the interest easement
or to replace the property. He may even (b) Action in rem: an action against the thing
deduct the interest himself, if the naked itself, instead of against the person.
owner fails to object.
(2) It is a right enjoyed over another property (jus
BAD USE OF THING IN USUFRUCT [NCC in re aliena) it cannot exist in ones property
610] (nulli res sua servit)
Bad use does not extinguish the usufruct but: When the dominant and the servient estates
(1) Entitles the owner to demand delivery and have the same owner, the easement is
administration of the thing. extinguished. Separate ownership is a
(2) The bad use must cause considerable injury prerequisite to an easement.
not to the thing, but to the owner.
(3) It is a right constituted over an immovable by
nature (land and buildings), not over movable
properties. [NCC 613]
Immovable: used in its common and not in the
legal sense, meaning only property
immovable BY NATURE can have easements.

(4) It limits the servient owners right of ownership


for the benefit of the dominant estate.

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(a) Right of limited use but no right to portions unaffected can be alienated without
possess the servient estate. the servitude.
(b) There exists a limitation on ownership: the
dominant owner is allowed to enjoy or use (9) It is indivisible (NCC 618)
part of the servient estate, or imposes on (a) If the servient estate is divided between
the owner a restriction as to his enjoyment two or more persons, the easement is not
of his own property. modified, and each of them must bear it
(i) Being an abnormal limitation of on the part that corresponds to him.
ownership, it cannot be presumed. (b) If the dominant estate is divided between
two or more persons, each of them may
(5) It creates a relation between tenements use the easement in its entirety, without
There is no transfer of ownership, but a changing the place of its use, or making it
relationship is created, depending on the type more burdensome in any other way.
of easement.
(10) It has permanence once it attaches, whether
(6) Generally, it may consist in the owner of the used or not, it continues and may be used
dominant estate demanding that the owner of anytime
the servient estate refrain from doing Perpetual: exists as long as property exists,
something (servitus in non faciendo) or that the unless it is extinguished.
latter permit that something be done over the
servient property (servitus in patendo), but not CLASSIFICATION
in the right to demand that the owner of the
servient do something (servitus in faciendo)
except if such act is an accessory obligation to AS TO RECIPIENT OF BENEFITS
a praedial servitude (obligation propter rem) (1) Real or Praedial: exists for the benefit of a
Servient owner merely allows something to be particular tenement.
done to his estate. (2) Personal: exists for the benefit of persons
without a dominant tenement e.g. usus
Exceptions: Praedial servitudes habitatio (right to reside in a house) and
(a) Right to place beams in an adjoining wall operae servorum (right to the labor of slaves)
to support a structure. in Roman law.
(b) Right to use anothers wall to support a
building. AS TO CAUSE OR ORIGIN
(1) Legal: created by law, whether for public use
(7) It is inherent or inseparable from estate to or for the interest of private persons.
which they actively or passively belong (NCC Once requisites are satisfied, the owner of
617) the dominant estate may ask the Court to
(a) Easements are merely accessory to the declare that an easement is created.
tenements, and a quality thereof. They Example: Natural drainage of waters,
cannot exist without tenements. Abutment of land, Aqueduct, etc.
(b) Easements exist even if they are not (2) Voluntary: Created by the will of the owners of
expressly stated or annotated as an the estate through contract.
encumbrance on the titles.
Note: There is no such thing as a JUDICIAL
(8) It is intransmissible it cannot be alienated EASEMENT. The Courts cannot create easements,
separately from the tenement affected or they can only declare the existence of one, if it
benefited exists by virtue of the law or will of the parties.
Any alienation of the property covered carries
with it the servitudes affecting said property. AS TO ITS EXERCISE [NCC 615]
But this affects only the portion of the
(1) Continuous: Use is or may be incessant,
tenement with the easement, meaning the
without the intervention of any man

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(2) Discontinuous: Used at intervals, and (3) Servitus servitutes esse non potes: There can be
dependent upon the acts of man. no servitude over another servitude.
(4) A servitude must be exercised civiliter in a
Note: This classification is important in way least burdensome to the owner of the
determining prescription: only continuous and land.
apparent easements can be created by (5) A servitude must have a perpetual cause
prescription.

AS INDICATION OF ITS EXISTENCE RELEVANCE OF


(1) Apparent: Made known and continually kept in CLASSIFICATIONS
view by external signs that reveal the use and
enjoyment of the same. DETERMINES WHAT EASEMENTS CAN
(2) Non-apparent: No external indication of their BE ACQUIRED BY PRESCRIPTION
existence.
Continuous and apparent easements may be
acquired by prescription of 10 years [NCC. 620]
Note: Also important for purposes of prescription.

BY THE OBJECT OR OBLIGATION DETERMINES WHAT EASEMENTS CAN


IMPOSED [NCC 616] BE ACQUIRED BY TITLE
(1) Positive: Imposes upon the owner of the (1) Continuous nonapparent easements, and
servient estate the obligation of allowing discontinuous ones, whether apparent or not,
something to be done, or doing it himself. may be acquired only by virtue of a title. [NCC.
(2) Negative: Prohibits the owner of the servient 622]
estate from doing something that he could (2) The existence of an apparent sign of
lawfully do if the easement did not exist. easement between two estates, established or
e.g. Negative Easement of Light and View: An maintained by the owner of both, shall be
opening is made on the wall of the dominant considered, as a title in order that the
estate, and the easement consists of imposing easement may continue actively and
upon the servient estate the obligation to not passively.
build anything that would obstruct the light.
Unless: At the time the ownership of the two
Note: Prescription starts to run from service of estates is divided, the contrary should be
notarial prohibition. provided in the title of conveyance of either of
them, or the sign aforesaid should be
removed before the execution of the deed.
GENERAL RULES This provision shall also apply in case of the
(1) Nulli res sua servi: No one can have a servitude division of a thing owned in common by two or
over ones own property. more persons. [NCC. 624]
(2) Servitus in faciendo consistere nequit: A
servitude cannot consist in doing. DETERMINES HOW TO COMPUTE THE
(a) Although some easements seem to
impose a positive prestation upon the PRESCRIPTIVE PERIOD [NCC 621]
owner of the servient estate, in reality, the (1) In positive easements, from the day on which
primary obligation is still negative. the owner of the dominant estate, or the
(b) Illustration: Under Article 680: the owner person who may have made use of the
of a tree whose branches extend over to a easement, commenced to exercise it upon the
neighboring property is required to cut off servient estate.
the extended branches, but the real (2) In negative easements, from the day on which
essence of the easement is the obligation the owner of the dominant estate forbade, by
NOT TO ALLOW the branches of the tree an instrument acknowledged before a notary
to extend beyond the land. public, the owner of the servient estate from

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executing an act which would be lawful the law does not prohibit it or no injury is
without the easement. suffered by a third person. [NCC 636]

DETERMINES HOW EASEMENT IS LOST BY WILL OF THE OWNERS


BY PRESCRIPTION [NCC 631 (2)] (VOLUNTARY EASEMENTS)
By nonuser for 10 years: Every owner of a tenement or a piece of land may
(1) With respect to discontinuous easements, this establish the easements that he may deem
period shall be computed from the day on suitable and best. [NCC 688]
which they ceased to be used.
(2) With respect to continuous easements, from BY PRESCRIPTION
the day on which an act contrary to the same Continuous and apparent easements may be
took place. acquired by prescription of 10 years. [NCC 620]

CREATION LEGAL EASEMENTS


LAW GOVERNING LEGAL EASEMENTS
BY TITLE For public easements
(1) Continuous and apparent easements may be (1) Special laws and regulations relating thereto.
acquired by virtue of a title. [NCC 620] (ex: PD 1067 and PD 705)
(2) Continuous nonapparent easements, and (2) By the provisions of Chapter 2, Title VII, Book
discontinuous ones, whether apparent or not, II, NCC.
are acquired only by virtue of a title. [NCC
622] For private legal easements
(3) The absence of a document or proof showing (1) By agreement of the interested parties
the origin of an easement which cannot be whenever the law does not prohibit it and no
acquired by prescription may be cured by a injury is suffered by a 3rd person.
deed of recognition by the owner of the (2) By the provisions of Chapter 2, title VII, Book
servient estate or by a final judgment. [NCC II.
623]
(4) The existence of an apparent sign of VOLUNTARY EASEMENTS
easement between two estates, established or (1) Every owner of a tenement or piece of land
maintained by the owner of both, shall be may establish thereon the easements which
considered as a title in order that the he may deem suitable, and in the manner and
easement may continue actively and form which he may deem best. [NCC 688]
passively. (2) The owner of a thing, the usufruct of which
belongs to another, may impose, without the
Unless: at the time the ownership of the two consent of the usufructuary, any servitudes
estates is divided, the contrary should be which will not injure the right of usufruct.
provided in the title of conveyance of either of [NCC 689]
them, or the sign aforesaid should be (3) Whenever the naked ownership belongs to
removed before the execution of the deed. one person and the beneficial ownership to
This provision shall also apply in case of the another, no perpetual voluntary easement
division of a thing owned in common by two or may be established thereon without the
more persons. [NCC 624] consent of both owners. [NCC 690]
(4) Consent of all co-owners is required to impose
BY LAW (LEGAL EASEMENTS) an easement on an undivided tenement. [NCC
(1) Easements imposed by law have for their 691]
object either public use or the interest of
private persons. [NCC 634]
(2) These easements may be modified by
agreement of the interested parties, whenever

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RIGHTS AND OBLIGATIONS OF (a) The owner of the dominant estate may
make repairs at his expense, but he
OWNERS OF DOMINANT AND cannot alter the easement or make it
SERVIENT ESTATES more burdensome. [NCC 627]

RIGHTS OF DOMINANT ESTATE (4) To contribute to expenses of works necessary


OWNER for use and preservation of servitude, if there
are several dominant estates, unless he
(1) To use the easement and exercise all rights
renounces his interest [NCC 628]
necessary for it [NCC 625, 626]
(a) The contribution is in proportion to the
(a) The owner of the dominant estate is
benefits which each may derive from the
granted the right to use the principal
work.
easement, and all accessory servitudes.
(b) Anyone who does not wish to contribute
(b) Example: Easement of drawing water
may exempt himself by renouncing the
carries with it the easement of right of way
easement for the benefit of the others.
to the place where water is drawn.
(c) If the owner of the servient estate should
(c) Limitation: Only for the original
make use of the easement in any manner
immovable and the original purpose.
whatsoever, he shall also be obliged to
(2) To do at his expense all necessary works for
contribute to the expenses in the
the use and preservation of the easement
proportion stated, saving an agreement to
[NCC 627]
the contrary.
The necessity of the works determines extent
of such works.
(3) In a right of way, to ask for change in width of RIGHTS OF THE SERVIENT ESTATE
easement sufficient for needs [NCC 651] OWNER
(4) To renounce totally the easement, if he desires (1) To retain ownership and use of his property
to be exempt from contributing to the (a) The owner of the servient estate retains the
expenses. ownership of the portion on which the
easement is established, and may use the
The needs of the dominant property same in such a manner as not to affect the
ultimately determine the width of the exercise of the easement. [NCC 630]
passage. And these needs may vary from time (b) The servient owner must respect the use of
to time. [Encarnacion v. Court of Appeals] the servitude, but retains ownership and use
of the same, in a manner not affecting the
OBLIGATIONS OF DOMINANT ESTATE easement.
OWNER (2) To change the place and manner of the use of
the easement [NCC 629]
(1) To use the easement for the benefit of
General rule: The owner of the servient estate
immovable and in the manner originally
cannot impair the use of the servitude.
established [NCC 626]
Exceptions:
If established for a particular purpose, the
(a) By reason of either:
easement cannot be used for a different one.
However, if established in a general way, (i) The place/manner originally assigned,
the use of such easement has become
without specific purpose, the easement can be
VERY INCONVENIENT to the owner; or
used for all the needs of the dominant estate.
(ii) The easement should prevent him from
making any important works, repairs or
(2) To notify the owner of the servient estate
improvements thereon;
before making repairs and to make repairs in a
(b) The change must be done at his expense;
manner least inconvenient to the servient
(c) He offers another place or manner equally
estate [NCC 627(2)]
convenient; and
(d) The change is done in such a way that no
(3) Not to alter the easement or render it more
injury is caused to the dominant owner or to
burdensome

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those who may have a right to use the (2) Estates adjoining the banks of navigable or
easement. floatable rivers are subject to the easement of
(3) To use the easement towpath for the exclusive service of river
May use the easement but must also navigation and floatage.
contribute proportionately to the expenses. (3) If it be necessary to occupy lands of private
ownership, the proper indemnity shall first be
OBLIGATIONS OF SERVIENT ESTATE paid.
OWNER
DRAINAGE OF BUILDINGS
(1) The owner of a building is obliged to construct
(1) Not to impair the use of the easement [NCC
its roof or covering in such manner that the
629(1)]
rain water shall fall on his own land or on a
(2) To contribute proportionately to expenses if he
street or public place, and NOT on the land of
uses the easement [NCC 628(2)]
his neighbor, even though the adjacent land
Unless there is an agreement to the contrary
may belong to two or more persons, one of
(3) To pay for the expenses incurred for the change
whom is the owner of the roof.
of location or form of the easement
(2) Even if it should fall on his own land, the owner
shall be obliged to collect the water in such a
KINDS OF LEGAL EASEMENTS way as not to cause damage to the adjacent
(1) Natural drainage [NCC 637] land or tenement.
(2) Riparian banks [NCC 638]
(3) Drainage of buildings [NCC 674] DAM
(4) Dam [NCC 639] Whenever it should be necessary to build a dam,
(5) Drawing water [NCC 640-41] and the person who is to construct it is not the
(6) Aqueduct [NCC 642-646] owner of the banks, or lands which must support
(7) Sluice gate [NCC 647] it, he may establish the easement of abutment of
(8) Right of way [NCC 649-657] a dam, after payment of the proper indemnity.
(9) Party wall [NCC 658-666]
(10) Light and view [NCC 667-681] DRAWING WATER
(11) Intermediate distances [NCC 677-681]
(1) Compulsory easements for drawing water or for
(12) Nuisance [NCC 682-683]
watering animals can be imposed only for
(13) Lateral and subjacent support [NCC 684-687]
reasons of public use in favor of a town or
village, after payment of the proper indemnity.
NATURAL DRAINAGE (2) Easements for drawing water and for watering
(1) Lower estates are obliged to receive the waters animals carry with them the obligation of the
which naturally and without the intervention of owners of the servient estates to allow passage
man descend from the higher estates (as well to persons and animals to the place where
as the stones or earth which they carry with such easements are to be used, and the
them). indemnity shall include this service.
(2) The owner of the lower estate cannot do any (3) The width of the easement must not exceed 10
works that will impede this easement. meters.
(3) The owner of the higher estate cannot do any
works that will increase the burden. AQUEDUCT
(1) Any person who may wish to use upon his own
RIPARIAN BANKS estate any water of which he can dispose shall
(1) The banks of rivers and streams are subject have the right to make it flow through the
throughout their entire length and within a intervening estates, with the obligation to
zone of 3 meters along their margins, to the indemnify their owners, as well as the owners
easement of public use in the general interest of the lower estates upon which the waters
of navigation, floatage, fishing, and salvage. may filter or descend.

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(2) Person desiring to make use of this right is (2) There must absolutely be no access to a public
obliged to: road or highway;
(a) To prove that he can dispose of the water (a) Even if there is access, it is difficult or
and that it is sufficient for the use for which dangerous to use, or grossly insufficient;
it is intended; (b) Mere inconvenience in the use of an outlet
(b) To show that the proposed right of way is does not render the easement a necessity;
the most convenient and the least onerous (c) An adequate outlet is one that is sufficient
to third persons; and for the purpose and needs of the dominant
(c) To indemnify the owner of the servient owner, and can be established at a reasonable
estate in the manner determined by the expense;
laws and regulations (d) Does not necessarily have to be by land
(3) Easement of aqueduct for private interest an outlet through a navigable river if suitable
cannot be imposed on buildings, courtyards, to the needs of the tenement is sufficient;
annexes, or outhouses, or on orchards or (3) The isolation of the immovable is NOT due to
gardens already existing. the dominant owners own acts e.g. if he
(4) This easement does not prevent the owner of constructs building to others obstructing the
the servient estate from closing or fencing it, or old way; and
from building over the aqueduct in such (4) There is payment of indemnity;
manner as not to cause the latter any damage, (a) If right of way is permanent and continuous
or render necessary repairs and cleanings for the needs of the dominant estate = value
impossible. of the land + amount of damage caused to
(5) This easement is considered as continuous and the servient estate;
apparent, even though the flow of the water (b) If right of way is limited to necessary
may not be continuous, or its use depends passage for cultivation of the estate and for
upon the needs of the dominant estate, or gathering crops, without permanent way =
upon a schedule of alternate days or hours. damage caused by encumbrance.

SLUICE GATE RULES FOR ESTABLISHING RIGHT OF WAY


(1) The construction of a stop lock or sluice gate in (1) Must be established at the point LEAST
the bed of the stream from which the water is prejudicial to the servient estate. [NCC 650]
to be taken, for the purpose of improving an (2) Insofar as consistent with the first rule, where
estate. the distance from the dominant estate to a
(2) Such person may demand that the owners of public highway is shortest.
the banks permit its construction, after (a) The criterion of least prejudice to the
payment of damages, including those caused servient estate must prevail over the
by the new easement to such owners and to criterion of shortest distance although this is
the other irrigators. a matter of judicial appreciation. While
shortest distance may ordinarily imply least
RIGHT OF WAY prejudice, it is not always so as when there
are permanent structures obstructing the
WHO MAY DEMAND shortest distance; while on the other hand,
(1) The owner of the dominant estate; or the longest distance may be free of
(2) Any person with the real right to cultivate or obstructions and the easiest or most
use the dominant estate e.g. a usufructuary. convenient to pass through. [Quimen v. CA
(1996)]
Note: a lessee cannot demand such easement, (b) The fact that LGV had other means of
because the lessor is the one bound to egress to the public highway cannot
maintain him in the enjoyment of the property. extinguish the said easement, being
voluntary and not compulsory. The free
REQUISITES ingress and egress along Mangyan Road
(1) The dominant estate is surrounded by other created by the voluntary agreement
immovables owned by other persons; between the parties is thus legally

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demandable with the corresponding duty Notes on extinguishment:


on the servient estate not to obstruct the (1) Extinguishment is NOT automatic. The owner
same. [La Vista Association v. CA] of the servient estate must ask for such
(3) The width of the easement of right of way shall extinguishment.
be that which is sufficient for the needs of the (2) Indemnity paid to the servient owner must be
dominant estate, and may accordingly be returned:
changed from time to time. [NCC 651] (a) If easement is permanent: value of the land
must be returned
OBLIGATIONS IN PERMANENT AND (b) If easement is temporary: nothing is to be
TEMPORARY EASEMENTS OF RIGHT OF WAY returned
Permanent right of way Temporary right of way
SPECIAL RIGHTS OF WAY
Indemnity (1) Right of way to carry materials for the
Consists of the Consists of the construction, repair, improvement, alteration or
damages and the damages only. beautification of a building through the estate
value of the land. of another.
(2) Right of way to raise on anothers land
Necessary repairs scaffolding or other objects necessary for the
Dominant owner to Servient owner to work.
spend on such. spend on such. (a) If it be indispensable for the construction,
repair, improvement, alteration or
Share in taxes
beautification of a building, to carry
The dominant owner Servient owner to materials through the estate of another, or
shall reimburse a spend on such. to raise therein scaffolding or other objects
proportionate share of necessary for the work, the owner of such
taxes to the proprietor estate shall be obliged to permit the act,
of the servient estate. after receiving payment of the proper
indemnity for the damage caused him. [NCC
Rules on indemnity for estates enclosed through a 656]
sale, exchange, partition or donation. (3) Right of way for the passage of livestock
Sale, exchange or known as animal path, animal trail, watering
Donation places, resting places, animal folds. [NCC 657]
partition
(a) Easements of the right of way for the
Buyer, grantee or donee as dominant owners passage of livestock known as animal path,
The buyer or grantee The donee shall pay animal trail or any other, and those for
shall grant the right of the donor indemnity. watering places, resting places and animal
way without indemnity. folds, shall be governed by the ordinances
and regulations relating thereto, and, in the
Seller, grantor or donor as dominant owners
absence thereof, by the usages and customs
The seller or grantor The donee shall grant of the place.
shall pay indemnity. the right of way (b) Without prejudice to rights legally acquired,
without indemnity. the animal path shall not exceed in any case
the width of 75 meters, and the animal trail
EXTINGUISHMENT that of 37 meters and 50 centimeters.
(1) The owner has joined the dominant estate to (c) Whenever it is necessary to establish a
another abutting the public road. compulsory easement of the right of way or
(2) A new road is opened giving access to the for a watering place for animals, the
isolated estate. provisions of this Section and those of
Articles 640 and 641 shall be observed. In
this case the width shall not exceed 10
meters

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PARTY WALL (3) In fences, walls and live hedges dividing rural
Refers to all those mass of rights and obligations lands.
emanating from the existence and common
enjoyment of wall, fence, enclosures or hedges, by Note: A title or an exterior sign, or any other
the owners of adjacent buildings and estates proof showing that the entire wall in
separated by such objects. controversy belongs exclusively to one of the
adjoining property-owners may rebut these
NATURE presumptions.
(1) A common wall which separates two estates,
built by common agreement at the dividing WHEN EXISTENCE OF AN EXTERIOR SIGN IS
line such that it occupies a portion of both PRESUMED [NCC 660]
estates on equal parts. (1) Whenever in the dividing wall of buildings there
(2) A party wall is a special form of co-ownership is a window or opening.
(a kind of compulsory co-ownership). (2) Whenever one side is straight and plumb on all
(a) Each owner owns part of the wall but it its facement, and on the other, it has similar
cannot be separated from the other conditions on the upper part, but the lower
portions belonging to the others. A party part slants or projects outward.
wall has a special characteristic that makes (3) Whenever the entire wall is built within the
it more of an easement as it is called by law. boundaries of one of the estates.
(b) An owner may use a party wall to the extent (4) Whenever the dividing wall bears the burden
of the portion on his property. of the binding beams, floors and roof frame of
one of the buildings, but not those of the
others.
Co-Ownership Party Wall
(5) Whenever the dividing wall between
Before division of Shares of the co- courtyards, gardens, and tenements is
shares, a co-owner owners cannot be constructed in such a way that the coping
cannot point to any physically segregated sheds the water upon only one of the estates.
definite portion of the but they can be (6) Whenever the dividing wall, being built of
property as belonging to physically identified. masonry, has stepping stones, which at certain
him. intervals project from the surface on one side
None of the co-owners There is no such only, but not on the other.
may use the community limitation (7) Whenever lands enclosed by fences or live
property for his hedges adjoin others that are not enclosed.
exclusive benefit
because he would be Note: The deposit of earth or debris on one side
invading the rights of alone is an exterior sign that the owner of that
the others. side is the owner of the ditch or drain. The
presumption is an addition to those
In a co-ownership, Any owner may free enumerated in NCC 660.
partial renunciation is himself from
allowed. contributing to the cost RIGHT OF OWNERS OF A PARTY WALL
of repairs and Generally, part-owners may use the wall in
construction of a party proportion to their respective interests, provided
wall by renouncing all that:
his rights thereto. (i) The right to use by the other party is not
interfered with;
WHEN EXISTENCE OF EASEMENT OF PARTY (ii) The consent by the other owner is needed if
WALL IS PRESUMED a party wants to open a window; and
(1) In dividing walls of adjoining buildings up to (iii) The condition of the building is determined
the point of common elevation. by experts.
(2) In dividing walls of gardens or yards situated in (1) To increase the height of the wall.
cities, or towns, or in rural communities.

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He does this at his expense, including the (b) It is possible to have light only without a
thickening of the wall on his land. view.
He shall indemnify the other party for any
damages. NATURE
(2) To acquire a half-interest in any increase in (1) Positive: Opening a window through a party
height or thickness of the wall, paying a wall
proportionate share in the cost of the work and (a) When a part owner of a party wall opens a
the value of the land covered. window therein, such act implies the
Note that the value of the land must be exercise of the right of ownership by the use
appraised at the time of acquisition. of the entire thickness of the wall.
(3) To renounce his part ownership of a party wall (b) The easement is created only after the
if he desires to demolish his building supported by lapse of the prescriptive period.
the wall.
He shall bear all the expenses of repairs and (2) Negative: Formal prohibition upon the owner
work necessary to prevent any damage which of the adjoining land or tenement.
the demolition may cause to the party wall. (a) When a person opens a window on his own
building, he is exercising his right of
OBLIGATIONS OF OWNERS OF A PARTY WALL ownership on his property, which does not
(1) To contribute proportionately to the repair and establish an easement.
maintenance of the party wall unless he (b) Coexistent is the right of the owner of the
renounces his part-ownership. adjacent property to build on his own land,
(a) This includes the renunciation of the share even if such structures cover the window.
in the wall + the land (c) If the adjacent owner does not build
(b) He cannot renounce his part if his building structures to obstruct the window, such is
is being supported by the party wall considered mere tolerance and NOT a
(2) If he raises the height of the wall, he must: waiver of the right to build.
(a) Bear the cost of maintenance of the (d) An easement is created only when the
additions; owner opens up a window and subsequently
(b) Bear the cost of construction, if the wall prohibits or restrains the adjacent owner
cannot support the additional height; from doing anything that may tend to cut
(c) Give additional land, if necessary to thicken off or interrupt the light and the prescriptive
the wall; period has lapsed.
(d) Pay for damages, if necessary, even if
temporary; and RULES AND RESTRICTIONS ON OPENINGS
(e) Bear the increased expenses for AND STRUCTURES
preservation
Openings for light:
(1) When the wall is 2 meters or more away from
EASEMENT OF LIGHT AND VIEW anothers tenement:
(a) An owner may build any kind of opening
DEFINITION without restriction.
(1) Easement of light (jus luminum) is the right to (2) When the wall is contiguous (less than 2
admit light from the neighboring estate by meters) to anothers tenement:
virtue of the opening of a window or the (a) Openings are made at the height of the
making of certain openings. ceiling joists (horizontal beams) or
(2) Easement of view (jus prospectus) is the right to immediately under the ceiling;
make openings or windows, to enjoy the view (b) Size: 30 cm square;
through the estate of another and the power to (c) With iron grating imbedded in the wall;
prevent all constructions or works which would
(d) With a wire screen.
obstruct such view or make the same difficult.
(a) Necessarily includes the easement of light.

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Openings for view: INTERMEDIATE DISTANCES [NCC 677]


(1) The following structures cannot be built NCC 677, in effect, establishes an easement in
without following the prescribed distances: favor of the State. The general prohibition is
(a) Window, apertures, balconies and other dictated by the demands of national security.
projections with a direct view upon or
towards an adjoining land must have a The following must comply with the regulations or
distance of 2 METERS between the wall and customs of the place:
the contiguous property. (1) Construction of aqueduct, well, sewer, etc. (678)
(b) For structures with a side or oblique view (at Constructions, which by reason of their nature
an angle from the boundary line), there or products are dangerous or noxious.
should be a distance of 60 centimeters.
(c) Measured from: (2) Planting of trees (NCC 679)
(i) The outer line of the wall if the openings (a) No trees shall be planted near a tenement
do not project. or piece of land belonging to another except
(ii) The outer line of the openings if they at the distance authorized by the
project. ordinances or customs of the place.
(iii)The dividing line between the two (b) In the absence of regulations:
properties in cases of oblique views. (i) At least 2 meters from the dividing line of
the estates if tall trees are planted.
Effect if distances are not complied with (ii) At least 50 centimeters if shrubs or small
(1) Windows are considered unlawful openings trees are planted.
and may be ordered by the Court to be closed. (c) In case of violation, a landowner shall have
(2) Even if the adjoining owner does not object to the right to demand the uprooting of the
the construction of such structures at first, he plant even if it has grown spontaneously.
cannot be held to be in estoppel, unless the 10-
year period of acquisitive prescription has BRANCHES, ROOTS AND FRUITS
passed. (1) If the branches of any tree should extend over a
neighboring estate, tenement, garden or yard,
Note: the owner of the latter shall have the right to
(1) In buildings separated by a public way or alley, demand that they be cut-off.
not less than 3 meters wide, the distances (2) If it be the roots of a neighboring tree, which
required (2 m, 60 cm) do not apply. should penetrate into the land of another, the
(2) If an easement is acquired to have direct views, latter may cut them off himself within his
balconies or belvederes, the owner of the property.
servient estate must not build at less than 3 (3) Fruits naturally falling upon adjacent land
meters from the boundary line of the two belong to the owner of said land.
tenements.
(a) The distances may be stipulated by the
parties, but should not be less than what is
LATERAL AND SUBJACENT SUPPORT
(1) The proprietor is prohibited from making
prescribed by the law (2 meters and 60 cm).
dangerous excavations upon his land as to
deprive any adjacent land or building of
Notes on the acquisition of the easement
sufficient lateral or subjacent support.
(1) Period of acquisitive prescription will only start
to run from the time the owner asserting the (2) Easement of lateral and subjacent support is
deemed essential to the stability of buildings.
servitude has forbidden the owner of the
(3) Support is lateral when a vertical plane divides
adjoining tenement from doing something he
the supported and supporting lands.
could lawfully do.
(4) Support is subjacent when the supported land
(2) THUS, although the action to compel the
is above the supporting land.
closure might have prescribed, the owner of
the adjoining estate may still build on his own
land a structure that might obstruct the view.

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MODES OF ACQUIRING MERGER


Must be absolute, perfect and definite, and not
EASEMENT merely temporary.
(1) Absolute: Ownership of the property must be
BY TITLE absolute, thus not applicable to lease,
A juridical act which gives rise to the servitude usufruct, etc.
(e.g. law, donations, contracts or wills) (2) Perfect: Merger must not be subject to a
(1) If the easement has been acquired but no proof condition.
of existence of easement available, and the (3) If the merger is temporary, there is at most a
easement is one that cannot be acquired by suspension of the easement, but no
prescription, the defect may be cured by: extinguishment.
(a) Deed of recognition by owner of servient
estate: By an affidavit or a formal deed BY A NON-USER FOR 10 YEARS
acknowledging the servitude; or
(1) Owner of dominant estate does not exercise
(b) By final judgment: Owner of the dominant
right over easement.
estate must file a case in Court to have the (2) This is inaction, and not outright renunciation.
easement declared by proving its existence
(3) This is due to the voluntary abstention by the
through other evidence.
dominant owner, and not due to a fortuitous
event.
(2) The existence of an apparent sign is
(4) Computation of the period:
considered as title.
(a) Discontinuous easements: counted from the
Illustration: The presence of 4 windows was
day they ceased to be used.
considered an apparent sign that created a
(b) Continuous easements: counted from the
negative easement of light and view (altius non
day an act adverse to the exercise of the
tollendi) i.e. not to build a structure that will
easement took place.
cover the windows. [Amor v. Florentino (1943)].
(i) E.g. in an easement of light and view, the
erection of works obstructing the
BY PRESCRIPTION servitude would commence the period of
Requisites prescription.
(1) The easement must be continuous and (3) The use by a co-owner of the dominant estate
apparent; bars prescription with respect to the others.
(2) The easement must have existed for 10 years; (4) Non-user cannot extinguish servitudes not yet
and exercised.
(3) There is NO NEED for good faith or just title.
EXTINGUISHMENT BY IMPOSSIBILITY
EXTINGUISHMENT OF OF USE
EASEMENTS (1) Impossibility referred to must render the entire
(1) By merger in the same person of the ownership easement unusable for all time.
of the dominant and servient estates; (2) Impossibility of using the easement due to the
(2) By nonuser for ten years; condition of the tenements (e.g. flooding) only
(3) When either or both of the estates fall into suspends the servitude until it can be used
such condition that the easement cannot be again.
used; (3) Except: If the suspension exceeds 10 years, the
(4) By the expiration of the term or the fulfillment easement is deemed extinguished by non-user.
of the condition, if the easement is temporary
or conditional; EXPIRATION OF THE TERM OR
(5) By the renunciation of the owner of the FULFILLMENT OF RESOLUTORY
dominant estate; or CONDITION
(6) By the redemption agreed upon between the
Applicable only to voluntary easements.
owners of the dominant and servient estates.

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RENUNCIATION OF THE OWNER OF (a) Requisite: the public highway must


THE DOMINANT ESTATE substantially meet the needs of the
Must be specific, clear, express (distinguished dominant estate in order that the easement
from non-user). may be extinguished
(b) Owner of the servient estate may demand
that the easement be extinguished.
OTHER CAUSES NOT MENTION IN NCC (c) Owner of the servient estate must return
631 indemnity he received (value of the land)
(1) Annulment and rescission of the title
constituting the voluntary easement;
(2) Termination of the right of grantor of the
voluntary easement; Nuisance
(3) Abandonment of the servient estate; A nuisance is any act, omission, establishment,
(a) Owner of the servient estate gives up business, condition of property, or anything else
ownership of the easement (e.g. the strip of which:
land where the right of way is constituted) in (1) Injures or endangers the health or safety of
favor of the dominant estate. others;
(b) The easement is extinguished because (2) Annoys or offends the senses;
ownership is transferred to the dominant (3) Shocks, defies or disregards decency or
owner, who now owns both properties. morality;
(4) Eminent domain; or (4) Obstructs or interferes with the free passage of
(a) The governments power to expropriate any public highway or street, or any body of
property for public use, subject to the water; or
payment of just compensation. (5) Hinders or impairs the use of property.
(5) Special cause for extinction of legal rights of
way; if right of way no longer necessary. Note: To constitute a nuisance there must be an
(a) NCC 655 arbitrary or abusive use of property or disregard of
(i) If the right of way granted to a commonly accepted standards set by society.
surrounded estate ceases to be
necessary because its owner has joined it A municipal body has the power to declare and
to another abutting on a public road, the abate nuisances. BUT it has no power to find as
owner of the servient estate may fact that a particular thing is a nuisance. The
demand that the easement be determination of whether or not a nuisance exists
extinguished, returning what he may is a judicial function, because to declare
have received by way of indemnity. The something a nuisance is to deprive its use. [Iloilo
interest on the indemnity shall be Cold Storage v Mun. Council of Iloilo (1913)]
deemed to be in payment of rent for the
use of the easement. NUISANCE V. TRESPASS
(ii) The same rule shall be applied in case a
Nuisance Trespass
new road is opened giving access to the
isolated estate. Use of ones own Direct infringement of
(iii) In both cases, the public highway must property in such a anothers right of
substantially meet the needs of the manner as to cause property.
dominant estate in order that the injury to the property or
easement may be extinguished. right or interest of
(6) Right of way ceases to be necessary: another, and generally
(i) Owner of the of the dominant estate has results from the
joined to another abutting on a public commission of an act
road. beyond the limits of the
(ii) A new road is opened giving access to property affected.
the isolated estate. Injury is consequential. Injury is immediate.

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NUISANCE V. NEGLIGENCE ACCORDING TO SCOPE OF INJURIOUS


Nuisance Negligence EFFECTS
Test: not the number of persons annoyed but the
Whether it was Whether the possibility of annoyance to the public by the
unreasonable for the defendants use of his invasion of its rights the fact that it is in a public
defendant to act as he property was place and annoying to all who come within its
did in view of the unreasonable as to sphere.
threatened danger or plaintiff, without regard (1) Public
harm to one in to foreseeability of The doing of or the failure to do something
plaintiffs position. injury. that injuriously affects the safety, health or
Liability for the Liability is based on a morals of the public.
resulting injury to want of proper care It causes hurt, inconvenience or injury to the
others regardless of the public, generally, or to such part of the public
degree of care or skill as necessarily comes in contact with it.
exercised to avoid such (2) Private
injury. One which violates only private rights and
Principles ordinarily Principles ordinarily produces damages to but one or a few
apply where the cause apply where the cause specific persons.
of action is for of action is for harm
continuing harm caused resulting from one act (3) Mixed
by continuing or which created an
recurrent acts which unreasonable risk of DOCTRINE OF ATTRACTIVE
cause discomfort or injury. NUISANCE
annoyance to plaintiff in One who maintains on his premises dangerous
the use of his property. instrumentalities or appliances of a character
likely to attract children in play, and who fails to
CLASSES exercise ordinary care to prevent children from
playing therewith or resorting thereto, is liable to
ACCORDING TO NATURE a child of tender years who is injured thereby, even
(1) Nuisance per se or at law if the child is technically a trespasser in the
An act, occupation or structure which is a premises. [Jarco Marketing Corp. v. CA (1999)]
nuisance at all times and under any
circumstances, regardless of location or Basis of liability The attractiveness is an
surroundings. invitation to children. Safeguards to prevent
danger must therefore be set up.
(2) Nuisance per accidens or in fact
(a) One that becomes a nuisance by reason of Note: A swimming pool or water tank is not an
circumstances and surroundings. attractive nuisance, for while it is attractive, it
(b) It is not a nuisance by its nature but it may cannot be a nuisance, being merely an imitation
become so by reason of the locality, of the work of nature. [Hidalgo Enterprises v.
surrounding, or the manner in which it is Balandan (1952)]
conducted, managed, etc.
LIABILITY IN CASE OF NUISANCE
Per se Per accidens
WHO ARE LIABLE
The wrong is Proof of the act and its Every successive owner or possessor of property
established by proof of consequences are who fails or refuses to abate a nuisance in that
the mere act. It necessary. property started by a former owner or possessor is
becomes a nuisance as liable therefor in the same manner as the one who
a matter of law. created it. (NCC. 696)

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LIABILITY OF CREATOR OF NUISANCE must have concurred in their effects as one single
He who creates a nuisance is liable for the act to produce the injury complained of.
resulting damages and his liability continues as
long as the nuisance continues. RIGHT TO RECOVER DAMAGES
(1) There must be a breach of some duty on the The abatement of a nuisance does not preclude
part of the person sought to be held liable for the right of any person injured to recover damages
damages resulting from a nuisance before an for its past existence. [NCC 697]
action will lie against him.
(2) No one is to be held liable for a nuisance which Abatement and damages are cumulative
he cannot himself physically abate without remedies.
legal action against another for that purpose.
(3) Where several persons, acting independently, NO PRESCRIPTION
cause damage by acts which constitute a The action to abate a public or private nuisance is
nuisance, each is liable for the damage which NOT extinguished by prescription. [NCC. 1143(2)]
he has caused or for his proportionate share of
the entire damage.
REGULATION OF NUISANCES
LIABILITY OF TRANSFEREES
The grantee of land upon which there exists a
PUBLIC NUISANCE
Remedies
nuisance created by his predecessors in title is
The remedies against a public nuisance are:
NOT responsible therefore merely because he
(1) A prosecution under the Penal Code or any
becomes the owner of the premises, or merely
local ordinance:
because he permits it to remain.
(2) A civil action; or
(3) Extrajudicial abatement.
He shall be liable if he knowingly continues the
(a) It must be reasonably and efficiently
nuisance. Generally, he is not liable for continuing
exercised
it in its original form, unless he has been notified
(b) Means employed must not be unduly
of its existence and requested to remove it, or has
oppressive on individuals, and
actual knowledge that it is a nuisance and
(c) No more injury must be done to the
injurious to the rights of others.
property or rights of individuals than is
If the transferee cannot physically abate the necessary to accomplish the abatement.
(d) No right to compensation if property taken
nuisance without legal action against another
or destroyed is a nuisance.
person, then he shall not be liable for such
nuisance.
Action for Abatement
(1) The district health officer shall take care that
NATURE OF LIABILITY one or all of the remedies against a public
All persons who participate in the creation or nuisance are availed of.
maintenance of a nuisance are jointly and severally (2) If a civil action is brought by reason of the
liable for the injury done. maintenance of a public nuisance, such action
shall be commenced by the city or municipal
If 2 or more persons who create or maintain the mayor.
nuisance act entirely independent of one another, (3) The district health officer shall determine
and without any community of interest, concert of whether or not abatement, without judicial
action, or common design, each is liable only so proceedings, is the best remedy against a
far as his acts contribute to the injury. public nuisance.
(4) A private person may file an action on account
For solidary liability, there must be some joint or of a public nuisance if it is especially injurious
concurrent act or community of action or duty, or to him.
the several wrongful acts done at several times

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General rule: An individual has no right of action PRIVATE NUISANCE


against a public nuisance. The abatement Remedies
proceedings must be instituted in the name of the The remedies against a private nuisance are:
State or its representatives. (1) A civil action; or
(2) Extrajudicial abatement.
Exception: An individual who has suffered some (a) The procedure for extrajudicial abatement
special damage different from that sustained by of a public nuisance by a private person will
the general public may maintain a suit in equity also be followed.
for an injunction to abate it, or an action for (b) The person extrajudicially abating a
damages which he has sustained. nuisance liable for damages if:
(i) If he causes unnecessary injury; or
The action becomes a tort if an individual has (ii) If an alleged nuisance is later declared
suffered particular harm, in which case the by the courts to be not a real nuisance.
nuisance is treated as a private nuisance with
respect to such person. Remedies of the property owner
A person whose property is seized or destroyed as
Requisites of the right of a private individual to a nuisance may resort to the courts to determine
abate a public nuisance whether or not it was in fact a nuisance.
(1) That demand be first made upon the owner or (1) An action for replevin;
possessor of the property to abate the (2) To enjoin the sale or destruction of the
nuisance; property;
(2) That such demand has been rejected; (3) An action for the proceeds of its sale and
(3) That the abatement be approved by the district damages if it has been sold; or
health officer and executed with the assistance (4) To enjoin private parties from proceeding to
of the local police; and abate a supposed nuisance.
(4) That the value of the destruction does not
exceed P3000.

Rules: Modes of Acqiring


(1) The right must be exercised only in cases of
urgent or extreme necessity. The thing alleged Ownership
to be a nuisance must be existing at the time
that it was alleged to be a nuisance. (1) Occupation
(2) A summary abatement must be resorted to (2) By operation of Law
within a reasonable time after knowledge of (3) Donation
the nuisance is acquired or should have been (4) Tradition
acquired by the person entitled to abate. (5) Intellectual Property
(3) The person who has the right to abate must (6) Prescription
give reasonable notice of his intention to do so, (7) Succession
and allow thereafter a reasonable time to
enable the other to abate the nuisance himself. Mode is a specific cause which produces dominion
(4) The means employed must be reasonable and and other real rights as a result of the co-
for any unnecessary damage or force, the actor existence of special status of things, capacity and
will be liable. The right to abate is not greater intention of persons and fulfillment of the
than the necessity of the case and is limited to requisites of law.
the removal of only so much of the
objectionable thing as actually causes the Title is every juridical right which gives a means to
nuisance. the acquisition of real rights but in itself is
(5) The property must not be destroyed unless it is insufficient to produce them.
absolutely necessary to do so.
Ownership is not transferred by contract merely
but by tradition or delivery. Contracts only

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constitute titles or rights to transfer or acquisition SPECIAL RULES


of ownership, while delivery is the mode of
accomplishing the same. OCCUPATION OF A SWARM OF BEES
The owner of a swarm of bees shall have a right to
Mode Title pursue them to anothers land, indemnifying the
possessor of the latter for the damage.
Directly and Serves merely to give
immediately produces a the occasion for its If the owner has not pursued the swarm, or ceases
real right. acquisition or existence. to do so within 2 consecutive days, the possessor
Cause Means of the land may occupy or retain the same.
Proximate cause Remote cause
The 20 days to be counted from their occupation
Essence of the right, Means whereby that by another person. This period having expired,
which is to be created or essence is they shall pertain to him who has caught and kept
transmitted. transmitted. them.

OCCUPATION OCCUPATION OF DOMESTICATED ANIMALS


Note: Ownership of land cannot be acquired by Wild animals are possessed only while they are
occupation. under one's control; domesticated or tamed
animals are considered domestic or tame if they
retain the habit of returning to the premises of the
REQUISITES possessor.
(a) The property must be a corporeal personal
property susceptible of appropriation; PIGEONS AND FISH
(b) The property is either res nullius (no owner) or Pigeons and fish which from their respective
res derelict (abandoned property); breeding places pass to another pertaining to a
(c) There is seizure or apprehension with the different owner shall belong to the latter,
intent to appropriate; and provided they have not been enticed by some
(d) There is an observance of requisites or artifice or fraud.
conditions prescribed by law.
HIDDEN TREASURE
KINDS He who by chance discovers hidden treasure in
Of Animals anothers property: shall be allowed to the
(1) Wild or feral animals seizure (hunting/fishing) finder.
in open season by means NOT prohibited.
(2) Tamed/domesticated animals General Rule: If the finder is a trespasser, he shall not be
belong to the tamer, but upon recovering entitled to any share of the treasure.
freedom, are susceptible to occupation
UNLESS claimed within 20days from seizure If the things found be of interest to science or the
by another. arts, the State may acquire them at their just
(3) Tame/domestic animals not acquired by price, which shall be divided in conformity with the
occupation EXCEPT when ABANDONED. rule stated.
Of Other Personal Property LOST MOVABLES; PROCEDURE AFTER
(1) Abandoned may be acquired FINDING LOST MOVABLES
(2) Lost Whoever finds a movable, which is not treasure,
(3) Hidden treasure finder gets by occupation; must return it to its previous possessor.
landowner gets by accession; EXCEPT in
CPG system, share goes to the partnership. If unknown, the finder shall immediately deposit it
with the mayor of the city or municipality where
the finding has taken place.

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The finding shall be publicly announced by the WHAT MAY BE DONATED


mayor for two consecutive weeks in the way he All present property or part thereof of the
deems best. donor
(1) Provided he reserves, in full ownership or
If the movable cannot be kept without usufruct, sufficient means for support of
deterioration, or without expenses which himself and all relatives entitled to be
considerably diminish its value, it shall be sold at supported by donor at the time of acceptance.
a public auction eight days after the publication. (2) Provided that no person may give or receive by
way of donation, more than he may give or
Six months from the publication having elapsed receive by will (NCC 752); also, reserves
without the owner having appeared, the thing property sufficient to pay donors debts
found, or its value, shall be awarded to the finder. contracted before donation, otherwise,
The finder and the owner shall be obliged, as the donation is in fraud of creditors (NCC 759,
case may be, to reimburse the expenses. 1387).
(3) If donation exceeds the disposable or free
If the owner should appear in time, he shall be portion of his estate, the donation is inofficious.
obliged to pay, as a reward to the finder, one- (4) EXCEPTIONS:
tenth of the sum or of the price of the thing found. (a) Donations provided for in marriage
settlements between future spouses
DONATION must be not more than 1/5 of present
Donation is an act of liberality whereby a person property.
disposes gratuitously of a thing or right in favor of (b) Donation propter nuptias by an ascendant
another, who accepts it. consisting of jewelry, furniture or clothing
not to exceed 1/10 of disposable portion.
OTHER INSTANCES CONSIDERED AS
DONATION WHAT MAY NOT BE DONATED
(1) When a person gives to another a thing or right Future property
on account of the latter's merits or of the (1) Donations cannot comprehend future property.
services rendered by him to the donor, (2) Future property is understood anything
provided they do not constitute a demandable which the donor cannot dispose of at the time
debt. of the donation.
(2) When the gift imposes upon the donee a
burden that is less than the value of the thing KINDS OF DONATIONS
given.
AS TO ITS TAKING EFFECT
NATURE (1) Donation Inter Vivos [NCC 729]
(1) BILATERAL contract creating UNILATERAL Donation which shall take effect during the
obligations on the donors part. lifetime of the donor, though the property shall
(2) Requires CONSENT of BOTH donor and donee not be delivered till after the donor's death.
though it produces obligations only on the side
of the DONOR, unless it is an onerous Irrevocable EXCEPT for the ff grounds:
donation. (a) Subsequent birth of the donors children;
(b) Donors failure to comply with imposed
conditions;
REQUISITES (c) Donees ingratitude; or
(1) CONSENT and CAPACITY of the parties;
(d) Reduction of donation by reason of
(2) ANIMUS DONANDI (intent to donate);
inofficiousness.
(3) DELIVERY of thing donated;
(4) FORM as prescribed by law; and
(5) IMPOVERISHMENT of donors patrimony and
ENRICHMENT on part of donee.

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(2) Donation by Reason of Marriage/ Donation Donation between spouses


Propter Nuptias [FC 86] General Rule: Every donation or grant of
Requisites gratuitous advantage, direct or indirect, between
(a) Must be made BEFORE the celebration of the spouses during the marriage shall be VOID.
marriage; The prohibition applies to persons living together
(b) Made in CONSIDERATION of the marriage; as husband and wife without a valid marriage.
and
Exception: Moderate gifts which the spouses may
(c) Made in FAVOR of ONE or BOTH of the
give each other on the occasion of any family
future spouses.
rejoicing.
Ordinary Donations v. Donations Propter (3) Donation Mortis Causa [NCC 728]
Nuptias (a) It only becomes effective upon the death of
Ordinary Propter Nuptias the donor.
(b) The donors death ahead of the donee is a
Express acceptance suspensive condition for the existence of
Necessary Not required the donation.
As to minors Characteristics:
(a) The transferor retains ownership and control of
Cant be made by May be made by minors
the property while alive;
minors (FC 78)
(b) The transfer is revocable at will before his
As to future property death; and
Cannot include future May include future (c)The transfer will be VOID if the transferor
property property (same rule as should survive the transferee.
wills)
Inter Vivos v. Mortis Causa
Limit as to donation of present property
Inter vivos Mortis causa
No limit to donation of If present property is
present property donated and property As to formalities
provided legitimes are regime is ACP, limited Executed and accepted Must be in the form of
not impaired. to 1/5. with formalities a will, with all the
Grounds for revocation prescribed by CC. formalities for the
validity of wills.
Law on donations See below (FC 86)
As to effectivity
Causes for revocation of donation propter Effective during the Effective after the
nuptias: lifetime of the donor. death of the donor.
(1) If the marriage is not celebrated or judicially
As to acceptance
declared void ab initio, except donations made
in the marriage settlements; Acceptance must be
(2) When the marriage takes place without the made after the death
consent of the parents or guardian, as required of the donor, the
by law; donation being
(3) When the marriage is annulled, and the donee effective only after the
acted in bad faith; Acceptance must be death of donor.
(4) Upon legal separation, the 147one being the made during the Acceptance during the
guilty spouse; lifetime of the donor. donors lifetime is
(5) If it is with a resolutory condition and the premature and
condition is complied with; or ineffective because
(6) When the donee has committed an act of there can be no
ingratitude as specified by the provisions of the contract regarding
Civil Code on donations in general. future inheritance.

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Inter vivos Mortis causa AS TO EFFECTIVITY OR EXTINGUISHMENT


(1) Pure donation is without conditions or
As to transfer of ownership for right of disposition periods,
Ownership is Upon acceptance by (2) Conditional donation is subject to suspensive
immediately the donee, but the or resolutory conditions.
transferred. Delivery of effect of such retroacts (3) With a term
possession is allowed to the time of death of
after death. the donor. FORMALITIES REQUIRED
As to revocation
HOW MADE AND ACCEPTED
Irrevocable may be Revocable upon the Movable properties [NCC 748]
revoked only for the exclusive will of the (1) The donation of a movable may be made orally
reasons provided in CC donor. or in writing.
760, 764, 765. (2) Oral donation: requires the simultaneous
As to reduction or suppression delivery of the thing or of the document
representing the right donated.
When it is excessive or When it is excessive or (3) If the value of the movable donated exceeds
inofficious, being inofficious, it is reduced P5,000, the donation and the acceptance
preferred, it is reduced first, or even should be in writing, otherwise, the donation is
only after the donations suppressed. void.
mortis causa had been
reduced or exhausted. Immovable properties [NCC 749]
(1) Must be made in a public instrument specifying
Notes: the donated property and the burdens
The NATURE of the act, whether its one of assumed by the donee.
disposition or of execution, is CONTROLLING to (2) The acceptance must be either:
determine whether the donation is mortis causa (a) In the same instrument; or
or inter vivos. (b) In another public instrument notified to the
What is important is the TIME of TRANSFER of donor in authentic form and noted in both
ownership even if transfer of property donated deeds.
may be subject to a condition or a term. (3) Exceptions:
Whether the donation is inter vivos or mortis (a) Donations propter nuptias need no
causa depends on whether the donor intended express acceptance.
to transfer ownership over the properties upon (b) Onerous donations form governed by the
the execution of the deed. [Gestopa v. CA rules of contracts.
(2002)]
PERFECTION
AS TO CAUSE OR CONSIDERATION Acceptance
(1) Simple - made out of pure liberality or because (1) Donation is perfected upon the donors learning
of the merits of the donee. of the acceptance.
(2) Remuneratory - made for services already (2) Acceptance may be made during the lifetime of
rendered to the donor. both donor and donee.
(3) Onerous - imposes a BURDEN inferior in value
to property donated. Who May Accept
(a) Improper - burden EQUAL in value to Donee: must accept personally or through an
property donated authorized person with special power for the
(b) Sub-modo or modal - imposes a prestation purpose. [NCC 745]
upon donee as to how property donated will
be applied. Time Of Acceptance
(c) Mixed donations e.g. sale for price lower Acceptance must be done during the lifetime of
than value of property. the donor and the donee.

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QUALIFICATIONS OF DONORS AND DONEES report it to an officer of the law within a month,
Who May Give Donations unless the authorities have already taken
All persons who may contract and dispose of their action; this prohibition shall not apply to cases
property may make a donation. [NCC 735] wherein, according to law, there is no
obligation to make an accusation;
Note: (5) Any person convicted of adultery or
(1) Donors capacity shall be determined as of the concubinage with the spouse of the testator;
time of the making of the donation. [NCC 737] (6) Any person who by fraud, violence,
(2) Capacity to donate is required for donations intimidation, or undue influence should cause
inter vivos and NOT in donations mortis causa. the testator to make a will or to change one
(3) Donors capacity is determined as of the time already made;
of the donation. Subsequent incapacity is (7) Any person who by the same means prevents
immaterial. another from making a will, or from revoking
one already made, or who supplants, conceals,
Who May Receive Donations or alters the latters will;
(1) All who are not specially disqualified by law. (8) Any person who falsifies or forges a supposed
(NCC 738) will of the decedent.
(2)Minors and others who cannot enter into a
contract: acceptance may be made through NCC 1027:
their parents or legal representatives. [NCC (1) The priest who heard the confession of the
741] testator during his last illness, or the minister
(3) Donations made to conceived and unborn of the gospel who extended spiritual aid to him
children: those who would legally represent during the same period;
them if they were already born may accept the (2) The relatives of such priest or minister of the
donations. [NCC 737] gospel within the fourth degree, the church,
order, chapter, community, organization, or
Who May Not Give or Receive Donations institution to which such priest or minister may
By reason of public policy (NCC 739) belong;
(1) Those made between persons guilty of adultery (3) A guardian with respect to testamentary
or concubinage at the time of the donation; dispositions given by a ward in his favor before
(2) Those made between persons guilty of the the final accounts of the guardianship have
same criminal offense if the donation is made been approved, even if the testator should die
in consideration thereof; or after the approval thereof; nevertheless, any
(3) Those made to a public officer, his spouse, provision made by the ward in favor of the
descendants, and/or ascendants by reason of guardian when the latter is his ascendant,
the office. descendant, brother, sister, or spouse, shall be
valid;
By reason of the donees unworthiness [NCC 1032 (4) Any physician, surgeon, nurse, health officer or
and 1027 except (4)] druggist who took care of the testator during
NCC 1032: his last illness; or
(1) Parents who have abandoned their children or (5) Individuals, associations and corporations not
induced their daughters to lead a corrupt or permitted by law to inherit.
immoral life, or attempted against their virtue;
(2) Any person who has been convicted of an By reason of prejudice to creditors or heirs
attempt against the life of the testator, his or (voidable)
her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a EFFECTS OF DONATION /
crime for which the law prescribes LIMITATIONS
imprisonment for six years or more, if the
accusation has been found groundless; IN GENERAL
(4) Any heir of full age who, having knowledge of (1) The donee may demand actual delivery of thing
the violent death of the testator, should fail to donated;

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(2) The donee is SUBROGATED to the rights of the value of the property donated unless
the donor in the property donated; clearly intended.
(3) The donor is NOT obliged to warrant the things (2) If theres no stipulation the donee will be
donated EXCEPT in onerous donations where answerable only for the donors debt only in
the donor is liable for eviction up to the extent case the donation is in fraud of creditors.
of the burden; [NCC 754]
(4) The donor is liable for EVICTION or HIDDEN Illegal or impossible conditions [NCC 1183]
DEFECTS in case of bad faith on his part; [NCC (1) Impossible conditions: those contrary to good
754] customs or public policy and those prohibited
(5) In donation propter nuptias, the donor must by law shall annul the obligation, which
RELEASE the property donated from depends upon them.
mortgages and other encumbrances UNLESS (2) If the obligation is divisible, that part thereof
the contrary has been stipulated; and which is not affected by the impossible or
(6) Donations to several donees jointly: NO right unlawful condition shall be valid.
of accretion EXCEPT: (3) The condition not to do an impossible thing
(a) When the donor provides otherwise; or shall be considered as not having been agreed
(b) When the donation to husband and wife is upon.
joint with the right of accretion UNLESS
the donor provides otherwise. Double donations
Rule: Priority in time, priority in right.
SPECIAL PROVISIONS (1) If movable: one who first took possession in
Reservation by donor of power to dispose (in whole good faith.
or in part) or to encumber property donated [NCC (2) If immovable: one who recorded in registry of
755] property in good faith
(1) The donor may reserve the right to dispose of (a) If there is no inscription, the one who first
some things donated, or of some amount, took possession in good faith.
which shall be a charge thereon. (b) If there is no possession, one who can
(2) But if he should die without having made use present the oldest title.
of this right, the property or amount reserved
shall belong to the donee. Excessive/Inofficious Donations
A type of donation in which a person gives or
Donation of naked ownership to one donee and receives more than what he may give or receive by
usufruct to another [NCC 756] will. [NCC 752]
The naked ownership and the usufruct may be
donated separately, provided that all the donees Donation inter vivos, made by a person having no
are living at the time of the donation. children or descendants, legitimate or legitimated
by subsequent marriage, or illegitimate, may be
Conventional reversion in favor of donor or other revoked or reduced by the happening of any of
person [NCC 757] these events:
(1) If made in favor of the donor: Reversion may be (a) If the donor, after the donation, should have
for any case and circumstance. legitimate or legitimated or illegitimate
(2) If made in favor of other persons: Such persons children, even though they be posthumous;
must be living at the time of the donation. (b) If the child of the donor, whom the latter
(3) If the rule is violated, the stipulation on believed to be dead when he made the
reversion is void but the donation is still valid. donation, should turn out to be living; or
(c) If the donor subsequently adopt a minor child.
Payment of donors debt [NCC 758]
(1) If expressly stipulated: the donee must pay only The donation shall be revoked or reduced insofar
the debts contracted before the donation as it exceeds the portion that may be freely
unless specified otherwise. But in no case shall disposed of by will, taking into account the whole
the donee be responsible for debts exceeding estate of the donor at the time of the birth,
appearance or adoption of a child.

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Inofficious Donations proved by preponderance of evidence in the


(1) The donation shall be reduced with regard to same action.
the excess.
(2) But this reduction shall not prevent the (2) Those made between persons found guilty of
donations from taking effect during the life of the same criminal offense, in consideration
the donor, nor shall it bar the donee from thereof;
appropriating the fruits. (3) Those made to a public officer or his wife,
(3) Only those who, at the time of the donor's descendants and ascendants, by reason of his
death, have a right to the legitime and their office; and
heirs and successors-in-interest may ask for (4) Those made to persons incapacitated to
the reduction or inofficious donations. succeed by will. [NCC. 1027]
(4) If, there being two or more donations, the
disposable portion is not sufficient to cover all REVOCATION V. REDUCTION
of them, those of the more recent date shall be Revocation Reduction
suppressed or reduced with regard to the
excess. Total withdrawal of
Amount is only insofar
amount, whether the
as the legitime is
Scope of amount [NCC 750-752] legitime is impaired or
prejudiced
(1) The donations may comprehend all the present not
property of the donor, or part thereof. Benefits the donors
heirs (except when
Provided he reserves, in full ownership or in Benefits the donor made on the ground of
usufruct, sufficient means for the support of the appearance of a
himself, and of all relatives who, at the time of child)
the acceptance of the donation, are by law
entitled to be supported by the donor Grounds for Reduction
(1) Inofficiousness
(2) Donations cannot comprehend future A donation where a person gives or receives
property. more than what he may give or receive by will
is inofficious. [NCC 752]
Future property is understood anything which (2) Subsequent birth, reappearance of child or
the donor cannot dispose of at the time of the adoption of minor by donor
donation.
Effects of subsequent birth, reappearance or
In fraud of creditors [NCC 759] adoption:
(1) Donation is always presumed to be in fraud of (1) A donation is VALID if it does not exceed the
creditors, when at the time thereof the donor free part computed as of the birth, adoption or
did not reserve sufficient property to pay his reappearance of the child.
debts prior to the donation. (2) The donee must return the property or its
(2) The donee shall be responsible therefor only value at the time of the donation.
when the donation has been made in fraud of (3) The fruits must be returned from the filing of
creditors. the action.
(4) Mortgages by the donee are valid but may be
VOID DONATIONS [NCC 739-740, 1027] discharged subject to reimbursement from the
(1) Those made between persons who were guilty donee.
of adultery or concubinage at the time of the
donation; Extent of revocation: only to the extent of the
presumptive legitime of the child.
NOTE: The spouse of the donor or donee may
bring the action for declaration of nullity and (1) Insufficient means of support
the guilt of the donor and donee may be (2) In fraud of creditors

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(3) Prescription 4 years from either:


(i) Birth of first legitimate child; Notes:
(ii) Legitimation, adoption, recognition of first (1) Founded on moral duty: one who received a
child; donation must be grateful to his benefactor.
(iii) Judicial declaration of filiation; or (2) Conviction is NOT necessary.
(iv) Knowledge of information on the existence (3) Time to file action for revocation within 1yr
of a child believed to be dead. from knowledge of the offense.

REVOCATION Who may file


(1) Failure to comply with any of the conditions Donor must bring action himself; not
imposed by the donor upon the donee transmissible to his heirs.
(2) For additional legitime for subsequent birth,
reappearance or adoption Effect of revocation on alienations and
(3) Ingratitude encumbrances [NCC 766]
The following cases are forms of ingratitude: (1) Alienations and mortgages effected before the
(1) If the donee should commit some offense notation of the complaint for revocation in the
against the person, the honor or the Registry of Property shall subsist.
property of the donor, or of his wife or (2) Later ones shall be void.
children under his parental authority;
(2) If the donee imputes to the donor any Effect as to fruits [NCC 768]
criminal offense, or any act involving moral When the donation is revoked for any of the
turpitude, even though he should prove it, causes stated in NCC 760, or by reason of
unless the crime or the act has been ingratitude, or when it is reduced because it is
committed against the donee himself, his inofficious, donee shall not return the fruits except
wife or children under his authority; or from the filing of the complaint.
(3) If he unduly refuses him support when the If the revocation is based upon noncompliance
donee is legally or morally bound to give with any of the conditions imposed in the
support to the donor. donation, the donee shall return not only the
property but also the fruits thereof which he
Applies to all donations EXCEPT: may have received after having failed to fulfill
(1) Mortis causa the condition.
(2) Propter nuptias
(3) Onerous donations

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What may be donated


All present property of the donor or part thereof Limitation:
(1) He reserves in full ownership or in usufruct,
sufficient means for his support and for all
relatives who are at the time of the acceptance
of the donation are, by law, entitled to be
supported
Effect of non-reservation: reduction of the
donation

(2) He reserves sufficient property at the time of the


donation for the full settlement of his debts
Effect of non-reservation: considered to be a
donation in fraud of creditors, and donee may
be liable for damages
What may not be donated
(1) Future property; those which the donor cannot
dispose of at the time of the donation [NCC 751]
(2) More than what he may give or receive by will
[NCC 752]

If exceeds: inofficious
Donations made to several persons jointly
No accretion one donee does not get the share of Exception: those given to husband and wife, except
the other donees who did not accept [Article 753] when the donor otherwise provides
Donor
Who are allowed: All persons who may contract (of Who are not allowed:
legal age) and dispose of their property [NCC 735] (1) Guardians and trustees with respect to the
property entrusted to them [NCC 736]
Donors capacity is determined at the time of the (2) Made between person who are guilty of adultery
making of donation [NCC 737] or concubinage [NCC 739]
Made between persons found guilty of the same
criminal offense, in consideration thereof [NCC 739]
Donee
Who are allowed to accept donations: Those who Who are not allowed:
are not specifically disqualified by law (Article 738) (1) Made between person who are guilty of adultery
or concubinage [NCC 739]
Those who are allowed, with qualifications: (2) Made between persons found guilty of the same
(1) Minors and others who are incapacitated (see criminal offense, in consideration thereof [NCC
Article 38), provided that their acceptance is 739]
done through their parents or legal (3) Made to a public officer or his wife, descendant
representatives [NCC 741] and ascendants, by reason of his office [NCC
(2) Conceived and unborn children, provided that 739]
the donation is accepted by those who would (4) Those who cannot succeed by will [NCC 740]
legally represent them if they were already born
Those made to incapacitated persons, although
simulated under the guise of another contract [NCC
743]

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Acceptance of the donation


Who may accept [NCC 745] When to accept: during the lifetime of the donor or
(1) Donee personally donee [NCC 746]
(2) Authorized person with a special power for the
purpose or with a general sufficient power
What the donee acquires with the thing
He shall be subrogated to all the rights and actions
that would pertain to the donor in case of eviction
[NCC 754]
Obligation of the donor
No obligation to warrant [NCC 754] Exception: when the donation is onerous
Obligation of the donee
If the donation so states, the donee may be obliged Exception: when contrary intention appears
to pay the debts previously contracted by the donor
and in no case shall he be responsible for the debts
exceeding the value of the thing donated [NCC 758]
What may be reserved by the donor
Right to dispose of some of the things donated, or If the donor dies without exercising this right
of some amount which shall be a charge thereon
Reversion
The property donated may be restored or returned Limitation to (2): the third person would be living at
to the time of the donation
(1) Donor or his estate; or
(2) Another person

Revocation/Reduction
Time of Action Transmissibility Effect Liability (Fruits)
Birth, appearance, adoption
Within 4 years from birth, Transmitted to children Property is returned Fruits returned from the
legitimation and and descendants upon If the property has been filing of the complaint
adoption the death of donor sold, its value at the time
of donation shall be
returned.
If the property was
mortgaged, the donor
may redeem the
mortgage, with right to
recover the amount from
the donee
Non-compliance with condition
Within 4 years from non- May be transmitted to Property returned, Fruits received after
compliance donors heirs and may be alienations and having failed to fulfill
exercised against mortgages void subject condition returned
donees heirs to rights of third persons
in good faith

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Time of Action Transmissibility Effect Liability (Fruits)


Ingratitude
Within 1 year after Generally not Property returned, but Fruits received from the
knowledge of the fact transmitted to heirs of alienations and filing of the complaint
and it was possible for donor/ donee mortgages effected returned
him to bring the action before the notation of
the complaint for
revocation in the registry
of property subsist
Failure to reserve sufficient means for support
At any time, by the donor Reduced to the extent Donee entitled
or relatives entitled to Not transmissible necessary to provide
support support
Inofficiousness for being in excess of what the donor can give by will
Within 5 years from the Transmitted to donors Donation takes effect on Donee entitled
death of the donor heirs the lifetime of donor.
Reduction only upon his
death with regard to the
excess
Fraud against creditors
Rescission within 4 years Transmitted to creditors Returned for the benefit Fruits returned/ if
from the perfection of heirs or successors-in- of the creditor who impossible, indemnify
donation/ knowledge of interest brought the action creditor for damages
the donation

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TRADITION sense when the owner alienates a


thing but remains in possession in
another concept as lesee or depositary.
CONCEPT (3) Quasi tradition: delivery of incorporeal things
It is a derivative mode of acquiring ownership or rights by the use by the grantee of his
and other real rights by virtue of which, there rights with the grantors consent.
being intention and capacity on the part of the (4) Tradicion by operation of law: delivery which
grantor and grantee and the pre-existence of is not included in the foregoing modes of
said rights in the estate of the grantor, they are delivery and where the delivery is effected
transmitted to the grantee through a just title. solely by virtue of an express provision of
law.
REQUISITES
(1) Pre-existence in the estate of the grantor of
the right to be transmitted;
(2) Just cause or title for the transmission; Prescription
Intention on the part of the grantor to grant and
on the part of the grantees to acquire; DEFINITION
(3) Capacity to transmit and to acquire; and By prescription, one acquires ownership and
(4) An act that gives it outward form, physically, other real rights through the lapse of time in the
symbolically, or legally. manner and under the conditions laid down by
law.
PURPOSE
(1) Ownership is transferred, among other In the same way, rights and conditions are lost
means, by tradition. by prescription.
(2) The delivery of a thing constitutes a
necessary and indispensable requisite for the It is a means of acquiring ownership and other
purpose of acquiring the ownership of the same real rights or losing rights or actions to enforce
by virtue of a contract. such rights through the lapse of time.

KINDS RATIONALE
(1) Real Tradition: physical delivery It is purely statutory in origin. It is founded on
(2) Constructive Tradition: when the delivery of grounds of public policy which requires for the
the thing is not real or material but consists peace of society, that juridical relations
merely in certain facts indicative of the same susceptible of doubt and which may give rise to
(a) Symbolical Tradition: done through the disputes, be fixed and established after the
delivery of signs or things which lapse of a determinate time so that ownership
represent that which is being and other rights may be certain for those who
transmitted. (e.g. keys or title itself) have claim in them.
(b) Tradition by public instrument: consists in
the substitution of real delivery of
possession by a public writing with the KINDS OF PRESCRIPTION
delivery of a document which evidences (1) Acquisitive prescription
the transaction. (2) Extinctive prescription
(c) Tradicio longa manu: made by the grantor
pointing out to the grantee the thing to ACQUISITIVE PRESCRIPTION
be delivered. (1) The acquisition of ownership and other real
(d) Tradicio brevi manu: takes place when the rights through possession of a thing in the
grantee is already in possession of the manner and condition provided by law.
thing. (e.g. when the lessee buys the (2) May be ordinary or extraordinary:
thing leased to him) (a) Ordinary: requires possession of things in
(e) Tradicion constitutum possessorium: good faith and with just title for the time
similar to brevi manu but in the opposite fixed by law.

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(b) Extraordinary: acquisition of ownership Acquisitive Prescription Extinctive Prescription


and other real rights without need of title
or of good faith or any other condition. Requires positive Requires inaction of
action of the possessor the owner out of
Prescription where possession in good faith (a claimant) who is not possession or neglect
converted into possession in bad faith: the of one with a right to
Ordinary Owner bring his action
(1) Movable properties - 4 years Applicable to Applicable to all kinds
(2) Immovable properties - 10 years ownership and other of rights, whether real
real rights or personal
Extraordinary:
(1) Movable properties - 8 years Vests the property and Vests the property and
(2) Immovable properties - 30 years raise a new title in the raise a new title in the
occupant occupant
As a mode of acquisition, prescription Results in the Merely results in the
requires existence of following: acquisition of loss of a real or
(1) Capacity of the claimant to acquire by ownership or other real personal right, or bars
prescription; rights in a person as the cause of action to
(2) A thing capable of acquisition by well as the loss of said enforce said right
prescription; ownership or real rights
(3) Adverse possession of the thing under in another
certain conditions; and Can be proven under Should be affirmatively
(4) Lapse of time provided by law. the general issue pleaded and proved to
without its being bar the action or claim
The following are only required in ordinary affirmatively pleaded of the adverse party
prescriptions:
(1) Good faith of the possessor; and
(2) Proof of just title NO PRESCRIPTION APPLICABLE
Note: BY OFFENDER
For extraordinary prescription, only first 4 are The offender can never acquire, through
required prescription, movable properties possessed
Possession has to be in the concept of an through a crime.
owner, public, peaceful, and uninterrupted.
REGISTERED LANDS
EXTINCTIVE PRESCRIPTION PD 1529 (AMENDING AND CODIFYING THE LAWS
The loss or extinguishment of property rights or RELATIVE TO REGISTRATION OF PROPERTY AND FOR
actions through the possession by another of a OTHER PURPOSES)
thing for the period provided by law or through No title to registered land in derogation of the
failure to bring the necessary action to enforce title of the registered owner shall be acquired by
ones right within the period fixed by law. prescription or adverse possession.

RIGHTS NOT EXTINGUISHED BY


PRESCRIPTION [NCC 1143]
(1) To demand a right of way, regulated by NCC
649;
(2) To bring an action to abate a public or
private nuisance.

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ACTION TO QUIET TITLE IF PLAINTIFF Prescription Laches


IS IN POSSESSION
unless it is especially equity, need not be
(1) When plaintiff is in possession of the
pleaded as an specifically pleaded
property: the action to quiet title does not
affirmative allegation
prescribe.
(2) The reason is that the owner of the property Based on a fixed time NOT based on a fixed
or right may wait until his possession is time
disturbed or his title is assailed before
taking steps to vindicate his right. PRESCRIPTION OR LIMITATION
VOID CONTRACTS OF ACTIONS
(1) The action or defense for the declaration of
the inexistence of a contract does not TO RECOVER MOVABLE PROPERTIES
prescribe. [NCC 1410] (1) The action rescribes in 8 years from the time
(2) The title is susceptible to direct as well as to the possession thereof is lost. [NCC 1140]
collateral attack. [Ferrer v. Bautista, 1994] (2) However, the action shall not prosper if it is
brought after 4 years when the possessor has
ACTION TO DEMAND PARTITION already acquired title by ordinary acquisitive
No prescription shall run in favor of a co-owner prescription. [NCC 1132]
or co-heir against his co-owners or co-heirs so (3) If the possessor acquired the movable in
long as he expressly or impliedly recognizes the good faith at a public sale, the owner cannot
co-ownership. [NCC 494] obtain its return without reimbursing the
price paid.
PROPERTY OF PUBLIC DOMINION
Prescription, both acquisitive and extinctive, TO RECOVER IMMOVABLES
does not run against the State in the exercise of (1) Real actions prescribe after 30 years [NCC
its sovereign function to protect its interest 1141]
EXCEPT with respect to its patrimonial property (2) UNLESS the possessor has acquired
which may be the object of prescription. (NCC ownership of the immovable by ordinary
1113) acquisitive prescription through possession
of 10 years. [NCC 1134]
(3) Action for reconveyance
PRESCRIPTION DISTINGUISHED (a) Based on fraud: Prescribes 4 years from
FROM LACHES the discovery of fraud.
Prescription Laches (b) Based on implied or constructive trust: 10
years from the alleged fraudulent
Concerned with the Concerned with the registration or date of issuance of
fact of delay effect of delay certificate of title over the property.
A question or a matter Principally a question
of time of inequity of OTHER ACTIONS
permitting a claim to (1) Action to foreclose mortgage: prescribes after
be enforced, this 10 years from the time the obligation secured
inequity being founded by the mortgage becomes due and
on some subsequent demandable
change in the condition (2) Actions that Prescribe in 10 Years [NCC 1144]
or the relation of the (a) Upon a written contract
parties (b) Upon an obligation created by law
Statutory NOT statutory (c) Upon a judgment
Applies at law Applies at equity The computation of the period of
Cannot be availed of Being a defense of prescription of any cause or right of action,

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which is the same as saying prescription of (c) When there is any written
the action, should start from the date the acknowledgment of the debt by the
cause of action accrues or from the day the debtor
right of the plaintiff is violated. [Nabus v. CA,
1991] Civil actions are deemed commenced from
the date of the filing and docketing of the
(3) Actions that Prescribe in 6 Years [NCC 1145] complaint with the Clerk of Court. [Cabrera
(a) Upon an oral contract v. Riano (1963)]
(b) Upon a quasi-contract
A written extrajudicial demand wipes out the
(4) Actions that Prescribe in 4 Years [NCC 1145] period that has already elapsed and starts
(a) Upon an injury to the rights of the plaintiff anew the prescriptive period [The Overseas
(b) Upon a quasi-delict Bank of Manila v. Geraldez, (1979)]
BUT when the action arises from any act of
any public officer involving the exercise of Not all acts of acknowledgement of a debt
powers arising from Martial Law including interrupt prescription. To produce such
the arrest, detention and/or trial of the effect, the acknowledgment must be
plaintiff, the same must be brought within 1 written, so that the payment, if not coupled
year. with the communication signed by the payor
would interrupt the running of the period of
(5) Actions that Prescribe in One Year or Less prescription [PNB v. Osete (1968)
[NCC 1147]
(a) For forcible entry or unlawful detainer
(b) For defamation

(6) Other Actions that Prescribe in 1 Year under


the Civil Code
(a) To recover possession de facto [NCC 554
(4)]
(b) To revoke a donation on the ground of
ingratitude [NCC 769]
(c) To rescind or recover damages if
immovable is sold with non-apparent
burden or servitude [NCC 1560 (3,4)]
(d) To enforce warranty of solvency in
assignment credits [NCC 629]

(7) Where Periods of Other Actions Not Fixed in


the Civil Code and in Other Laws
All other actions whose periods are not fixed
in the Civil Code or in other laws must be
brought within 5 years from the time the
right of action accrues. [NCC 1149]

(8) Interruption [NCC 1155]


The prescription of actions is interrupted
when:
(a) They are filed before the court
(b) When there is a written extrajudicial
demand by the creditors

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Obligations AS TO THE AFFIRMATIVENESS OR


NEGATIVENESS OF THE OBLIGATION
(1) Positive/Affirmative obligation to give or to
IN GENERAL do
(2) Negative obligation not to give or not to do
DEFINITION
AS TO PERSONS OBLIGED
(1) Unilateral only one of the parties is bound
Art. 1156. An obligation is a juridical necessity to (2) Bilateral both parties are bound
give, to do or not to do. (a) Reciprocal performance by one is
dependent on the performance by the
ELEMENTS OF AN OBLIGATION (DE other
LEON) (b) Non-reciprocal performance by one is
(1) Active Subject (Obligee/Creditor) The independent of the other [Paras]
person who has the right or power to
demand the prestation. SOURCES OF OBLIGATIONS
(2) Passive Subject (Obligor/Debtor) The
person bound to perform the prestation. Art. 1157. Obligations arise from:
(3) Prestation (Object) The conduct required to (1) Law;
be observed by the debtor/obligor (to give, to (2) Contracts;
do, or not to do). (3) Quasi-contracts;
(4) Vinculum Juris (Juridical Or Legal Tie; (4) Acts or omissions punished by law; and
Efficient Cause) That which binds or (5) Quasi-delicts.
connects the parties to the obligation.
A SINGLE ACT OR OMISSION MAY GIVE RISE
DIFFERENT KINDS OF PRESTATIONS TO DIFFERENT CAUSES OF ACTION
(1) To Give real obligation; to deliver either A concurrence of scope in regard to negligent
a specific or determinate thing, or acts does not destroy the distinction between
a generic or indeterminate thing. the civil liability arising from a crime and the
(2) To Do positive personal obligation; responsibility for cuasi-delitos or culpa extra-
includes all kinds of work or service. contractual. The same negligent act causing
(3) Not To Do negative personal obligation; to damages may produce civil liability arising from
abstain from doing an act; includes the a crime... or create an action for cuasi-delito or
obligation not to give. culpa extra-contractual. [Barredo vs. Garcia
(1942)]
CLASSIFICATION OF OBLIGATIONS
AS TO SANCTION
(1) Civil Obligation (or perfect obligation) the
sanction is judicial process
(2) Natural Obligation the sanction is the law
(3) Moral Obligation (or imperfect obligation)
the sanction is conscience or morality

AS TO SUBJECT MATTER
(1) Real obligation to give
(2) Personal obligation to do or not to do

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NATURE AND EFFECT OF Duties of the Debtor Rights of the Creditor


To Give a Generic Thing
OBLIGATIONS (1) To take care of (1) To ask that the
the thing [Art. 1163] obligation be
OBLIGATION TO GIVE (2) To deliver a complied with [Art.
thing of the quality 1165]
Limited intended by the (2) To ask that the
Specific Thing Generic Thing
Generic Thing parties taking into obligation be
Particularly Object is When the consideration the complied with by a
designated or designated generic purpose of the third person at the
physically only by its objects are obligation and other expense of the debtor
segregated class/ genus/ confined to a circumstances [Art. (3) To recover
from all species. particular 1246] damages in case of
others of the class. (3) Creditor breach [Art. 1165]
same class cannot demand a (4) Not to be
[Art. 1460]; thing of superior compelled to receive a
Identified by quality; neither can different one,
individuality. the debtor deliver a although of the same
Cannot be Can be thing of inferior value as, or more
substituted substituted by quality. valuable than that
any of the (4) To pay which is due [Art. 1244]
same class damages in case of
and same breach [Art. 1170]
kind.
OBLIGATION TO DO OR NOT TO DO
RIGHTS AND DUTIES OF PARTIES RIGHTS AND DUTIES OF PARTIES
Duties of the Debtor Rights of the Creditor Duties of the Debtor Rights of the Creditor
To Give a Specific Thing To Do
(1) To preserve or take (1) To compel delivery (1) To do it [Art. 1167] (1) To compel
care of the thing [Art. 1165] (2) To shoulder the performance
due [Art. 1163] (2) To recover cost of execution (2) To recover
(2) To deliver the thing damages in case of should he fail to do damages in case of
itself [Art. 1165] breach, exclusive or it [Art. 1167] breach [Art. 1170]
(3) To deliver the fruits in addition to (3) To undo what has
of the thing [Art. specific been poorly done
1164] performance [Art. [Art. 1167]
(4) To deliver its 1165; 1170] (4) To pay damages in
accessions and (3) Entitlement to case of breach [Art.
accessories [Art. fruits from the time 1170]
1166] the obligation to Not To Do
(5) To pay damages in deliver arises [Art. (1) Not to do what (1) To ask to undo
case of breach [Art. 1164] should not be done what should not be
1170] (4) Not to be (2) To shoulder cost of done
compelled to undoing what (2) To recover
receive a different should not have damages, where it
one, although of been done [Art. would be physically
the same value as, 1168] or legally
or more valuable (3) To pay damages in impossible to undo
than that which is case of breach [Art. what should not
due [Art. 1244] 1170] have been done,
because of :

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Duties of the Debtor Rights of the Creditor Unilateral Obligations Reciprocal Obligations
Not To Do (Continued) Those obliged to No delay if neither
(a) the very nature of deliver or to do performs.
the act itself; something incur in
(b) rights acquired by delay from the time
third persons who the obligee judicially
acted in good faith; or extrajudicially
(c) when the effects of demands from them
the acts prohibited the fulfillment of their
are definite in obligation. [Art. 1169
character and will par 1]
not cease even if
the thing Demand may be judicial or extrajudicial.
prohibited be
undone. When demand is necessary in order that
delay may exist [Art. 1169 par 2]
BREACH (1) When the obligation or the law expressly so
declare
Art. 1170. Those who in the performance of their (2) When from the nature and the circumstances
obligations are guilty of fraud, negligence, or of the obligation it appears that the
delay, and those who in any manner contravene designation of the time when the thing is to
the tenor thereof, are liable for damages. be delivered or the service is to be rendered
was a controlling motive for the
COMPLETE FAILURE TO PERFORM establishment of the contract; OR
(3) When demand would be useless, as when
Substantial Breach Slight or Casual Breach the obligor has rendered it beyond his power
(1) Total breach (1) Partial breach to perform.
(2) Amounts to (2) There is
non-performance, partial/ substantial Kinds of delay; requisites and effects
basis for rescission performance in good (1) Mora Solvendi
(resolution) under Art. faith (2) Mora Accipiendi
1191 and payment of (3) Gives rise to (3) Compensatio Morae
damages liability for damages
only [Art. 1234] Mora solvendi Delay on the part of the debtor
to fulfil his obligation either to give (ex re) or to
DEFAULT, DELAY, OR MORA do (ex persona).
Failure to perform an obligation on time which
constitutes breach of the obligation. [De Leon] Requisites:
Rules on default, delay, or mora (1) Obligation must be liquidated, due and
Unilateral Obligations Reciprocal Obligations demandable.
General Rule: Neither party incurs in (2) Non-performance by the debtor within the
No demand, no delay if the other does period agreed upon.
delay. not comply or is not (3) Demand, judicial or extra-judicial, by the
ready to comply in a creditor.
The mere expiration of proper manner with
the period fixed by the what is incumbent There is no mora solvendi in:
parties is not enough upon him. From the (1) Negative obligations because delay is
in order that the moment one of the impossible [De Leon]
debtor may incur in parties fulfills his (2) Natural obligations [Tolentino]
delay. obligation, delay by
the other begins. [Art.
1169 par 3]

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Effects: FRAUD (DOLO) IN THE PERFORMANCE OF


(1) The debtor is liable for damages. THE OBLIGATION
(2) The debtor is liable even if the loss is due to
fortuitous events. Art. 1171. Responsibility arising from fraud is
(3) For determinate objects, the debtor shall demandable in all obligations. Any waiver of an
bear the risk of loss. action for future fraud is void.
Mora accipiendi Delay on the part of the Fraud (dolo) is the deliberate or intentional
creditor to accept the performance of the evasion of the normal fulfilment of an
obligation. obligation. [De Leon]
Requisites: A waiver of future fraud is void but a past fraud
(1) Debtor offers performance. may be subject of a valid waiver by the
(2) Offer must be in compliance with the aggrieved party. [De Leon]
prestation.
(3) Creditor refuses performance without just Distinguished from Casual Fraud
cause.
Fraud in the
Effects: Casual Fraud
Performance
(1) The responsibility of the debtor is reduced to (dolo causante)
(dolo incidente)
fraud and gross negligence. [Arts. 1338, 1344]
[Art. 1170]
(2) The debtor is exempted from risk of loss of Present during the Present during the
the thing which is borne by the creditor. performance of a pre- time of birth or
(3) The expenses incurred by the debtor for the existing obligation perfection of the
preservation of the thing after the mora shall obligation
be chargeable to the creditor.
Purpose is to evade Purpose is to secure
(4) If the obligation bears interest, the debtor
normal fulfilment of consent of another to
does not have to pay from the time of delay.
obligation enter the contract
(5) The creditor is liable for damages.
Results in breach Results in vitiation of
(6) The debtor may relieve himself of the
consent
obligation by consigning the thing.
Obligee may recover Innocent party may
damages [Art. 1344] annul the contract
Compensatio morae Delay of both parties in
reciprocal obligations. Valid obligation Voidable obligation

Effects: In order that fraud may vitiate consent, it must


(1) Delay of the obligor cancels delay of obligee be the dolo causante and not merely the dolo
(and vice versa) hence it is as if there is no incidente, inducement to the making of the
default. contract. The false representation was used by
(2) The liability of the first infractor shall be plaintiff to get from defendant a bigger share of
equitably tempered by the courts. If it cannot net profits. This is just incidental to the matter
be determined which of the parties first in agreement. Because despite plaintiffs deceit,
violated the contract, the same shall be respondent would have still entered into the
deemed extinguished, and each shall bear contract. [Woodhouse vs. Halili (1953)]
his own damages. [Art. 1192]

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NEGLIGENCE (CULPA) IN THE Hotel and Inn-keepers


PERFORMANCE OF THE OBLIGATION
Art. 1998. The deposit of effects made by
Art. 1172. Responsibility arising from negligence travellers in hotels or inns shall also be
in the performance of every kind of obligation is regarded as necessary. The keepers of hotels or
also demandable, but such liability may be inns shall be responsible for them as
regulated by the courts, according to the depositaries, provided that notice was given to
circumstances. them, or to their employees, of the effects
brought by the guests and that, on the part of
The fault or negligence of the obligor consists in the latter, they take the precautions which said
the omission of that diligence which is required hotel-keepers or their substitutes advised
by the nature of the obligation and corresponds relative to the care and vigilance of their effects.
with the circumstances of the persons, of the
time and of the place. [Art. 1173] Art. 1999. The hotel-keeper is liable for the
vehicles, animals and articles which have been
Diligence Required [De Leon] introduced or placed in the annexes of the
(1) By stipulation of the parties hotel.
(2) By law, in the absence of stipulation
Diligence of a good father of a family, if both the
contract and law are silent. [Art. 1173 par 2] Art. 2000. The responsibility referred to in the
(3) Future negligence may be waived except in two preceding articles shall include the loss of,
cases where the nature of the obligation or or injury to the personal property of the guests
the public requires another standard of care caused by the servants or employees of the
(i.e. common carriers) keepers of hotels or inns as well as strangers;
but not that which may proceed from any force
Exceptions: majeure. The fact that travellers are constrained
to rely on the vigilance of the keeper of the
Common Carriers hotels or inns shall be considered in
determining the degree of care required of him.

Art. 1733. Common carriers, from the nature of


Art. 2001. The act of a thief or robber, who has
their business and for reasons of public policy,
entered the hotel is not deemed force majeure,
are bound to observe extraordinary diligence in
unless it is done with the use of arms or through
the vigilance over the goods and for the safety
an irresistible force.
of the passengers transported by them,
according to all the circumstances of each case.
Art. 2002. The hotel-keeper is not liable for
Such extraordinary diligence in the vigilance compensation if the loss is due to the acts of the
over the goods is further expressed in articles guest, his family, servants or visitors, or if the
1734, 1735, and 1745, Nos. 5, 6, and 7, while the loss arises from the character of the things
extraordinary diligence for the safety of the brought into the hotel.
passengers is further set forth in articles 1755
and 1756. Test of Negligence
Did the defendant in doing the alleged
negligent act use the reasonable care and
caution, which an ordinary and prudent person
would have used in the same situation? If not,
then he is guilty of negligence. [Mandarin Villa
Inc. vs. CA (1996)]

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Kinds of Civil Negligence


In any manner contravenes the tenor means
any illicit act, which impairs the strict and
Culpa Contractual Culpa Aquiliana
faithful fulfillment of the obligation, or every
Negligence is merely Negligence is kind of defective performance. [Tolentino]
incidental in the substantive and
performance of an independent. LEGAL EXCUSE FOR BREACH:
obligation. FORTUITOUS EVENT
There is always a pre- There may or may not
existing contractual be a pre-existing
relation. contractual obligation. Art. 1174. Except in cases expressly specified by
The source of The source of the law, or when it is otherwise declared by
obligation of obligation is the stipulation, or when the nature of the obligation
defendant to pay defendants requires the assumption of risk, no person shall
damages is the breach negligence itself. be responsible for those events which could not
or non-fulfillment of be foreseen, or which, though foreseen, were
the contract. inevitable.
Proof of the existence The negligence of the
of the contract and of defendant must be A happening independent of the will of the
its breach or non- proved. debtor and which makes the normal fulfillment
fulfillment is sufficient of the obligation impossible. [De Leon]
prima facie to warrant (1) Act of God: An accident, due directly or
recovery. exclusively to natural causes without human
Proof of diligence in Proof of diligence in intervention, which by no amount of
the selection and the selection and foresight, pains or care, reasonably to have
supervision of the supervision of the been expected, could have been prevented.
employees is NOT employee is a defense. (2) Act of Man: Force majeure is a superior or
available as defense. irresistible force, which is essentially an act of
man; includes unavoidable accidents, even if
Extent of Damages to be Awarded [Art. 2201] there has been an intervention of human
element, provided that no fault or negligence
Good Faith Bad Faith can be imputed to the debtor.
Obligor is liable for Obligor shall be
those that are the responsible for all LIABILITY IN CASE OF FORTUITOUS EVENT
natural and probable damages which may No person shall be responsible for fortuitous
consequences of the be reasonably events, UNLESS:
breach of the attributed to the non- (1) expressly specified by law [Arts. 552 par. 2,
obligation, and which performance of the 1942, 2147, 2148, 2159]
the parties have obligation. (2) liability specified by stipulation
foreseen or could have (3) the nature of the obligations requires
assumption of risk [Art. 1174]
reasonably foreseen at Any waiver or
the time the obligation renunciation made in (4) debtor is guilty of concurrent or contributory
negligence
was constituted. the anticipation of
such liability is null (5) debtor has promised to deliver the same
and void. thing to two or more persons who do not
have the same interest [Art. 1165 par. 3]
CONTRAVENTION OF THE TENOR OF THE (6) the thing is lost due to the obligors fraud,
negligence, delay or contravention of the
OBLIGATION
This refers to a violation of the terms and tenor of the obligation [Art. 1170]
(7) the obligation to deliver a specific thing
conditions stipulated in the obligation, which
arises from a crime [Art. 1268]
must not be due to a fortuitous event or force
majeure. [De Leon]

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(8) the object is a generic thing, i.e. the genus DISTINGUISHED FROM RESCISSION UNDER
never perishes ART. 1380

REQUISITES OF EXEMPTION BASED ON Rescission / Resolution


Rescission [Art. 1380]
FORCE MAJEURE [Art. 1191]
(1) The event must be independent of the Based on non- Based on lesion or
debtors will (fraud or negligence). performance or non- fraud upon creditors.
(2) The event must be unforeseeable or fulfillment of obligation.
inevitable. Action is instituted only Action is instituted by
(3) The event renders it impossible for debtor to by the injured party. either party or by a
fulfill his obligation in a normal manner. third person.
(4) The debtor must be free from any In some cases, court Court cannot grant a
participation in the aggravation of the injury may grant a term. period or term within
to the creditor [Tolentino (1987); De Leon which one must
(2003)] comply.
(5) It must be the only and sole cause, not Non-performance by the Non-performance by
merely a proximate cause. other party is important. the other party is
immaterial.
REMEDIES AVAILABLE IN CASE OF
BREACH DAMAGES, IN ANY EVENT

SPECIFIC PERFORMANCE Art. 1170. Those who in the performance of their


The creditor has a right to compel the debtor to obligations are guilty of fraud, negligence, or
perform the prestation. delay, and those who in any manner contravene
SUBSTITUTED PERFORMANCE the tenor thereof, are liable for damages.
A third person may perform anothers obligation
to deliver a generic thing or an obligation to do, SUBSIDIARY REMEDIES OF CREDITORS
unless it is a purely personal act, at the expense
of the debtor. Accion Subrogatoria Right of the creditor to
exercise all of the rights and bring all the
RESCISSION (RESOLUTION IN RECIPROCAL actions which his debtor may have against third
OBLIGATIONS) persons.
Art. 1191. The power to rescind obligations is The creditors, after having pursued the property
implied in reciprocal ones, in case one of the in possession of the debtor to satisfy their
obligors should not comply with what is claims, may exercise all the rights and bring all
incumbent upon him. the actions of the latter for the same purpose,
The injured party may choose between the save those which are inherent in his person.
fulfilment and the rescission of the obligation, [Art.1177]
with the payment of damages in either case. He
may also seek rescission, even after he has Requisites:
chosen fulfilment, if the latter should become (1) The person to whom the right of action
impossible. pertains must be indebted to the creditor
The court shall decree the rescission claimed, (2) The debt is due and demandable
unless there be just cause authorizing the fixing (3) The creditor must be prejudiced by the
of a period. failure of the debtor to collect his debts due
him from third persons, either through
This is understood to be without prejudice to the malice or negligence
rights of third persons who have acquired the (4) The debtors assets are insufficient (debtor is
thing, in accordance with articles 1385 and 1388 insolvent)
and the Mortgage Law.

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(5) The right of action is not purely personal to Payments of rent in advance by the sublessee
the debtor shall be deemed not to have been made, so far
as the lessor's claim is concerned, unless said
Accion Pauliana Rescission, which involves the payments were effected in virtue of the custom
right of the creditor to attack or impugn by of the place.
means of rescissory action any act of the debtor
whi